CRIMINAL LAW FULL CASES
G.R. No. L-409             January 30, 1947
ANASTACIO LAUREL, petitioner, 
vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for
respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court,
acting on the petition for habeas corpus filed by Anastacio Laurel and
based on a theory that a Filipino citizen who adhered to the enemy
giving the latter aid and comfort during the Japanese occupation
cannot be prosecuted for the crime of treason defined and penalized
by article 114 of the Revised Penal Code, for the reason (1) that the
sovereignty of the legitimate government in the Philippines and,
consequently, the correlative allegiance of Filipino citizens thereto was
then suspended; and (2) that there was a change of sovereignty over
these Islands upon the proclamation of the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and
temporary, but an absolute and permanent allegiance, which consists
in the obligation of fidelity and obedience to his government or
sovereign; and that this absolute and permanent allegiance should not
be confused with the qualified and temporary allegiance which a
foreigner owes to the government or sovereign of the territory
wherein he resides, so long as he remains there, in return for the
protection he receives, and which consists in the obedience to the laws
of the government or sovereign. (Carlisle vs. Unite States, 21 Law. ed.,
429; Secretary of State Webster Report to the President of the United
States in the case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy of their legitimate
government or sovereign is not abrogated or severed by the enemy
occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier, as we
have held in the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil.,
285), and if it is not transferred to the occupant it must necessarily
remain vested in the legitimate government; that the sovereignty
vested in the titular government (which is the supreme power which
governs a body politic or society which constitute the state) must be
distinguished from the exercise of the rights inherent thereto, and may
be destroyed, or severed and transferred to another, but it cannot be
suspended because the existence of sovereignty cannot be suspended
without putting it out of existence or divesting the possessor thereof at
least during the so-called period of suspension; that what may be
suspended is the exercise of the rights of sovereignty with the control
and government of the territory occupied by the enemy passes
temporarily to the occupant; that the subsistence of the sovereignty of
the legitimate government in a territory occupied by the military forces
of the enemy during the war, "although the former is in fact prevented
from exercising the supremacy over them" is one of the "rules of
international law of our times"; (II Oppenheim, 6th Lauterpacht ed.,
1944, p. 482), recognized, by necessary implication, in articles 23, 44,
45, and 52 of Hague Regulation; and that, as a corollary of the
conclusion that the sovereignty itself is not suspended and subsists
during the enemy occupation, the allegiance of the inhabitants to their
legitimate government or sovereign subsists, and therefore there is no
such thing as suspended allegiance, the basic theory on which the
whole fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United
State was suspended in Castine, set forth in the decision in the case of
United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and
quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan Keh
and Dizon and Peralta vs. Director of Prisons, supra, in connection with
the question, not of sovereignty, but of the existence of a
government de facto therein and its power to promulgate rules and
laws in the occupied territory, must have been based, either on the
theory adopted subsequently in the Hague Convention of 1907, that
the military occupation of an enemy territory does not transfer the
sovereignty to the occupant; that, in the first case, the word
"sovereignty" used therein should be construed to mean the exercise
of the rights of sovereignty, because as this remains vested in the
legitimate government and is not transferred to the occupier, it cannot
be suspended without putting it out of existence or divesting said
government thereof; and that in the second case, that is, if the said
conclusion or doctrine refers to the suspension of the sovereignty
itself, it has become obsolete after the adoption of the Hague
Regulations in 1907, and therefore it can not be applied to the present
case;
Considering that even adopting the words "temporarily allegiance,"
repudiated by Oppenheim and other publicists, as descriptive of the
relations borne by the inhabitants of the territory occupied by the
enemy toward the military government established over them, such
allegiance may, at most, be considered similar to the temporary
allegiance which a foreigner owes to the government or sovereign of
the territory wherein he resides in return for the protection he receives
as above described, and does not do away with the absolute and
permanent allegiance which the citizen residing in a foreign country
owes to his own government or sovereign; that just as a citizen or
subject of a government or sovereign may be prosecuted for and
convicted of treason committed in a foreign country, in the same way
an inhabitant of a territory occupied by the military forces of the
enemy may commit treason against his own legitimate government or
sovereign if he adheres to the enemies of the latter by giving them aid
and comfort; and that if the allegiance of a citizen or subject to his
government or sovereign is nothing more than obedience to its laws in
return for the protection he receives, it would necessarily follow that a
citizen who resides in a foreign country or state would, on one
hand, ipso facto acquire the citizenship thereof since he has enforce
public order and regulate the social and commercial life, in return for
the protection he receives, and would, on the other hand, lose his
original citizenship, because he would not be bound to obey most of
the laws of his own government or sovereign, and would not receive,
while in a foreign country, the protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of the
rights of sovereignty by the legitimate government in the territory
occupied by the enemy military forces, because the authority of the
legitimate power to govern has passed into the hands of the occupant
(Article 43, Hague Regulations), the political laws which prescribe the
reciprocal rights, duties and obligation of government and citizens, are
suspended or in abeyance during military occupation (Co Kim
cham vs. Valdez Tan Keh and dizon, supra), for the only reason that as
they exclusively bear relation to the ousted legitimate government,
they are inoperative or not applicable to the government established
by the occupant; that the crimes against national security, such as
treason and espionage; inciting to war, correspondence with hostile
country, flight to enemy's country, as well as those against public
order, such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear relation
to, and are penalized by our Revised Penal Code as crimes against the
legitimate government, are also suspended or become inapplicable as
against the occupant, because they can not be committed against the
latter (Peralta vs.Director of Prisons, supra); and that, while the
offenses against public order to be preserved by the legitimate
government were inapplicable as offenses against the invader for the
reason above stated, unless adopted by him, were also inoperative as
against the ousted government for the latter was not responsible for
the preservation of the public order in the occupied territory, yet
article 114 of the said Revised Penal Code, was applicable to treason
committed against the national security of the legitimate government,
because the inhabitants of the occupied territory were still bound by
their allegiance to the latter during the enemy occupation;
Considering that, although the military occupant is enjoined to respect
or continue in force, unless absolutely prevented by the circumstances,
those laws that enforce public order and regulate the social and
commercial life of the country, he has, nevertheless, all the powers
of de facto government and may, at his pleasure, either change the
existing laws or make new ones when the exigencies of the military
service demand such action, that is, when it is necessary for the
occupier to do so for the control of the country and the protection of
his army, subject to the restrictions or limitations imposed by the
Hague Regulations, the usages established by civilized nations, the laws
of humanity and the requirements of public conscience
(Peralta vs. Director of Prisons, supra; 1940 United States Rules of Land
Warfare 76, 77); and that, consequently, all acts of the military
CRIMINAL LAW FULL CASES
occupant dictated within these limitations are obligatory upon the
inhabitants of the territory, who are bound to obey them, and the laws
of the legitimate government which have not been adopted, as well
and those which, though continued in force, are in conflict with such
laws and orders of the occupier, shall be considered as suspended or
not in force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the
obligation of fidelity and obedience of a citizen or subject to his
government or sovereign does not demand from him a positive action,
but only passive attitude or forbearance from adhering to the enemy
by giving the latter aid and comfort, the occupant has no power, as a
corollary of the preceding consideration, to repeal or suspend the
operation of the law of treason, essential for the preservation of the
allegiance owed by the inhabitants to their legitimate government, or
compel them to adhere and give aid and comfort to him; because it is
evident that such action is not demanded by the exigencies of the
military service or not necessary for the control of the inhabitants and
the safety and protection of his army, and because it is tantamount to
practically transfer temporarily to the occupant their allegiance to the
titular government or sovereign; and that, therefore, if an inhabitant of
the occupied territory were compelled illegally by the military
occupant, through force, threat or intimidation, to give him aid and
comfort, the former may lawfully resist and die if necessary as a hero,
or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended
allegiance would lead to disastrous consequences for small and weak
nations or states, and would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow invaders to
legally recruit or enlist the Quisling inhabitants of the occupied
territory to fight against their own government without the latter
incurring the risk of being prosecuted for treason, and even compel
those who are not aid them in their military operation against the
resisting enemy forces in order to completely subdue and conquer the
whole nation, and thus deprive them all of their own independence or
sovereignty — such theory would sanction the action of invaders in
forcing the people of a free and sovereign country to be a party in the
nefarious task of depriving themselves of their own freedom and
independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide;
(2) Considering that the crime of treason against the government of
the Philippines defined and penalized in article 114 of the Penal Code,
though originally intended to be a crime against said government as
then organized by authority of the sovereign people of the United
States, exercised through their authorized representative, the Congress
and the President of the United States, was made, upon the
establishment of the Commonwealth Government in 1935, a crime
against the Government of the Philippines established by authority of
the people of the Philippines, in whom the sovereignty resides
according to section 1, Article II, of the Constitution of the Philippines,
by virtue of the provision of section 2, Article XVI thereof, which Philippines shall thenceforth be known as the Republic of the
provides that "All laws of the Philippine Islands . . . shall remain Philippines";
operative, unless inconsistent with this Constitution . . . and all
references in such laws to the Government or officials of the Philippine
This Court resolves, without prejudice to write later on a more
Islands, shall be construed, in so far as applicable, to refer to the
extended opinion, to deny the petitioner's petition, as it is hereby
Government and corresponding officials under this constitution;
denied, for the reasons above set forth and for others to be stated in
the said opinion, without prejudice to concurring opinion therein, if
Considering that the Commonwealth of the Philippines was a sovereign any. Messrs. Justices Paras and Hontiveros dissent in a separate
government, though not absolute but subject to certain limitations opinion. Mr. justice Perfecto concurs in a separate opinion.
imposed in the Independence Act and incorporated as Ordinance
appended to our Constitution, was recognized not only by the
Legislative Department or Congress of the United States in approving
the Independence Law above quoted and the Constitution of the
Philippines, which contains the declaration that "Sovereignty resides in
the people and all government authority emanates from them" Separate Opinions
(section 1, Article II), but also by the Executive Department of the
United States; that the late President Roosevelt in one of his messages
to Congress said, among others, "As I stated on August 12, 1943, the PERFECTO, J., concurring:
United States in practice regards the Philippines as having now the
status as a government of other independent nations — in fact all the Treason is a war crime. It is not an all-time offense. It cannot be
attributes of complete and respected nationhood" (Congressional committed in peace time. While there is peace, there are no traitors.
Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by Treason may be incubated when peace reigns. Treasonable acts may
the Supreme Court of the United States in many cases, among them in actually be perpetrated during peace, but there are no traitors until
the case of Jones vs. United States (137 U.S., 202; 34 Law. ed., 691, war has started.
696) that the question of sovereignty is "a purely political question, the
determination of which by the legislative and executive departments of
any government conclusively binds the judges, as well as all other As treason is basically a war crime, it is punished by the state as a
measure of self-defense and self-preservation. The law of treason is an
officers, citizens and subjects of the country.
emergency measure. It remains dormant until the emergency arises.
But as soon as war starts, it is relentlessly put into effect. Any
Considering that section I (1) of the Ordinance appended to the lukewarm attitude in its enforcement will only be consistent with
Constitution which provides that pending the final and complete nationalharakiri. All war efforts would be of no avail if they should be
withdrawal of the sovereignty of the United States "All citizens of the allowed to be sabotaged by fifth columnists, by citizens who have sold
Philippines shall owe allegiance to the United States", was one of the their country out to the enemy, or any other kind of traitors, and this
few limitations of the sovereignty of the Filipino people retained by the would certainly be the case if he law cannot be enforced under the
United States, but these limitations do not away or are not inconsistent theory of suspension.
with said sovereignty, in the same way that the people of each State of
the Union preserves its own sovereignty although limited by that of the
United States conferred upon the latter by the States; that just as to Petitioner's thesis that allegiance to our government was suspended
during enemy occupation is advanced in support of the proposition
reason may be committed against the Federal as well as against the
State Government, in the same way treason may have been committed that, since allegiance is identical with obedience to law, during the
enemy occupation, the laws of the Commonwealth were suspended.
during the Japanese occupation against the sovereignty of the United
States as well as against the sovereignty of the Philippine Article 114 of the Revised Penal Code, the law punishing treason, under
the theory, was one of the laws obedience to which was also
Commonwealth; and that the change of our form of government from
suspended.
Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during the
Commonwealth, because it is an offense against the same government Allegiance has been defined as the obligation for fidelity and obedience
and the same sovereign people, for Article XVIII of our Constitution which the individual owes to his government or his sovereign in return
provides that "The government established by this constitution shall be for the protection which he receives.
known as the Commonwealth of the Philippines. Upon the final and
complete withdrawal of the sovereignty of the United States and the
"Allegiance", as the return is generally used, means fealty or fidelity to
proclamation of Philippine independence, the Commonwealth of the
the government of which the person is either a citizen or subject.
CRIMINAL LAW FULL CASES
Murray vs. The Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed.,
208.
"Allegiance" was said by Mr. Justice Story to be "nothing more than the
tie or duty of obedience of a subject to the sovereign, under whose
protection he is." United States vs. Wong Kim Ark, 18 S. Ct., 461; 169
U.S., 649; 42 Law. ed., 890.
Allegiance is that duty which is due from every citizen to the state, a
political duty binding on him who enjoys the protection of the
Commonwealth, to render service and fealty to the federal
government. It is that duty which is reciprocal to the right of
protection, arising from the political relations between the government
and the citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.
By "allegiance" is meant the obligation to fidelity and obedience which
the individual owes to the government under which he lives, or to his
sovereign, in return for the protection which he receives. It may be an
absolute and permanent obligation, or it may be a qualified and
temporary one. A citizen or subject owes an absolute and permanent
allegiance to his government or sovereign, or at least until, by some
open and distinct act, he renounces it and becomes a citizen or subject
of another government or sovereign, and an alien while domiciled in a
country owes it a temporary allegiance, which is continuous during his
residence. Carlisle vs. United States, 83 U.S. (16 Wall.), 147, 154; 21
Law ed., 426.
"Allegiance," as defined by Blackstone, "is the tie or ligament which
binds the subject to the King, in return for that protection which the
King affords the subject. Allegiance, both expressed and implied, is of
two sorts, the one natural, the other local, the former being perpetual,
the latter temporary. Natural allegiance is such as is due from all men
born within the King's dominions immediately upon their birth, for
immediately upon their birth they are under the King's protection.
Natural allegiance is perpetual, and for this reason, evidently founded
on the nature of government. Allegiance is a debt due from the subject
upon an implied contract with the prince that so long as the one
affords protection the other will demean himself faithfully. Natural-
born subjects have a great variety of rights which they acquire by being
born within the King's liegance, which can never be forfeited but by
their own misbehaviour; but the rights of aliens are much more
circumscribed, being acquired only by residence, and lost whenever
they remove. If an alien could acquire a permanent property in lands,
he must owe an allegiance equally permanent to the King, which would
probably be inconsistent with that which he owes his natural liege lord;
besides, that thereby the nation might, in time, be subject to foreign
influence and feel many other inconveniences." Indians within the
state are not aliens, but citizens owing allegiance to the government of
a state, for they receive protection from the government and are
subject to its laws. They are born in allegiance to the government of
the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words and
Phrases, Permanent ed., 226-227.)
Allegiance. — Fealty or fidelity to the government of which the person
is either a citizen or subject; the duty which is due from every citizen to
the state; a political duty, binding on him who enjoys the protection of
the commonwealth, to render service and fealty to the federal
government; the obligation of fidelity and obedience which the
individual owes to the government or to the sovereign under which he
lives in return for the protection he receives; that duty is reciprocal to
the right of protection he receives; that duty which is reciprocal to the
right of protection, arising from the political relations between the
government and the citizen.
Classification. — Allegiance is of four kinds, namely: (1) Natural
allegiance — that which arises by nature and birth; (2) acquired
allegiance — that arising through some circumstance or act other than
birth, namely, by denization or naturalization; (3) local allegiance-- that
arising from residence simply within the country, for however short a
time; and (4) legal allegiance — that arising from oath, taken usually at
the town or leet, for, by the common law, the oath of allegiance might
be tendered to every one upon attaining the age of twelve years. (3
C.J.S., p.885.)
Allegiance. — the obligation of fidelity and obedience which the
individual owes to the government under which he lives, or to his
sovereign in return for the protection he receives. 15 R.C.L., 140.
(Ballentine Law Dictionary, p. 68.).
"Allegiance," as its etymology indicates, is the name for the tie which
binds the citizen to his state — the obligation of obedience and support
which he owes to it. The state is the political person to whom this liege
fealty is due. Its substance is the aggregate of persons owing this
allegiance. The machinery through which it operates is its government.
The persons who operate this machinery constitute its magistracy. The
rules of conduct which the state utters or enforces are its law, and
manifest its will. This will, viewed as legally supreme, is its sovereignty.
(W.W. Willoughby, Citizenship and Allegiance in Constitutional and
International Law, 1 American Journal of International Law, p. 915.).
The obligations flowing from the relation of a state and its nationals are
reciprocal in character. This principle had been aptly stated by the
Supreme Court of the United States in its opinion in the case of
Luriavs. United States:
Citizenship is membership in a political society and implies a duty of
allegiance on the part of the member and a duty protection on the part
of the society. These are reciprocal obligations, one being a
compensation for the other. (3 Hackworth, Digest of International Law,
1942 ed., p.6.)
Allegiance. — The tie which binds the citizen to the government, in
return for the protection which the government affords him. The duty
which the subject owes to the sovereign, correlative with the
protection received.
It is a comparatively modern corruption of ligeance (ligeantia), which is
derived from liege (ligius), meaning absolute or unqualified. It signified
originally liege fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev.,
47.
xxx     xxx     xxx
Allegiance may be an absolute and permanent obligation, or it may be
a qualified and temporary one; the citizen or subject owes the former
to his government or sovereign, until by some act he distinctly
renounces it, whilst the alien domiciled in the country owes a
temporary and local allegiance continuing during such residence.
(Carlisle vs. United States, 16 Wall. [U.S.], 154; 21 Law. ed., 426. (1
Bouvier's Law Dictionary, p. 179.).
The above quotations express ideas that do not fit exactly into the
Philippine pattern in view of the revolutionary insertion in our
Constitution of the fundamental principle that "sovereignty resides in
the people and all government authority emanates from them."
(Section 1, Article II.) The authorities above quoted, judges and juridical
publicists define allegiance with the idea that sovereignty resides
somewhere else, on symbols or subjects other than the people
themselves. Although it is possible that they had already discovered
that the people and only the people are the true sovereign, their minds
were not yet free from the shackles of the tradition that the powers of
sovereignty have been exercised by princes and monarchs, by sultans
and emperors, by absolute and tyrannical rules whose ideology was
best expressed in the famous words of one of the kings of France:
"L'etat c'est moi," or such other persons or group of persons posing as
the government, as an entity different and in opposition to the people
themselves. Although democracy has been known ever since old
Greece, and modern democracies in the people, nowhere is such
principle more imperative than in the pronouncement embodied in the
fundamental law of our people.
To those who think that sovereignty is an attribute of government, and
not of the people, there may be some plausibility in the proposition
that sovereignty was suspended during the enemy occupation, with
the consequence that allegiance must also have been suspended,
because our government stopped to function in the country. But the
idea cannot have any place under our Constitution. If sovereignty is an
essential attribute of our people, according to the basic philosophy of
Philippine democracy, it could not have been suspended during the
enemy occupation. Sovereignty is the very life of our people, and there
is no such thing as "suspended life." There is no possible middle
situation between life and death. Sovereignty is the very essence of the
CRIMINAL LAW FULL CASES
personality and existence of our people. Can anyone imagine the
possibility of "suspended personality" or "suspended existence" of a
people? In no time during enemy occupation have the Filipino people
ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is
incompatible with our Constitution.
There is similarity in characteristics between allegiance to the
sovereign and a wife's loyalty to her husband. Because some external
and insurmountable force precludes the husband from exercising his
marital powers, functions, and duties and the wife is thereby deprived
of the benefits of his protection, may the wife invoke the theory of
suspended loyalty and may she freely share her bed with the assailant
of their home? After giving aid and comfort to the assailant and
allowing him to enjoy her charms during the former's stay in the
invaded home, may the wife allege as defense for her adultery the
principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of
independence on July 4, 1946, is unacceptable. We have already
decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante) that
the Constitution of the Republic is the same as that of the
Commonwealth. The advent of independence had the effect of
changing the name of our Government and the withdrawal by the
United States of her power to exercise functions of sovereignty in the
Philippines. Such facts did not change the sovereignty of the Filipino
people. That sovereignty, following our constitutional philosophy, has
existed ever since our people began to exist. It has been recognized by
the United States of America, at least since 1935, when President
Roosevelt approved our Constitution. By such act, President Roosevelt,
as spokesman of the American people, accepted and recognized the
principle that sovereignty resides in the people that is, that Philippine
sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long before
the proclamation of independence on July 4, 1946. Since the early part
of the Pacific war, President Quezon had been sitting as representative
of a sovereign people in the Allied War Council, and in June, 1945, the
same Filipino people took part — outstanding and brilliant, it may be
added — in the drafting and adoption of the charter of the United
Nations, the unmistakable forerunner of the future democratic federal
constitution of the world government envisioned by all those who
adhere to the principle of unity of all mankind, the early realization of
which is anxiously desired by all who want to be spared the sufferings,
misery and disaster of another war.
Under our Constitution, the power to suspend laws is of legislative
nature and is lodged in Congress. Sometimes it is delegated to the
Chief Executive, such as the power granted by the Election Code to the
President to suspend the election in certain districts and areas for
strong reasons, such as when there is rebellion, or a public calamity,
but it has never been exercised by tribunals. The Supreme Court has
the power to declare null and void all laws violative of the Constitution,
but it has no power, authority, or jurisdiction to suspend or declare
suspended any valid law, such as the one on treason which petitioner
wants to be included among the laws of the Commonwealth which, by
his theory of suspended allegiance and suspended sovereignty, he
claims have been suspended during the Japanese occupation.
Suppose President Quezon and his government, instead of going from
Corregidor to Australia, and later to Washington, had fled to the
mountains of Luzon, and a group of Filipino renegades should have
killed them to serve the interests of the Japanese imperial forces. By
petitioner's theory, those renegades cannot be prosecuted for treason
or for rebellion or sedition, as the laws punishing them were
suspended. Such absurd result betrays the untenability of the theory.
"The defense of the State is a prime duty of Government, and in the
fulfillment of that duty all citizens may be required by law to render
personal, military or civil service." Thus, section 2 of Article II of the
Constitution provides: That duty of defense becomes more imperative
in time of war and when the country is invaded by an aggressor nation.
How can it be fulfilled if the allegiance of the citizens to the sovereign
people is suspended during enemy occupation? The framers of the
Constitution surely did not entertain even for the moment the
absurdity that when the allegiance of the citizens to the sovereign
people is more needed in the defense of the survival of the state, the
same should be suspended, and that upon such suspension those who
may be required to render personal, military or civil service may claim
exemption from the indispensable duty of serving their country in
distress.
Petitioner advances the theory that protection in the consideration of
allegiance. He argues that the Commonwealth Government having
been incapacitated during enemy occupation to protect the citizens,
the latter were relieved of their allegiance to said government. The
proposition is untenable. Allegiance to the sovereign is an
indispensable bond for the existence of society. If that bond is
dissolved, society has to disintegrate. Whether or not the existence of
the latter is the result of the social compact mentioned by Roseau,
there can be no question that organized society would be dissolved if it
is not united by the cohesive power of the citizen's allegiance. Of
course, the citizens are entitled to the protection of their government,
but whether or not that government fulfills that duty, is immaterial to
the need of maintaning the loyalty and fidelity of allegiance, in the
same way that the physical forces of attraction should be kept
unhampered if the life of an individual should continue, irrespective of
the ability or inability of his mind to choose the most effective
measures of personal protection.
After declaring that all legislative, executive, and judicial processes had
during and under the Japanese regime, whether executed by the
Japanese themselves or by Filipino officers of the puppet government
they had set up, are null and void, as we have done in our opinions
in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113), in Peralta
vs. Director of Prison (75, Phil., 285), and in several other cases where
the same question has been mentioned, we cannot consistently accept
petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were
null and void, and as we cannot imagine the existence of organized
society, such as the one constituted by the Filipino people, without
laws of the Commonwealth were the ones in effect during the
occupation and the only ones that could claim obedience from our
citizens.
Petitioner would want us to accept the thesis that during the
occupation we owed allegiance to the enemy. To give way to that
paradoxical and disconcerting allegiance, it is suggested that we accept
that our allegiance to our legitimate government was suspended.
Petitioner's proposition has to fall by its own weight, because of its
glaring absurdities. Allegiance, like its synonyms, loyalty and fidelity, is
based on feelings of attraction, love, sympathy, admiration, respect,
veneration, gratitude, amity, understanding, friendliness. These are the
feelings or some of the feelings that bind us to our own people, and are
the natural roots of the duty of allegiance we owe them. The enemy
only provokes repelling and repulsive feelings — hate, anger, vexation,
chagrin, mortification, resentment, contempt, spitefulness. The natural
incompatibility of political, social and ethical ideologies between our
people and the Japanese, making impossible the existence of any
feeling of attraction between them, aside from the initial fact that the
Japanese invaded our country as our enemy, was aggravated by the
morbid complexities of haughtiness, braggadocio and beastly brutality
of the Nippon soldiers and officers in their dealings with even the most
inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our face,
offer him the other to be further slapped, may appear to be divinely
charitable, but to make them a reality, it is necessary to change human
nature. Political actions, legal rules and judicial decisions deal with
human relations, taking man as he is, not as he should be. To love the
enemy is not natural. As long as human pyschology remains as it is, the
enemy shall always be hated. Is it possible to conceive an allegiance
based on hatred?
The Japanese, having waged against us an illegal war condemned by
prevailing principles of international law, could not have established in
our country any government that can be legally recognized as de facto.
They came as bandits and ruffians, and it is inconceivable that banditry
and ruffianism can claim any duty of allegiance — even a temporary
one — from a decent people.
CRIMINAL LAW FULL CASES
One of the implications of petitioner's theory, as intimated
somewhere, is that the citizens, in case of invasion, are free to do
anything not forbidden by the Hague Conventions. Anybody will notice
immediately that the result will be the doom of small nations and
peoples, by whetting the covetousness of strong powers prone on
imperialistic practices. In the imminence of invasion, weak-hearted
soldiers of the smaller nations will readily throw away their arms to
rally behind the paladium of the invaders.
Two of the three great departments of our Government have already
rejected petitioner's theory since September 25, 1945, the day when
Commonwealth Act No. 682 took effect. By said act, creating the
People's Court to try and decide all cases of crime against national
security "committed between December 8, 1941 and September 2,
1945," (section 2), the legislative and executive departments have
jointly declared that during the period above mentioned, including the
time of Japanese occupation, all laws punishing crimes against national
security, including article 114 of the Revised Penal Code, punishing
treason, had remained in full effect and should be enforced.
That no one raised a voice in protest against the enactment of said act
and that no one, at the time the act was being considered by the
Senate and the House of Representatives, ever dared to expose the
uselessness of creating a People's Court to try crime which, as claimed
by petitioner, could not have been committed as the laws punishing
them have been suspended, is a historical fact of which the Supreme
Court may take judicial notice. This fact shows universal and
unanimous agreement of our people that the laws of the
Commonwealth were not suspended and that the theory of suspended
allegiance is just an afterthought provoked by a desperate effort to
help quash the pending treason cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it
is based on generally accepted principles of international law, although
this argument becomes futile by petitioner's admission that the theory
is advantageous to strong powers but harmful to small and weak
nations, thus hinting that the latter cannot accept it by heart. Suppose
we accept at face value the premise that the theories, urged by
petitioner, of suspended allegiance and suspended sovereignty are
based on generally accepted principles of international law. As the
latter forms part of our laws by virtue of the provisions of section 3 of
Article II of the Constitution, it seems that there is no alternative but to
accept the theory. But the theory has the effect of suspending the
laws, especially those political in nature. There is no law more political
in nature than the Constitution of the Philippines. The result is an
inverted reproduction of the Greek myth of Saturn devouring his own
children. Here, under petitioner's theory, the offspring devours its
parent.
Can we conceive of an instance in which the Constitution was
suspended even for a moment?
There is conclusive evidence that the legislature, as policy-determining
agency of government, even since the Pacific war started on December
7, 1941, intimated that it would not accept the idea that our laws
should be suspended during enemy occupation. It must be
remembered that in the middle of December, 1941, when Manila and
other parts of the archipelago were under constant bombing by
Japanese aircraft and enemy forces had already set foot somewhere in
the Philippines, the Second National Assembly passed Commonwealth
Act No. 671, which came into effect on December 16, 1941. When we
approved said act, we started from the premise that all our laws shall
continue in effect during the emergency, and in said act we even went
to the extent of authorizing the President "to continue in force laws
and appropriations which would lapse or otherwise become
inoperative," (section 2, [d]), and also to "promulgate such rules and
regulations as he may deem necessary to carry out the national policy,"
(section 2), that "the existence of war between the United States and
other countries of Europe and Asia, which involves the Philippines,
makes it necessary to invest the President with extraordinary powers in
order to meet the resulting emergency." (Section 1.) To give emphasis
to the intimation, we provided that the rules and regulations provided
"shall be in force and effect until the Congress of the Philippines shall
otherwise provide," foreseeing the possibility that Congress may not
meet as scheduled as a result of the emergency, including invasion and
occupation by the enemy. Everybody was then convinced that we did
not have available the necessary means of repelling effectivity the
enemy invasion.
Maybe it is not out of place to consider that the acceptance of
petitioner's theory of suspended allegiance will cause a great injustice
to those who, although innocent, are now under indictment for
treason and other crimes involving disloyalty to their country, because
their cases will be dismissed without the opportunity for them to
revindicate themselves. Having been acquitted upon a mere legal
technicality which appears to us to be wrong, history will
indiscriminality classify them with the other accused who were really
traitors to their country. Our conscience revolts against the idea of
allowing the innocent ones to go down in the memory of future
generations with the infamous stigma of having betrayed their own
people. They should not be deprived of the opportunity to show
through the due process of law that they are free from all blame and
that, if they were really patriots, they acted as such during the critical
period of test.
HILADO, J., concurring:
I concur in the result reached in the majority opinion to the effect that
during the so-called Japanese occupation of the Philippines (which was
nothing more than the occupation of Manila and certain other specific
regions of the Islands which constituted the minor area of the
Archipelago) the allegiance of the citizens of this country to their
legitimate government and to the United States was not suspended, as
well as the ruling that during the same period there was no change of
sovereignty here; but my reasons are different and I proceed to set
them forth:
I. SUSPENDED ALLEGIANCE.
(a) Before the horror and atrocities of World War I, which were
multiplied more than a hundred-fold in World War II, the nations had
evolved certain rules and principles which came to be known as
International Law, governing their conduct with each other and toward
their respective citizens and inhabitants, in the armed forces or civilian
life, in time of peace or in time of war. During the ages which preceded
that first world conflict the civilized governments had no realization of
the potential excesses of which "men's inhumanity to man" could be
capable. Up to that time war was, at least under certain conditions,
considered as sufficiently justified, and the nations had not on that
account, proscribed nor renounced it as an instrument of national
policy, or as a means of settling international disputes. It is not for us
now to dwell upon the reasons accounting for this historical fact.
Suffice it to recognize its existence in history.
But when in World War I civilized humanity saw that war could be, as it
actually was, employed for entirely different reasons and from entirely
different motives, compared to previous wars, and the instruments and
methods of warfare had been so materially changed as not only to
involve the contending armed forces on well defined battlefields or
areas, on land, in the sea, and in the air, but to spread death and
destruction to the innocent civilian populations and to their properties,
not only in the countries engaged in the conflict but also in neutral
ones, no less than 61 civilized nations and governments, among them
Japan, had to formulate and solemnly subscribe to the now famous
Briand-Kellogg Pact in the year 1928. As said by Justice Jackson of the
United States Supreme Court, as chief counsel for the United States in
the prosecution of "Axis war criminals," in his report to President
Truman of June 7, 1945:
International law is not capable of development by legislation, for
there is no continuously sitting international legislature. Innovations
and revisions in international law are brought about by the action of
governments designed to meet a change circumstances. It grows, as
did the common law, through decisions reached from time to time in
adopting settled principles to new situations.
xxx     xxx     xxx
After the shock to civilization of the war of 1914-1918, however, a
marked reversion to the earlier and sounder doctrines of international
law took place. By the time the Nazis came to power it was thoroughly
CRIMINAL LAW FULL CASES
established that launching an aggressive war or the institution of war
by treachery was illegal and that the defense of legitimate warfare was
no longer available to those who engaged in such an enterprise. It is
high time that we act on the juridical principle that aggressive war-
making is illegal and criminal.
The re-establishment of the principle of justifiable war is traceable in
many steps. One of the most significant is the Briand-Kellogg Pact of
1928 by which Germany, Italy, and Japan, in common with the United
States and practically all the nations of the world, renounced war as an
instrument of national policy, bound themselves to seek the settlement
of disputes only by pacific means, and condemned recourse to war for
the solution of international controversies.
Unless this Pact altered the legal status of wars of aggression, it has no
meaning at all and comes close to being an act of deception. In 1932
Mr. Henry L. Stimson, as United States Secretary of State, gave voice to
the American concept of its effect. He said, "war between nations was
renounced by the signatories of the Briand-Kellogg Treaty. This means
that it has become illegal throughout practically the entire world. It is
no longer to be the source and subject of rights. It is no longer to be the
principle around which the duties, the conduct, and the rights of
nations revolve. It is an illegal thing. . . . By that very act we have made
obsolete many legal precedents and have given the legal profession the
task of re-examining many of its Codes and treaties.
This Pact constitutes only one reversal of the viewpoint that all war is
legal and has brought international law into harmony with the common
sense of mankind — that unjustifiable war is a crime.
Without attempting an exhaustive catalogue, we may mention the
Geneva Protocol of 1924 for the Pacific Settlement of International
Disputes, signed by the representatives of forty-eight governments,
which declared that "a war of aggression constitutes .. an International
crime. . . .
The Eight Assembly of the League of Nations in 1927, on unanimous
resolution of the representatives of forty-eight member-nations,
including Germany, declared that a war of aggression constitutes
aninternational crime. At the Sixth Pan-American Conference of 1928,
the twenty-one American Republics unanimously adopted a resolution
stating that "war of aggression constitutes an international
crime against the human species."
xxx     xxx     xxx
We therefore propose to change that a war of aggression is a crime,
and that modern international law has abolished the defense that
those who incite or wage it are engaged in legitimate business. Thus
may the forces of the law be mobilized on the side of peace. ("U.S.A. —
An American Review," published by the United States Office of War
Information, Vol. 2, No. 10; emphasis supplied.).
When Justice Jackson speaks of "a marked reversion to the earlier and
sounder doctrines of international law" and "the re-establishment of
the principle of justifiable war," he has in mind no other than "the
doctrine taught by Grotius, the father of international law, that there is
a distinction between the just and the unjust war — the war of defense
and the war of aggression" to which he alludes in an earlier paragraph
of the same report.
In the paragraph of said report immediately preceding the one last
above mentioned Justice Jackson says that "international law as taught
in the 19th and the early part of the 20th century generally declared
that war-making was not illegal and no crime at law." But, as he says in
one of the paragraphs hereinabove quoted from that report, the
Briand-Kellogg Pact constitutes a reversal of the view-point that all war
is legal and has brought international law into harmony with the
common sense of mankind — that unjustifiable war is a crime. Then he
mentions as other reversals of the same viewpoint, the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes,
declaring that a war of aggression constitutes an international crime;
the 8th assembly of the League of Nations in 1927, declaring that a war
of aggression constitutes an international crime; and the 6th Pan-
American conference of 1928, which unanimously adopted a resolution
stating that war of aggression constitutes an international crime
against the human species: which enumeration, he says, is not an
attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first,
against the United States, and later, in rapid succession, against other
allied nations, was a war of aggression and utterly unjustifiable. More
aggressive still, and more unjustifiable, as admitted on all sides, was its
attack against the Philippines and its consequent invasion and
occupation of certain areas thereof.
Some of the rules and principles of international law which have been
cited for petitioner herein in support of his theory of suspended
allegiance, have been evolved and accepted during those periods of
the history of nations when all war was considered legal, as stated by
Justice Jackson, and the others have reference to military occupation in
the course of really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years before she
started the aggressive war which threw the entire Pacific area into a
seething cauldron from the last month of 1941 of the first week of
September, 1945, expressly agreed to outlaw, proscribe and renounce
war as an instrument of national policy, and bound herself to seek the
settlement of her disputes with other nations only by pacific means.
Thus she expressly gave her consent to that modification of the then
existing rules and principles of international law governing the matter.
With the modification, all the signatories to the pact necessarily
accepted and bound themselves to abide by all its implications, among
them the outlawing, prescription and renunciation of military
occupation of another nation's territory in the course of a war thus
outlawed, proscribed and renounced. This is only one way of saving
that the rules and principles of international law therefore existing on
the subject of military occupation were automatically abrogated and
rendered ineffective in all future cases of war coming under the ban
and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression constitutes an
international crime; if such a war is an international crime against the
human species: a nation which occupies a foreign territory in the
course of such a war cannot possibly, under any principle of natural or
positive law, acquire or posses any legitimate power or right growing
out or incident to such occupation. Concretely, Japan in criminally
invading the Philippines and occupying certain portions of its territory
during the Pacific war, could not have nor exercise, in the legal sense —
and only this sense should we speak here — with respect to this
country and its citizens, any more than could a burglar breaking
through a man's house pretends to have or to exercise any legal power
or right within that house with respect either to the person of the
owner or to his property. To recognize in the first instance any legal
power or right on the part of the invader, and in the second any legal
power or right on the part of the burglar, the same as in case of a
military occupant in the course of a justifiable war, would be nothing
short of legalizing the crime itself. It would be the most monstrous and
unpardonable contradiction to prosecute, condemn and hang the
appropriately called war criminals of Germany, Italy, and Japan, and at
the same time recognize any lawfulness in their occupation invaded.
And let it not be forgotten that the Philippines is a member of the
United Nations who have instituted and conducted the so-called war
crimes trials. Neither should we lose sight of the further fact that this
government has a representative in the international commission
currently trying the Japanese war criminals in Tokyo. These facts leave
no room for doubt that this government is in entire accord with the
other United Nations in considering the Pacific war started by Japan as
a crime. Not only this, but this country had six years before the
outbreak of the Pacific war already renounced war as an instrument of
national policy (Constitution, Article II, section 2), thus in consequence
adopting the doctrine of the Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong and
improper for this Court to apply to the occupation by Japan of certain
areas of the Philippines during that war the rules and principles of
international law which might be applicable to a military occupation
occurring in the course of a justifiable war. How can this Court
recognize any lawfulness or validity in that occupation when our own
government has sent a representative to said international commission
in Tokyo trying the Japanese "war criminals" precisely for the "crimes
against humanity and peace" committed by them during World War II
of which said occupation was but part and parcel? In such
CRIMINAL LAW FULL CASES
circumstances how could such occupation produce no less an effect
than the suspension of the allegiance of our people to their country and
government?
(b) But even in the hypothesis — and not more than a mere hypothesis
— that when Japan occupied the City of Manila and certain other areas
of the Philippines she was engaged in a justifiable war, still the theory
of suspended allegiance would not hold good. The continuance of the
allegiance owed to a notion by its citizens is one of those high
privileges of citizenship which the law of nations denies to the
occupant the power to interfere with.
. . . His (of occupant) rights are not, however, commensurate with his
power. He is thus forbidden to take certain measures which he may be
able to apply, and that irrespective of their efficacy. The restrictions
imposed upon him are in theory designed to protect the individual in
the enjoyment of some highly important privileges. These concern his
allegiance to the de jure sovereign, his family honor and domestic
relations, religious convictions, personal service, and connection with
or residence in the occupied territory.
The Hague Regulations declare that the occupant is forbidden to
compel the inhabitants to swear allegiance to the hostile power. . . . (III
Hyde, International Law, 2d revised ed., pp. 1898-1899.)
. . . Nor may he (occupant) compel them (inhabitants) to take an oath
of allegiance. Since the authority of the occupant is not sovereignty,
the inhabitants owe no temporary allegiance to him. . . . (II
Oppenheim, International Law, pp. 341-344.)
The occupant's lack of the authority to exact an oath of allegiance from
the inhabitants of the occupied territory is but a corollary of the
continuance of their allegiance to their own lawful sovereign. This
allegiance does not consist merely in obedience to the laws of the
lawful sovereign, but more essentially consists in loyalty or fealty to
him. In the same volume and pages of Oppenheim's work above cited,
after the passage to the effect that the inhabitants of the occupied
territory owe no temporary allegiance to the occupant it is said that
"On the other hand, he may compel them to take an oath —
sometimes called an 'oath of neutrality' — . . . willingly to submit to his
'legitimate commands.' Since, naturally, such "legitimate commands"
include the occupant's laws, it follows that said occupant, where the
rule is applicable, has the right to compel the inhabitants to take an
oath of obedience to his laws; and since according to the same rule, he
cannot exact from the inhabitants an oath of obedience to his laws;
and since, according to the same rule, he cannot exact from the
inhabitants an oath of allegiance, it follows that obedience to his laws,
which he can exact from them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last degree.
To say that when the one's country is unable to afford him in its
protection, he ceases to be bound to it by the sacred ties of allegiance,
is to advocate the doctrine that precisely when his country is in such
distress, and therefore most needs his loyalty, he is absolved from the
loyalty. Love of country should be something permanent and lasting,
ending only in death; loyalty should be its worth offspring. The outward
manifestation of one or the other may for a time be prevented or
thwarted by the irresistible action of the occupant; but this should not
in the least extinguish nor obliterate the invisible feelings, and
promptings of the spirit. And beyond the unavoidable consequences of
the enemy's irresistible pressure, those invisible feelings and
promptings of the spirit of the people should never allow them to act,
to speak, nor even to think a whit contrary to their love and loyalty to
the Fatherland. For them, indicted, to face their country and say to it
that, because when it was overrun and vanquished by the barbarous
invader and, in consequence was disabled from affording them
protection, they were released from their sacred obligation of
allegiance and loyalty, and could therefore freely adhere to its enemy,
giving him aid and comfort, incurring no criminal responsibility
therefor, would only tend to aggravate their crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty
resides in the people and all government authority emanates from
them." The Filipino people are the self-same people before and after
Philippine Independence, proclaimed on July 4, 1946. During the life of
the Commonwealth sovereignty resided in them under the
Constitution; after the proclamation of independence that sovereignty
remained with them under the very same fundamental law. Article
XVIII of the said Constitution stipulates that the government
established thereby shall be known as the Commonwealth of the
Philippines; and that upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine
independence, "The Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines." Under this
provision the Government of the Philippines immediately prior to
independence was essentially to be the identical government
thereafter — only the name of that government was to be changed.
Both before and after the adoption of the Philippine Constitution the
people of the Philippines were and are always the plaintiff in all
criminal prosecutions, the case being entitled: "The People of the
Philippines vs. (the defendant or defendants)." This was already true in
prosecutions under the Revised Penal Code containing the law of
treason. "The Government of the Philippines" spoken of in article 114
of said Code merely represents the people of the Philippines. Said code
was continued, along with the other laws, by Article XVI, section 2, of
the Constitution which constitutional provision further directs that "all
references in such laws to the Government or officials of the Philippine
Islands shall be construed, in so far as applicable, to refer to the
Government and corresponding officials under this Constitution" — of
course, meaning the Commonwealth of the Philippines before, and the
Republic of the Philippines after, independence (Article XVIII). Under
both governments sovereignty resided and resides in the people
(Article II, section 1). Said sovereignty was never transferred from that
people — they are the same people who preserve it to this day. There
has never been any change in its respect.
If one committed treason againsts the People of the Philippines before
July 4, 1946, he continues to be criminally liable for the crime to the
same people now. And if, following the literal wording of the Revised
Penal Code, as continued by the Constitution, that accused owed
allegiance upon the commission of the crime to the "Government of
the Philippines," in the textual words of the Constitution (Article XVI,
section 2, and XVIII) that was the same government which after
independence became known as the "Republic of the Philippines." The
most that can be said is that the sovereignty of the people became
complete and absolute after independence — that they became,
politically, fully of age, to use a metaphor. But if the responsibility for a
crime against a minor is not extinguished by the mere fact of his
becoming of age, why should the responsibility for the crime of treason
committed against the Filipino people when they were not fully
politically independent be extinguished after they acquire this status?
The offended party continues to be the same — only his status has
changed.
PARAS, J., dissenting:
During the long period of Japanese occupation, all the political laws of
the Philippines were suspended. This is full harmony with the generally
accepted principles of the international law adopted by our
Constitution(Article II, section 3) as a part of the law of the Nation.
Accordingly, we have on more than one occasion already stated that
"laws of a political nature or affecting political relations, . . . are
considered as suspended or in abeyance during the military
occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113,
124), and that the rule "that laws of political nature or affecting
political relations are considered suspended or in abeyance during the
military occupation, is intended for the governing of the civil
inhabitants of the occupied territory." (Ruffy vs. Chief of Staff,
Philippine Army, 75, Phil., 875, 881.)
The principle is recognized by the United States of America, which
admits that the occupant will naturally suspends all laws of a political
nature and all laws which affect the welfare and safety of his
command, such action to be made known to the inhabitants.(United
States Rules of Land Welfare, 1940, Article 287.) As allegiance to the
United States is an essential element in the crime of treason under
article 114 of the Revised Penal Code, and in view of its position in our
political structure prior to the independence of the Philippines, the rule
CRIMINAL LAW FULL CASES
as interpreted and practiced in the United States necessarily has a
binding force and effect in the Philippines, to the exclusion of any other
construction followed elsewhere, such as may be inferred, rightly or
wrongly, from the isolated cases 1 brought to our attention, which,
moreover, have entirely different factual bases.
Corresponding notice was given by the Japanese occupying army, first,
in the proclamation of its Commander in chief of January 2, 1942, to
the effect that as a "result of the Japanese Military operations, the
sovereignty of the United States of America over the Philippines has
completely disappeared and the Army hereby proclaims the Military
Administration under martial law over the district occupied by the
Army;" secondly, in Order No. 3 of the said Commander in Chief of
February 20, 1942, providing that "activities of the administrative
organs and judicial courts in the Philippines shall be based upon the
existing statutes, orders, ordinances and customs until further orders
provided that they are not inconsistent with the present circumstances
under the Japanese Military Administration;" and, thirdly, in the
explanation to Order No. 3 reminding that "all laws and regulations of
the Philippines has been suspended since Japanese occupation," and
excepting the application of "laws and regulations which are not
proper act under the present situation of the Japanese Military
Administration," especially those "provided with some political
purposes."
The suspension of the political law during enemy occupation is logical,
wise and humane. The latter phase outweighs all other aspects of the
principle aimed more or less at promoting the necessarily selfish
motives and purposes of a military occupant. It thus consoling to note
that the powers instrumental in the crystallization of the Hague
Conventions of 1907 did not forget to declare that they were
"animated by the desire to serve . . . the interest of the humanity and
the over progressive needs of civilization," and that "in case not
included in the Regulations adopted by them, the inhabitants and the
belligerents remain under the protection and the rule of the principles
of international law, as they result from the usages established among
civilized peoples, from the laws of humanity, and the dictates of the
public conscience." These saving statements come to the aid of the
inhabitants in the occupied territory in a situation wherein, even
before the belligerent occupant "takes a further step and by
appropriate affirmative action undertakes to acquire the right of
sovereignty for himself, . . . the occupant is likely to regard to himself
as clothed with freedom to endeavor to impregnate the people who
inhabit the area concerned with his own political ideology, and to make
that endeavor successful by various forms of pressure exerted upon
enemy officials who are permitted to retain the exercise of normal
governmental functions." (Hyde, International Law, Vol. III, Second
Revised Edition, 1945, p. 1879.)
The inhabitants of the occupied territory should necessarily be bound
to the sole authority of the invading power, whose interest and
requirements are naturally in conflict with those of the displaced
government, if it is legitimate for the military occupant to demand and
enforce from the inhabitants such obedience as may be necessary for
the security of his forces, for the maintenance of law and order, and for
the proper administration of the country (United States Rules of Land
Warfare, 1940, article 297), and to demand all kinds of services "of
such a nature as not to involve the population in the obligation of
taking part in military operations against their own country" (Hague
Regulations, article 52);and if, as we have in effect said, by the
surrender the inhabitants pass under a temporary allegiance to the
government of the occupant and are bound by such laws, and such
only, as it chooses to recognize and impose, and the belligerent
occupant `is totally independent of the constitution and the laws of the
territory, since occupation is an aim of warfare, and the maintenance
and safety of his forces, and the purpose of war, stand in the
foreground of his interest and must be promoted under all
circumstances or conditions." (Peralta vs. Director of Prisons, 75 Phil.,
285, 295), citing United States vs. Rice, 4 Wheaton, 246, and quoting
Oppenheim, International Law, Vol. II. Sixth Edition, Revised, 1944,p.
432.)
He would be a bigot who cannot or would refuse to see the cruel result
if the people in an occupied territory were required to obey two
antagonistic and opposite powers. To emphasize our point, we would
adopt the argument, in a reverse order, of Mr. Justice Hilado in Peralta
vs. Director of Prisons (75 Phil., 285, 358), contained in the following
passage:
To have bound those of our people who constituted the great majority
who never submitted to the Japanese oppressors, by the laws,
regulations, processes and other acts of those two puppet
governments, would not only have been utterly unjust and downright
illegal, but would have placed them in the absurd and impossible
condition of being simultaneously submitted to two mutually hostile
governments, with their respective constitutional and legislative
enactments and institutions — on the one hand bound to continue
owing allegiance to the United States and the Commonwealth
Government, and, on the other, to owe allegiance, if only temporary,
to Japan.
The only sensible purpose of the treason law — which is of political
complexion and taken out of the territorial law and penalized as a new
offense committed against the belligerent occupant, incident to a state
of war and necessary for the control of the occupant
(Alcantara vs. Director of Prisons, 75 Phil., 494), — must be the
preservation of the nation, certainly not its destruction or
extermination. And yet the latter is unwittingly wished by those who
are fond of the theory that what is suspended is merely the exercise of
sovereignty by the de juregovernment or the latter's authority to
impose penal sanctions or that, otherwise stated, the suspension refers
only to the military occupant. If this were to be the only effect, the rule
would be a meaningless and superfluous optical illusion, since it is
obvious that the fleeing or displaced government cannot, even if it
should want, physically assert its authority in a territory actually
beyond its reach, and that the occupant, on the other hand, will not
take the absurd step of prosecuting and punishing the inhabitants for
adhering to and aiding it. If we were to believe the opponents of the
rule in question, we have to accept the absurd proposition that the
guerrillas can all be prosecuted with illegal possession of firearms. It
should be borne in the mind that "the possession by the belligerent
occupant of the right to control, maintain or modify the laws that are
to obtain within the occupied area is an exclusive one. The territorial
sovereign driven therefrom, can not compete with it on an even plane.
Thus, if the latter attempt interference, its action is a mere
manifestation of belligerent effort to weaken the enemy. It has no
bearing upon the legal quality of what the occupant exacts, while it
retains control. Thus, if the absent territorial sovereign, through some
quasi-legislative decree, forbids its nationals to comply with what the
occupant has ordained obedience to such command within the
occupied territory would not safeguard the individual from the
prosecution by the occupant." (Hyde, International Law, Vol. III, Second
Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant
to prosecute and punish the inhabitants for "war treason" or "war
crimes," as an incident of the state of war and necessity for the control
of the occupied territory and the protection of the army of the
occupant, against which prosecution and punishment such inhabitants
cannot obviously be protected by their native sovereign, it is hard to
understand how we can justly rule that they may at the same time be
prosecuted and punished for an act penalized by the Revised Penal
Code, but already taken out of the territorial law and penalized as a
new offense committed against the belligerent occupant.
In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the
Constitution of the Commonwealth Government was suspended during
the occupation of the Philippines by the Japanese forces or the
belligerent occupant at regular war with the United States," and the
meaning of the term "suspended" is very plainly expressed in the
following passage (page 298):
No objection can be set up to the legality of its provisions in the light of
the precepts of our Commonwealth Constitution relating to the rights
of the accused under that Constitution, because the latter was not in
force during the period of the Japanese military occupation, as we have
already stated. Nor may said Constitution be applied upon its revival at
the time of the re-occupation of the Philippines by the virtue of the
priciple of postliminium, because "a constitution should operate
prospectively only, unless the words employed show a clear intention
that it should have a retrospective effect," (Cooley's Constitutional
Limitations, seventh edition, page 97, and a case quoted and cited in
the foot-note), especially as regards laws of procedure applied to cases
already terminated completely.
CRIMINAL LAW FULL CASES
In much the same way, we should hold that no treason could have
been committed during the Japanese military occupation against the
United States or the Commonwealth Government, because article 114
of the Revised Penal Code was not then in force. Nor may this penal
provision be applied upon its revival at the time of the reoccupation of
the Philippines by virtue of the principle of postliminium, because of
the constitutional inhibition against any ex post facto law and because,
under article 22 of the Revised Penal Code, criminal laws shall have a
retroactive effect only in so far as they favor the accused. Why did we
refuse to enforce the Constitution, more essential to sovereignty than
article 114 of the Revised Penal Code in the aforesaid of Peralta vs.
Director of Prisons if, as alleged by the majority, the suspension was
good only as to the military occupant?
The decision in the United States vs. Rice (4 Wheaton, 246),
conclusively supports our position. As analyzed and described in United
States vs. Reiter (27 Fed. Cas., 773), that case "was decided by the
Supreme Court of the United States — the court of highest human
authority on that subject — and as the decision was against the United
States, and in favor of the authority of Great Britain, its enemy in the
war, and was made shortly after the occurrence of the war out of
which it grew; and while no department of this Government was
inclined to magnify the rights of Great Britain or disparage those of its
own government, there can be no suspicion of bias in the mind of the
court in favor of the conclusion at which it arrived, and no doubt that
the law seemed to the court to warrant and demand such a decision.
That case grew out of the war of 1812, between the United States and
Great Britain. It appeared that in September, 1814, the British forces
had taken the port of Castine, in the State of Maine, and held it in
military occupation; and that while it was so held, foreign goods, by the
laws of the United States subject to duty, had been introduced into
that port without paying duties to the United States. At the close of the
war the place by treaty restored to the United States, and after that
was done Government of the United States sought to recover from the
persons so introducing the goods there while in possession of the
British, the duties to which by the laws of the United States, they
would have been liable. The claim of the United States was that its laws
were properly in force there, although the place was at the time held
by the British forces in hostility to the United States, and the laws,
therefore, could not at the time be enforced there; and that a court of
the United States (the power of that government there having since
been restored) was bound so to decide. But this illusion of the
prosecuting officer there was dispelled by the court in the most
summary manner. Mr. Justice Story, that great luminary of the
American bench, being the organ of the court in delivering its opinion,
said: 'The single question is whether goods imported into Castine
during its occupation by the enemy are liable to the duties imposed by
the revenue laws upon goods imported into the United States.. We are
all of opinion that the claim for duties cannot be sustained. . . . The
sovereignty of the United States over the territory was, of course,
suspended, and the laws of the United States could no longer be
rightfully enforced there, or be obligatory upon the inhabitants who
remained and submitted to the conquerors. By the surrender the
inhabitants passed under a temporary allegiance of the British Constitutional Law that mere conquest or military occupation of a
Government, and were bound by such laws, and such only, as it chose territory of another State does not operate to annex such territory to
to recognize and impose. From the nature of the case no other laws occupying State, but that the inhabitants of the occupied district, no
could be obligatory upon them. . . . Castine was therefore, during this longer receiving the protection of their native State, for the time being
period, as far as respected our revenue laws, to be deemed a foreign owe no allegiance to it, and, being under the control and protection of
port, and goods imported into it by the inhabitants were subjects to the victorious power, owe to that power fealty and obedience.
such duties only as the British Government chose to require. Such (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)
goods were in no correct sense imported into the Unites States.' The
court then proceeded to say, that the case is the same as if the port of
The majority have resorted to distinctions, more apparent than real, if
Castine had been foreign territory, ceded by treaty to the United
not immaterial, in trying to argue that the law of treason was
States, and the goods had been imported there previous to its cession.
obligatory on the Filipinos during the Japanese occupation. Thus it is
In this case they say there would be no pretense to say that American
insisted that a citizen or subject owes not a qualified and temporary,
duties could be demanded; and upon principles of public or municipal
but an absolute and permanent allegiance, and that "temporary
law, the cases are not distinguishable. They add at the conclusion of
allegiance" to the military occupant may be likened to the temporary
the opinion: 'The authorities cited at the bar would, if there were any
allegiance which a foreigner owes to the government or sovereign to
doubt, be decisive of the question. But we think it too clear to require
the territory wherein he resides in return for the protection he receives
any aid from authority.' Does this case leave room for a doubt whether
therefrom. The comparison is most unfortunate. Said foreigner is in the
a country held as this was in armed belligerents occupation, is to be
territory of a power not hostile to or in actual war with his own
governed by him who holds it, and by him alone? Does it not so decide
government; he is in the territory of a power which has not suspended,
in terms as plain as can be stated? It is asserted by the Supreme Court
under the rules of international law, the laws of political nature of his
of the United States with entire unanimity, the great and venerated
own government; and the protections received by him from that
Marshall presiding, and the erudite and accomplished Story delivering
friendly or neutral power is real, not the kind of protection which the
the opinion of the court, that such is the law, and it is so adjudged in
inhabitants of an occupied territory can expect from a belligerent
this case. Nay, more: it is even adjudged that no other laws could be
army. "It is but reasonable that States, when they concede to other
obligatory; that such country, so held, is for the purpose of the
States the right to exercise jurisdiction over such of their own nationals
application of the law off its former government to be deemed foreign
as are within the territorial limits of such other States, should insist
territory, and that goods imported there (and by parity of reasoning
that States should provide system of law and of courts, and in actual
other acts done there) are in no correct sense done within the territory
practice, so administer them, as to furnish substantial legal justice to
of its former sovereign, the United States."
alien residents. This does not mean that a State must or should extend
to aliens within its borders all the civil, or much less, all the political
But it is alleged by the majority that the sovereignty spoken of in the rights or privileges which it grants to its own citizens; but it does mean
decision of the United States vs. Rice should be construed to refer to that aliens must or should be given adequate opportunity to have such
the exercise of sovereignty, and that, if sovereignty itself was meant, legal rights as are granted to them by the local law impartially and
the doctrine has become obsolete after the adoption of the Hague judicially determined, and, when thus determined, protected."
Regulations in 1907. In answer, we may state that sovereignty can have (Willoughby, The Fundamental Concepts of Public Law [1931], p. 360.)
any important significance only when it may be exercised; and, to our
way of thinking, it is immaterial whether the thing held in abeyance is
When it is therefore said that a citizen of a sovereign may be
the sovereignty itself or its exercise, because the point cannot nullify,
prosecuted for and convicted of treason committed in a foreign
vary, or otherwise vitiate the plain meaning of the doctrinal words "the
country or, in the language of article 114 of the Revised Penal Code,
laws of the United States could no longer be rightfully enforced there,
"elsewhere," a territory other than one under belligerent occupation
or be obligatory upon the inhabitants who remained and submitted to
must have been contemplated. This would make sense, because
the conquerors." We cannot accept the theory of the majority, without
treason is a crime "the direct or indirect purpose of which is the
in effect violating the rule of international law, hereinabove adverted
delivery, in whole or in part, of the country to a foreign power, or to
to, that the possession by the belligerent occupant of the right to
pave the way for the enemy to obtain dominion over the national
control, maintain or modify the laws that are to obtain within the
territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14); and,
occupied area is an exclusive one, and that the territorial sovereign
very evidently, a territory already under occupation can no longer be
driven therefrom cannot compete with it on an even plane. Neither
"delivered."
may the doctrine in the United States vs. Rice be said to have become
obsolete, without repudiating the actual rule prescribed and followed
by the United States, allowing the military occupant to suspend all laws The majority likewise argue that the theory of suspended sovereignty
of a political nature and even require public officials and inhabitants to or allegiance will enable the military occupant to legally recruit the
take an oath of fidelity (United States Rules of Land Warfare, 1940, inhabitants to fight against their own government, without said
article 309). In fact, it is a recognized doctrine of American inhabitants being liable for treason. This argument is not correct,
CRIMINAL LAW FULL CASES
because the suspension does not exempt the occupant from complying
with the Hague Regulations (article 52) that allows it to demand all
kinds of services provided that they do not involve the population "in
the obligation of taking part military operations against their own
country." Neither does the suspension prevent the inhabitants from
assuming a passive attitude, much less from dying and becoming
heroes if compelled by the occupant to fight against their own country.
Any imperfection in the present state of international law should be
corrected by such world agency as the United Nations organizations.
It is of common knowledge that even with the alleged cooperation
imputed to the collaborators, an alarming number of Filipinos were
killed or otherwise tortured by the ruthless, or we may say savage,
Japanese Army. Which leads to the conclusion that if the Filipinos did
not obey the Japanese commands and feign cooperation, there would
not be any Filipino nation that could have been liberated. Assuming
that the entire population could go to and live in the mountains, or
otherwise fight as guerrillas — after the formal surrender of our and
the American regular fighting forces, — they would have faced certain
annihilation by the Japanese, considering that the latter's military
strength at the time and the long period during which they were left
military unmolested by America. In this connection, we hate to make
reference to the atomic bomb as a possible means of destruction.
If a substantial number of guerrillas were able to survive and ultimately
help in the liberation of the Philippines, it was because the feigned
cooperation of their countrymen enabled them to get food and other
aid necessary in the resistance movement. If they were able to survive,
it was because they could camouflage themselves in the midst of the
civilian population in cities and towns. It is easy to argue now that the
people could have merely followed their ordinary pursuits of life or
otherwise be indifferent to the occupant. The fundamental defect of
this line of thought is that the Japanese assumed to be so stupid and
dumb as not to notice any such attitude. During belligerent occupation,
"the outstanding fact to be reckoned with is the sharp opposition
between the inhabitants of the occupied areas and the hostile military
force exercising control over them. At heart they remain at war with
each other. Fear for their own safety may not serve to deter the
inhabitants from taking advantage of opportunities to interfere with
the safety and success of the occupant, and in so doing they may
arouse its passions and cause to take vengeance in cruel fashion. Again,
even when it is untainted by such conduct, the occupant as a means of
attaining ultimate success in its major conflict may, under plea of
military necessity, and regardless of conventional or customary
prohibitions, proceed to utilize the inhabitants within its grip as a
convenient means of military achievement." (Hyde, International Law,
Vol. III, Second Revised Edition [1945], p. 1912.) It should be stressed
that the Japanese occupation was not a matter of a few months; it
extended over a little more than three years. Said occupation was a
fact, in spite of the "presence of guerrilla bands in barrios and
mountains, and even in towns of the Philippines whenever these towns
were left by Japanese garrisons or by the detachments of troops sent
on patrol to those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon,
75 Phil., 371, 373.) The law of nations accepts belligerent occupation as
a fact to be reckoned with, regardless of the merits of the occupant's
cause. (Hyde, International Law, Second Revised Edition [1945], Vol. III,
p. 1879.)
Those who contend or fear that the doctrine herein adhere to will lead
to an over-production of traitors, have a wrong and low conception of
the psychology and patriotism of their countrymen. Patriots are such
after their birth in the first place, and no amount of laws or judicial
decisions can make or unmake them. On the other hand, the Filipinos
are not so base as to be insensitive to the thought that the real traitor
is cursed everywhere and in all ages. Our patriots who fought and died
during the last war, and the brave guerrillas who have survived, were
undoubtedly motivated by their inborn love of country, and not by
such a thing as the treason law. The Filipino people as a whole,
passively opposed the Japanese regime, not out of fear of a treason
statute but because they preferred and will prefer the democratic and
civilized way of life and American altruism to Japanese barbaric and
totalitarian designs. Of course, there are those who might at heart
have been pro-Japanese; but they met and will unavoidably meet the
necessary consequences. The regular soldiers faced the risks of
warfare; the spies and informers subjected themselves to the perils of
military operations, likely received summary liquidation or
punishments from the guerrillas and the parties injured by their acts,
and may be prosecuted as war spies by the military authorities of the
returning sovereign; those who committed other common crimes,
directly or through the Japanese army, may be prosecuted under the
municipal law, and under this group even the spies and informers,
Makapili or otherwise, are included, for they can be made answerable
for any act offensive to person or property; the buy-and-sell
opportunists have the war profits tax to reckon with. We cannot close
our eyes to the conspicuous fact that, in the majority of cases, those
responsible for the death of, or injury to, any Filipino or American at
the hands of the Japanese, were prompted more by personal motives
than by a desire to levy war against the United States or to adhere to
the occupant. The alleged spies and informers found in the Japanese
occupation the royal road to vengeance against personal or political
enemies. The recent amnesty granted to the guerrillas for acts,
otherwise criminal, committed in the furtherance of their resistance
movement has in a way legalized the penal sanctions imposed by them
upon the real traitors.
It is only from a realistic, practical and common-sense point of view,
and by remembering that the obedience and cooperation of the
Filipinos were effected while the Japanese were in complete control
and occupation of the Philippines, when their mere physical presence
implied force and pressure — and not after the American forces of
liberation had restored the Philippine Government — that we will
come to realize that, apart from any rule of international law, it was
necessary to release the Filipinos temporarily from the old political tie
in the sense indicated herein. Otherwise, one is prone to dismiss the
reason for such cooperation and obedience. If there were those who
did not in any wise cooperate or obey, they can be counted by the
fingers, and let their names adorn the pages of Philippine history.
Essentially, however, everybody who took advantage, to any extent
and degree, of the peace and order prevailing during the occupation,
for the safety and survival of himself and his family, gave aid and
comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had
considered the laws of the Philippines ineffective during the
occupation, and restored to their full vigor and force only after the
liberation. Thus, in his proclamation of October 23, 1944, he ordained
that "the laws now existing on the statute books of the Commonwealth
of the Philippines . . . are in full force and effect and legally binding
upon the people in areas of the Philippines free of enemy occupation
and control," and that "all laws . . . of any other government in the
Philippines than that of the said Commonwealth are null and void and
without legal effect in areas of the Philippines free of enemy
occupation and control." Repeating what we have said in Co Kim Cham
vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "it is to be presumed
that General Douglas MacArthur, who was acting as an agent or a
representative of the Government and the President of the United
States, constitutional Commander-in-Chief of the United States Army,
did not intend to act against the principles of the law of nations
asserted by the Supreme Court of the United States from the early
period of its existence, applied by the President of the United States,
and later embodied in the Hague Conventions of 1907."
The prohibition in the Hague Conventions (Article 45) against "any
pressure on the population to take oath to the hostile power," was
inserted for the moral protection and benefit of the inhabitants, and
does not necessarily carry the implication that the latter continue to be
bound to the political laws of the displaced government. The United
States, a signatory to the Hague Conventions, has made the point clear,
by admitting that the military occupant can suspend all the laws of a
political nature and even require public officials and the inhabitants to
take an oath of fidelity (United States Rules of Land Warfare, 1940,
article 309), and as already stated, it is a doctrine of American
Constitutional Law that the inhabitants, no longer receiving the
protection of their native state, for the time being owe no allegiance to
it, and, being under the control and protection of the victorious power,
owe to that power fealty and obedience. Indeed, what is prohibited is
the application of force by the occupant, from which it is fair to deduce
that the Conventions do not altogether outlaw voluntary submission by
the population. The only strong reason for this is undoubtedly the
desire of the authors of the Conventions to give as much freedom and
allowance to the inhabitants as are necessary for their survival. This is
wise and humane, because the people should be in a better position to
know what will save them during the military occupation than any exile
government.
CRIMINAL LAW FULL CASES
"Before he was appointed prosecutor, Justice Jackson made a speech
in which he warned against the use of judicial process for non judicial
ends, and attacked cynics who "see no reason why courts, just like
other agencies, should not be policy weapons. If we want to shoot
Germans as a matter of policy, let it be done as such, said he, but don't
hide the deed behind a court. If you are determined to execute a man
in any case there is no occasion for a trial; the word yields no respect
for courts that are merely organized to convict." Mussoloni may have
got his just desserts, but nobody supposes he got a fair trial. . . . Let us
bear that in mind as we go about punishing criminals. There are
enough laws on the books to convict guilty Nazis without risking the
prestige of our legal system. It is far, far better that some guilty men
escape than that the idea of law be endangered. In the long run the
idea of law is our best defense against Nazism in all its forms." These
passages were taken from the editorial appearing in the Life, May 28,
1945, page 34, and convey ideas worthy of some reflection.
If the Filipinos in fact committed any errors in feigning cooperation and
obedience during the Japanese military occupation, they were at most
— borrowing the famous and significant words of President Roxas —
errors of the mind and not of the heart. We advisedly said "feigning"
not as an admission of the fallacy of the theory of suspended allegiance
or sovereignty, but as an affirmation that the Filipinos, contrary to their
outward attitude, had always remained loyal by feeling and conscience
to their country.
Assuming that article 114 of the Revised Penal Code was in force during
the Japanese military occupation, the present Republic of the
Philippines has no right to prosecute treason committed against the
former sovereignty existing during the Commonwealth Government
which was none other than the sovereignty of the United States. This
court has already held that, upon a change of sovereignty, the
provisions of the Penal Code having to do with such subjects as
treason, rebellion and sedition are no longer in force
(People vs. Perfecto, 43 Phil., 887). It is true that, as contended by the
majority, section 1 of Article II of the Constitution of the Philippines
provides that "sovereignty resides in the people," but this did not make
the Commonwealth Government or the Filipino people sovereign,
because said declaration of principle, prior to the independence of the
Philippines, was subervient to and controlled by the Ordinance
appended to the Constitution under which, in addition to its many
provisions essentially destructive of the concept of sovereignty, it is
expressly made clear that the sovereignty of the United States over the
Philippines had not then been withdrawn. The framers of the
Constitution had to make said declaration of principle because the
document was ultimately intended for the independent Philippines.
Otherwise, the Preamble should not have announced that one of the
purposes of the Constitution is to secure to the Filipino people and
their posterity the "blessings of independence." No one, we suppose,
will dare allege that the Philippines was an independent country under
the Commonwealth Government.
The Commonwealth Government might have been more autonomous
than that existing under the Jones Law, but its non-sovereign status
nevertheless remained unaltered; and what was enjoyed was the
exercise of sovereignty over the Philippines continued to be complete.
The exercise of Sovereignty May be Delegated. — It has already been
seen that the exercise of sovereignty is conceived of as delegated by a
State to the various organs which, collectively, constitute the
Government. For practical political reasons which can be easily
appreciated, it is desirable that the public policies of a State should be
formulated and executed by governmental agencies of its own creation
and which are not subject to the control of other States. There is,
however, nothing in a nature of sovereignty or of State life which
prevents one State from entrusting the exercise of certain powers to
the governmental agencies of another State. Theoretically, indeed, a
sovereign State may go to any extent in the delegation of the exercise
of its power to the governmental agencies of other States, those
governmental agencies thus becoming quoad hoc parts of the
governmental machinery of the State whose sovereignty is exercised.
At the same time these agencies do not cease to be Instrumentalities
for the expression of the will of the State by which they were originally
created.
By this allegation the agent State is authorized to express the will of
the delegating State, and the legal hypothesis is that this State
possesses the legal competence again to draw to itself the exercise,
through organs of its own creation, of the powers it has granted. Thus,
States may concede to colonies almost complete autonomy of
government and reserve to themselves a right of control of so slight
and so negative a character as to make its exercise a rare and
improbable occurence; yet, so long as such right of control is
recognized to exist, and the autonomy of the colonies is conceded to
be founded upon a grant and the continuing consent of the mother
countries the sovereignty of those mother countries over them is
complete and they are to be considered as possessing only
administrative autonomy and not political independence. Again, as will
be more fully discussed in a later chapter, in the so-called Confederate
or Composite State, the cooperating States may yield to the central
Government the exercise of almost all of their powers of Government
and yet retain their several sovereignties. Or, on the other hand, a
State may, without parting with its sovereignty of lessening its
territorial application, yield to the governing organs of particular areas
such an amplitude of powers as to create of them bodies-politic
endowed with almost all of the characteristics of independent States.
In all States, indeed, when of any considerable size, efficiency of
administration demands that certain autonomous powers of local self-
government be granted to particular districts. (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 74, 75.).
The majority have drawn an analogy between the Commonwealth
Government and the States of the American Union which, it is alleged,
preserve their own sovereignty although limited by the United States.
This is not true for it has been authoritatively stated that the
Constituent States have no sovereignty of their own, that such
autonomous powers as they now possess are had and exercised by the
express will or by the constitutional forbearance of the national
sovereignty, and that the sovereignty of the United States and the non-
sovereign status of the individual States is no longer contested.
It is therefore plain that the constituent States have no sovereignty of
their own, and that such autonomous powers as they now possess are
had and exercised by the express will or by the constitutional
forbearance of the national sovereignty. The Supreme Court of the
United States has held that, even when selecting members for the
national legislature, or electing the President, or ratifying proposed
amendments to the federal constitution, the States act, ad hoc, as
agents of the National Government. (Willoughby, the Fundamental
Concepts of Public Law [1931], p.250.)
This is the situation at the present time. The sovereignty of the United
States and the non-sovereign status of the individual States is no longer
contested. (Willoughby, The Fundamental Concepts of Public Law
[1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government
established by this Constitution shall be known as the Commonwealth
of the Philippines. Upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine
independence, the Commonwealth of the Philippines shall thenceforth
be known as the Republic of the Philippines." From this, the deduction
is made that the Government under the Republic of the Philippines and
under the Commonwealth is the same. We cannot agree. While the
Commonwealth Government possessed administrative autonomy and
exercised the sovereignty delegated by the United States and did not
cease to be an instrumentality of the latter (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 74, 75), the Republic
of the Philippines is an independent State not receiving its power or
sovereignty from the United States. Treason committed against the
United States or against its instrumentality, the Commonwealth
Government, which exercised, but did not possess, sovereignty (id., p.
49), is therefore not treason against the sovereign and independent
Republic of the Philippines. Article XVIII was inserted in order, merely,
to make the Constitution applicable to the Republic.
Reliance is also placed on section 2 of the Constitution which provides
that all laws of the Philippines Islands shall remain operative, unless
inconsistent therewith, until amended, altered, modified or repealed
by the Congress of the Philippines, and on section 3 which is to the
effect that all cases pending in courts shall be heard, tried, and
determined under the laws then in force, thereby insinuating that
these constitutional provisions authorize the Republic of the
Philippines to enforce article 114 of the Revised Penal Code. The error
is obvious. The latter article can remain operative under the present
CRIMINAL LAW FULL CASES
regime if it is not inconsistent with the Constitution. The fact remains,
however, that said penal provision is fundamentally incompatible with
the Constitution, in that those liable for treason thereunder should
owe allegiance to the United States or the government of the
Philippines, the latter being, as we have already pointed out, a mere
instrumentality of the former, whereas under the Constitution of the
present Republic, the citizens of the Philippines do not and are not
required to owe allegiance to the United States. To contend that article
114 must be deemed to have been modified in the sense that
allegiance to the United States is deleted, and, as thus modified, should
be applied to prior acts, would be to sanction the enactment and
application of an ex post facto law.
In reply to the contention of the respondent that the Supreme Court of
the United States has held in the case of Bradford vs. Chase National
Bank (24 Fed. Supp., 38), that the Philippines had a sovereign status,
though with restrictions, it is sufficient to state that said case must be
taken in the light of a subsequent decision of the same court in
Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in May,
1937, wherein it was affirmed that the sovereignty of the United States
over the Philippines had not been withdrawn, with the result that the
earlier case only be interpreted to refer to the exercise of sovereignty
by the Philippines as delegated by the mother country, the United
States.
No conclusiveness may be conceded to the statement of President
Roosevelt on August 12, 1943, that "the United States in practice
regards the Philippines as having now the status as a government of
other independent nations--in fact all the attributes of complete and
respected nationhood," since said statement was not meant as having
accelerated the date, much less as a formal proclamation of, the
Philippine Independence as contemplated in the Tydings-McDuffie
Law, it appearing that (1) no less also than the President of the United
States had to issue the proclamation of July 4, 1946, withdrawing the
sovereignty of the United States and recognizing Philippine
Independence; (2) it was General MacArthur, and not President
Osmeña who was with him, that proclaimed on October 23, 1944, the
restoration of the Commonwealth Government; (3) the Philippines was
not given official participation in the signing of the Japanese surrender;
(4) the United States Congress, and not the Commonwealth
Government, extended the tenure of office of the President and Vice-
President of the Philippines.
The suggestion that as treason may be committed against the Federal
as well as against the State Government, in the same way treason may
have been committed against the sovereignty of the United States as
well as against the sovereignty of the Philippine Commonwealth, is
immaterial because, as we have already explained, treason against
either is not and cannot be treason against the new and different
sovereignty of the Republic of the Philippines.
[G.R. No. 148965.  February 26, 2002]
JOSE “JINGGOY” E. ESTRADA, petitioner, vs. SANDIGANBAYAN (THIRD
DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE
OMBUDSMAN, respondents.
DECISION
PUNO, J.:
A law may not be constitutionally infirm but its application to a
particular party may be unconstitutional.  This is the submission of the
petitioner who invokes the equal protection clause of the Constitution
in his bid to be excluded from the charge of plunder filed against him
by the respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment proceedings
against Joseph Ejercito Estrada, then President of the Republic of the
Philippines, five criminal complaints against the former President and
members of his family, his associates, friends and conspirators were
filed with the respondent Office of the Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint
Resolution[1] finding probable cause warranting the filing with the
Sandiganbayan of several criminal Informations against the former
President and the other respondents therein. One of the Informations
was for the crime of plunder under Republic Act No. 7080 and among
the respondents was herein petitioner Jose “Jinggoy” Estrada, then
mayor of San Juan, Metro Manila.
The Information was amended and filed on April 18, 2001.  Docketed as
Criminal Case No. 26558, the case was assigned to respondent Third
Division of the Sandiganbayan.  The arraignment of the accused was
set on July 10, 2001 and no bail for petitioner’s provisional liberty was
fixed.
On April 24, 2001, petitioner filed a “Motion to Quash or Suspend” the
Amended Information on the ground that the Anti-Plunder Law, R.A.
No. 7080, is unconstitutional and that it charged more than one
offense.  Respondent Ombudsman opposed the motion.
On April 25, 2001, the respondent court issued a warrant of arrest for
petitioner and his co-accused.  On its basis, petitioner and his co-
accused were placed in custody of the law.
On April 30, 2001, petitioner filed a “Very Urgent Omnibus
Motion”[2] alleging that: (1) no probable cause exists to put him on trial
and hold him liable for plunder, it appearing that he was only allegedly
involved in illegal gambling and not in a “series or combination of overt
or criminal acts” as required in R.A. No. 7080; and (2) he is entitled to
bail as a matter of right. Petitioner prayed that he be excluded from the
Amended Information and be discharged from custody.  In the
alternative, petitioner also prayed that he be allowed to post bail in an
amount to be fixed by respondent court.[3]
On June 28, 2001, petitioner filed a “Motion to Resolve Mayor Jose
‘Jinggoy’ Estrada’s Motion To Fix Bail On Grounds That An Outgoing
Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts
Charged In The Information Do Not Make Out A Non-Bailable Offense
As To Him.”[4]
On July 3, 2001, petitioner filed a “Motion to Strike Out So-Called ‘Entry
of Appearance,’ To Direct Ombudsman To Explain Why He Attributes
Impropriety To The Defense And To Resolve Pending Incidents.”[5]
On July 9, 2001, respondent Sandiganbayan issued a Resolution
denying petitioner’s “Motion to Quash and Suspend” and “Very Urgent
Omnibus Motion.”[6] Petitioner’s alternative prayer to post bail was set
for hearing after arraignment of all accused.  The court held:
“WHEREFORE, in view of the foregoing, the Court hereby DENIES for
lack of merit the following: (1) MOTION TO QUASH AND SUSPEND
dated April 24, 2001 filed by accused Jose ‘Jinggoy’ Estrada; (2)
MOTION TO QUASH dated June 7, 2001 filed by accused Joseph
Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended
Information dated 18 April 2001) dated June 26, 2001 filed by accused
Edward S. Serapio.
Considering the denial of the MOTION TO QUASH AND SUSPEND of
accused Jose ‘Jinggoy’ Estrada, his VERY URGENT OMNIBUS MOTION,
praying that he be: (1) dropped from the information for plunder for
want of probable cause and (2) discharged from custody immediately
which is based on the same grounds mentioned in this MOTION TO
QUASH AND SUSPEND is hereby DENIED.  Let his alternative prayer in
said OMNIBUS MOTION that he be allowed to post bail be SET for
hearing together with the petition for bail of accused Edward S. Serapio
scheduled for July 10, 2001, at 2:00 o’clock in the afternoon after the
arraignment of all the accused.”[7]
The following day, July 10, 2001, petitioner moved for reconsideration
of the Resolution.  Respondent court denied the motion and proceeded
to arraign petitioner.  Petitioner refused to make his plea prompting
respondent court to enter a plea of “not guilty” for him.[8]
CRIMINAL LAW FULL CASES
Hence, this petition.  Petitioner claims that respondent Sandiganbayan
acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction in:
“1) not declaring that R.A. No. 7080 is unconstitutional on its face and,
as applied to petitioner, and denying him the equal protection of the
laws;
2) not holding that the Plunder Law does not provide complete and
sufficient standards;
3) sustaining the charge against petitioner for alleged offenses, and
with alleged conspirators, with which and with whom he is not even
remotely connected - contrary to the dictum that criminal liability is
personal, not vicarious - results in the denial of substantive due
process;
4) not fixing bail for petitioner for alleged involvement in jueteng in
one count of the information which amounts to cruel and unusual
punishment totally in defiance of the principle of proportionality.” [9]
We shall resolve the arguments of petitioner in seriatim.
I.
Petitioner contends that R.A. No. 7080 is unconstitutional on its face
and as applied to him and denies him the equal protection of the laws.
[10]
The contention deserves our scant attention.  The constitutionality of
R.A. No. 7080, the Anti-Plunder Law, has been settled in the case
of Estrada v. Sandiganbayan.[11] We take off from the Amended
Information which charged petitioner, together with former President
Joseph E. Estrada, Atty. Edward Serapio, Charlie “Atong” Ang, Yolanda
T. Ricaforte and others, with the crime of plunder as follows:
“AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB
Office of the Ombudsman, hereby accuses former PRESIDENT OF THE
PHILIPPINES, Joseph Ejercito Estrada a.k.a. “ASIONG SALONGA” AND
a.k.a “JOSE VELARDE”, together with Jose ‘Jinggoy’ Estrada, Charlie
‘Atong’ Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN
DOE a.k.a.Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe
a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of
Plunder, defined and penalized under R.A. No. 7080, as amended by
Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court,
accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING
THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY
OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there wilfully, unlawfully and criminally
amass, accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL
VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE
AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC
OF THE PHILIPPINES, through ANY OR A combination OR A series of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described
as follows:
(a)            by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connivance with co-accused CHARLIE ‘ATONG’ ANG, Jose
‘Jinggoy’ Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic)  JOHN
DOES AND JANE DOES, in consideration OF TOLERATION OR
PROTECTION OF ILLEGAL GAMBLING;
(b)            by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit, public funds in the amount of ONE
HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less,
representing a portion of the TWO HUNDRED MILLION PESOS
[P200,000,000] tobacco excise tax share allocated for the Province of
Ilocor Sur under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused Charlie ‘Atong’ Ang, Alma
Alfaro, JOHN DOE a.k.a.Eleuterio Tan OR Eleuterio Ramos Tan or Mr.
Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND
JANE DOES;
(c)            by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS,
and the Social Security System (SSS), 329,855,000 SHARES OF STOCK
MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF
MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND
FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND
AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY,
OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY
SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF
AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,
COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE
MILLION SEVEN HUNDRED THOUSAND PESOS [P189,700,000.00],
MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME
PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME “JOSE VELARDE”;
(d)            by unjustly enriching himself FROM COMMISSIONS, GIFTS,
SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
[P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME “JOSE VELARDE” AT THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001”[12]
Petitioner’s contention that R.A. No. 7080 is unconstitutional as applied
to him is principally perched on the premise that the Amended
Information charged him with only one act or one offense which
cannot constitute plunder.  He then assails the denial of his right to
bail.
Petitioner’s premise is patently false.  A careful examination of the
Amended Information will show that it is divided into three (3) parts:
(1) the first paragraph charges former President Joseph E. Estrada with
the crime of plunder together with petitioner Jose “Jinggoy” Estrada,
Charlie “Atong” Ang, Edward Serapio, Yolanda Ricaforte and others; (2)
the second paragraph spells out in general terms how the accused
conspired in committing the crime of plunder; and (3) the following
four sub-paragraphs (a) to (d) describe in detail the predicate acts
constitutive of the crime of plunder pursuant to items (1) to (6) of R.A.
No. 7080, and state the names of the accused who committed each
act.
Pertinent to the case at bar is the predicate act alleged in sub-
paragraph (a) of the Amended Information which is of “receiving or
collecting, directly or indirectly, on several instances, money in the
aggregate amount of P545,000,000.00 for illegal gambling in the form
of gift, share, percentage, kickback or any form of pecuniary benefit x x
x.” In this sub-paragraph (a), petitioner, in conspiracy with former
President Estrada, is charged with the act of receiving or collecting
CRIMINAL LAW FULL CASES
money from illegal gambling amounting to P545 million.  Contrary to
petitioner’s posture, the allegation is that he received or collected
money from illegal gambling “on several instances.” The phrase “on
several instances” means the petitioner committed the predicate act
in series.  To insist that the Amended Information charged the
petitioner with the commission of only one act or offense despite the
phrase “several instances” is to indulge in a twisted, nay, “pretzel”
interpretation.
It matters little that sub-paragraph (a) did not utilize the exact words
“combination” or “series” as they appear in R.A. No. 7080.  For
in Estrada v. Sandiganbayan, [13] we held that where these two terms
are to be taken in their popular, not technical, meaning, the word
“series” is synonymous with the clause “on several instances.” “Series”
refers to a repetition of the same predicate act in any of the items in
Section 1 (d) of the law.  The word “combination” contemplates the
commission of at least any two different predicate acts in any of said
items. Plainly, sub-paragraph (a) of the Amended Information charges
petitioner with plunder committed by a series of the same predicate
act under Section 1 (d) (2) of the law.
Similarly misleading is petitioner’s stand that in the Ombudsman
Resolution of April 4, 2001 finding probable cause to charge him with
plunder together with the other accused, he was alleged to have
received only the sum of P2 million, which amount is way below the
minimum of P50 million required under R.A. No. 7080.  The submission
is not borne out by the April 4, 2001 Resolution of the Ombudsman,
recommending the filing of charges against petitioner and his co-
accused, which in pertinent part reads:
“x x x                                                                       x x
x                                                                 x x x
Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San Juan,
Metro Manila, appears to have also surreptitious collection of
protection money from jueteng operations in Bulacan.  This is gleaned
from the statements of Gov. Singson himself and the fact that Mayor
Estrada, on at least two occasions, turned over to a certain Emma Lim,
an emissary of the respondent governor, jueteng haul totalling P2
million, i.e., P1 million in January, 2000 and another P1 million in
February, 2000. An alleged “listahan” of jueteng recipients listed him
as one “Jingle Bell,” as affirmed by Singson [TSN 8 & Dec. 2000 SICt/17
Oct. 2000 SBRC/SCI].”[14]
Hence, contrary to the representations of the petitioner, the
Ombudsman made the finding that P2 million was delivered to
petitioner as “jueteng haul” on “at least two occasions.”The P2 million
is, therefore, not the entire sum with which petitioner is specifically
charged.  This is further confirmed by the conclusion of the
Ombudsman that:
“x x x                                                                       x x
x                                                                 x x x
It is clear that Joseph Ejercito Estrada, in confabulation with Jose
‘Jinggoy’ Estrada, Atty. Edward Serapio and Yolanda Ricaforte,
demanded and received, as bribe money, the aggregate sum of P545
million from jueteng collections of the operators thereof, channeled
thru Gov. Luis ‘Chavit’ Singson, in exchange for protection from arrest
or interference by law enforcers; x x x.”[15]
To be sure, it is too late in the day for the petitioner to argue that the
Ombudsman failed to establish any probable cause against him for
plunder.  The respondent Sandiganbayan itself has found probable
cause against the petitioner for which reason it issued a warrant of
arrest against him.  Petitioner then underwent arraignment and is now
on trial.  The time to assail the finding of probable cause by the
Ombudsman has long passed.  The issue cannot be resurrected in this
petition.
II.
Next, petitioner contends that “the plunder law does not provide
sufficient and complete standards to guide the courts in dealing with
accused alleged to have contributed to the offense.”[16] Thus, he posits
the following questions:
“For example, in an Information for plunder which cites at least ten
criminal acts, what penalty do we impose on one who is clearly
involved in only one such criminal act?  Is it reclusion perpetua? Or
should it be a lesser penalty? What if another accused is shown to have
participated in three of the ten specifications, what would be the
penalty imposable, compared to one who may have been involved in
five or seven of the specifications?  The law does not provide the
standard or specify the penalties and the courts are left to guess.  In
other words, the courts are called to say what the law is rather than to
apply what the lawmaker is supposed to have intended.”[17]
Petitioner raises these hypothetical questions for he labors hard under
the impression that: (1) he is charged with only one act or offense and
(2) he has not conspired with the other accused named in sub-
paragraphs (b) to (d) of the Amended Information, ergo, the penalty
imposable on him ought to be different from reclusion perpetua to
death.  R.A. No. 7080, he bewails, is cloudy on the imposable penalty
on an accused similarly situated as he is.  Petitioner, however,
overlooks that the second paragraph of the Amended Information
charges him to have conspired with former President Estrada in
committing the crime of plunder.  His alleged participation consists in
the commission of the predicate acts specified in sub-paragraph (a) of
the Amended Information.  If these allegations are proven, the penalty
of petitioner cannot be unclear.  It will be no different  from that of the
former President for in conspiracy, the act of one is the act of the
other.  The imposable penalty is provided in Section 2 of R.A. No.
7080, viz:
“Section 2. Any public officer who, by himself or in connivance with the
members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses, accumulates or
acquires ill-gotten wealth through a combination or series of  overt or
criminal acts as described in Section 1(d) hereof in the aggregate
amount or total value of at least Fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished
by reclusion perpetua to death.  Any person who participated with the
said public officer in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such offense.  In the
imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.”
III.
Petitioner also faults the respondent Sandiganbayan for “sustaining the
charge against petitioner for alleged offenses and with alleged
conspirators, with which and with whom he is not even remotely
connected – contrary to the dictum that criminal liability is personal,
not vicarious – results in the denial of substantive due process.”[18]
The Solicitor General argues, on the other hand, that petitioner is
charged not only with the predicate act in sub-paragraph (a) but also
with the other predicate acts in sub-paragraphs (b), (c) & (d) because
he is indicted as a principal and as co-conspirator of the former
President.  This is purportedly clear from the first and second
paragraphs of the Amended Information.[19]
For better focus, there is a need to examine again the allegations of the
Amended Information vis-à-vis the provisions of R.A. No. 7080.
The Amended Information, in its first two paragraphs, charges
petitioner and his other co-accused with the crime of plunder.  The first
paragraph names all the accused, while the second paragraph
describes in general how plunder was committed  and lays down most
of the elements of the crime itself.  Sub-paragraphs (a) to (d) describe
in detail the predicate acts that constitute the crime and name in
particular the co-conspirators of former President Estrada in each
predicate act.  The predicate acts alleged in the said four sub-
paragraphs correspond to the items enumerated in Section 1 (d) of
R.A. No. 7080.  Sub-paragraph (a) alleged the predicate act of
receiving, on several instances, money from illegal gambling, in
consideration of toleration or protection of illegal gambling, and
expressly names petitioner as one of those who conspired with former
President Estrada in committing the offense.  This predicate act
corresponds with the offense described in item [2] of the enumeration
in Section 1 (d) of R.A. No. 7080.  Sub-paragraph (b) alleged the
CRIMINAL LAW FULL CASES
predicate act of diverting, receiving or misappropriating a portion of
the tobacco excise tax share allocated for the province of Ilocos Sur,
which act is the offense described in item [1] in the enumeration in
Section 1 (d) of the law.  This sub-paragraph does not mention
petitioner but instead names other conspirators of the former
President. Sub-paragraph (c) alleged two predicate acts - that of
ordering the Government Service Insurance System (GSIS) and the
Social Security System (SSS) to purchase shares of stock of Belle
Corporation, and collecting or receiving commissions from such
purchase from the Belle Corporation which became part of the deposit
in the “Jose Velarde” account at the Equitable-PCI Bank.  These two
predicate acts fall under items [2] and [3] in the enumeration of R.A.
No. 7080, and was allegedly committed by the former President in
connivance with John Does and Jane Does.  Finally, sub-paragraph (d)
alleged the predicate act that the former President unjustly enriched
himself from commissions, gifts, kickbacks, in connivance with John
Does and Jane Does, and deposited the same under his account name
“Jose Velarde” at the Equitable-PCI Bank. This act corresponds to the
offense under item [6] in the enumeration of Section 1 (d) of R.A. No.
7080.
From the foregoing allegations of the Amended Information, it is clear
that all the accused named in sub-paragraphs (a) to (d), thru their
individual acts, conspired with former President Estrada to enable the
latter to amass, accumulate or acquire ill-gotten wealth in the
aggregate amount of P4,097,804,173.17.  As the Amended
Information is worded, however, it is not certain whether the accused
in sub-paragraphs (a) to (d) conspired with each other to enable the
former President to amass the subject ill-gotten wealth.  In light of this
lack of clarity, petitioner cannot be penalized for the conspiracy
entered into by the other accused with the former President as related
in the second paragraph of the Amended Information in relation to its
sub-paragraphs (b) to (d).  We hold that petitioner can be held
accountable only for the predicate acts he allegedly committed as
related in sub-paragraph (a) of the Amended Information which were
allegedly done in conspiracy with the former President whose design
was to amass ill-gotten wealth amounting to more than P4 billion.
We hasten to add, however, that the respondent Ombudsman cannot
be faulted for including the predicate acts alleged in sub-paragraphs
(a) to (d) of the Amended Information in one, and not in four,
separate Informations.  A study of the history of R.A. No. 7080 will
show that the law was crafted to avoid the mischief and folly of filing
multiple informations.  The Anti-Plunder Law was enacted in the
aftermath of the Marcos regime where charges of ill-gotten wealth
were filed against former President Marcos and his alleged
cronies. Government prosecutors found no appropriate law to deal
with the multitude and magnitude of the acts allegedly committed by
the former President to acquire illegal wealth.[20] They also found that
under the then existing laws such as the Anti-Graft and Corrupt
Practices Act, the Revised Penal Code and other special laws, the acts
involved different transactions, different time and different
personalities.  Every transaction constituted a separate crime and manufacturer and wholesaler, then wholesaler and retailer, and then
required a separate case and the over-all conspiracy had to be broken retailer and consumer.[23]
down into several criminal and graft charges.  The preparation of
multiple Informations was a legal nightmare but eventually, thirty-nine
From a reading of the Amended Information, the case at bar appears
(39) separate and independent cases were filed against  practically the
similar to a “wheel” conspiracy.  The hub is former President Estrada
same accused before the Sandiganbayan.[21] R.A. No. 7080 or the Anti-
while the spokes are all the accused, and the rim that encloses the
Plunder Law[22] was enacted precisely to address this procedural
spokes is the common goal in the overall conspiracy, i.e., the amassing,
problem.  This is pellucid in the Explanatory Note to Senate Bill No.
accumulation and acquisition of ill-gotten wealth.
733, viz:
IV.
“Plunder, a term chosen from other equally apt terminologies like
kleptocracy and economic treason, punishes the use of high office for
Some of our distinguished colleagues would dismiss the charge against
personal enrichment, committed thru a series of acts done not in the
the petitioner on the ground that the allegation of conspiracy in the
public eye but in stealth and secrecy over a period of time, that may
Amended Information is too general.  The fear is even expressed that it
involve so many persons, here and abroad, and which touch so many
could serve as a net to ensnare the innocent.  Their dissents appear to
states and territorial units.  The acts and/or omissions sought to be
be inspired by American law and jurisprudence.
penalized do not involve simple cases of malversation of public funds,
bribery, extortion, theft and graft but constitute plunder of an entire
nation resulting in material damage to the national economy.  The We should not confuse our law on conspiracy with conspiracy in
above-described crime does not yet exist in Philippine statute American criminal law and in common law.  Under Philippine law,
books.  Thus, the need to come up with a legislation as a safeguard conspiracy should be understood on two levels.  As a general rule,
against the possible recurrence of the depravities of the previous conspiracy is not a crime in our jurisdiction.  It is punished as a crime
regime and as a deterrent to those with similar inclination to succumb only when the law fixes a penalty for its commission such as in
to the corrupting influence of power.” conspiracy to commit treason, rebellion and sedition.  In contrast,
under American criminal law, the agreement or conspiracy itself is
the gravamen of the offense.[24] The essence of conspiracy is the
There is no denying the fact that the “plunder of an entire nation
combination of two or more persons, by concerted action, to
resulting in material damage to the national economy” is made up of a
accomplish a criminal or unlawful purpose, or some purpose not in
complex and manifold network of crimes.  In the crime of plunder,
itself criminal or unlawful, by criminal or unlawful means.[25] Its
therefore, different parties may be united by a common purpose.  In
elements are:  agreement to accomplish an illegal objective, coupled
the case at bar, the different accused and their different criminal acts
with one or more overt acts in furtherance of the illegal purpose; and
have a commonality—to help the former President amass, accumulate
requisite intent necessary to commit the underlying substantive
or acquire ill-gotten wealth.  Sub-paragraphs (a) to (d) in the Amended
offense.[26]
Information alleged the different participation of each accused in the
conspiracy.  The gravamen of the conspiracy charge, therefore,
is not that each accused agreed to receive protection money from A study of the United States Code ought to be instructive.   It
illegal gambling, that each misappropriated a portion of the tobacco principally punishes two (2) crimes of conspiracy [27] – conspiracy to
excise tax, that each accused ordered the GSIS and SSS to purchase commit any offense or to defraud the United States, and conspiracy to
shares of Belle Corporation and receive commissions from such sale, impede or injure officer.  Conspiracy to commit offense or to defraud
nor that each unjustly enriched himself from commissions, gifts and the United States is penalized under 18 U.S.C. Sec. 371,[28] as follows:
kickbacks; rather, it is that each of them, by their individual acts,
agreed to participate, directly or indirectly, in the amassing,
accumulation and acquisition of ill-gotten wealth of and/or for former “Sec. 371. Conspiracy to commit offense or to defraud the United
President Estrada. States.  If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of
In the American jurisdiction, the presence of several accused in such persons to any act to effect the object of the conspiracy, each
multiple conspiracies commonly involves two structures: (1) the so- shall be fined not more than $10,000 or imprisoned  not more than five
called “wheel” or “circle” conspiracy, in which there is a single person years, or both.
or group (the “hub”) dealing individually with two or more other
persons or groups (the “spokes”); and (2) the “chain” conspiracy,
If, however, the offense, the commission of which is the object of the
usually involving the distribution of narcotics or other contraband, in
conspiracy, is a misdemeanor only, the punishment for such conspiracy
which there is successive communication and cooperation in much the
same way as with legitimate business operations between
CRIMINAL LAW FULL CASES
shall not exceed the maximum punishment provided for such
misdemeanor.”
Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec.
372, viz:
“Sec. 372. Conspiracy to impede or injure officer. If two or more
persons in any State, Territory, Possession, or District conspire to
prevent, by force, intimidation, or threat, any person from accepting or
holding any office, trust or place of confidence under the United States,
or from discharging any duties thereof, or to induce by like means any
officer of the United States to leave the place, where his duties as an
officer are required to be performed, or to injure him in his person or
property on account of his lawful discharge of the duties of his office,
or while engaged in the lawful discharge thereof, or to injure his
property so as to molest, interrupt, hinder, or impede him in the
discharge of his official duties, each of such persons shall be fined not
more than $5,000 or imprisoned not more than six years, or both.”
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit
any offense against the United States; and (2) conspiracy to defraud
the United States or any agency thereof. The conspiracy to “commit
any offense against the United States” refers to an act made a crime by
federal laws.[29] It refers to an act punished by statute.[30] Undoubtedly,
Section 371 runs the whole gamut of U.S. Federal laws, whether
criminal or regulatory.[31] These laws cover criminal offenses such as
perjury, white slave traffic, racketeering, gambling, arson, murder,
theft, bank robbery, etc. and also include customs violations,
counterfeiting of currency, copyright violations, mail fraud, lotteries,
violations of antitrust laws and laws governing interstate commerce
and other areas of federal regulation.[32] Section 371 penalizes the
conspiracy to commit any of these substantive offenses.  The offense
of conspiracy is generally separate and distinct from the substantive
offense,[33] hence, the court rulings that acquittal on the substantive
count does not foreclose prosecution and conviction for related
conspiracy.[34]
The conspiracy to “defraud the government” refers primarily to
cheating the United States out of property or money.  It also covers
interference with or obstruction of its lawful governmental functions
by deceit, craft or trickery, or at least by means that are dishonest. [35] It
comprehends defrauding the United States in any manner whatever,
whether the fraud be declared criminal or not.[36]
The basic difference in the concept of conspiracy notwithstanding, a
study of the American case law on how conspiracy should be alleged
will reveal that it is not necessary for the indictment to include
particularities of time, place, circumstances or causes, in stating the
manner and means of effecting the object of the conspiracy.  Such
specificity of detail falls within the scope of a bill of particulars.[37] An
indictment for conspiracy is sufficient where it alleges: (1) the
agreement; (2) the offense-object toward which the agreement was
directed; and (3) the overt acts performed in furtherance of the
agreement.[38] To allege that the defendants conspired is, at least, to
state that they agreed to do the matters which are set forth as the
substance of their conspiracy.  To allege a conspiracy is to allege an
agreement.[39] The gist of the crime of conspiracy is unlawful
agreement, and where conspiracy is charged, it is not necessary to set
out the criminal object with as great a certainty as is required in cases
where such object is charged as a substantive offense. [40]
In sum, therefore, there is hardly a substantial difference on how
Philippine courts and American courts deal with cases challenging
Informations alleging conspiracy on the ground that they lack
particularities of time, place, circumstances or causes.  In our
jurisdiction, as aforestated, conspiracy can be alleged in the
Information as a mode of committing a crime or it may be alleged as
constitutive of the crime itself. When conspiracy is alleged as a crime
in itself, the sufficiency of the allegations in the Information charging
the offense is governed by Section 6, Rule 110 of the Revised Rules of
Criminal Procedure.  It requires that the information for this crime
must contain the following averments:
“Sec. 6. Sufficiency of complaint or information.- A complaint or
information is sufficient if it states the name of the accused, the
designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
party; the approximate date of the commission of the offense; and the
place where the offense was committed.
When the offense was committed by more than one person, all of
them shall be included in the complaint or information.”
The complaint or information to be sufficient must state the name of
the accused, designate the offense given by statute, state the acts or
omissions constituting the offense, the name of the offended party,
the approximate date of the commission of the offense and the place
where the offense was committed.
Our rulings have long settled the issue on how the acts or omissions
constituting the offense should be made in order to meet the standard
of sufficiency.  Thus, the offense must be designated by its name given
by statute or by reference to the section or subsection of the statute
punishing it.[41] The information must also state the acts or omissions
constituting the offense, and specify its qualifying and aggravating
circumstances.[42] The acts or omissions complained of must be alleged
in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and
enable the court to pronounce proper judgment.[43] No information for
a crime will be sufficient if it does not accurately and clearly allege the
elements of the crime charged.[44] Every element of the offense must
be stated in the information.[45] What facts and circumstances are
necessary to be included therein must be determined by reference to
the definitions and essentials of the specified crimes.[46] The
requirement of alleging the elements of a crime in the information is to
inform the accused of the nature of the accusation against him so as to
enable him to suitably prepare his defense.  The presumption is that
the accused has no independent knowledge of the facts that constitute
the offense.[47]
To reiterate, when conspiracy is charged as a crime, the act of
conspiring and all the elements of said crime must be set forth in the
complaint or information.  For example, the crime of “conspiracy to
commit treason” is committed when, in time of war, two or more
persons come to an agreement to levy war against the Government or
to adhere to the enemies and to give them aid or comfort, and decide
to commit it.[48] The elements of this crime are: (1) that the offender
owes allegiance to the Government of the Philippines; (2) that there is
a war in which the Philippines is involved; (3) that the offender and
other person or persons come to an agreement to: (a) levy war against
the government, or (b) adhere to the enemies, to give them aid and
comfort; and (4) that the offender and other person or persons decide
to carry out the agreement.  These elements must be alleged in the
information.
The requirements on sufficiency of allegations are different when
conspiracy is not charged as a crime in itself but only as the mode of
committing the crime as in the case at bar.  There is less necessity of
reciting its particularities in the Information because conspiracy is not
the gravamen of the offense charged.  The conspiracy is significant
only because it changes the criminal liability of all the accused in the
conspiracy and makes them answerable as co-principals regardless of
the degree of their participation in the crime.[49] The liability of the
conspirators is collective and each participant will be equally
responsible for the acts of others,[50] for the act of one is the act of all.
[51]
 In People v. Quitlong,[52] we ruled on how conspiracy as the mode
of committing the offense should be alleged in the Information, viz:
“x x x. In embodying the essential elements of the crime charged, the
information must set forth the facts and circumstances that have a
bearing on the culpability and liability of the accused so that the
accused can properly prepare for and undertake his defense.  One such
fact or circumstance in a complaint against two or more accused
persons is that of conspiracy.  Quite unlike the omission of an ordinary
recital of fact which, if not excepted from or objected to during trial,
may be corrected or supplied by competent proof, an allegation,
however, of conspiracy, or one that would impute criminal liability to
an accused for the act of another or others, is indispensable in order
to hold such person, regardless of the nature and extent of his own
participation, equally guilty with the other or others in the
commission of the crime.  Where conspiracy exists and can rightly be
appreciated, the individual acts done to perpetrate the felony becomes
of secondary importance, the act of one being imputable to all the
others (People v. Ilano, 313 SCRA 442). Verily, an accused must know
CRIMINAL LAW FULL CASES
from the information whether he faces a criminal responsibility not
only for his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components
of conspiracy or allege all the details thereof, like the part that each
of the parties therein have performed, the evidence proving the
common design or the facts connecting all the accused with one
another in the web of the conspiracy.  Neither is it necessary to
describe conspiracy with the same degree of particularity required in
describing a substantive offense.  It is enough that the indictment
contains a statement of facts relied upon to be constitutive of the
offense in ordinary and concise language, with as much certainty as
the nature of the case will admit, in a manner that can enable a
person of common understanding to know what is intended, and with
such precision that the accused may plead his acquittal or conviction
to a subsequent indictment based on the same facts.  It is said,
generally, that an indictment may be held sufficient “if it follows the
words of the statute and reasonably informs the accused of the
character of the offense he is charged with conspiring to commit, or,
following the language of the statute, contains a sufficient statement of
an overt act to effect the object of the conspiracy, or alleges both the
conspiracy and the contemplated crime in the language of the
respective statutes defining them (15A C.J.S. 842-844).
x x x                                                                        x x
x                                                                 x x x
x x x. Conspiracy arises when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it.  Conspiracy comes to life at the very instant the plotters
agree, expressly or impliedly, to commit the felony and forthwith to
actually pursue it.  Verily, the information must state that the accused
have confederated to commit the crime or that there has been a
community of design, a unity of purpose or an agreement to commit
the felony among the accused.  Such an allegation, in the absence of
the usual usage of the words “conspired” or “confederated” or the
phrase “acting in conspiracy,” must aptly appear in the information in
the form of definitive acts constituting conspiracy.  In fine, the
agreement to commit the crime, the unity of purpose or the
community of design among the accused must be conveyed such
as either by the use of the term “conspire” or its derivatives and
synonyms or  by allegations of basic facts constituting the
conspiracy.  Conspiracy must be alleged, not just inferred, in the
information on which basis an accused can aptly enter his plea, a
matter that is not to be confused with or likened to the adequacy of
evidence that may be required to prove it.  In establishing conspiracy
when properly alleged, the evidence to support it need not necessarily
be shown by direct proof but may beinferred from shown acts and
conduct of the accused.
x x x                                                                        x x
x                                                                 x x x.”
Again, following the stream of our own jurisprudence, it is enough to
allege conspiracy as a mode in the commission of an offense in either
of the following manner: (1) by use of the word “conspire,” or its
derivatives or synonyms, such as confederate, connive, collude, etc;
[53]
 or (2) by allegations of basic facts constituting the conspiracy in a
manner that a person of common understanding would know what is
intended, and with such precision as would enable the accused to
competently enter a plea to a subsequent indictment based on the
same facts.[54]
The allegation of conspiracy in the information must not be confused
with the adequacy of evidence that may be required to prove it.  A
conspiracy is proved by evidence of actual cooperation; of acts
indicative of an agreement, a common purpose or design, a concerted
action or concurrence of sentiments to commit the felony and actually
pursue it.[55] A statement of this evidence is not necessary in the
information.
In the case at bar, the second paragraph of the Amended Information
alleged in general terms how the accused committed the crime of
plunder.  It used the words “in connivance/conspiracy with his co-
accused.” Following the ruling in Quitlong, these words are sufficient
to allege the conspiracy of the accused with the former President in
committing the crime of plunder.
V.
We now come to petitioner’s plea for bail.  On August 14, 2002, during
the pendency of the instant petition before this Court, petitioner filed
with respondent Sandiganbayan an “Urgent Second Motion for Bail for
Medical Reasons.” Petitioner prayed that he be allowed to post bail
due to his serious medical condition which is life-threatening to him if
he goes back to his place of detention.  The motion was opposed by
respondent Ombudsman to which petitioner replied.
For three days, i.e., on September 4, 20 and 27, 2001, respondent
Sandiganbayan conducted hearings on the motion for bail.  Dr. Roberto
V. Anastacio, a cardiologist of the MakatiMedical Center, testified as
sole witness for petitioner.
On December 18, 2001, petitioner filed with the Supreme Court an
“Urgent Motion for Early/Immediate Resolution of Jose ‘Jinggoy’
Estrada’s Petition for Bail on Medical/Humanitarian Considerations.”
Petitioner reiterated the motion for bail he earlier filed with
respondent Sandiganbayan.[56]
On the same day, we issued a Resolution referring the motion to
respondent Sandiganbayan for resolution and requiring said court to
make a report, not later than 8:30 in the morning of December 21,
2001.
On December 21, 2001, respondent court submitted its
Report.  Attached to the Report was its Resolution dated December 20,
2001 denying petitioner’s motion for bail for “lack of factual
basis.”[57] Basing its finding on the earlier testimony of Dr. Anastacio,
the Sandiganbayan found that petitioner “failed to submit sufficient
evidence to convince the court that the medical condition of the
accused requires that he be confined at home and for that purpose
that he be allowed to post bail.”[58]
The crime of plunder is punished by R.A. No. 7080, as amended by
Section 12 of R.A. No. 7659, with the penalty of reclusion perpetua to
death.  Under our Rules, offenses punishable by death, reclusion
perpetua or life imprisonment are non-bailable when the evidence of
guilt is strong, to wit:
“Sec. 7. Capital offense or an offense punishable by reclusion perpetua
or life imprisonment, not bailable. – No person charged with a capital
offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal prosecution.” [59]
Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based
on Section 13, Article III of the 1987 Constitution which reads:
“Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended.  Excessive bail shall not be required.”
The constitutional mandate makes the grant or denial of bail in capital
offenses hinge on the issue of whether or not the evidence of guilt of
the accused is strong.  This requires that the trial court conduct bail
hearings wherein both the prosecution and the defense are afforded
sufficient opportunity to present their respective evidence.  The
burden of proof lies with the prosecution to show strong evidence of
guilt.[60]
This Court is not in a position to grant bail to the petitioner as the
matter requires evidentiary hearing that should be conducted by the
Sandiganbayan.  The hearings on which respondent court based its
Resolution of December 20, 2001 involved the reception of medical
evidence only and which evidence was given in September 2001, five
CRIMINAL LAW FULL CASES
months ago.  The records do not show that evidence on petitioner’s
guilt was presented before the lower court.
Upon proper motion of the petitioner, respondent Sandiganbayan
should conduct hearings to determine if the evidence of petitioner’s
guilt is strong as to warrant the granting of bail to petitioner.
IN VIEW WHEREOF, the petition is dismissed for failure to show that
the respondent Sandiganbayan acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction.
SO ORDERED.
G.R. No. 129306            March 14, 2003
PEOPLE OF THE PHILIPPINES, appellee,  and he was told that it was an armalite. They traveled again for 30
vs.
JAMES PATANO Y MARCAIDA, RAMIL MADRIAGA Y LAGONOY AND
ROSENDO MADRIAGA Y BANAAG,appellants.
AUSTRIA-MARTINEZ, J.:
For automatic review is the decision dated April 30, 1997, rendered by
the Regional Trial Court of Pasig City, Branch 262 in Criminal Case No.
110089-H convicting appellants James Patano, Ramil Madriaga and
Rosendo Madriaga of the crime of Kidnapping for Ransom and
imposing upon them the supreme penalty of death.
The Amended Information, dated May 15, 1996, charged appellants
James Patano, Ramil Madriaga and Rosendo Madriaga as well as
Oswaldo Banaag, Manolo Babac, Allan Duarte and Jose Doe, with the
crime of Kidnapping for Ransom, committed as follows:
That on or about March 25, 1996, in Mandaluyong City, and
within the jurisdiction of this Honorable Court, the
aforenamed accused grouping themselves together,
conspiring, confederating and mutually helping one
another, did then and there willfully, unlawfully and
feloniously detain/kidnap and/otherwise deprived VICENTE
UY Y CHUA (NGO LIT POON) of his liberty for the purpose of
extorting ransom, as in fact demand therefore in the
amount of TEN MILLION (P10,000,000.00) PESOS had been
made by the above-named accused, while detaining said
victim in Antipolo, Rizal, until his rescue on March 27, 1996.
CONTRARY TO LAW.1
All three appellants together with Oswaldo Banaag pleaded not guilty
to the crime as charged. Their other co-accused Manolo Babac, Allan
Duarte and Jose Doe remain at large. Trial ensued.
The prosecution presented six witnesses.
Kidnap victim Vicente Uy testified as follows -- On March 25, 1996, at
around 10:30 in the evening, he was along Wilson St., San Juan, Metro
Manila, on his way home driving his Nissan Sentra when a black Pajero
bumped his car on the left door, driver's side. Both he and the driver of
the Pajero got off their respective vehicles. When he told the driver
that they have to call a police officer, he was told that the passengers
inside the Pajero were police officers. He was asked to look inside the
Pajero. When he did so, the driver suddenly pushed him inside the
vehicle while the four other passengers grabbed him. He was
blindfolded and his feet and hands were tied. After traveling for about
30 minutes, the vehicle stopped and he was transferred to the baggage
compartment of another vehicle. An object was placed on top of him
minutes, after which, he was moved, placed on a "hard object" and
covered with "something". He was asked if he has ten million pesos
(P10,000,000.00) to which he replied in the negative. They bargained
for a while until the ransom money was pegged at five million pesos
(P5,000,000.00). They asked for his telephone number which he gave.
After some hours, Uy felt somebody lifting him up, telling him that he
was already safe, removing his blindfold and untying him. His daughter
Lucy Ngo then entered the room. He was asked if he wanted to go to
the hospital but he declined.2
On cross-examination, Uy stated that when his blindfold was removed,
he saw two handcuffed men. He pointed to appellant Rosendo
Madriaga who was in the courtroom, but Uy declared that he is not
certain that Rosendo was the one he had seen handcuffed because the
one he saw was wearing a moustache and Rosendo does not have
one.3
Chief Inspector Gilbert Cruz, in-charge of operations of the Presidential
Anti-Crime Commission's (PACC) Task Force Habagat, testified as
follows -- On March 27, 1996, his superior, Supt. Calinisan instructed
him to proceed to the residence of Uy as the former received a call
from Lucy telling him that there was someone in the house of Virginia
Avelita, Uy's common-law wife, who claims to know the location of the
victim. He went to the house of Lucy and they agreed that he will pose
as the family's lawyer. They then went to the house of Virginia. There,
he was introduced to appellant Ramil Madriaga who told them that Uy
was under the custody of the Antipolo police because he was arrested
for swimming without authority at the Villa Cristina Resort (resort for
brevity), Antipolo, Rizal, now Antipolo City. Upon his instructions,
verification was made by a certain Chief Insp. Quidato4 who had gone
to the resort and learned that the information was false. Together with
Lucy and appellant Ramil, Maj. Cruz proceeded to the resort. Upon
reaching the resort, Ramil "dashed" towards cottage no. 2 but Maj.
Cruz stopped Ramil. In front of the cottage was a certain Richard Dimal
to whom Cruz identified himself as a police officer. He found appellant
Rosendo and victim Uy inside the cottage. Dimal and appellant
Rosendo were then arrested, handcuffed and brought to the
headquarters where they identified a certain Oswaldo Banaag as the
"tipster" of the group.5
Lucy Ngo's testimony is as follows -- In the morning of March 26, 1996,
she received a call from Virginia Avelita telling her that a certain Ramil
Madriaga was at her place with information regarding the whereabouts
of her father Vicente Uy, also known as Ngo Lip Poon. She called Maj.
Gilbert Cruz and together, they went to Virginia's house. There, they
met appellant Ramil who informed them that he received a beeper
message from his cousin, appellant Rosendo, telling him that the
Antipolo police picked up their group and Uy was recovered. Maj. Cruz
then instructed Maj. Winnie Quidato to check with the Antipolo police
if there was really an arrest made on that day and it was learned that
there was none. Maj. Cruz instructed Quidato to proceed to the resort
which they also did together with Lucy's uncles and aunts. At the
resort, appellant Ramil got off the car and talked to Maj. Cruz who
instructed Ramil: "(O)kay but slowly, do not run or make any move."
Halfway towards his cousin, appellant Ramil ran and met appellant
Rosendo. Maj. Cruz then ran, followed by his staff. Lucy and her
companions were left waiting in the car until Quidato returned and told
her that her father is safe, and they proceeded to the cottage.
Appellant Ramil approached Lucy and asked her not to include his
cousin Rosendo in the case because of Ramil's help in the rescue of her
father.6
Richard Dimal who was arrested by Maj. Cruz on March 27, 1996,
testified as follows -- In the evening of March 25, 1996, he was renting
some VHS tapes at the Star Gazer video shop located at Pasig City
where he saw his friend Nadel Francisco. They chatted until 12 o'clock
midnight. Appellant Ramil passed by in his white Toyota Corolla car
between 12 o'clock and 1 o'clock in the morning of March 26, 1996 and
invited Dimal "to go around" to which the latter acceded. They went to
the house of Dimal at Cainta, Rizal. Dimal saw a black Nissan Patrol
parked in front of his house. Appellant Ramil then called up a
passenger of the Nissan Patrol on his mobile phone and told the latter,
"we can't do it here, we must find a darker place." Then they
proceeded to Taytay, Rizal and stopped behind its new market.
Appellant Ramil alighted from the car and went to the Nissan Patrol.
Thereafter, Dimal saw them put something inside the trunk of the car
of Ramil. They left Taytay, Rizal and roamed around, with the Nissan
Patrol tailing them. When they reached Bulacan, they stopped and
CRIMINAL LAW FULL CASES
Ramil talked to the passengers of the Nissan Patrol. Ramil returned to
his car and told Dimal that they will go to Antipolo, Rizal. Upon
reaching Antipolo, the passengers of the Nissan Patrol transferred to
the car of Ramil. They left the Nissan Patrol behind. Dimal identified
Manolo Babac as the driver of the Nissan Patrol and both appellants
Rosendo Madriaga and James Patano as well as the two co-accused
who are still at-large, Alan Duarte and Jose Doe, as its passengers.
When they reached the resort located in Antipolo, Rizal, between 5
o'clock and 6 o'clock in the morning (March 26, 1996), appellant Ramil
opened the trunk of his car. Jose and appellant Patano lifted a person
out of the trunk and brought him inside cottage no. 2. Dimal asked
appellant Ramil if he could go home but Ramil said that they will all
leave together. Ramil and Duarte then left the place. Dimal, appellants
Rosendo and Patano, and Jose were left inside the cottage. They all
went to sleep. When Dimal woke up, it was between 12 o'clock and 1
o'clock in the afternoon (March 26, 1996). He went to the resort's
restaurant and stayed there for about 30 minutes. When he went back
to the cottage, the others were not there anymore. While waiting for
Ramil and the others to come back, he took his dinner between 7
o'clock and 8 o'clock in the evening of "March 26, 1996" and he laid
down up to "1 o'clock early morning" of "March 27, 1996". When he
went out of the cottage to call up somebody because he was confused
having been left alone, appellant Rosendo arrived together with Jose.
Jose left again at 6 o'clock in the morning (March 27, 1996) leaving
Dimal and appellant Rosendo inside the cottage. They took their lunch
in front of the cottage and waited until "around 3 o'clock to 4 o'clock in
the afternoon" when appellant Ramil arrived with several companions
who he later learned to be the kin of Uy and some police officers.
Dimal and appellant Rosendo were left inside the cottage together with
some police officers to wait for their (Dimal's and Rosendo's) other
companions. At 7 o'clock in the evening, appellant Patano arrived. They
stayed in the resort until the afternoon of the next day and they were
brought by the policemen to Camp Crame.7
On cross-examination, Dimal admitted that he was arrested that
afternoon of March 27; that he was wearing a moustache at the time
of the arrest and that he was the one who fed victim Uy.8
Virginia "Virgie" Avelita, Uy's common-law wife, corroborated the
testimony of Lucy and Maj. Cruz regarding appellant Ramil's contact
with her. Virginia further testified that appellant Ramil related to her
the whole kidnapping scenario; that Ramil informed her that the
kidnappers were demanding one hundred thousand pesos
(P100,000.00) ransom; that Oswaldo Banaag is the gang's tipster; and
that Ramil requested her not to involve his cousin Rosendo.9
The last witness for the prosecution, Chief Inspector Winnie Quidato,
Chief of the Intelligence and Operation Division of the Task Force
Habagat, corroborated some portions of the testimony of Maj. Cruz on
the episode at the resort. He also testified that appellant Patano
arrived at the resort at around 9 o'clock to 10 o'clock in the evening of
March 27, 1996 bringing with him one thousand pesos (P1,000.00) as initially didn't want to intervene but eventually agreed to help him. He
payment for the cottage rental.10 gave the number on the phone bill and appellant Ramil assured him
that he will contact such person. He then went back to the veranda
where he slept. The next day (March 27, 1996), between 3 o'clock and
The defense presented five witnesses.
4 o'clock in the afternoon, he heard somebody calling his name, and
saw appellant Ramil who was with several armed men, running
First to be presented was accused Oswaldo Banaag, family driver of a towards him. Dimal then ran and threw a gun near the trees.14
certain Beverly Tan. He denied any complicity in the crime. Banaag
testified that: he was arrested in White Plains, Quezon City, on March
Appellant Rosendo further testified that he saw appellant James
29, 1996 by Maj. Cruz and was brought to Camp Crame; it was only
Patano for the first time in the afternoon of March 28 on board a van
when he was transferred to a detention cell that he met his co-
at the resort,15 while he saw Oswaldo Banaag for the first time at the
accused; although he knew victim Uy, he thought that he was being
PACC office.16 Rosendo avers that Dimal implicated him because the
charged with the killing of his employer, Reynaldo Tan; he was
latter thinks he was the one who caused his arrest.17 Further, Rosendo
surprised when he learned that he was being implicated in the
testified that in the room where he, Patano and Dimal were brought by
kidnapping of Uy.11
Maj. Cruz, victim Uy only pointed to Dimal as the one who kidnapped
him.18
Nadel Francisco, a college student taking up Management course,
testified that at "around 4 o'clock to 5 o'clock in the afternoon" of
Appellant James Patano recounted that: on March 28, 1996, after
March 25, 1996, Richard Dimal visited him at his house at de Castro,
having gone for a swim, Maj. Quidato arrested him while he was
Pasig City. They chatted for about one hour. Dimal invited him to go
urinating in one of the corners in the resort; he was brought inside a
swimming in Villa Cristina Resort but he declined because he has an
comfort room in one of the cottages where he was asked if he knew
examination the following day. Francisco belied Dimal's statement that
Dimal or appellant Rosendo; when he was brought out of the room, he
they were together until 12 o'clock midnight as he was already asleep
was already unconscious as he was mauled and a plastic bag was
in his house at that time. He further stated that he did not see
placed on his head; he regained consciousness inside a vehicle; from
appellant Ramil Madriaga on said day.12 On cross-examination,
the resort, he was brought to the PACC office; at the PACC office,
Francisco admitted that appellant Ramil's girlfriend asked him to testify
Dimal's kin, particularly Dimal's sister Arlene and her husband Willie
but he clarified that he was testifying not because of such request, but
Pangan, asked him to testify against the Madriagas, but he turned
because of the subpoena issued to him.13
them down; and he was also asked to sign an affidavit but he likewise
refused. Patano further denied knowing his co-accused in the case. 19
Appellant Rosendo Madriaga testified thus -- At around 8 o'clock in the
evening of March 25, 1996, Richard Dimal, together with a certain
Appellant Ramil Madriaga asserts his innocence of the crime charged.
Nestor, went to his house and invited him for a swim in Antipolo, Rizal,
He testified as follows -- In the early morning of March 26, 1996, his
as it was Nestor's birthday. They arrived at Villa Cristina Resort at
cousin Rosendo called him up asking for his help. Rosendo told Ramil
around 10 o'clock in the evening and rented a "cottage table" near the
that he was in the resort and was unexpectedly mixed up in a
pool. While he and Nestor were swimming, he saw Dimal talk to some
kidnapping; that he could not get out of the resort because there were
men and then go upstairs. Later, he noticed that Nestor was no longer
"look-outs" posted in the area. Rosendo gave Ramil a name and a
around. Afterwards, Dimal came back and invited him to drink. They
number written in a PLDT bill. Appellant Ramil was hesitant because
went to a veranda and there, he saw Nestor drinking Fundador with
the results of the Bar examinations were coming out that day; but
the same men he previously saw talking to Dimal. Appellant Rosendo
nevertheless, he went to see a certain Lt. Capitulo in Camp Aguinaldo
recalls the names of two of the men as Allan and Bong. At around 4
and told him about his cousin's predicament.20 The next day, March 27,
o'clock in the morning (March 26, 1996), Dimal confided to him that
1996, Ramil went to see Virginia Avelita, the name given by appellant
they were going to actually stand guard over a person. Dimal pulled
Rosendo written on the PLDT bill. He showed her his school I.D. and
him towards a room where Rosendo saw a person with bound feet and
asked her if she knows anybody who is missing, and the latter replied,
hands lying on his belly on the floor. When Rosendo told Dimal that he
"si Vicente ko." He was then made to talk over the phone to Vicente
wanted to leave, he was told that Bong's group had men posted at the
Uy's daughter, who asked him to wait. Virginia, meanwhile, told him
gate and he might be killed if he left. Scared, he stayed inside the
that she was going out. After an hour, Virginia, Lucy, three old women,
room. Per instructions of Dimal, Rosendo burned all the things
their driver, PACC operatives and Maj. Cruz arrived. After a short
belonging to the captive but Rosendo kept a PLDT bill. When Dimal had
conversation, they left for the resort, leaving Virginia behind. He asked
gone asleep, Rosendo went to the resort's canteen and called the
the latter to look after his white Toyota Corolla car which he left in her
number of Virginia Avelita reflected on the PLDT bill but the person
residence. Upon reaching the resort, they were approached by Maj.
answering the phone hung up on him several times. He then called up
Quidato who asked him questions. He got off the car when he saw his
his cousin, appellant Ramil Madriaga, and asked for his help. Ramil
cousin Rosendo near the pool with Dimal. He pointed the two to Maj.
CRIMINAL LAW FULL CASES
Cruz who instructed his men to scatter. He then started walking
towards his cousin, and when appellant Rosendo saw him, he told the
latter, "mga kasama natin ito, huwag kang matakot." When he got to
Rosendo, he pulled him and they leaned on the wall for fear that they
might get shot. Dimal ran upstairs while Rosendo pointed to the place
where Uy was being kept. They went inside the cottage and Ramil
removed the plaster bindings on Uy.21
The trial court convicted appellants James Patano, Ramil Madriaga and
Rosendo Madriaga of the crime of Kidnapping for Ransom, but
acquitted their co-accused Oswaldo Banaag.
The dispositive portion of the assailed decision, reads:
WHEREFORE, judgment is hereby rendered as follows:
1. With respect to the Criminal Case No. 110090, on the
ground of insufficiency of evidence, all the accused are
ACQUITTED.
2. With respect to Criminal Case No. 110089-H, on the
ground of insufficiency of evidence, accused OSWALDO P.
BANAAG is hereby ACQUITTED. The jail warden of
Mandaluyong City is hereby directed to immediately release
his person unless there are other legal grounds to justify his
continued detention. However, with respect to accused
ROSENDO B. MADRIAGA, JAMES M. PATANO, and RAMIL L.
MADRIAGA, judgment is hereby rendered finding them
GUILTY beyond reasonable doubt of the crime of kidnapping
and serious illegal detention defined and penalized under
Article 267 of the Revised Penal Code. Accordingly, said
accused are hereby sentenced to suffer the penalty of
death, as provided for under said Article 267 of the Revised
Penal Code, to suffer the appropriate accessory penalties
consequent thereto, and to proportionally pay the costs.
SO ORDERED.22
Appellants insist that they are innocent of the crime of Kidnapping for
Ransom, arguing that:
I THE TRIAL COURT ERRED GROSSLY IN CONVICTING
ACCUSED-APPELLANTS WITHOUT BEING IDENTIFIED AS THE
ABDUCTORS/KIDNAPPERS OR CULPRITS OF THE ALLEGED
KIDNAPPING.
II THE TRIAL COURT ERRED IN CONVICTING ACCUSED-
APPELLANTS SOLELY ON THE BASIS OF THE LONE AND
UNCORROBORATED TESTIMONY OF THE CO- SAGOT     -     13. Noong ganap na ika-pito ng gabi ng Marso
CONSPIRATOR.23 25, 1996, ako ay nagpunta sa Star Gazer Video Shop sa
Azucena Street, De Castro, Pasig upang mag-arkila ng VHS
tapes. Mayamaya ay nagkita kami doon ng kaibigan ko na
Bearing in mind that it devolves upon the State to establish by proof all
si NADEL FRANCISCO at nagkuwentuhan kami doon sa tapat
the essential elements of the crime with which appellants are charged
ng nasabing video shop hanggang bandang alas-dose ng
and to establish beyond reasonable doubt that they are guilty of said
hatinggabi. Habang nagkukuwentuhan kami ay napadaan
crime,24 the Court, after a meticulous examination of the evidence of
sa harapan namin si kuya Amel na lulan ng isang kotse at
the prosecution, finds that appellants James Patano, Ramil Madriaga
niyaya niya akong sumama sa kanya at sinabing mayroon
and Rosendo Madriaga should have been acquitted by the trial court.
daw kaming happenings.28 (Emphasis Ours)
The prosecution failed to overthrow the constitutional presumption of
innocence in favor of appellants. It failed to adduce the quantum of
proof necessary to convict them. But defense witness Francisco categorically denied Dimal's assertions.
While he admitted that he saw Dimal that day, he testified that they
merely chatted for only about one and a half (1 ½) hours and parted
In convicting appellants, the trial court gave great weight and
ways at around 5:30 o'clock in the afternoon. Francisco testified thus:
evidentiary value to the uncorroborated testimony of prosecution
witness Richard Dimal on appellants' alleged participation in the crime.
It stated that Dimal's testimony is "direct, straightforward and Q         You said you talked with Richard Dimal for one hour,
spontaneous" thus justifying the conclusion that appellants acted in more or less, will you tell this Honorable Court what time
concert in carrying into effect the kidnapping of Vicente Uy. The trial did Richard and you started to talk?
court totally disregarded appellants' testimonies on the ground that
they failed to support their versions of the incident.
A         Approximately 4:00 o'clock in the afternoon, sir.
It is well settled that the testimony of a single witness is sufficient to
Q         It lasted around 5:30 o'clock?
support a conviction so long as it is clear, straightforward and worthy
of evidence by the trial court.25 It is likewise a settled doctrine that
when it comes to credibility of witnesses, the findings of a trial court on A         Yes, sir.
such matter will not be disturbed unless the lower court overlooked,
ignored, misapprehended, or misinterpreted certain facts or Q         What subject matter did you talk with Richard Dimal?
circumstances which are so material such as to affect the outcome of
the case.26
A         I cannot remember anymore, we just chat about the
lives of our friends, sir.
Although the trial court described the testimony of Dimal as "direct,
straightforward and spontaneous", it should not automatically endow
Q         Who among your friends were talked about?
outright probative weight to his testimony or its veracity, to the
exclusion of the testimonies of other witnesses. Many witnesses can
give testimonies that are blatant lies, even if they appeared poker- A         I cannot remember anymore, sir.
faced and did not bat their eyelashes.
Q         Before you and Ricard Dimal parted ways, what did
After a careful scrutiny of the testimony of prosecution witness Dimal, Dimal tell you, if any?
the Court finds that the trial court failed to consider some significant
facts and circumstances which affect his credibility. His version of the
incident is so incredible that a complete reversal of the findings of the A         He invited me to go with him for swimming, sir.
trial court is warranted.
Q         Will you tell this Honorable Court what place he is
To begin with, Dimal testified that he was with Nadel Francisco on the going to have swimming?
night of the kidnapping when appellant Ramil passed by and invited
him "to go around".27 Dimal likewise declared in his Sworn Statement A         Villa Cristina, sir.
dated April 1, 1996 that he was with Francisco when appellant Ramil
Madriaga invited him at around 12 o'clock midnight, viz.:
CRIMINAL LAW FULL CASES
Q         Tell this Honorable Court what was your reaction to
the invitation of Ricahrd Dimal to go with him at Villa
Cristina?
A         I did not go with him, sir.
Q         Why?
A         I have an examination on the following day, sir.
Q         I am showing to you a statement of Mr. Ricard Dimal
attached to the records of this case found on page 64
consisting of 6 pages, on page 65 or the second page of the
statement of Richard Dimal, question #13 and the answer
thereto, I'm reading it to you and please listen. "Maaari
bang ikuwento mo dito kung paano ka nadamay sa nasabing
kaso? And the answer, "Noong ganap na ika-pito ng gabi ng
Marso 25, 1996, ako ay nagpunta sa Star GazarVideo Shop
sa Azucena St., De Castro, Pasig upang mag-arkila ng VHS
tapes. Mayamaya ay nagkita kami doon ng kaibigan ko na si
Nedel Francisco at nagkuwentuhan kami sa tapat ng
nasabing video shop hanggang bandang alas-dose ng
hatinggabi. Habang nagkukuwentuhan kami ay napadaan sa
harapan namin si Kuya Amel na lulan ng isang kotse at
niyaya niya akong sumama sa kanya at sinabing mayroon
day kaming happenings". Did you hear what I read?
A         Yes, sir.
Q         Did you understand what I read?
A         Yes, sir.
Q         What can you say about what I have read which is the
statement of Richard Dimal?
A         I do not know about that alleged happening, sir.
Q         On that date, around 12:00 o'clock midnight, where
were you?
A         I was already sleeping during that time, sir.
Q         During your conversation with Richard Dimal from
4:00 to 5:30 o'clock in the afternoon of March 25, 1996, tell
this Honorable Court whether you saw Kuya Amel?
A         I did not see him that day, sir.29
The trial court chose to ignore Francisco's testimony. It did not explain
in its decision why it opted not to consider his testimony, why it relied
on the testimony of Dimal despite Francisco's explicit testimony that he
and Dimal talked only up to 5:30 o'clock in the afternoon and that it is
not true that he saw Ramil with his car around midnight or at any time
of that day. The Court is confounded why the trial court entirely
overlooked or disregarded the testimony of Francisco who is a
disinterested witness and had nothing to gain from belying Dimal's
claim. Dimal regards Francisco as his friend;30 and Francisco considers
Dimal as a closer friend of his than Ramil's. 31 Thus, when Francisco
repudiated Dimal's testimony, there was no reason for him to discredit
Dimal except to tell the truth. The credibility of Dimal is thereby
eroded. There is no reason for the trial court to discredit the testimony
of Francisco. One may assert that while it may be true that after
Francisco and Dimal parted ways at 5:30 o'clock in the afternoon, it
could have happened that Dimal and appellant Ramil had met at
midnight. But this posture could not be upheld because of the
testimony of Dimal himself that Francisco was present when Ramil
invited him to roam around at about midnight, which could not be
believed because Francisco was, in fact, not present. In effect, from the
start, Dimal is shown to be concocting his version of the kidnapping
incident.
Furthermore, the trial court erred in accepting Dimal's testimony as
gospel truth considering that his account of the events that transpired
is replete with incredible happenings that should not have been
accepted by the trial court as part of ordinary human experience and
common sense. For example, Dimal testified that he went with Ramil
upon the invitation of the latter and they went to his (Dimal's) house
located at No. 046 Blk. I, PFCI Brgy. San Andres, Cainta, Rizal; 32 that
through a cellular phone, Ramil told the passengers of the Nissan
Patrol parked in front of Dimal's house that they could not do what
they have to do in that place and that they have to find a darker
place.33 Why then did Ramil have to meet the passengers of the Nissan
Patrol in front of Dimal's house when the place is not suitable to his
(Ramil's) plans in the first place? Why did Ramil have to go to Dimal's
house when he could have used the cellular to tell them the place
where he thought would be a better place to meet them? There is
nothing in Dimal's testimony to explain said incongruities.
In addition, Dimal testified that they went to Taytay, Rizal and stopped
behind the new market place where Dimal saw something transferred
from the Nissan Patrol to the trunk of the Toyota Corolla of
Ramil;34 that thereafter, from Taytay, Rizal, they roamed around and
then went to Bulacan with the Nissan Patrol still tailing Ramil's car; that
upon reaching Bulacan, Ramil alighted from his car and talked with the
passengers of the Nissan Patrol; that Ramil went back to his car and
told Dimal that they will go to Antipolo, Rizal; that upon reaching
Antipolo, the passengers of the Nissan Patrol transferred to Ramil's
car35 and then they proceeded to Villa Cristina Resort in Antipolo, Rizal.
From Taytay, Rizal, why do they have to roam around, go to Bulacan
and then back to Rizal? From past midnight to 6 o'clock in the morning,
why did Dimal, Ramil and the passengers of the Nissan Patrol have to
go around killing time when the final destination of all of them
together is the resort in Antipolo, Rizal? Why did the Nissan Patrol have
to tail them all the while from Taytay, Rizal to Bulacan after the victim
was transferred to the car of Ramil only to go to Antipolo, Rizal, a
nearby town of Taytay, Rizal? Said acts are so preposterous that no
amount of stretching of imagination could bring the same within the
realm of human understanding.
The test to determine the value of the testimony of a witness is
whether such is in conformity with knowledge and consistent with the
experience of mankind; whatever is repugnant to these standards
becomes incredible and lies outside of judicial cognizance.36 Further,
absent any other evidence to explain or corroborate such implausible
actuations, the trial court committed a reversible error in considering
the testimony of Dimal credible enough to sustain a conviction of all
appellants. Evidence to be believed must not only come from the
mouth of a credible witness but must also be credible in itself. 37
It may be posited that in the commission of the crime of kidnapping
with ransom, the culprits usually adopt and pursue unfamiliar schemes
or strategies not only to avoid easy detection or monitoring of their
movements, but to confuse the police authorities, the victim and the
family of the victims; that the incredible happenings narrated by Dimal
only highlight his knowledge of the details of the facts surrounding the
kidnapping for ransom. This may be so if the credibility of Dimal on the
fact that he and Ramil had met that night of the kidnapping is beyond
question.
In any event, if a set of facts admits of two interpretations, then the
one consistent with the presumption of innocence and in favor of the
accused should prevail.38
The trial court declared that "there was never any positive
identification made on any of the accused, and that the prosecution
presented evidence which are circumstantial in nature to support the
charge."39
It is a hornbook doctrine that conspiracy must be proved by positive
and convincing evidence. The prosecution miserably fell short of this
requirement.
The trial court explicitly declared that the prosecution witness is not a
co-conspirator and therefore his testimony may be taken in evidence
against all the appellants without running counter to Section 30, Rule
130 of the Rules of Court.40
The court a quo seriously erred in this aspect. Based on Dimal's sworn
statement, marked as Exhibit "A",41 and his testimony, Dimal admitted
and confessed as to his participation.42
CRIMINAL LAW FULL CASES
In addition, the following manifestation of Atty. Marcelino Arias, to wit:
Atty. Arias     Before the prosecution starts the direct
examination, as per record, I learned that his Richard Dimal
is one of the suspects and he was arrested in all these cases
but he was not included as one of the suspects, I want to
put that on record, as far as the record is concern, he is one
of those who allegedly took the victim, he confessed by
means of an affidavit, now he is a witness and not one of
the accused, your Honor.
Court     Everything you have said will be put on record, and
for your own information defense counsel, that is the
prerogative of the prosecution and no longer of the
defense.
Atty. Arias     Considering that I noticed that the prosecution
is in possession of an Affidavit of this witness which was not
included in the records of this case, may I ask to be
furnished of this affidavit.
Fiscal Abesamis     The purpose of the testimony of Richard
Dimal is to show the circumstances before, during and after
the kidnapping of Mr. Vicente Uy, to show the conspiracy
acts of the accused in this case of said kidnapping and to
identify some evidence and thereafter to identify the
accused in this case. With the permission of this Honorable
Court.43
was not refuted by the prosecution.
Section 30, Rule 130 of the Rules of Court provides:
SECTION 30. Admission by conspirator. – The act or
declaration of a conspirator relating to the conspiracy and
during its existence, may be given in evidence against the
co-conspirator after the conspiracy is shown by evidence
other than such act of declaration.
Thus, conspiracy must be proven by evidence other than the testimony
of Dimal.
Proof of conspiracy need not rest on direct evidence as the felonious
covenant itself may be inferred from the conduct of the parties before,
during, and after the commission of the crime disclosing a common
understanding between them relative to its commission. 44
In its assessment, the trial court declared that the evidence for the
prosecution is purely circumstantial,45 on which basis it ruled that
appellants conspired in perpetrating the crime of kidnapping with
ransom.
For circumstantial evidence to be sufficient to support a conviction, all
the circumstances must be consistent with the hypothesis that the
accused is guilty and at the same time inconsistent with the hypothesis
that he is innocent, and with every other rational hypothesis except
that of guilt.46 The following elements must concur: (1) there must be
more than one circumstance; (2) the facts on which the inference of
guilt is based must be proved; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable
doubt.47
In the present case, the totality of the pieces of circumstantial evidence
presented by the prosecution is not sufficient to establish the guilt of
appellants. Not one of the prosecution witnesses saw the actual
abduction. Witness Dimal admitted during cross-examination that he
did not see appellants actually kidnap or abduct Uy, viz.:
Q         You know that you never saw Ramil kidnapped
Vicente Uy?
A         No, sir.
Q         You never saw your Kuya Sendong kidnapped
kidnapped (sic) Mr. Uy?
A         Yes, sir.
Q         You never saw Oswaldo Banaag kidnapped Mr. Uy?
A         No. sir.
Q         You never saw James Patano kidnapped Mr. Uy?
A         No, sir.
Q         Never did you see Mr. Ramil Madriaga kidnapped Mr.
Uy?
A         Yes, sir.48
There could not be any misinterpretation in the meaning of the above
testimonies. If the testimony of Dimal is taken in its entirety, it mainly
revolved around events that allegedly occurred after the abduction was
already consummated. As such, one would readily conclude that Dimal
did not really see the act of kidnapping and therefore, he did not see
any of the appellants perform the actual act of kidnapping. Besides, the
trial court itself declared that "there was never any positive
identification made on any of the accused."49
Further, the prosecution evidence failed to sufficiently prove overt acts
on the part of appellants that will convincingly show their direct
participation or complicity in the kidnapping.
In the case of appellant James Patano, he was condemned to death for
his presence in the resort. The trial court held that since appellant
Patano failed to corroborate his excuse that he was just there for a
swim with friends, then, the same must be ignored.50 The Court
disagrees. If at all, what the prosecution was able to establish is that
appellant Patano knocked on the door of cottage no. 2, and Maj.
Quidato heard him say: "(P)are kaibigan ninyo ito, dala ko ang
pera".51 Such alleged statement by Patano, even if true, is equivocal
and ambiguous. He did not state for what purpose the money is to be
used. No probative weight may be given to the testimony of Maj.
Quidato that the amount of one thousand pesos (P1,000.00) is for the
payment of the cottage because it is a mere conclusion on his part
based on his bare claim that the security guard and the official of the
resort were preventing the victim from leaving because the cottage has
not been paid yet. Quidato did not testify that he heard appellant
Patano say that the alleged money he had with him was for the rental
of the cottage. In other words, even if appellant Patano really brought
money to the cottage, the prosecution failed to connect the
participation of Patano in the commission of the crime of Kidnapping
for Ransom. Absent any other proof of overt act necessary or essential
to the perpetration of the kidnapping, Patano's alleged presence and
utterance cannot be a valid basis for his conviction. The Court cannot
accept the trial court's sweeping conclusion against Patano. The mere
presence of appellant Patano at the resort after the commission of the
crime does not imply conspiracy. Mere knowledge, acquiescence to or
agreement to cooperate, is not enough to constitute one as a party to
a conspiracy, absent any active participation in the commission of the
crime, with a view to the furtherance of the common design and
purpose.52 Conspiracy transcends companionship. 53 Neither can the
Court rely on the uncorroborated testimony of Dimal whose testimony
at the outset had been found not to be credible. The failure of
appellant Patano to present the friends he was with is not sufficient to
support a finding of guilt beyond reasonable doubt. An accused should
be found guilty on the basis of the strength of prosecution evidence
and not on the weakness of the defense.54
Settled is the rule that conviction should rest on the strength of the
evidence of the prosecution and not on the weakness of the defense.
The identity of the offender, like the crime itself, must be proved
beyond reasonable doubt. Even though appellant Patano invokes the
inherently weak defense of denial, such defense nonetheless acquired
commensurate strength in the instant case where no positive and
proper identification has been made by the prosecution witnesses of
the offender, as the prosecution still has the onus probandi in
establishing the guilt of the accused. The weakness of the defense does
CRIMINAL LAW FULL CASES
not relieve the prosecution of this responsibility. Besides, the Court has
held that the testimony of witness Dimal is not credible and not worthy
of belief. There is reasonable doubt as to his guilt or participation in the
commission of the crime of Kidnapping for Ransom. The doubt should
therefore be resolved in favor of appellant James Patano.55
As regards appellant Ramil Madriaga, the trial court refused to accept
his testimony and found his claim that he was responsible for the
rescue of Uy to be "beyond ordinary human comprehension deserving
of no evidentiary value".56 Instead, it banked on the suspicions
entertained by the police operatives that appellant Ramil's actuations
during the rescue were suspect, and that the latter failed to present
Lts. Capitulo and Lim, often referred to by him in his testimony.57 The
Court does not agree. Mere suspicion, speculation, relationship,
association and companionship do not prove conspiracy.58
The Court scrutinized the testimony of appellant Ramil Madriaga and
there is nothing therein which is beyond ordinary understanding or
which indicates any suspicious behavior on his part that would create
doubt on his account of what really transpired. In fact, appellant Ramil
exhibited candor and sincerity when he admitted that he was initially
ambivalent in helping out his cousin Rosendo because of fear and of
the fact that the results of the Bar examinations were coming out that
day.59 Also, the victim's daughter, Lucy Ngo, did not sense any
suspicious behavior on the part of appellant Ramil, and she testified
that she even believed that the latter was trying to help them, thus:
Q         Will you tell us what do you mean by that?
A         'Nagmamagandang loob is parang tumutulong siya,'
sir.
xxx
Q         The man who was 'nagmamagandang loob'. Are you
referring to Ramil Madriaga as the one who was
'nagmamagandang loob'?
A         He is the one who was 'nagmamagandang loob'. Yes,
sir.
Q         Even before, you knew Ramil Madriaga was
incarcerated and one of the accused in this case, were you
surprised to know that Ramil Madriaga who according to
you 'nagmamagandang loob' is now one of the accused in
this case?
A         Yes, sir.60
It cannot be denied that appellant Ramil played a major part in the
rescue of Vicente Uy. The testimonies of Lucy Ngo, Virginia Avelita and
Maj. Cruz all show that it was through the information given by
appellant Ramil that they were able to locate Vicente Uy. If it were
really true that appellant Ramil was one of the conspirators of the
crime of Kidnapping for Ransom, it is absolutely incredible that Ramil
would openly go to the house of the victim's common-law wife and
place himself at the risk of being identified as one of the conspirators
when he could have accomplished the same purpose by other means
at the same time protect himself from being identified by witnesses.
Neither did Virginia Avelita nor Lucy Ngo testify that Ramil asked for
ransom. What then could be the motive of Ramil in going to the house
of Avelita if not to help his cousin out of his predicament? Whatever
suspicions the police operatives entertained were pure speculations,
insufficient to warrant the conclusion that appellant Ramil participated
in the kidnapping. The required quantum of evidence is proof beyond
reasonable doubt.61 "The sea of suspicion has no shore, and the court
that embarks upon it is without rudder or compass." 62
The testimonies of prosecution witnesses Maj. Cruz, Virginia Avelita
and Chief Inspector Quidato were all based on what appellant Ramil
had purportedly told them. The veracity of what they claimed was told
them by Ramil is highly dubious in view of the testimony of prosecution
witness Lucy Ngo, daughter of the victim, affirming that appellant
Ramil was the one who was "nagmamagandang-loob" and who told
them about the kidnapping of her father and where he could be found.
The Court went over the testimonies of prosecution witnesses Cruz,
Avelita and Quidato and it found that certain portions thereof were
tailored to suit the charges against appellants.
Both Cruz and Quidato testified that appellant Ramil rushed to the
cottage as soon as they arrived at the resort and that they found
appellant Rosendo inside the cottage with victim Uy, giving the
impression that appellant Ramil knew exactly where the victim was
and, therefore, appellants Ramil and Rosendo were two of the
kidnappers.63 However, Lucy Ngo contradicted their testimonies. Lucy,
instead, confirmed the testimonies of appellants Ramil and Rosendo
that the latter was outside the cottage and that Ramil rushed to
Rosendo only after getting instructions from Maj. Cruz.64
The Court is likewise wary of the testimony of Virginia Avelita
insinuating appellant Ramil's complicity for knowing the details of the
crime. If it were true that she suspected Ramil, then there was utterly
no reason for her to tell Lucy Ngo when she called up the latter that
there was a certain person who was offering his assistance
("nagmamagandang-loob") in locating Uy.65 Instead, she would have
forewarned Ngo about appellant Ramil.
Consequently, the Court cannot give much weight to the testimonies of
these prosecution witnesses as they suffer from infirmities.
Besides, it is a settled rule that the testimony of a witness who merely
recites what someone else has told him, whether orally or in writing is
hearsay and has no probative value66 under Section 36, Rule 130 of the
Rules of Court. Neither could the same be validly regarded as an
exception to the hearsay rule considering that the details testified to by
said witnesses were directly refuted by appellant Ramil when he
testified in court and asserted the fact that appellant Ramil merely
went to Avelita's house to tell her of the location of her common-law
husband, Vicente Uy, and to help his cousin, co-appellant Rosendo;
which fact is confirmed by prosecution witness Lucy Ngo.
The failure of appellant Ramil to present Lts. Capitulo and Lim does not
denigrate the credibility of his own testimony. As stated above, the
prosecution must rely on the strength of its own evidence and not on
the weakness of that of the defense.
Thus, the Court finds that the prosecution evidence lacks that degree
of conclusiveness required to convict appellant Ramil Madriaga.
With regard to appellant Rosendo Madriaga, the Court also finds that
there is no sufficient evidence proving beyond reasonable doubt that
he was involved in the kidnapping of Vicente Uy. As with appellant
Patano, there is lack of adequate evidence of conspiracy insofar as
appellant Rosendo is concerned. No proof was adduced by the
prosecution to show that Rosendo knew about the kidnapping and that
he had actively participated in its execution. When victim Uy identified
Rosendo in the courtroom as the person he saw handcuffed after his
blindfold was removed, Uy admitted that he was not sure of Rosendo's
identity as the latter is without a moustache. The testimony of
prosecution witness Dimal in this regard is quite revealing. Dimal
admitted that he was the one who fed the victim and that he was
wearing a moustache at the time of his arrest on March 27, 1996.67
Appellant Rosendo testified that he called up his cousin Ramil and
asked for his help as he got unintentionally mixed up in a
kidnapping.68 Appellant Rosendo convincingly explained that he could
not do anything because he was afraid. 69 Such is not far-fetched or
improbable. The Court is cognizant of the fact that fear is an effective
anesthetic that can paralyze one into inaction. Rosendo's failure to
report his predicament with the police is not anindicium or positive
proof that he actively took part in the crime and, therefore, it could not
be a valid basis for a finding of guilt for the crime of kidnapping for
ransom. What is clear is that appellant Rosendo called up his cousin,
appellant Ramil, for help because he was in a predicament over which
he had no control.
All told, while the crime of Kidnapping for Ransom has been proven,
appellants' participation therein had not been adequately proven
beyond reasonable doubt. Hence, all three appellants must be
acquitted.
CRIMINAL LAW FULL CASES
WHEREFORE, the decision of the Regional Trial Court of Pasig City,
Branch 262 in Criminal Case No. 110089-H convicting appellants JAMES
PATANO y MARCAIDA, RAMIL MADRIAGA y LAGONOY and ROSENDO
MADRIAGA is REVERSED and SET ASIDE, and another is hereby
rendered ACQUITTING them of the crime of Kidnapping for Ransom as
charged for failure of the prosecution to prove their guilt beyond
reasonable doubt.
The Director of the Bureau of Corrections is directed to cause the
immediate release of appellants, unless they are being lawfully held for
another cause, and to inform this Court of the date of their release or
the ground for their continued confinement, within five (5) days from
notice of this decision.
The Director of the National Bureau of Investigation and the Director-
General of the Philippine National Police are directed to cause the
arrest of accused Manolo Babac and Allan Duarte who have remained-
at-large as well as other persons who appear criminally responsible for
herein subject crime. The prosecution must exert more diligent efforts
next time.
Costs de oficio.
SO ORDERED.
April 25, 1950
G.R. No. L-2232
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  Count 7 refers to the arrest of Guillermo Salandanan and is supported
vs.
AGATON MARTIN (alias BORONG-BORONG), defendant-appellant.
Jorge V. Jazmines for appellant.
Office of the Solicitor General Felix Bautista Angelo and Assistant
Solicitor General Ruperto Kapunan, Jr. for appellee.
REYES, J.:
Appellant was charged with treason on thirty-eight counts but, after
trial, was found guilty by the People's Court on only seven counts (nos.
1, 6, 7, 11, 12, 18, and 30), and sentenced to life imprisonment,
P10,000 fine, and costs. From this sentence he appealed.
As contended by the attorney de oficio and admitted by the Solicitor
General, count 1 has not been proved.
Court 6 refers to the arrest, torture, and killing of Teofilo Torres, a
guerrilla suspect. To prove this count, the Government presented three
witnesses, namely: Felipa Bernal, Gregorio Reyes, and Anastacio Cruz.
The first testified that at about 2 o'clock in the morning of July 9, 1944,
a Japanese captain and several Filipinos, among them Cirilo Tuason and
the appellant herein, went up her house in barrio Maybuñga, Pasig,
Rizal, and lined up all the men (the three brothers Leodegario,
Gregorio, and Teofilo, all surnamed Torres). Cirilo Tuason then pointed
to Teofilo Torres as a guerrilla, whereupon the Japanese captain tied
his hands. Teofilo Torres was taken away by the appellant and his
companions and has not been heard from since then. Anastacio Cruz
who was himself arrested on the same day, but in a different house
and by a different person, testified that he knew Teofilo Torres was
arrested as a guerrilla suspect but that he saw him only when we was
already downstairs with Cirilo Tuason and his companions; that he and
Teofilo Torres were taken to the garrison of the Military Police in Pasig,
that while there he heard Teofilo Torres being maltreated in the
adjoining room and he afterwards saw him with his face battered.
Gregorio Reyes, who lived in the adjoining house and was himself
arrested on the same occasion, declared that Teofilo Torres was
arrested by several persons, among them the appellant herein, and
that he saw Teofilo Torres being tired by the Makapilis and the military
police as he was being led to the street.
It is contended that with the above evidence, appellant was not shown
to have done anything in connection with the arrest of Teofilo Torres;
that no two witnesses testified on the same overt act. While it appears
that appellant was not the one who pointed to Teofilo Torres as a
guerrilla suspect and tied his hands, there is no denying the fact that
made the arrest and can not therefore escape responsibility in the
absence of any exculpatory evidence.
by the testimony of Antonio Santos (mother of the victim), Olivia
Natividad, and Arcadia Cruz. According to this testimony the arrest
took place in the afternoon of August 11, 1944, in barrio Pinagbuhatan,
Pasig, Rizal, in front of the house of Olivia Natividad and was effected
by a group of armed men led by the appellant. Asked by Antonio
Santos why they were arresting her son Guillermo Salandanan,
appellant informed her that it was because her son was a guerrilla.
After his arrest, Guillermo Salandanan was never heard from.
The defense contends that the proof on this count does not established
collaboration with the enemy, for it does not show that appellant was
accompanied by any Japanese or that the person arrested by him was
surrendered to the Japanese. But the fact that Salandanan was
arrested because of his guerrilla activities clearly shows that appellant
was acting for or collaborating with the enemy, and the insinuation
that the said arrest may have been due to rivalry between guerrilla
units has no basis in fact as there is no evidence that appellant was
identified with any guerrilla unit.
Counts 11 and 12 refers to the arrest of Miguel Castillo, Candido Cruz,
and one Takio. The arrest of these individuals on November 21, 1944,
in barrio Ugong, Pasig, Rizal, by appellant and several companions was
testified to by Leona Natividad and Rita Pascual. But there is no
evidence as to the reason for the arrest other than what may be
inferred from Rita's testimony that those apprehended were made to
lug the bananas, oranges, and sugar cane which appellant and his and
his companions had gathered in the place. Their hands were not even
tied as in other cases. We therefore have to agree with counsel de
oficio that proof on these counts does not establish collaboration with
the enemy.
Count No. 18 refers to the zoning of Tipas, Pasig, Rizal, for the purpose
of apprehending guerrilla suspects. Several witnesses testified that the
said zoning was staged on December 1, 1944, and some of them
claimed having seen appellant there. They did not, however, mention
any act of direct participation on the part of appellant, and much less
have two witnesses testified on the same overt act. The evidence is
obviously insufficient to hold appellant guilty on this count.
Count No. 30 refers to the arrest of Ernesto Buenviaje and is supported
by the testimony of Mercedes Mendiola, Alfonso Benito, and Patricio
Benito. Mercedes Mendiola was the wife of Ernesto Buenviaje and she
testified that on December 30, 1944, her husband, who was a guerrilla,
came down from the mountains to visit her in Sagad, Pasig, Rizal; that
informed that he was being sought by appellant for his guerrilla
activities, he took her to the house of their cousin, Zacarias, in sitio
Caniuguan, Maybuñga, Pasig, Rizal; that hardly had they arrived at said
house when appellant and his companions, including members of the
military police, came upon them, arrested her husband and then tied
and took him away. Thereafter, her husband was never heard from.
This testimony was corroborated by Alfonso Benito and Patricio Benito,
who did not witness the actual arrest but later saw Ernesto Buenviaje
with hands tied pass in front of their house in the custody of appellant
and several companions who were armed.
The defense finds contradiction between the testimony of Mercedes
Mendiola, who said that the arrest took place at about 5:30 in the
afternoon and the declaration of the two corroborating witnesses who
said that they saw Ernesto Buenviaje being led by his captors already
on the following morning. It should be noted, however, that both of
these witnesses declared that they did not see the actual arrest,
although one of them said that he heard about it. What they did see
was something that happened after the arrest and which therefore did
not have to coincide in point of time with the actual arrest. It would
appear that counsel merely surmised that from the house of Zacarias,
where Buenviaje was arrested at about 5:30 in the afternoon, he was
immediately let in front of the house of these two witnesses when
there is no proof at all that he was not taken to some other place
before that. As the Solicitor General observes, it is quite within the
CRIMINAL LAW FULL CASES
realm of possibility for Buenviaje's captors to have been detained for
some reason or other in that neighborhood and that they did not leave
until early the following morning when Alfonso Benito and Patricio
Benito saw then pass by. Our conclusion is that this count has been
sufficiently proven.
It should be stated in conclusion that, in connection with the counts of
which we find appellant guilty, his defense of alibi has nothing to
support it except the doubtful testimony of his prisonmates, which
certainly can not prevail over that of the witnesses for the prosecution
who saw him commit the different treasonous acts attributed to him
and by whom he was clearly identified.
And lastly, as to the contention that the prosecution has failed to
establish appellant's Filipino citizenship as an essential element in the
crime of treason imputed to him, it appears that the prosecution did
present appellant's prison record, which sets out his personal
circumstances, with the testimony of the chief of the identification
section of the Bureau of Prisons that all the personal data contained in
said record were supplied by appellant himself, and that although he
was not the one who prepared said record, he, however, verified its
contents after it was prepared. Said record shows appellant to be a
Filipino citizen, and we think it is sufficient proof of that fact in the
absence of any evidence to the contrary.
Wherefore, we find appellant guilty of treason on counts 6, 7, and 30
but not on counts 1, 11, 12, and 18. This, however, necessitates no
change in the sentenced imposed below, which is in accordance with
law, so that the same is hereby affirmed, with costs against the
appellant.
May 23, 1951
G.R. No. L-2998
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  counts is well founded. The evidence for the prosecution, with
vs.
JOAQUIN FLAVIER, defendant-appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio
Villamor for plaintiff and appellee.
Ignacio Lugtu for defendant and appellant.
PARAS, C. J.:
This an appeal taken by the defendant, Joaquin Flavier, for a judgment
of the Court of First Instance of Quezon, finding him guilty of treason
and sentencing him to life imprisonment, with legal accessories, and to
pay a fine of P15,000. The information contained ten counts, but the
appellant was found guilty of only counts 1, 2, 7, 8, and 10.
Count No. 1 accuses the appellant of having given aid to the Japanese
Imperial Forces by serving as an officer to the United Nippon
Organization, established to counter act the guerrilla movement and
the American liberation forces Lopez Tayabas. Under, Count No. 2, the
appellant is charged with having killed three guerrillas known as
Monosea, Talavera and Ramos, in Lopez, Tayabas. Count alleges that
the appellant arrested Florentino Salumbides in his house in Lopez,
Tayabas, on suspicion of being a guerilla spy, the said Florentino
Salumbides having been taken to the Japanese garrison and detained
therein for a period of twenty-two days. Count 8 refers to the
apprehension by the appellant of Gerudio Villanesa in his house in
Lopez, Tayabas. On suspicion of being a guerilla, and his house in
Lopez, Tayabas, on suspicion of being a guerilla, and his torture by the
appellant in the Japanese garrison. Count 10 alleges that the appellant
arrested Aniceto Iglesia on suspicion of being a guerilla in barrio
Dalangan, Lopez, Tayabas, he having been brought to the Japanese
garrison.
Counsel for appellant argues that appellants citizenship was not duly
proven and that none of the overt acts charged against him and of
which he was convicted by the trial court is supported by the evidence.
Appellants Filipino citizenship is, however, satisfactorily shown by the
official record in the Bureau of Prisons, Exhibit "A", which was admitted
in evidence without who have known the appellant to have been born
in the Philippines of Filipino parents. Appellant's pretense that he did
not know whether his parents were Filipinos, is absurd, if not
unbelievable, he being a high school graduate and having been a high
school teacher and a candidate for municipal vice-president and
senator. The case of Jose Tan Chiong vs. Secretary of Labor, G.R. No.
47616, invoked by the appellant in support of his contention that mere
birth in the Philippines is not sufficient to confer Filipino citizenship, is
not applicable, for the reason that said case involved and alien born of
an alien father and Filipino mother.
We agree with counsel for the appellant that count No. 1 was not duly
proven. But we are convince that appellant conviction on the other
reference to count 2, is to the effect that in an encounter between a
number of guerrillas and the enemy forces in the town of Lopez, three
guerrillas members, namely Monosea, Talavera and Ramos, were
killed. Florentino Salumbides, Epifanio Ardiente, Felipe Cargan,
Francisco Caldecara and Lorenzo Ambas, testified about the encounter,
in which the appellant fought on the side of the enemy. It is true that
there is no direct proof that the appellant actually killed the three
guerrillas, but said facts does not exculpate him from criminal liability
resulting from his participation on the enemy's side.
With reference to the arrest of Florentino Salumbides as charged in
account No. 7, two prosecution witnesses, Florentino Salumbides
himself and his brother Dominador Salumbides, testified. The appellant
claims that it was Lamberto San Juan who actually arrested Florentino
Salumbides, as shown in the transcript. As the two Salumbides
brothers have known the appellant since boyhood, it is unlikely that
they could have mistaken the appellant for another; and the
appearance of the name of San Juan in the transcript must have been
an obvious clerical error, especially in view of the alleged denial of San
Juan that he ordered the arrest and subsequent release of Florentino
Salumbides.
The arrest of Gerundio Villanisa by the appellant is confirmed by
Gerundio Villanisa himself and Santiago Surbano. Appellant defense
against this count No. 8 is that while he was present at the time of the
arrest, it was Lamberto San Juan who actually made the arrest.
Appellants allegation is not again sufficient to exculpate him from
criminal liability, as he acted knowingly in conjunction with Lamberto
San Juan. Neither is there merit in appellants pretense that Villanisa
was arrested because of crime, and not because of his guerilla
activities, since the crime imputed to Villanisa consisted in the hold-up
of the Japanese trucks.
The arrest and subsequent torture of Aniceto Iglesia by order of the
appellant, as charged in count 10, is testified to by Aniceto Iglesia
himself and David Villapane. There is no point in appellants contention
that, according to David Villapane himself, the latter was arrested by
the "companions of Profirio Jimenez" and not by the appellant,
because the appellant was a companion of Profirio Jimenez and the
overt act charged in count 10 is the arrest and torture of Aniceto
Iglesia, not of David Villapane. Aniceto Iglesia and David Villapane both
testified that the appellant was present when Aniceto was arrested and
it was the appellant who ordered their captives to be hog-tied and
tortured in the garrison.
The appealed judgment being in accordance with the facts and the law,
the same is hereby affirmed with costs. So ordered.
May 23, 1951
G.R. No. L-2956
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
ELEUTERIO ICARO, defendant-appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Ramon
Avanceña for plaintiff and appellee.
Jose P. Parentela for defendant and appellant.
PARAS, C. J.:
CRIMINAL LAW FULL CASES
This is an appeal by the defendant, Eleuterio Icaro, from a judgment of
the Court of First Instance of Laguna, finding him guilty of treason and
sentencing him to life imprisonment, with the accessory penalties
provided by law, and to pay the fine of P10,000 plus the costs.
In a nutshell, the facts upon which the appellant was convicted by the
trial court are stated in the appealed decision as follows: "The evidence
clearly shows that, during the latter part of 1944, and early in 1945,
while the United States of America, the Philippines, and the Allied
nations were at war with the Japanese Empire, defendant herein,
Eleuterio Icaro, a Filipino citizen, owing faith and allegiance to both
America and the Commonwealth of the Philippines, openly adhered to
the enemy, and gave it aid and comfort. Armed with a rifle, and in
company with other Filipinos and Japanese soldiers, also armed, he
took part in raids against guerrilla suspects, and in their arrest. Among
these arrested, because of their underground activities, by the
defendant and his companions, were Norberto Ungkiatco, on
December 23, 1944, Emilio Biscocho, Santiago Nipal, Victor Vergara,
Valentin Vergara and Vicente Ele, on January 15, 1945. With the
exception of Emilio Biscocho, none of the other persons mentioned
above has been seen again."
The brief for the appellant stresses the criticism that the evidence for
the prosecution utterly fails to prove appellant's guilt in conformity
with the two-witness rule required in treason cases. We find, however,
from an examination of the record that the arrest on December 23,
1944, of Norberto Ungkiatco in the municipality of Calauan, province of
Laguna, by the appellant in company with Japanese soldiers and other
Filipinos, on suspicion of being a guerilla, was testified to by
prosecution witnesses Norberto Ungkiatco and Matias Mendoza. With
respect to the arrest on January 3, 1945, by the appellant in company
with Japanese soldiers and other Filipinos, of Emilio Biscocho, Santiago
Nipal, Victor Vergara, Valentin Vergara and Vicente Ele, on suspicion of
being guerrillas, prosecution witnesses Emilio Biscocho, Anselmo
Maranan and Tranquilino Martinez testified substantially in unison. The
arrest on January 15, 1945, by the appellant accompanied by Japanese
soldiers and other Filipino, all armed, of Andres Ramos, a guerilla
suspect, is confirmed by prosecution witnesses Aurora Azucena and
Crispin Aniceta.
We have no reason to doubt the truthfulness of the prosecution
witnesses who are appellant's townmates. The only explanation given
by appellant why all the prosecution witnesses incriminated him is that
they concentrated in him their hatred against his "compadre" Roman
Amatorious. It is improbable that said witnesses would have done so,
especially because of the lapse of time between the date of the
commission of the crime and the date of the trial. In the ordinary
course of things, the fact that said witnesses testified in the way they
died during the trial is fairly safe indication that they telling the truth
being impelled undoubtedly by a desire to let justice take its course,
and undeterred by any impulse to forget and to forgive as a result of
the passage of time. The defense that the appellant and his family
moved from Calauan to Santa Maria, Laguna, where they presided
continuously until June 15, 1945, cannot prevail over the positive
testimony of the prosecution witnesses. Much less can his denial of the
imputations by eyewitnesses be given credit.
The trial courts found that there is no direct and conclusive proof that
the appellant was a Makapili, and this finding is assailed by the Solicitor
General on the ground that while there is no documentary evidence to
show that appellant had joined the Makapili organization, the
witnesses for the prosecution are unanimous in alleging that appellant
was in fact a Makapili. The point becomes unnecessary, since
adherence to the enemy may be inferred from the over acts of the
treason committed by the appellant, consisting in the arrest of persons
suspected of being guerrillas who, with the exception of Emilio
Biscocho, were never seen again, especially because the appellant was
armed and in company with armed Japanese soldiers and other
Filipinos.
Wherefore, the appealed judgment is affirmed with costs. So ordered.
November 10, 1950
G.R. No. L-1678
THE PEOPLE OF THE PHILIPPINES, plaintiff -appellee, 
vs.
ELEUTERIO CAÑA, defendant-appellant.
Antonio Montilla for appellant.
Assistant Solicitor General Manuel P. Barcelona and Office of the
Solicitor Jose G. Bautista for appellee.
MONTEMAYOR, J.:
The appellant Eleuterio Caña was charged in the People's Court with
treason under seven counts. After trial, he was sentence to fifteen (15)
years of reclusion temporal, with the accessories of the law, to pay a
fine of P5,000, plus costs.
This is relatively an old case. The reason for the delay in the
determination of appeal is that it was first received in the court and
later, because of the penalty imposed which apparently had
jurisdiction over it. However, said court because according to its
resolution the case to the opinion that the penalty applicable
is reclusion perpetua.
For purpose of reference, we are reproducing the first five counts
under which the People Court found the appellant guilty:
1. That said accused, Eleuterio Caña , with intent to give aid and
comfort to the enemy, wilfully , feloniously and treasonably acted and
served as puppet Mayor of the Japanese in the municipality of Abuyog,
Leyte, Philippines, and from June to October, 1942, and from
November, 1943, to August, 1944, and as such puppet Mayor he
willfully, feloniously and treasonably performed the following acts:
(a) That he forced the people of Abuyog including government
employees to dig trenches and foxholes and build stables for the
Japanese Armed Forces;
(b) That he told the people of Abuyog that the Americans would not
return to the Philippine and that he was not afraid of the Filipino
soldiers and guerrillas because the Japanese Armed Forces were
behind him;
(c) That the people of Abulog must obey his orders and tell the
guerrillas and their relatives to surrender; and
(d) That he provided the Japanese soldiers with houses to live and
ejected the Filipino civilians of Abuyog out of their houses to give room
to the Japanese.
2. That the herein accused, Eleuterio Caña, with intent to give aid and
or comfort to give aid and or comfort to the enemy during his
incumbency as puppet Mayor of Abuyog, Leyte, Philippines, especially
in November, 1943, February and May, 1944, wilfully, feloniously,
treasonably led, guided and accompanied Japanese patrols to the
barrios of Abuyog to apprehend guerrilla suspects and their supports
and also to locate hideouts.
3. That during the months of April and May, 1944, the herein accused,
Eleuterio Caña, with intent to give aid and/or comfort to the enemy,
and taking advantage of his position as puppet Municipal Mayor of
Abuyog, Leyte did then there wilfully, feloniously and treasonably force
the people to harvest palay in the outlying farms and did confiscate the
palay taken therefrom giving part of it to Japanese soldier.
4. That the herein accused, Eleuterio Caña, with intent to give aid and
or comfort to the enemy, during the time of the his incumbency as
puppet Municipal Mayor of Abuyog, Leyte, did then and there lead,
guide and accompany patrols composed patrols composed of Japanese
and Constabulary soldiers patrols to the barrios of Himara, Mahapalag,
Union, Ogis, Mahayahay, Polahongon all in the Layog District, and in
the barrios of Bayabas, Dingle, Combos, Laray, Taleque, Habadyang,
sitio Malasiga, sitio Maitum, parts of the Barrio Anglad, of the all of
Hogasaan District, which patrols machine gunned and burned the
houses in the abovementioned places.
CRIMINAL LAW FULL CASES
5. That sometime during the month of July, 1944, the herein accused ,
Eleuterio Caña, with intent to give aid and /or comfort to enemy,
during his incumbency as puppet Mayor of Abuyog, Leyte wilfully,
feloniously and treasonably informed the Japanese garrison of Abuyog
as a guerrilla suspect, was the father-law of the guerrilla lieutenant
named Nicolas Camintoy, and due to this information, said Basilio
Pacatan was investigated, imprisoned and tortured by the Japanese
soldiers for a period of over thirty days.
In the open court the accused admitted that he was and had always
been a Filipino citizen.
The following facts are not disputed. In the last elections helds before
the last World (Pacific ) War, Pedro Gallego and defendant Eleuterio
Caña were elected Mayor and Vice Mayor respectively, for the town of
Abuyog, Leyte. When the Japanese forces went to Abuyog in June,
1942, they found the town without a Mayor because Gallego served as
town chief executive only to May, 1942, after which he went to the
mountains and joined the guerrilla forces as a Mayor. The appellant
being the vice mayor elect, was designated acting mayor by the
provincial governor and he acted as such form June to October, 1942,
when the Japanese garrison was removed form the town. Again, he
acted as Mayor form November, 1943 when another Japanese garrison
was stationed there, until August, 1944, when the garrison was
withdrawn. The acts of treason of which he was accused were
supposedly committed during his incumbency as Acting Mayor of
Abuyog.
Under the first count, we find from the evidence that the defendant
really recruited laborers to dig trenches, foxholes and air raids shelters
around the Japanese garrison and in some streets, and to build stables
for the Japanese cavalry horses. It has also been established that the
accused had intervened in the Japanese soldiers and officers stationed
in the town, although there is evidence to the effect that rent was paid
by said Japanese forces for the use of the houses. It was also proven
that in the poblacion of Abuyog as well as in some barrios, such as
Malagikay, Anlag and San Roque he called people to meetings where
he made speeches in the Visayan dialect, telling the people that the
real government was the one established and sponsored by the
Japanese; that the Americans, will never come back to the Philippine
because they were afraid of the Japanese forces who where stronger;
that they must pay their taxes for the support of the Japanese
sponsored government; and that he (defendant) was note afraid of the
guerrillas because the Japanese Army was behind him.
Considering the fact that the accused was then acting as mayor of his
under orders of the Japanese garrison commander, there is every
reason to believe that defendants act in recruiting laborers for the
construction of the trenches, foxholes. air raid shelters and stables for
the use of the Japanese forces was in obedience to the wishes and
orders of the Japanese commander. The same thing may be said of the
commandeering of private houses. It is a matter of public knowledge,
of which we may take judicial notice, that during the occupation, not
infrequently, the enemy forces restored labor to fill in their military
needs and also commandered indiscriminately private houses not only
for their accommodation but even for their civilian agencies, and that
in such cases then services or intervention of the executive of the town
were availed of, voluntarily or otherwise. Furthermore, we agree with
the Solicitor General that these acts of collaboration, including his
making speeches during the meeting is called by him, endorsing the
Japanese regime may be considered as political in nature are covered
by Amnesty Proclamation No. 51 of the January 1, 1948, which he now
invokes (People vs. Alvero, 86 Phil., 58). We may therefore discard
count No. 1.
Under counts 2 and 4, is the following evidence:
Bonifacio Laher, barrio lieutenant of Anlag, Abuyog stated that on
February 2, 1944, a Japanese patrol of about 80 soldiers arrived at his
barrio, headed by the defendant Caña who was armed with a revolver.
Caña called a meeting which about 60 residents attend. The accused
made a speech in the Visayan dialect and asked the people about the
whereabouts of Mayor Gallego and Captain Landia of the guerrillas,
saying that if they ever came with their forces, the resident should
report the matter to him or to the Japanese government was the real
government. The patrol spent the night in the barrio and the witness as
lieutenant of the barrio was ordered by the accused to return the
following morning to accompany the patrol. The next day, February
3rd. Laher a accompanied the accused and the Japanese troops to the
mountains. On reaching sitio Malasiga, The patrol passed by the houses
of Gonzalo Ablanque and Rosendo Fortaleza, and the latter was called
from his house and made to join the patrol to the house of Daniel
Bolero where the soldiers ate pineapples and papaya. The defendant
asked Bolero who were the owners of the two houses they had passed
and on being informed that they belonged to Ablanque and Fortaleza,
appellant exclaimed: "These are the houses where the guerrillas used
to live." Thereafter, the defendant conversed with Capt. Mikawa who
commanded the patrol, after which Mikawa called two Japanese
soldiers and ordered them to burn the houses of Ablanque and
Fortaleza. At the time said two houses contained agricultural products
of different kinds, including furniture and household goods. According
to Fortaleza, he pleaded with the defendant not to burn his house, but
the accused paid no attention to him and the two houses were burned
to the ground.
Laureano Pacia, a captain of the guerrillas told the court that on
February 3rd, a Japanese patrol of about 80 soldiers headed by the
accused who was then armed with a revolver, arrived at the barrio of
Anlag. The next day the patrol went to the barrio of Malagikay. Pacia
followed the patrol at a safe distance in order to observe as per
instructions of his superiors. He saw that in Malagikay the Japanese
soldiers shot pigs and chickens for food. The defendant called the
people to attend a meeting in front of the barrio school building at
which meeting he spoke and asked about the guerrillas , particularly
Major Gallego and Captain Landia. He urged his hearers to fight them
(the guerrillas) if they ever came and to report their presence to the
poblacion. After the defendant, a lieutenant of the Philippine
Constabulary also spoke.
About these doings of defendant and the Japanese patrol in Malagikay,
Pacia was corroborated by Major Gallego who was with Pacia
observing what was happening and listening to the speeches,
particularly that of the defendant.
Major Gallego in his testimony also told the People's Court that on May
27, 1944, he saw the defendant Caña armed with a revolver at the
head of a Japanese patrol composed of about 80 soldiers in the barrio
of San Roque, Abuyog. They shots pigs and chickens for food and in the
afternoon. The school bell and assembled the people , and at the
meeting the defendant made a speech in the Visayan dialect, asking
the people if there were any guerrillas in the vicinity, telling them that
if they (guerrillas) came. The people should not give them food so that
they would starve, and to report their presence to them town so that
the Japanese forces could come and catch them. He urged the people
to help the government, the real government sponsored by the
Japanese, and not wait for the Americans go will never come back.
With sarcasm he told the people that if they were still interested in the
Americans, they had better swim across the Pacific Ocean to get to
them in America. At the time that the accused spoke, there were no
Japanese around him. In his testimony about the arrival of the
Japanese patrol in San Roque and the speech of the appellant, Gallego
was corroborated by Felix Balga who added that the defendant in his
speech said that to show that the government sponsored by the
Japanese was the true government he (defendant) was accompanying
the Japanese patrol.
Pelagio Elmeda stated to court that on February 2, 1944. He was at his
post at barrio Bayabas on duty as captain of the Volunteer Guards
attached to the guerrillas under orders of Captain Landia. On that date,
he saw a Japanese patrol of about 80 soldiers headed by the accused
pass by the said barrio of Bayabas, apparently the same patrol that
later went to the barrio of Anlag and still later to the barrio of
Malagikay on February 4th. The accused was then carrying a revolver.
When the patrol saw no people in the said barrio the soldiers burned
all the five houses in the vicinity. The owners of said houses were then
in the mountains, having evacuated thereto because of the fear of the
Japanese.
Under the court 3, Filomeno Tupa and Marcial Costen testified to the
effect that the defendant as Mayor asked the people in the poblacion
of Abuyog belonging to the neighborhood associations to go to the
farms and under the protection of Japanese soldiers, harvest palay
therefrom: that one-half of the harvest was given to the harvester; one
fourth to the municipality and the remaining one-forth to the Japanese
CRIMINAL LAW FULL CASES
garrison to feed its cavalry forces. The evidence on this point, however,
further shows that almost invariably, the owners of these lands had
evacuated to the mountains and that said owners were afraid to
harvest their own palay for fear of the Japanese soldiers who might
suspect them of harvesting said palay to give to the guerrillas who
frequented the farms. Their is reason to believe who frequented the
farms. There is reason to believe and conclude from the evidence that
these harvests of palays directed by the defendant were not made with
the intention of aiding the enemy but rather to avoid loss or prevent
the ripe palay form rotting in the fields and to utilized the harvest to
aid the people. As already stated , one-half of the harvest was given to
the people who effected the harvest and one-fourth was given to the
municipality, said portion according to the uncontradicted evidence for
the defense having been utilized to feed the indigent people, and that
a portion of it was sent to the capital (Tacloban) presumably. For the
same purpose of aiding the poor in the province.
It will be remembered that during the occupation there was no
importation of rice in order to make up for the deficiency, our
production being insufficient for the needs of the population, and that
if the palay crop belonging to those who had evacuated to the
mountains were not harvested the critical food situation would have
worsened. It is not difficult to see that members of the neighborhood
associations living in the poblacion of Abuyog and needing rice for their
consumption, may have even suggested to the defendant to harvest
the palay in the outlying districts under the protection of the Japanese
soldiers against the guerrillas. Among the farms where palay was then
growing and ready for harvest there must have been some which
belonged to these very members of neighborhood association living in
the poblacion who, fearing that the guerrillas would interfere with the
harvest of their own palay, asked for protection from the Japanese
Forces.
As to the one fourth portion of the harvest given to the Japanese
garrison, undoubtedly, said portion was given pursuant to the wishes
and orders of said garrison for its needs and also in return for the
protection services rendered by its solders during the harvest. We find
that under the circumstances the defendant cannot be held liable
under this count No. 3.
Under count 5, Basilio Pacatan, 69 years of age, stated in court that on
June 1, 1944, a Japanese patrol composed of about 44 soldiers headed
by the defendant who was then armed with a revolver came to the
barrio of Quarry, Abuyog and found him pasturing his carabao. Some of
the soldiers in the patrol caught him, tied his hands behind his back
and then took him to the main body of the patrol where the defendant
was. He was asked about Capt. Landia and Capt. Nicolas Camintoy, his
(Pacatan's) son in law, both of the guerrillas. He told them that when
Col. Kangleon passed by that place he took some of the resident with
him, presumably including Camintoy. The defendant Caña told Pacatan
that until his son-in law Nicolas, surrendered he (Pacatan) will be kept
as a hostage. After being slapped and kicked by the Japanese soldiers
he was taken to the garrison in the poblacion and imprisoned there for
a month and a half. As regards his arrest and his arrest and his being
tied and taken to the poblacion, Pacatan was corroborated by his
stepson Pio Balida who stated that in the Japanese patrol there were
four Filipinos, among them the defendant Caña. He said that he saw all
this because at the time he was with his step father Pacatan altho at
some distance from him.
In connection with the imprisonment of Basilio Pacatan in the Japanese
garrison in the poblacion of Abuyog, Filomeno Tupa and Maricel Costen
in their testimonies said that the accused had once stated within their
hearing that he would oppose the release of Basilio Pacatan unless his
son in law , Nicolas Camintoy, a captain in the guerrilla first
surrendered and that when a delegation composed of leaders of
neighborhood association went to petition the Japanese captain for
release of Pactan, saying that he was a good man, the defendant who
was present voiced objection to the release his (Pacatan's) guerrilla
son-in-law , Nicolas Camintoy. first surrendered as a result of which
Pacatan's release was refused by the Japanese officer. It was further
stated that the defendant enjoyed the confidence of the Japanese
officers, in proof of which , he had previously obtained the release of
three prisoners, C. Tan, Barcelo and Briones who had sons in the
guerrilla forces and who promised to have said surrender to the
Japanese.
In his defense, the appellant with his witnesses tried prove that
although he accompanied the Japanese patrols in their reconnaissance
trips to the barrios, he did so not of his own free will but under
compulsion by the Japanese officer of the garrison . He also said that
he acted merely as interpreter of Japanese officer who spoke at the
meetings held in the barrios. The People's Court did not believed this
claim of the defendant and we find nothing in the record to warrant
correcting and disturbing this mental attitude and action of the
People's Court. There is ample evidence to show that when appellant
spoke in the barrios as head of Japanese patrols, he did not act as a
mere interpreter but that he made his own speeches. Many times
there were no Japanese around when he spoke because the members
of the patrol were either going around the barrio or the house
evidently checking up and looking for guerrillas, or doing things looking
toward their accommodation and shelter for the night or preparing
their meals from the pigs and chickens they had previously shot. And
the vehemence or apparent sincerity of the accused in his speeches
wherein he urged the people to support the municipal government
which he head, to support the presence of guerrillas in the barrios and
to abandon all hope of the return of the Americans because they were
afraid of the Japanese soldiers, sufficiently shows that he went with the
patrols voluntarily and of his own free will. He was really determined to
suppressed the guerrilla movement in his locality as may be inferred
from his speeches but also from his strong opposition to the release
from the garrison of Basilio Pacatan unless the latter's son-in-law first
surrendered. His action telling the Japanese officer of the patrol in the
sitio of Malasiga that the houses of Ablanque and Fortaleza had been
occupied by the guerrillas. Followed by his private conference with said
Japanese officer after which said two house were set on fire and
burned to the ground despite the pleas of Fortaleza with him, fortifies
this belief and finding.
Considering all the evidence submitted, we agree with the People's
Court and Solicitor General that appellant is guilty under counts 2,4
and 5. Ordinarily, in the penalty should be imposed in its medium
degree, namely, reclusion perpetua as opined by the Court of Appeals.
However, taking a broad view of the case, we are inclined to impose a
lighter penalty as did the People Court. We must bear in mind that
treason is not considered and punished according to the presence or
absence of aggravating and mitigating circumstances provided for
in Revised Penal Code. It is a very serious crime committed during war
by one who, forgetting his loyalty and oath of allegiance to his own
country, aids the enemy and gives it aid and comfort. The amount or
degrees of said aid or comfort given the enemy as well as the separate
and distinct acts of treason committed by the accused, rather than the
circumstances aggravating or mitigating attending its commission.
determine of the penalty to be imposed. This court as rule, has
imposed the death penalty upon treason indicates proven not only to
have aided the enemy but also while giving such aid, to have either
tortured or killed their own countrymen, and even then, only when the
necessary number of votes was secured. Where the necessary number
of votes could not be obtained even when the defendant was guilty of
killing or torturing his own countrymen, the penalty imposed has
beenreclusion perpetua. Where the acts of treason by a defendant in a
treason case, consist in acting as a spy for the Japanese, as a result of
which guerrillas or suspects tortured or killed by the Japanese forces
themselves without any direct participation by the defendant, the
punishment imposed has invariably been reclusion perpetua. That is to
say, the penalty for treason in its medium period. And when the acts
proven against an accused has been acting as informer and spy for the
enemy resulting merely in the temporary confinement of guerrillas
suspects, we have imposed the penalty in its minimum,
namely, reclusion temporal. In other words, we have punished the
commission of treason on the basis of the seriousness of the
treasonable acts, and of the presence or absence of atrocities on the
victim, rather the presence of atrocities on the victims, rather than on
the presence or absence of aggravating or mitigating circumstances.
Here there has been no killing, not even torture of prisoners, at least
not on the part of appellant. The People's Court may have been
imbued with this same attitude and viewpoint when it imposed an
imprisonment of 15 years without making any reference to the
existence of aggravating or mitigating circumstances. We might add
that the fact that the appellant has been in jail since the beginning of a
liberal and benign view of his case.
Finding no reversible error in the decision appealed from, the same is
hereby affirmed, with costs against appellant .
CRIMINAL LAW FULL CASES
1. On or about March 20, 1944, in the municipality of Dalaguete,
province of Cebu, Philippines with the purpose of giving and with the
intent to give aid and comfort to the enemy and her military forces said
accused being a member of the Philippines Constabulary did then and
there wilfully unlawfully, feloniously and treasonably lead guide and
accompany 10 other member of the pro-Japanese constabulary all
armed like the accused and did apprehend and arrest Paulino Osorio
for having helped the guerrillas and of being the Father of two guerrilla
men; that the herein accused after maltreating said Paulino Osorio did
detain him in the municipal jail of Dalaguete; that in the same date the
accused and his companions did apprehend Melchor Campomanes and
7 other person who were also tortured for being guerrillas supporters
and sympathizers and the accused herein with his firearm did shoot
Melchor Campomanes killing him instantly;
2. Sometime during the month of March 1944 in the municipality of
Dalaguete Province of Cebu, Philippines with the purpose of giving and
with the intent to give aid and comfort to the enemy and her military
forces said accused being a soldier of the Philippines Constabulary did
then and there wilfully, feloniously and treasonably lead guide and
accompany a patrol of 13 constabulary soldiers and did arrest and
apprehend Fortunato Linares for being guerrillas and or guerrilla
supporters; that said accused did tie and torture the aforesaid person
and cut a portion of their ears, the tortures being so severe especially
with respect to Antolin Rodriguez who effectively died as a result of
said tortures administered by the accused.
3. On or about May 18, 1944, in Cebu City Philippines with the purpose
of giving and with the intent to give aid and comfort to the enemy and
March 2, 1949
her military forces, said accused being a soldier of the Philippines
Constabulary did then and there wilfully, unlawfully feloniously and
G.R. No. L-433 treasonable accompany a group of Constabulary soldiers all armed, to
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  Mambaling and other parts of Cebu City and did apprehend Eleuterio
vs. Padilla, a former USAFFE soldier for being a guerrilla, and there herein
GAUDENCIO ROBLE, defendant-appellant. accused and his companions did tie and torture said Eleuterio Padilla
detain him at the Constabulary Headquarters for several days after
Gonzalo D. David for appellant. which he was taken out and mercilessly killed on May 26, 1944 by said
Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de accused.
los Angeles for appellee.
The court held that the facts alleged in the information is a complex
TUASON, J.: crime of treason with murders with the result that the penalty
provided for the most serious offense was to be imposed on its
maximum degree. Viewing the case from the standpoint of modifying
Charged with treason on three counts, the defendant pleaded guilty circumstances the court believed that the same result obtained. It
and was sentenced to death by the First Division of the People's Court opined that the killing were murders qualified by treachery and
sitting in Tacloban, Leyte. The correctness of the penalty is the sole aggravated by the circumstances of evident premeditation superior
question put in issue in this appeal.
strength cruelty and an armed band.
The information alleges: We think this is error. The torture and murders set forth in the
information are merged in and formed part of treason. They were in
this case the overt acts which besides traitorous intention supplied a
vital ingredient in the crime. Emotional or intellectual attachment and
sympathy with the foe unaccompanied by the giving of aid and comfort
is not treason. The defendant would not be guilty of treason if he had
not committed the atrocities in question.
On the question of the applicability of the aggravating circumstances
which impelled the court against its sentiment to give the defendant
the extreme penalty we only have to refer to People vs. Racaza  (82
Phil., 623) in which this question was discussed and decided. There we
said:
The trial court found the aggravating circumstances of evident
premeditation superior strength treachery and employment of means
for adding ignominy to the natural effects of the crime.
The first three circumstances are by their nature inherent in the
offense of treason and may not taken to aggravate the penalty.
Adherence and the giving of aid and comfort to the enemy is in many
cases as in this a long continued process requiring for the successful
consummation of the traitor's purpose, fixed, reflective and persistent
determination and planning.
So are superior strength and treachery included in the crime of
treason. Treachery is merged in superior strength; and to overcome
the opposition and wipe out resistance movements which was Racaza's
purpose in collaboration with the enemy the use of a large force and
equipment was necessary. The enemy to whom the accused adhered
was itself the personification of brute superior force and it was this
superior force which enabled him to overrun the country and for a time
subdue its inhabitants by his brutal rule. The law does not expect the
enemy and its adherents to meet their foes only on even terms
according to he romantic traditions of chivalry.
But the law does abhor inhumanity and the abuse of strength to
commit acts unnecessary to the commission of treason. There is no
incompatibility between treason and decent, human treatment of
prisoners, Rapes, wanton robbery for personal grain and other forms of
cruelties are condemned and the perpetration of these will be
regarded as aggravating circumstances of ignominy and of deliberately
augmenting unnecessary wrong to the main criminal objective under
paragraphs 17 and 21 of Article 14 of the Revised Penal Code. The
atrocities above mentioned of which the appellant is beyond doubt
guilty fall within the terms of the above paragraphs.
For the very reason that premeditation treachery and use of superior
strength are absorbed inn treason characterized by killings, the killing
themselves and other accompanying crime should be taken into
consideration for measuring the degree and gravity of criminal
responsibility irrespective of the manner in which they were
committed. Were not this the rule treason the highest crime known to
law would confer on its perpetrator advantage that are denied simple
CRIMINAL LAW FULL CASES
murderer. To avoid such incongruity and injustice the penalty in
treason will be adapted within the range provided in the Revised Penal
Code to the danger and harm and to which the culprit has exposed his
country and his people and to the wrongs and injuries that resulted
from his deeds. The letter and pervading spirit of the Revised Penal
Code adjust penalties to the perversity of the mind that conceived and
carried the crime into execution. Where the system of graduating
penalties by the prescribed standards is inapplicable as in the case of
homicides connection with treason the method of analogies to fit the
punishment with the enormity of the offense may be summoned to the
service of justice and consistency and in the furtherance of the law's
aims.
Considering all the facts and circumstances of the case we believe that
the appellants spontaneous plea of guilty is sufficient to entitle him to
a penalty below the maximum. The appealed decision is therefore
modified and the sentence reduced to reclusion perpetua with the
legal accessories and costs.
January 23, 1948
G.R. No. L-985
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  TORRES, J.:
vs.
DIONISIO AGONCILLO, defendant-appellant.
Macario Nicolas for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Federico
V. Sian for appellee.
PARAS, J.:
This is an appeal from the judgment of the People's Court finding the
appellant, Dionisio Agoncillo, guilty of treason and sentencing him to
suffer fifteen years ofreclusion temporal and to pay a fine of two
thousand pesos and the costs.
According to the information, from February, 1944, to March, 1945, in
Cebu City and its environs, the appellant (1) "did consistently and
continuously traffic in war materials and sold them to the enemy," and
(2) "did join and serve the enemy as informer, agent, and spy." The
People's Court held that the second count was not proven, and the
appealed judgment of conviction is predicated solely on the first count.
Under the theory of the prosecution, appellant's adherence to the
enemy is inferable from the following alleged facts: (a) In the afternoon
of September 20, 1944, while the appellant was taking a bath in the
house of his neighbor Rufina Cepeda, the latter's cousin (Olimpio Do),
who knew how to read Chinese, examined appellant's clothes and
found therein appellant's identification card written in Japanese and
Chinese characters tending to show that the appellant was a Japanese
undercover. (b) In January 1945, after a trip to Bohol, Rufina Cepeda
told the appellant that there were guerrillas in Bohol and that Japanese
notes were no longer accepted in said place. In the evening of the next
day, Rufina Cepeda was arrested by the Japanese and their
undercovers and asked about things she saw in Bohol. Rufina was
detained for three days. After her release, the appellant came to her
house and got some chickens for the consumption of the Japanese who
arrested her. A Japanese also used to sleep once in a while in
appellant's house.
Upon the other hand, appellant's alleged overt acts of giving aid and
comfort to the enemy are summarized in the brief for Government as
follows: In the middle of April, 1944, the appellant sold about 300 kilos
of alum crystals, at three pesos a kilo, to the Keribo, a construction
company operated by the Japanese Army. Two or three weeks
thereafter, he sold to the same entity some 100 pieces of water pipes,
the price of which was not known. About the third week of December,
1944, the appellant was seen on Jones Avenue helping push a handcart
full of truck and auto tires, batteries and spare parts into the
intermediate and high school premises then used by the Japanese
Army as a motor pool.
Regardless of the writer's view on suspension of political laws and
change of sovereignty as heretofore expressed, the Court is of the
opinion that the overt acts imputed to the appellant have not been
duly proven. With respect to the sale of 300 kilos of alum crystals, the
testimony of the prosecution witness Lorenzo Barria to the effect that
the price was P3 a kilo, is not corroborated by any other witness. With
respect to the alleged sale of 100 pieces of water pipes, counsel for the
appellee admits that the price thereof was not known. An essential
part of the overt act charged in the information was therefore lacking.
No pretense was made that the appellant donated the articles in
question. The alleged delivery of truck and auto tires, batteries and
spare parts can be disregarded. The only detail that may at most be
considered established by the prosecution refers to the fact that the
appellant helped in pushing a handcart loaded with such articles, and
the evidence is even uncertain in one respect, namely that the cart was
brought either to the intermediate school premises or the high school
building. Indeed it was acknowledged by the lower court that the
witnesses for the Government did not know how the appellant
disposed of the articles loaded in the cart.
Even supposing, however, that the appellant had really sold for a
definite price alum crystals and water pipes, the same did not per
se constitute treason. As said articles or materials were not exclusively
for war purposes, their sale did not necessarily carry an intention on
the part of the vendor to adhere to the enemy. The theory of the
prosecution is that the sale was treasonable in view of the other
proven acts showing appellant's adherence to the enemy. It appears,
however, that the alleged acts of adherence performed by the
appellant took place after the overt act in question. It is not unlikely
that at the time the appellant made the sale, his motive was purely
personal gain, uninfluenced by any benefit inuring to the enemy.
Where two probabilities arise from the evidence, the one compatible
with the presumption of innocence will be adopted. (People vs.
Agpangan, G.R. No. L-778, October 10, 1947.)
Wherefore, the appealed judgment is reversed and the appellant
acquitted with costsde oficio. So ordered.
G.R. No. L-2318             March 31, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
TEOFILO PAAR (alias TEOFILO PAJAR, alias BEN PAJAR), defendant-
appellant.
Padilla, Carlos and Fernando for appellant.
Office of the Solicitor General Felix Angelo and Assistant Solicitor
General Ruperto Kapunan, Jr., for appellee.
This is an appeal from a judgment of the now defunct People's Court
which found Teofilo Paar guilty of treason and sentenced him to the
penalty of reclusion perpetua, and to pay a fine of P10,000 and the
costs. The defendant of the fifteen counts, and the prosecution
presented evidence to support only the allegations made in the first,
fourth, seventh and eight counts.
From our study of the evidence, we find that as regards the first count,
it has been established by the prosecution, and the defense did not
deny, that between October, 1944, and February, 1945, Teofilo Paar
worked for the Japanese Kempei Tai as an undercover man. In fact, the
appellant himself, by his testimony, and that of his witness Juan S.
Alano, admitted that he affiliated himself with the Military Police of
Baguio. The government witness have, during that period of time, seen
CRIMINAL LAW FULL CASES
him parading in the streets of Baguio with members of the Kempei Tai,
dressed in their uniform and carrying a .45 caliber pistol.
It is claimed by appellant that he entered the service of the Kempei Tai
without the intent of betraying his country and his people, and that
even if he were responsible for or participated in the arrest of civilians
on suspicion of underground activities, he can not be held liable for
treason in view of the absence of the essential elements of adherence.
The record, however, shows that his overt acts evidenced his
adherence to the enemy, and even in the absence of either proof, the
very act of giving information to the enemy, constitutes not only giving
aid and comfort, but also show adherence to the enemy. It clearly
appears that Teofilo Paar joined the Kempei Tai or Japanese Military
Police, whose main purpose was to obtain information and other
necessary data to suppress the resistance movement. This is
treasonous adherence which constitutes a violation of article 114 of
the Revised Penal Code.
Much emphasis is given by appellant on the allegation that Teofilo Paar
joined the Kempei Tai upon the advise of one Major Laconico of the
underground movement. Apart from the fact that he never mentioned
Major Laconico to the CIC (Counter Intelligence Corps of the USAFFE)
when he was being investigated by said organization, if he was really
made to join the Kempei Tai in obedience to instructions of Major
Laconico and in furtherance of the resistance movement his direct
participation in the activities of the Kempei Tai, for whom he was
acting as agent or undercover man, having been observed by the
witnesses for the prosecution, completely negatives his exculpatory
explanations.
It stands to reason that, if appellant was really "plated" by Major
Laconico in the City of Baguio, as an observer, to further the resistance
movement, he had many other means to accomplish his alleged
mission of helping the guerrillas. But his close association with the
Kempei Tai, that most hated organization of the Japanese invader, his
participation in the arrest of several persons who were subsequently
deprived of their freedom and tortured on suspicion that they were
sympathetic with the underground forces, far from convincing us the
that he joined the Japanese Military Police for a worthy patriotic
purpose, strengthens our belief that he deliberately, for sordid
motives, entered the service of the Kempei Tai, because he thought
that Japan would win the last war. .
To substantiate count No. 41, the prosecution, through the testimony
of Patricia Guerrero, a waitress in the City Lunch Restaurant in Baguio,
proved that in the morning of October 3, 1944, while she was dressing
up, she heard a knock on the door of her room on the upper floor of
the Mayo Building. Before opening the door, she peeped through the
window and saw the accused standing beside a car. When Patricia
opened the door of her room she met two members of the Japanese
Military Police who ordered her to dress up because she was to be
taken to their headquarters. She went with the two Japanese, but The evidence is a very clear from the testimonies of Melquiades Valdez
when she reached the car, the accused was no longer around. She was and Dr. Emilio Reyes, that the former was arrested and brought to the
investigated and maltreated by the Japanese who wanted to get headquarters of the military police by Teofilo Paar who delivered him
information about the resistance movement. to the Japanese garrison. Soon after the accused delivered Melquiades
Valdez to Kempei Tai, he was investigated for disseminating news
broadcasted by the San Francisco station known as KGEI. The
As they could not get anything from her, she was made to work as
testimonies of Valdez and Dr. Reyes are corroborated by a third
washer-woman in the garrison, until she was released sometime on
witness Antonio Romero, who substantially told the court his
December 20, 1944. The testimony of Patricia Guerrero was, to a
observations in connection with the arrest of Melquiades Valdez.
certain extent, corroborated by Carlitos Costales.
The testimony of Doctor Solano, corroborated by that of Felisa Caliao,
It is noted, however, that Carlitos Costales did not corroborate the
established that the appellant was responsible for the arrest of the
statement of Patricia Guerrero that she saw the appellant standing
doctor. The appellant alleged that he could not have participated in the
beside a car parked in front of the house and which brought the two
arrest of Melquiades Valdez and Dr. Irineo Solano, because he didn't
Japanese members of the Military Police who arrested Patricia. it
know either of them. But it seems to us that his mere denial cannot
appears, therefore, that while the evidence of the prosecution
only by the victim of this treasonable acts but also by Dr. Emilio Reyes
regarding this count establishes the adherence of the appellant to the
and Felisa Caliao.
enemy, it fails to prove the same overt act as required by law.
Discarding count No. 4 because, as already stated, the evidence
Three witnesses were put on the stand by the prosecution in support
presented by the prosecution does not apply with the two-witness rule
of count No. 7. In December, 1944, Melquiades Valdez, assistant
required by article 114 of the Revised Penal Code, we are satisfied that
sanitary inspector in Baguio, was making an inspection around the
this appellant who, by his own admission is a Filipino's Court for the
market accompanied by Dr. Emilio Reyes. While they were conversing,
crime of treason, not only because of his adherence to the enemy but
Teofilo Paar approached the group and inquired for Melquiades
also on the account of his having committed treasonable overt acts
Valdez. The latter identified himself and par told Dr. Reyes that he was
resulting from his having directly participated in the arrest, detention
taking Valdez to the military police for questioning. The accused
and torture of the persons mentioned elsewhere in this decision.
conducted Valdez to the Kempei Tai, and upon arrival the names of
Valdez and one Antonio Romero and handed it ton the Japanese guard,
saying: here are Valdez and Romero." Valdez was investigated and The People's Court sentenced him to reclusion perpetua, but from our
tortured on the charge of listening to radio broadcasts from San careful considerations of the facts, it seems to us that, inasmuch as the
Francisco and spreading the new heard by him. treasonable acts committed by this appellant have not resulted in the
killing of the persons arrested by the Kempei Tai, through his
intervention, the ends of justice will be served if this culprit is
Regarding the eight count, it appears at about noon of December 30,
sentenced to a lesser term of imprisonment.
1944, while Dr. Irineo Solano was in the house of Felisa Caliao, his
niece, named Maria Taverna, informed him that a Filipino and a
Japanese were waiting for him. Solano met the visitors, the accused Appellant is, therefore, sentenced to seventeen (17) years, four (4)
and a Japanese. In answer to defendant's query, if he was Irineo months and one (1) day of reclusion temporal, with the accessories of
Solano, the latter identified himself and the accused told him that he the law. Thus, modified, the judgment appealed from is otherwise
was to go with the Japanese officer. Doctor Solano was conducted to affirmed, costs.
the Japanese officer. Doctor Solano was conducted to the Japanese
Military Police headquarters and once in the garrison, the accused left
Moran, C.J., Ozaeta, Pablo, Bengzon, Tuason, Montemayor and Reyes,
the group. Investigated on account of his guerrillaactivities and his pro-
JJ., concur.
American propaganda work, the doctor was maltreated and was not
released until January 14, 1945.
July 30, 1947
The testimony of Doctor Solano was corroborated by that of Felisa
G.R. No. L-430
Caliao regarding the fact that on December 30, 1944, while the doctor
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
was in her house, Solano was taken by a Filipino who happened to be
vs.
this appellant; she further said that Paar called for doctor Solano and
FRANCISCO M. ABAD (alias PAQUITO), defendant-appellant.
took him to the car where a Japanese officer was waiting.
CRIMINAL LAW FULL CASES
Alejo Labrador for appellant.
Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de
los Angeles for appellee.
PERFECTO, J.:
In a decision penned by Judge Angel S. Gamboa, concurred in by Judges
Jose Bernabe and Emilio Rilloraza, all of them of the People's Court,
accused Francisco Abad was found guilty of the complex crime of
treason with homicide and sentenced to death, to pay a fine of
P15,000, to indemnify the heirs of Osias Salvador in the amount of
P2,000, and to pay costs.
The information charges appellant of the crime of treason as defined
and penalized under article 114 of the Revised Penal Code by giving aid
and comfort to the Empire of Japan and the Japanese Imperial Forces
during the period comprised between December 24, 1943, and
September 26, 1944, as follows:
1. That on or about the 24th day of December, 1943, in the
municipality and province aforesaid, Francisco Abad (alias Paquito) the
accused herein, serving as an informer and spy of the Japanese Army,
did then and there, join participate in a raid conducted by about fifteen
Japanese soldiers of the Military Police at the house of Magno Ibarra,
and did then and there apprehended the said Magno Ibarra, charging
him of possession of a revolver which had been previously surrendered
by Magno Ibarra to the Japanese that Magno Ibarra still had the
revolver, the latter was confined in the Japanese garrison.
2. That on or about March 11, 1944, in the same municipality and
province aforesaid, the said Francisco Abad (alias Paquito), as such
informer of the Japanese Army, wilfully, unlawfully, feloniously and
treasonably, for more than two months, of one Mr. Francisco, whose
first name is still unknown, for having remarked that the Americans
would soon return many places in the Philippines had already been
retaken.
3. That on or about September 28, 1944, in the municipality of
Camiling, Province of Tarlac, the herein accused, as such informer of
the Japanese Army, did then and there wilfully, unlawfully, feloniously
and treasonably force, coerce, and compel Osias Salvador and his two
brothers Epifanio Salvador and Liberto Salvador to go, as they did to go
to the Japanese garrison where the said Osias Salvador and his two
brothers, at the instance of the herein accused in his presence, were
tortured as guerrilla suspects, and although Epifanio and Liberto
Salvador managed later to escape from imprisonment, the said Osias
Salvador was unable to do so and died from the tortures and injuries
inflicted upon him.
4. That on or about November 12, 1844 and on the occasion of a stage
show held in the said municipality of Camiling, Province of Tarlac, the
herein accused, taking advantage of his connection and influence as
informer and spy of the Japanese Army, did then and there unlawfully,
wilfully and feloniously hand over one Francisco Donato to the
Japanese soldiers who slapped and kicked the said Francisco Donato,
for an incident in which the accused was entirely to blame in that the
said accused annoyed Flora Esteban, wife of Francisco Donato, by
throwing sugar cane butts at her.
The lower court found the accused guilty on the first three counts.
Nine errors are assigned in appellant's brief.
The first question raised by appellant is that the lower court erred in
finding the accused guilty on the first count, notwithstanding the fact
only one witness testified to the overt act alleged therein.
Two witnesses were called by the prosecution to prove the first count,
Magno Ibarra and his wife, Isabel. The latter testified that when
appellant, accompanied by his brother and Japanese soldiers, went to
their home, demanding the surrender of a revolver of her husband, the
husband was out supervising the harvest of their palay, and the latter
happened to learn of the incident by information from the wife. Magno
could not, therefore, corroborate his wife as to the latter's testimony
concerning appellant's coming to their house.
The testimony of Magno Ibarra as to what happened to him in the
garrison, where he was told by appellant to produce his revolver, is not
corroborated by his wife nor by anybody else.
The Solicitor General advances the theory that where the overt act is
simple, continuous and composite, made up of, or proved by several
circumstances, and passing through stages, it is not necessary that
there should be two witnesses to each circumstance at each stage. The
theory is not well taken. The two-witness rule must be adhered to as to
each and everyone of all the external manifestations of the overt act in
issue. Appellant's going to the Ibarra house, in search of the revolver, is
a single overt act, distinct and independent from appellant's overt act
in requiring Magno Ibarra, when the latter went to the garrison, to
produce his revolver. Although both overt acts are inter-related. it
would be too much to strain the imagination if they should be
identified as a single act or even as different manifestations, phases, or
stage of the same overt act. The searching of the revolver in the Ibarra
house is one thing and the requiring to produce the revolver in the
garrison, another. Although both acts may logically be presumed to
have answered the same purpose, that of confiscating Ibarra's
revolver, the singleness of purpose is not enough to make one of two
acts.
The lower court erred consequently in not pronouncing that the first
count of the information was not proven.
Whether accused caused the arrest and incarceration of Fausto
Francisco, as alleged in the second count of the information, is the next
question raised in appellant's brief.
In the afternoon of March 10, 1944, while conversing with a group of
about ten persons, Francisco, who had just arrived from Manila, stated
that the Americans were coming nearer to the Philippines and, on
noticing a Japanese plane flying over them, added that in the very near
future they will see American planes flying over the Philippines. The
accused was among those present in the group. Jose Tamurrada and
Adriano Reyes were also among them. At night of the same day
Francisco attended the dance held in the auditorium of Palimbo,
Camiling, on the occasion of the barrio fiesta. A group of Japanese
soldiers, accompanied by appellant and his brother Mariano, arrived.
Appellant pointed at Francisco saying, "That is the man;" whereupon,
Francisco was arrested and was imprisoned for almost two and a half
months, during which time he was subjected to torture and made to
undergo hard labor for being an American propagandist. These facts
were testified by several witnesses for the prosecution.
Appellant, who has resorted to an alibi as defense, made an almost
exhaustive analysis of the declarations of the witnesses for the
prosecution in a forceful effort to discredit them. A careful reading of
said declarations leads us to the conclusion that they deserved
credibility and by them it was proved beyond all reasonable doubt that
appellant was present in the group which in the afternoon heard
Fausto Francisco make statements in favor of the Americans and that
he caused the arrest of Francisco in the auditorium by appointing him
to the Japanese soldiers who arrived with him at the place.
Among the arguments in appellant's brief relating to the second count
in question, the one in which appellant alleges that no one has ever
heard that, after the afternoon statements of Fausto Francisco,
appellant went to the Japanese garrison and informed the Japanese
soldiers thereof, appears to be stronger. In fact, there is no evidence as
to what the appellant did during the time intervening between when
appellant heard Francisco's afternoon statements and when appellant
went at night to the auditorium to have Francisco arrested by the
Japanese soldiers accompanying him and his brother Mariano. But the
natural relationship between the two incidents makes unnecessary any
evidence as to appellant's conduct and actions during the intervening
period. Besides, it is not alleged in the information that it was appellant
who denounced Francisco to the Japanese for the afternoon
statements in question, and even if we should disregard any
connection between the afternoon incident in which appellant heard
Francisco's statements and the incident in which Francisco was
arrested, and, furthermore, even if we go to the extent of disregarding
completely the first incident, the fact that appellant caused the arrest
CRIMINAL LAW FULL CASES
of Francisco at the auditorium night dance, by pointing him as the man
sought for to the Japanese soldiers who accompanied him and his
brother Mariano, in itself alone is sufficient to find him guilty of
adherence to the Japanese enemies and of giving them aid in the
attainment of their was purposes, among them the suppression of
American or anti-Japanese propaganda.
Upon this our conclusion, appellant's insistence that there were well-
known Japanese spies, instead of him, who must have given the tip to
the Japanese as to Francisco's statements, is of no consequence.
The next question raised by appellant is the third count of the
information upon which the appellant's brief dealt in three assignment
of errors, 3, 4, and 5.
Liberato Salvador testified that in 1944 he was a member of Major
Ramsey's Guerrilla, which he joined on March 5, 1942, he having been
formerly in the Recruiting Division of the Philippine Army. On
September 28, 1944, he went to Camiling with his brother Osias to find
out the strength of the Japanese garrison stationed there, and to said
effect "we brought along with us five gallons of coconut oil just
pretending to sell it in the public market in order that we cannot be
detected by the spies of our enemy, the Japanese." Then they saw the
accused "who was about five meters away from us." Felix Abad asked
for a ride back to Mangatarem. While Osias was talking with Felix, the
accused "winked his eye and then, immediately, Magdalera drew his
revolver and pointed at me. He winked with a motion indicating that I
was to be captures. My brother Osias approached me. We were asked
to raise our hands." Because Liberato protested that he was not
making any trouble and at first did not raise his hands, Magdalera said:
"No you are a member of the guerrillas, you are fighting against the
Japanese." Then Epifanio Salvador approached his brother Liberato and
told him: "Raise your hands because he is a spy of the Japanese,"
referring to Cristoper Magdalera. Then Felix Abad suggested to
Magdalera that the Salvador brothers be brought to the Japanese
garrison, 25 meters away from the market. The incident took place at
about 3 o'clock in the afternoon. At the garrison "we were tied up
against the wall of the building. At about 6 o'clock in the afternoon
were given water to drink (about five or six gallons) and maltreated.
They hung me and tied in the wrist with the rope around my neck. They
hung me with my toes barely touching the floor. Then they boxed me
and beat me with a baseball bat until I was unconscious. I did not
regain consciousness until they stuck a lighted cigarette in my face at
about 8 o'clock already in the evening."
When he regained consciousness, he heard his brothers shouting for
help and groaning. Witness was about six meters away from them, but
he has not seen them being tortured because "we were brought again
to the porch and tied our neck in the same way they tied us before,
with our hands tied at the back. At about 4 o'clock in the morning of
the 29th, my brother Epifanio Salvador, who was sitting side by side
with Osias Salvador, who was sitting side by side with Osias Salvador,
was able to untie his rope and then, all of a sudden Epifanio left us. The
sentry who was just sitting in front of us with a rifle at fixed bayonet
was sleeping. When the sentry was awakened he asked: "`Where is
your brother Epifanio Salvador?' I answered the sentry: `I do not know.'
Then, at first he was planning to release us to look for our brother
Epifanio. We consented to be released, but the sentry changed his
mind and got another big rope with which he whipped us again right
and left. Then they went to our house, the house of Epifanio, and
looked for him. And when they were not able to locate him they got
my sister-in-law Inocencia Manson de Salvador and she was also
questioned as to where was my brother Epifanio, and tied up her
hands as they have done to us. After that, Osias Salvador and myself
were brought to the room just behind the one we were tied up and
they got an electric wire and tied us again, but putting on a bench and
the bench was too short that the legs of my brother Osias was on top.
We were tied and then rolled with the wire from my head up to the
head of my brother, aside from tying us from neck to leg. We talked,
my brother and I, to escape if we can. After ten minutes, a Japanese
entered the garrison and he had a bamboo with which whenever we
asked for water and food they beat us. They question us: `Where is the
machine gun you are hiding? You are hiding six machine guns and
automatic rifles; where are the rifles and revolvers? Where are the
Americans now?' That was done to us many times. At about 5 o'clock in
the afternoon one of the Japanese came to us and cut our hair and
said: `Kayo dalawa patay mamayang gabi.' We answered: `Ngayon na.'
The Japanese said: `No, tonight.' Then in my struggle to remove the
rope around my leg I was able to untie it without my knowledge. One
of the Japanese entered to find out what we were doing, but he did not
inspect me and left again. Although my hands were bleeding, with my
courage to live still I grabbed the electric wire and cut it trough
continuously doing this (witness showing the act of twisting something
with his fingers), and unbound myself. When the sentry entered, I
allowed the electric wire to be placed as it was. Then it was 6 o'clock
(on September 29) from the bells of the church. My brother Osias said:
`I can not escape, I am weak. My face is bleeding. I cannot walk. If you
are untied, the thing for you is to live, if you can run for your life. Never
mind for me. If I am dead, never mind. Now we are fighting our
common enemy, the Japanese. I want you to find out what will be the
result of this war.' Then he kicked me, because I was untied already up
to the knee. I tried to remove the rope at his back, but he said: 'No, I
can not run.' And he shouted: 'You better run for your life.' Then I saw
one Japanese that heard that, and I jumped outside and when I fell to
the ground I saw another Japanese watching and shouting words that I
can not understand. I just ran. Between the municipal building and the
street there was a barbed wire fence and jumped it over and then
passed to the rear of the municipal building, passing between the
house of Mr. Javier and the Treasurer's and then to the bank of the
river. I passed under the bamboo groves and I went to the house of my
friend (Gregorio Javier) and I was able to go up and then fell down
weak." Osias was the commanding officer of the guerrilla unit in which
Liberato was a second lieutenant and Epifanio, a volunteer without
grade. Since then Liberato did not see Osias any more, but he was able
to locate Epifanio in Bayambang, Pangasinan.
The testimony of Liberato Salvador was substantially corroborated by
Epifanio Salvador on all what happened from the afternoon of
September 28,1944, when they were arrested in the market place up
to about 4 o'clock in the morning of September 29, when Epifanio was
able to untie himself and escape from the Japanese garrison, passing in
front of a sleeping sentry two meters away from where the Salvador
brothers were tied.
Augusto Antonio testified that the accused told him that Osias Salvador
was killed, bayoneted by a Japanese soldier, behind the elementary
school building, near the closet, where the corpse was later buried. The
information was given by the accuse in 1945 when the Japanese were
still ruling.
Appellant endeavors to discredit Liberato and Epifanio Salvador's
testimonies by trying to show the improbability for Liberato to have
seen the accused making signs to Cristoper Magdalera for their arrest
on the basis of the relative positions of witness and appellant and that
Epifanio "apparently" was away and came near the place where
Liberato was being arrested only after Magdalera for their arrest on the
basis of the relative positions of witness and appellant and that
Epifanio "apparently" was away and came near the place where
Liberato was being arrested only after Magdalera had pointed his pistol
at his back.
The fact that, while he was going southwest, he had seen the accused
in the northeast making the sign to Magdalera, is satisfactorily
explained by Liberato by saying that "because a man wanted to by the
Japanese begins to observe everything," and he had to observe
"because I knew they were making signs," and at that time the accused
was "in the left side," and with respect to Epifanio, appellant's surmise
that he was "apparently away" appears to without basis if it is recalled
that it was Epifanio who advised Liberato to hold up his hands, when
Liberato was refusing to do it, by saying, in allusion to Magdalera, "he
is a Japanese spy."
Appellant maintains also that it must have been Felix Abad whom the
witnesses for the prosecution saw winking his eyes at Magdalera for
the latter to arrest the Salvador brothers and not Francisco Abad. But
the theory cannot be maintained upon the positive and unequivocal
testimonies of Liberto and Epifanio pointing the accused as the one
who made the sign. Appellant's insistence to put the blame on Felix
Abad, by trying to show that it was he and not the accused who made
the sign, even if accepted, will not relieve appellant of all responsibility,
because, according to the witnesses for the prosecution, he went along
with his brothers Mariano and Felix and Cristoper Magdalera in
bringing the Salvador brothers to the Japanese garrison where they
CRIMINAL LAW FULL CASES
were delivered by the accused himself, and it was Francisco Abad who
told the Japanese "that we were guerrillas."
In the sixth assignment of error appellant complains that the lower
court admitted evidence of supposed treasonable acts of appellant but
which are not specifically alleged in any of the counts of the
information.
Appellant points specifically to the testimony of Agustin de la Cruz, to
the effect that in the moth of October, 1944, at around 11 o'clock,
while witness and others were around a gambling table, appellant
came unnoticed with six Japanese soldiers and demanded of those in
the gathering the information of the whereabouts of Lt. Riparip and
Sgt. Juan Asuncion, both of the guerrilla army, and that sometime in
November, 1944, on the occasion of the shooting of Eustaquio
Domingo, the accused was in the Japanese garrison while the Japanese
soldiers proceeded to the site of the shooting, gathered all the males
found thereabouts, bringing one of them, Benjamin Aremajo, to the
garrison to be later dragged to the plaza where he was beaten up, facts
which were declared proven by the lower court.
The assignment is well taken as the above facts are not alleged in any
of the four counts of the information. The fact that accused is
described therein as an informer is not enough, because the
description is a conclusion made by the author of the information
based on the facts specifically alleged in the four counts. The
information alleged that the accused "adhered to and served as an
informer of the enemy, . . . giving them aid and comfort in the
following manner, to wit:", — and then follow the four counts.
Furthermore, even if the word "informer" in the information should
justify the admission of the evidence in question, the lower court erred
in finding the facts proved when the testimony of Agustin de la Cruz
about them has not been corroborated by any other witness, thus
violating the two-witness rule in treason cases.
Appellant assigned as the seventh error of the trial court in finding him
as an informer "on mere assertions of witnesses to that effect without
supporting treasonable acts and in making findings of fact not
supported by any evidence at all" and makes the complaint,
specifically, in relation with the following pronouncement in the
appealed decision:
. . . The accused acted and served as an informer and spy for and in the
aid of the Japanese army in Camiling, directing his espionage activities
or detecting and gathering informations about the activities of
members of the guerilla organizations, of persons maintaining or
providing for the support thereof and of persons possessing firearms or
in any other manner connected with the underground resistance
movements against the Japanese and spying on the movements of
those persons who cherish the return to the Philippines of the
Americans, . . .. Proofs adduced by the prosecution of the fact that the
accused had been acting as an informer and spy for and in the aid of
the Japanese are highly convincing. One after another the various
witnesses for the prosecution has pointed his accusing finger at the
accused to have been an informer and spy of the Japanese army. . .
The pronouncement appears to be based on the testimonies of Publio
Dumaual, Rafael Guillermo, and Agustin de la Cruz, each one of whom
testified about facts not alleged in any of the counts of the
information, and their testimonies on said facts appear not to be
corroborated by another witness, as required by the two-witness rule.
The assignment of error is well taken.
Appellant complains in his eight assignment of error that the court
failed to take into account two mitigating circumstances: the fact that
the Abad family was persecuted by guerrillas, the persecution ending in
the killing of Lino Abad Pine and Antonio Abad, father and brother,
respectively, of the accused, and, appellant's age.
On September 26, 1942, a group of around thirty guerrillas took the
Abad family to the barrio of Ketegan. On October 17, Lino Abad Pine
and Antonio Abad were brought to the schoolhouse, and from that
time on they were never seen alive again. On January, 1943, the family
was released minus the above mentioned two members, and they
proceeded to Camiling where Mariano Abad, the eldest son, was living,
as explained by his widowed mother, "to whom I could look after the
support inasmuch as he is my living eldest son. He was with the Japs
because that was the last resort for him to do inasmuch as if he did not
do that he would have been killed by the guerrillas."
These facts cannot be considered to mitigate appellant's guilt as they
are not of a similar nature or analogous to those mentioned in article
13 of the Revised Penal Code.
Appellant's age can be considered. He was born on October 20, 1924,
and when he committed the acts alleged in counts two and three, the
latter on September 28, 1944, he was not yet 20 years old. The fact
that his eldest brother, Mariano, was the liaison officer of the Japanese
and another elder brother, Felix, was also in the service of the
Japanese, coupled by the fact that, as stated by his widowed mother,
the accused had to depend on Mariano for his support, the same as the
other members of the family, are circumstances from which, in view of
appellant's immature age, did not allow him the freedom of initiative
and action which should be expected of a person who is aware of the
full consequences and responsibility for his acts. The circumstances of
this case justify crediting appellant with a mitigating circumstance of
similar nature to that of number 2 of article 13 of the Revised Penal
Code.
Although we hold appellant as one of those responsible for the arrest
of the Salvador brothers, we do not agree with the lower court in
finding him responsible also for the death of Osias Salvador, as
according to the evidence, it was the escape of Epifanio, and later the
escape of Liberato, which must have enraged the Japanese to the
extent of killing Osias Salvador, who, were not so weak, had the same
chance as his brothers to escape. If his brothers did not escape, there is
no ground to presume that Osias would have been killed by the
Japanese if we take into consideration that, after almost two and a half
months of confinement, the Japanese allowed Fausto Francisco to be
released. There is absolutely no evidence that appellant was present or
had anything to do with the killing of Osias Salvador.
Upon the conclusion we arrived at, it is not necessary to deal with the
ninth assignment of error in appellant's brief.
Finding the accused guilty of the crime of treason as punished by
article 114 of theRevised Penal Code with the attendance of one
mitigating circumstance, as provided in number 2 of article 64 of
the Revised Penal Code, with the modification of the lower court's
decision, we sentence him to 14 years, 8 months, and 1 day
of reclusion temporaland to pay a fine of P5,000 and the costs.
Moran, C.J., Feria, Pablo, Hilado, Padilla, and Tuason, JJ., concur.
PARAS, J.:
I reserve my vote. The decision in the Laurel case is not as yet final.
Separate Opinions
BRIONES, M., disidente:
Creo que el apelante debe ser absuelt, por duda razonable. Parecia
pesar una maldicion sobre la familia del acusado: perseguidos por los
guerilleros, algunos de sus miembros perecieron en manos de estos. El
cargo mas grave contra el acusado es el relacionado con la muerte de
Osias Salvador. Pues bien; me parece que las pruebas acerca de este
cargo no justifican la condena.
G.R. No. L-477             June 30, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
APOLINARIO ADRIANO, defendant-appellant.
Remedios P. Nufable for appellant.
Assistant Solicitor General Kapunan, Jr., and Solicitor Lacson for
appellee.
CRIMINAL LAW FULL CASES
TUASON, J.:
This is an appeal from a judgment of conviction for treason by the
People's Court sentencing the accused to life imprisonment, P10,000
fine, and the costs.
The information charged:
That between January and April, 1945 or thereabout, during the
occupation of the Philippines by the Japanese Imperial Forces, in the
Province of Nueva Ecija and in the mountains in the Island of Luzon,
Philippines, and within the jurisdiction of this Court, the above-named
accused, Apolinario Adriano, who is not a foreigner, but a Filipino
citizen owing allegiance to the United States and the Commonwealth
of the Philippines, in violation of said allegiance, did then and there
willfully, criminally and treasonably adhere to the Military Forces of
Japan in the Philippines, against which the Philippines and the United
States were then at war, giving the said enemy aid and comfort in the
manner as follows:
That as a member of the Makapili, a military organization established
and designed to assist and aid militarily the Japanese Imperial forces in
the Philippines in the said enemy's war efforts and operations against
the United States and the Philippines, the herein accused bore arm and
joined and assisted the Japanese Military Forces and the Makapili Army
in armed conflicts and engagements against the United States armed
forces and the Guerrillas of the Philippine Commonwealth in the
Municipalities of San Leonardo and Gapan, Province of Nueva Ecija,
and in the mountains of Luzon, Philippines, sometime between January
and April, 1945. Contrary to Law.
The prosecution did not introduce any evidence to substantiate any of
the facts alleged except that of defendant's having joined the Makapili
organization. What the People's Court found is that the accused
participated with Japanese soldiers in certain raids and in confiscation
of personal property. The court below, however, said these acts had
not been established by the testimony of two witnesses, and so
regarded them merely as evidence of adherence to the enemy. But the
court did find established under the two-witness rule, so we infer,
"that the accused and other Makapilis had their headquarters in the
enemy garrison at Gapan, Nueva Ecija; that the accused was in
Makapili military uniform; that he was armed with rifle; and that he
drilled with other Makapilis under a Japanese instructor; . . . that
during the same period, the accused in Makapili military uniform and
with a rifle, performed duties as sentry at the Japanese garrison and
Makapili headquarters in Gapan, Nueva Ecija;" "that upon the
liberation of Gapan, Nueva Ecija, by the American forces, the accused
and other Makapilis retreated to the mountains with the enemy;" and
that "the accused, rifle in hand, later surrendered to the Americans."
Even the findings of the court recited above in quotations are not
borne out by the proof of two witnesses. No two of the prosecution
witnesses testified to a single one of the various acts of treason
imputed by them to the appellant. Those who gave evidence that the
accused took part in raids and seizure of personal property, and
performed sentry duties and military drills, referred to acts allegedly
committed on different dates without any two witnesses coinciding in
any one specified deed. There is only one item on which the witnesses
agree: it is that the defendant was a Makapili and was seen by them in
Makapili uniform carrying arms. Yet, again, on this point it cannot be
said that one witness is corroborated by another if corroboration
means that two witnesses have seen the accused doing at least one
particular thing, it a routine military chore, or just walking or eating.
We take it that the mere fact of having joined a Makapili organization
is evidence of both adherence to the enemy and giving him aid and
comfort. Unless forced upon one against his will, membership in the
Makapili organization imports treasonable intent, considering the
purposes for which the organization was created, which, according to
the evidence, were "to accomplish the fulfillment of the obligations
assumed by the Philippines in the Pact of Alliance with the Empire of
Japan;" "to shed blood and sacrifice the lives of our people in order to
eradicate Anglo-Saxon influence in East Asia;" "to collaborate
unreservedly and unstintedly with the Imperial Japanese Army and
Navy in the Philippines;" and "to fight the common enemies."
Adherence, unlike overt acts, need not be proved by the oaths of two
witnesses. Criminal intent and knowledge may be gather from the
testimony of one witness, or from the nature of the act itself, or from
the circumstances surrounding the act. (Cramer vs. U.S., 65 Sup. Ct.,
918.)
At the same time, being a Makapili is in itself constitutive of an overt
act. It is not necessary, except for the purpose of increasing the
punishment, that the defendant actually went to battle or committed
nefarious acts against his country or countrymen. The crime of treason
was committed if he placed himself at the enemy's call to fight side by
side with him when the opportune time came even though an
opportunity never presented itself. Such membership by its very nature
gave the enemy aid and comfort. The enemy derived psychological
comfort in the knowledge that he had on his side nationals of the
country with which his was at war. It furnished the enemy aid in that
his cause was advanced, his forces augmented, and his courage was
enhanced by the knowledge that he could count on men such as the
accused and his kind who were ready to strike at their own people. The
principal effect of it was no difference from that of enlisting in the
invader's army.
But membership as a Makapili, as an overt act, must be established by
the deposition of two witnesses. Does the evidence in the present case
meet this statutory test? Is two-witness requirement fulfilled by the
testimony of one witness who saw the appellant in Makapili uniform
bearing a gun one day, another witness another day, and so forth?
The Philippine law on treason is of Anglo-American origin and so we
have to look for guidance from American sources on its meaning and
scope. Judicial interpretation has been placed on the two-witness
principle by American courts, and authoritative text writers have
commented on it. We cull from American materials the following
excerpts which appear to carry the stamp of authority.
Wharton's Criminal Evidence, Vol. 3, section 1396, p. 2282, says:
In England the original Statute of Edward, although requiring both
witnesses to be to the same overt act, was held to mean that there
might be one witness to an overt act and another witness to another
overt act of the same species of treason; and, in one case it has been
intimated that the same construction might apply in this country. But,
as Mr. Wigmore so succinctly observes: "The opportunity of detecting
the falsity of the testimony, by sequestering the two witnesses and
exposing their variance in details, is wholly destroyed by permitting
them to speak to different acts." The rule as adopted in this country by
all the constitutional provisions, both state and Federal, properly
requires that two witnesses shall testify to the same overt act. This also
is now the rule in England.
More to the point is this statement from VII Wigmore on Evidence, 3d
ed., section 2038, p. 271:
Each of the witnesses must testify to the whole of the overt act; or, if it
is separable, there must be two witnesses to each part of the overt act.
Learned Hand, J., in United States vs. Robinson (D.C.S.D., N.Y., 259 Fed.,
685), expressed the same idea: "It is necessary to produce two direct
witnesses to the whole overt act. It may be possible to piece bits
together of the overt act; but, if so, each bit must have the support of
two oaths; . . .." (Copied as footnote in Wigmore on Evidence, ante.)
And in the recent case of Cramer vs. United States (65 Sup. Ct., 918),
decide during the recent World War, the Federal Supreme Court lays
down this doctrine: "The very minimum function that an overt act must
perform in a treason prosecution is that it shows sufficient action by
the accused, in its setting, to sustain a finding that the accused actually
gave aid and comfort to the enemy. Every act, movement,
deed, and word of the defendant charged to constitute treason must
be supported by the testimony of two witnesses."
In the light of these decisions and opinions we have to set aside the
judgment of the trial court. To the possible objection that the
reasoning by which we have reached this conclusion savors of sophism,
we have only to say that the authors of the constitutional provision of
which our treason law is a copy purposely made conviction for treason
difficult, the rule "severely restrictive." This provision is so exacting and
so uncompromising in regard to the amount of evidence that where
two or more witnesses give oaths to an overt act and only one of them
is believed by the court or jury, the defendant, it has been said and
CRIMINAL LAW FULL CASES
held, is entitled to discharge, regardless of any moral conviction of the
culprit's guilt as gauged and tested by the ordinary and natural
methods, with which we are familiar, of finding the truth. Natural
inferences, however strong or conclusive, flowing from other
testimony of a most trustworthy witness or from other sources are
unavailing as a substitute for the needed corroboration in the form of
direct testimony of another eyewitness to the same overt act.
The United States Supreme Court saw the obstacles placed in the path
of the prosecution by a literal interpretation of the rule of two
witnesses but said that the founders of the American government fully
realized the difficulties and went ahead not merely in spite but because
of the objections. (Cramer vs. United States, ante.) More, the rule, it is
said, attracted the members of the Constitutional Convention "as one
of the few doctrines of Evidence entitled to be guaranteed against
legislative change." (Wigmore on Evidence, ante, section 2039, p. 272,
citing Madison's Journal of the Federal Convention, Scott's ed., II, 564,
566.) Mr. Justice Jackson, who delivered the majority opinion in the
celebrated Cramer case, said: "It is not difficult to find grounds upon
which to quarrel with this Constitutional provision. Perhaps the
farmers placed rather more reliance on direct testimony than modern
researchers in psychology warrant. Or it may be considered that such a
quantitative measure of proof, such a mechanical calibration of
evidence is a crude device at best or that its protection of innocence is
too fortuitous to warrant so unselective an obstacle to conviction.
Certainly the treason rule, whether wisely or not, is severely
restrictive." It must be remembered, however, that the Constitutional
Convention was warned by James Wilson that "'Treason may
sometimes be practiced in such a manner, as to render proof extremely
difficult — as in a traitorous correspondence with an enemy.' The
provision was adopted not merely in spite of the difficulties it put in the
way of prosecution but because of them. And it was not by whim or by
accident, but because one of the most venerated of that venerated
group considered that "prosecutions for treason were generally
virulent.'"
Such is the clear meaning of the two-witness provision of the American
Constitution. By extension, the lawmakers who introduced that
provision into the Philippine statute books must be understood to have
intended that the law should operate with the same inflexibility and
rigidity as the American forefathers meant.
The judgment is reversed and the appellant acquitted with costs
charged de oficio.
Moran, C.J., Feria, Pablo, Perfecto, Bengzon, Briones, Hontiveros, and
Padilla, JJ., concur.
Paras, J., concurs in the result.
Separate Opinions G.R. No. L-1006
THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle, 
vs.
HILADO, J., dissenting:
FILEMON ESCLETO, defendant-appellant.
Being unable to bring myself agree with the majority upon the
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Augusto
application of the two-witness rule herein, I am constrained to dissent.
M. Luciano for appellee.
As I see it, being a member of the Makapili during the Japanese
TUASON, J.:
occupation of those areas of the Philippines referred to in the
information, was one single, continuous, and indivisible overt act of the
present accused whereby he gave aid and comfort to the Japanese The appellant, Filemon Escleto, was charged in the former People's
invaders. That membership was one and the same from the moment Court with treason on three counts, namely:
he entered the organization till he was captured. The fact that he was
seen on a certain day by one of the state witnesses being a member of
1. That during the period of Japanese military occupation of the
the Makapili, and was seen by another state witness but on a different
Philippines, in the municipality of Lopez, Province of Tayabas,
day being a member of the same organization, does not mean that his
Philippines, and within the jurisdiction of this Honorable Court, the
membership on the first day was different or independent from his
above named accused, Filemon Escleto, with intent to give aid or
membership on the other day — it was the selfsame membership all
comfort to Imperial Japanese Forces in the Philippines, then enemies of
the way through. A contrary construction would entail the
the United States and of the Commonwealth of the Philippines, did
consequence that the instant defendant, if we are to believe the
wilfully, unlawfully, feloniously and treasonably collaborate, associate
allegations and proofs of the prosecution, became or was a member of
and fraternize with the Imperial Japanese Forces, going out with them
the Makapili as many times as there were days from the first to the
in patrols in search of guerrillas and guerrilla hideouts, and of persons
last.
aiding or in sympathy with the resistance movements in the
Philippines; bearing arms against the American and guerrilla forces in
T.E. Holland defined "acts" in jurisprudence as follows: the furtherance of the war efforts of the Imperial Japanese Forces
against the United States and the Commonwealth of the Philippines,
and mounting guard and performing guard duty for the Imperial
Jurisprudence is concerned only with outward acts. An "act" may
Japanese Forces in their garrison in the municipality of Lopez, Province
therefore be defined . . . as "a determination of will, producing an
of Tayabas, Philippines.
effect in the sensible world". The effect may be negative, in which case
the act is properly described as a "forbearance". The essential
elements of such an act are there, viz., an exercise of the will, an 2. That during the period of Japanese military occupation of the
accompanying state of consciousness, a manifestation of the will. Philippines, in the municipality of Lopez, Province of Tayabas,
(Webster's New International Dictionary, 2d ed., unabridged, p. 25.) Philippines, and within the jurisdiction of the Honorable Court, the
above named accused, Filemon Escleto, with intent to give aid or
comfort to the Imperial Japanese Forces in the Philippines, then
There can, therefore, be no question that being a member of
enemies of the United States and of the Commonwealth of the
the Makapili was an overt act of the accused. And the fact that no two
Philippines, did wilfully, unlawfully, feloniously and treasonably
witnesses saw him being such a member on any single day or on the
accompany, join, and go out on patrols with Japanese soldiers in and
selfsame occasion does not, in my humble opinion, work against
around the municipality of Lopez, Province of Tayabas, in search of
the singleness of the act, nor does the fact that no two witnesses have
guerrillas and guerrilla hideouts, and of persons aiding or in sympathy
testified to that same overt act being done on the same day or
with the resistance movement in the Philippines.
occasion argue against holding the two-witness rule having been
complied with.
3. That on or about the 18th day of March, 1944, in the municipality of
Lopez, Province of Tayabas, Philippines, and within the jurisdiction of
My view is that, the act being single, continuous and indivisible, at
this Honorable Court, the above-named accused, Filemon Escleto, with
least two witnesses have testified thereto notwithstanding the fact
intent to give aid or comfort to the Imperial Japanese Forces in the
that one saw it on one day and the other on another day.
Philippines, then enemies of the United States and of the
Commonwealth of the Philippines, did wilfully, unlawfully, feloniously
June 28, 1949 and treasonably arrest and/or cause to be arrested one Antonio
Conducto as a guerrilla and did turn him over and deliver to the
Japanese military authorities in their garrison, since which time, that is,
CRIMINAL LAW FULL CASES
since the said 18th day of March, 1944, nothing has been heard from
said Antonio Conducto and is considered by his family to have been
killed by the Japanese military authorities.
The court found "no concrete evidence as to defendant's membership
in the U. N. or Makapili organization nor on what the patrols he
accompanied actually did once they were out of town", and so was,
"constrained to rule that the evidence of the prosecution fails to
establish, in connection with counts 1 and 2, any true overt act of
treason." We may add that no two witnesses coincided in any specific
act of the defendant. The People's Court, believed, however, "that the
same evidence is sufficient to prove beyond question defendant's
adherence to the enemy."
As to the 3rd count, the opinion of the People's Court was that it had
been fully substantiated.
The record shows that on or about, March 11, 1944, Japanese patrol
composed of seventeen men and one officer was ambushed and totally
liquidated by guerrillas in barrio Bibito, Lopez, Province of Tayabas,
now Quezon. As a result, some of inhabitants of Bibito and neighboring
barrios, numbering several hundred, were arrested and others were
ordered to report at the poblacion. Among the latter were Antonio
Conducto, a guerrilla and former USAFFE, Conducto's wife, parents and
other relatives.
Sinforosa Mortero, 40 years old, testified that on March 18, 1944, at
about 5 o'clock in the afternoon, obedience to the Japanese order, she
and the rest of her family went to the town from barrio Danlagan. Still
in Danlagan, in front of Filemon Escleto's house, Escleto told them to
stop and took down their names. With her were her daughter-in-law,
Patricia Araya, her son Antonio Conductor, and three grandchildren.
After writing their names, Escleto conducted them to the PC garrison in
the poblacion where they were questioned by some whose name she
did not know. This man asked her if she heard gunshots and she said
yes but did not know where they were. The next day they were
allowed to go home with many others, but Antonio Conducto was not
released. Since then she had not seen her son. On cross-examination
she said that when Escleto took down their names Antonio Conducto
asked the accused if anything would happen to him and his family, and
Escleto answered, "Nothing will happen to you because I am to
accompany you in going to town."
Patricia Araya declared that before reaching the town, Filemon Escleto
stopped her, her mother-in-law, her husband, her three children, her
brother-in-law and the latter's wife and took down their names; that
after taking their names Escleto and the Philippine Constabulary soldier
took them to the PC garrison; that her husband asked Escleto what
would happen to him and his family, and Escleto said "nothing" and
assured Conducto that he and his family would soon be allowed to go
home; that Escleto presented them to a PC and she heard him tell the
latter, "This is Antonio Conducto who has firearm;" that afterward they treasonable purpose nor did it necessarily have that implication. This
were sent upstairs and she did not know what happened to her process of evaluating evidence might sound like a play of words but, as
husband. we have said in People vs. Adriano (44 Off. Gaz., 4300)[[1]] the authors
of the two-witness provision in the American Constitution, from which
the Philippine treason law was taken, purposely made it "severely
The foregoing evidence fails to support the lower court's findings. It
restrictive" and conviction for treason difficult. In that case we
will readily be seen from a cursory examination thereof that the only
adverted to the following authorities, among others:
point on which the two witnesses, Patricia Araya and Sinforosa
Mortero, agree is that the accused took down the names of Conducto
and of the witnesses, among others, and came along with them to the Each of the witnesses must testify to the whole overt act; or if it is
town. Granting the veracity of this statement, it does not warrant the separable, there must be two witnesses to each part of the overt act.
inference that the defendant betrayed Conducto or had the intention (VII Wigmore on Evidence, 3rd ed., Sec. 2038, p. 271.)
of doing so. What he allegedly did was compatible with the hypothesis
that, being lieutenant of his barrio, he thought it convenient as part of
It is necessary to produce two direct witnesses to the whole overt act.
his duty to make a list of the people under his jurisdiction who heeded
It may be possible to piece bits together of the same overt act; but, if
the Japanese order.
so, each bit must have the support of two oaths;. . . . (Opinion of Judge
Learned Hand quoted as footnote in Wigmore on Evidence, ante.)
It was not necessary for the defendant to write Conducto's name in
order to report on him. The two men appeared to be from the same
The very minimum function that an overt act must perform in a treason
barrio, Escleto knew Conducto intimately, and the latter was on his way
prosecution is that it show sufficient action by the accused, in its
to town to present himself. If the accused had a treasonable intent
setting, to sustain a finding that the accused actually gave aid and
against Conducto, he could have furnished his name and identity to the
comfort to the enemy. Every action, movement, deed, and word of the
enemy by word of mouth. This step would have the added advantage
defendant charged to constitute treason must be supported by the
of concealing the defendant's traitorous action from his town mates
testimony of two witnesses. (Cramer vs. U.S. of A., 65 S. Ct., 918; 89
and of not appraising Conducto of what was in store for him,
Law. ed., 1441.)
knowledge of which might impel Conducto to escape.
"It is not difficult to find grounds upon which to quarrel with this
That the list was not used for the purpose assumed by the prosecution
Constitutional provision. Perhaps the framers placed rather more
is best demonstrated by the fact that it included, according to
reliance on direct testimony than modern researches in psychology
witnesses, Conducto's wife and parents and many others who were
warrant. Or it may be considered that such a quantitative measure of
discharged the next day. The fact that, according to the evidence of the
proof, such a mechanical calibration of evidence is a crude device at
prosecution, spies wearing masks were utilized in the screening of
best or that its protection of innocence is too fortuitous to warrant so
guerrillas adds to the doubt that the defendant had a hand in
unselective an obstacle to conviction. Certainly the treason rule,
Conducto's misfortune.
whether wisely or not, is severely restrictive. It must be remembered,
however, that the Constitutional Convention was warned by James
In short, Escleto's making note of persons who went to Wilson that "Treason may sometimes be practiced in such a manner, as
the poblacion as evidence of overt act is weak, vague and uncertain. to render proof extremely difficult-as in a traitorous correspondence
with an Enemy." The provision was adopted not merely in spite of the
difficulties it put in the way of prosecution but because of them. And it
The only evidence against the appellant that might be considered
was not by whim or by accident, but because one of the most
direct and damaging is Patricia Araya's testimony that Escleto told a
venerated of that venerated group considered that "prosecution for
Philippine Constabulary soldier, "This is Antonio Conducto who has
treason were generally virulent." (Cramer vs. U.S. of A., supra.)
firearm." But the prosecution did not elaborate on this testimony, nor
was any other witness made to corroborate it although Patricia Araya
was with her husband, parents and relatives who would have heard the The decision of the People's Court will be and the same is reversed
statement if the defendant had uttered it. with the costs de oficio.
Leaving aside the question of Patricia's veracity, the failure to Moran, C.J., Ozaeta, Paras, Feria, Bengzon, Montemayor and Reyes,
corroborate her testimony just mentioned makes it ineffective and JJ., concur.
unavailing as proof of an overt act of treason. In a juridical sense, this Moran, C.J., Mr. Justice Pablo voted to reverse.
testimony is inoperative as a corroboration of the defendant's taking
down of the name of Conducto and others, or vice-versa. It has been
seen that the testimony was not shown to have been made for a
CRIMINAL LAW FULL CASES
THE UNITED STATES, Complainant-Appellee, v. SIMEON
MAGTIBAY, Defendant-Appellant.  troops and the forces of the Constabulary.  CARMELITO VICTORIA, defendant-appellant.
Enrique Barrera for Appellant.  Section 9 of the act of Congress of March 8, 1902, is as
Solicitor-General Araneta for Appellee.  appellee.
SYLLABUS
1. CRIMINAL LAW; TREASON; CONFESSION. — The confession in open
court, upon which a defendant may be convicted of treason under
section 9 of the act of Congress of March 8, 1902, is a confession of
guilt. The section can not be extended so as to include admissions of
fact, from which his guilt may be inferred, made by-the defendant in
giving his testimony after a plea of not guilty.  second lieutenant found upon his person. Under the act of Congress
2. ID.; ID.; EVIDENCE. — The testimony of one witness to a confession
made by the defendant, to the effect that he had joined the
insurrectionary forces, and to the finding upon his person of a
commission making him a lieutenant in such forces, is insufficient to
support a conviction for the crime of treason, as such conviction can
only be had upon the testimony of at least two witnesses to the same
overt act of treason.
DECISION
WILLARD, J. :
The defendant has been convicted of the crime of treason as defined in crime charged in this complaint, with the costs de oficio, and without
Act No. 292, section 1, and sentenced to death.  prejudice to the presentation of complaints for the other crimes of
which the evidence in this case indicates that the defendant may be
It was proved that he was a soldier in the Constabulary stationed at guilty. 
Imus, in the Province of Cavite; that on October 13, 1902, he deserted
and was captured on October 27, 1902. When he was captured he Arellano, C.J., Torres, Cooper, Mapa, McDonough and Johnson, JJ.,
stated to the inspector, according to the latter’s testimony, that he had concur.
given the arms which he took with him to his general, Montalon. Upon
his person was found a commission, making him a second lieutenant,
G.R. No. L-369             March 13, 1947
signed by Montalon and dated October 14. The only witness to the
finding of this commission was the inspector. There was evidence that,
in October, Montalon was in armed rebellion against the Government THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
and that there had been engagements in that month between his vs.
Luis Atienza Bijis for appellant.
follows:jgc:chanrobles.com.ph Assistant Solicitor General Kapunan, Jr. and Solicitor Bautista for
"SEC. 9. That no person in the Philippine Islands shall, under the
authority of the United States, be convicted of treason by any tribunal,
civil or military, unless on the testimony of two witnesses to the same PERFECTO, J.:
overt act, or on confession in open court."cralaw virtua1aw library
Sentenced to the supreme penalty of death and to pay a fine of twenty
Passing for the present the testimony of the defendant at the trial, thousand pesos and costs, Carmelito Victoria comes to us to seek for
there was no other evidence in the case to show that he had ever the reversal of the decision of the People's Court.
joined the forces of Montalon, except the testimony of the inspector as
to the confession made when he was captured and the commission as
He is accused of treason in an information which reads as follows:
there can be no conviction, unless two witnesses testify to the same
overt act of treason. There is no such testimony in this case. The The undersigned Special Prosecutor accuses Carmelito
evidence of the Government related exclusively to the desertion of the Victoria alias Carlito Victoria, Carling Victoria, Carlos Victoria of the
defendant and his capture.  crime of treason under article 114 of the Revised Penal Code
committed as follows:
The act of Congress provides that there may be a conviction upon a
confession in open court. The defendant testified as a witness in his
That during the period compromised between March, 1942 to
own behalf at the trial. He denied that he had deserted, but claimed
December, 1944, more specifically on or about the dates hereinbelow
that he had been carried off by force by soldiers of Montalon and taken
mentioned, in the different places hereunder stated, and within the
to the latter’s camp. He promised to serve them, and they made him a
jurisdiction of this Honorable Court, the said accussed not being a
lieutenant and gave him a revolver. He remained with them two
foreigner but a Filipino citizen owing allegiance to the United States
weeks, but he says that it was against his will and that he had no
and the Commonwealth of the Philippines, in violation of his said duty
opportunity to escape, except the time when he was captured. This
of allegiance, wilfully, unlawfully, feloniously and treasonably did
was not a confession within the meaning of the said section 9. The
knowingly adhere to their enemy, the Empire of Japan and the Imperial
confession there mentioned means a confession of guilt. The section
Japanese Forces in the Philippines, with which the United States and
can not be extended so as to include admissions of facts made by him
the Commonwealth of the Philippines were then at war, giving to said
in giving his testimony after a plea of not guilty, from which admissions
enemy aid and/or comfort, in the following manner, to wit:
his guilt can be inferred. The evidence required by the act of Congress
does not appear in this case. 
1. That on or about October 6, 1944, the accused, a member of the
It is unnecessary to consider the point made by the defendant’s Intelligence Unit attached to the Kempei Tai in Lucena, Tayabas, for the
counsel that, in view of the official proclamations, there existed no purpose of giving and with the intent to give said enemy aid and
state of insurrection or war in Cavite in October, 1902.  comfort, joined an armed enemy patrol composed of about eight spies
and a Japanese soldier, which went to the house of Federico Unson in
The judgment is reversed and the defendant acquitted only of the the barrio of Malaking Labak Bocohan, Lucena, Tayabas, and accused
CRIMINAL LAW FULL CASES
Federico Unson of hiding guerrillas; that said patrol was arresting said
Federico Unson when some guerrillas appeared and killed one of the
spies and the patrol left; that said accused directed several men in the
patrol in picking up the dead spy and carrying him away; and that, in
the afternoon of the same day, the same party of spies, including the
accused and eight members of the Japanese Military Police, went again
to the house of Federico Unson and did feloniously, willfully, unlawfully
and treasonably arrest him, together with Isaias Perez and Ruben
Godoy, who happened to be at the house; that with their hands bound,
the three were tortured and then taken along by said patrol after
setting fire on the house of Federico Unson and that of Isaias Perez
were found lying nearby with numerous bayonet wounds; and that
Ruben Godoy was taken to the Japanese garrison in Lucena, Tayabas,
and there killed.
2. That on or about December 21, 1944, the accused, accompanied by
other Japanese spies, Pedro Raviñera, Jose Bondoc, Jacinto Pineda,
Alberto Calawit, Bernardo Santiago, and others who were all armed,
for the purpose of giving and with the intent to give said enemy aid and
comfort, went to the house of Jose Unson, in Lucena, Tayabas, and
arrested said Jose Unson and brought him to the Japanese garrison on
the charge that he had a short wave radio; that he was furnishing radio
information to the guerrillas and at the same time supporting them;
that said Unson was released on the same day, but on the next day he
was again arrested and brought to the Japanese garrison at Lucena,
Tayabas; that said Jose Unson never returned.
3. That on or about February 10, 1945, the accused, in company with
Jacinto Pineda, Leonardo Coronel, Jose Bondoc, Abelardo Calawit, and
Pedro Raviñera, all members of the Intelligence Unit of the Kempei Tai,
were all armed, for the purpose of giving and with the intent to give
said enemy aid and comfort, went to the house of Felixberto Romulo in
San Pablo, Laguna, placed him under arrest as a guerrilla suspect, and
turned him over to the Japanese Military Police who on that occasion
were concealing themselves near the house of Romulo; and that, since
the arrest of said Romulo, nothing was heard of him.
4. That on or about December 21, 1944, at about 5 o'clock in the
morning, the accused, accompanied by two Japanese Military Police
and two undercover operatives, for the purpose of giving and with the
intent to give said enemy aid and comfort, went to the house of
Hermogenes Calauag in Lucena, Tayabas, and apprehended said
Hermogenes Calauag; that said two Japanese Military Police and the
accused conducted a search of the house and afterwards brought
Calauag to the Japanese garrison where he was subjected to inhuman
torture on the charge being pro-American and adviser of the Hunters
ROTC Guerrillas.
5. That on or about March 9, 1944, at about 5 o'clock in the morning,
the accused then acting as an informer of the Japanese Kempei Tai,
with intent to aid said enemy, did wilfully, feloniously and treasonably
cause the Japanese Military police to arrest and apprehended Antonio
San Agustin, a guerrilla officer, who was thereupon brought to Fort
Santiago and there torture and unlawfully detained up to September
20, 1944.
6. That on or about June, 1944, the accused accompanied by an armed
group of undercover operatives, for the purpose of giving and with
intent to give said enemy aid and comfort, went to the house of
Melecio Labalan, Sr., and arrested and brought him to the Japanese
garrison in Lucena, Tayabas, where he was tortured on the charge of
being a guerrilla.
7. That on or about February, 1945, the accused, a member of the
Ganap, a pro-Japanese party, wilfully, unlawfully, feloniously and
treasonably joined the Makapili organization designed to support the
Imperial Japanese Forces in levying war against their enemies; that he
took military training from the Japanese and bore arms and joined the
enemy forces as a Makapili soldier, taking orders from the Japanese;
that he participated in the raid and burning of the barrio of Bautista,
San Pablo, Laguna, upon orders of the Japanese; that he carried
ammunitions and foodstuffs for the Japanese Army from Bautista to
the mountains of Susong Dalaga and Mt. Malipuño, Laguna; that he
performed sentry duty for the Japanese Army in Mount Malipuño,
where he was stationed with Japanese and other Makapili soldiers.
That the commission of the above-mentioned acts was attended by the
aggravating circumstances of treachery, the aid of armed persons to
insure or afford impunity, and deliberately augmenting the crimes by
causing other wrongs not necessary in the commission thereof.
Upon the testimonies of Mrs. Federico Unson, Jr. and Dolores
Kalakasan, the lower court found that the mutilated corpses of
Federico Unson, Jr. and of Isaias Perez were found rotting in the vicinity
of the houses of the victims which were burned and looted by the
same hands, on the day following the arrest, effected by the accused in
the company of a Japanese soldier and several spies of the enemy. The
body of Unson which was still tied to a tree showed that it had been
disemboweled by several bayonet thrusts and the corpse of Perez
appeared ankleless and mutilated. Ruben Godoy, who was arrested at
the same times as Unson and Perez, since he was imprisoned in the
garrison of the Japanese kempei, was never heard of. Appellant's
testimony to the fact that, although admitting his presence in the
previous morning raid, he did not come along with party that
conducted the afternoon raid in which the actual arrest of Unson,
Perez and Godoy took place, was not given by the lower court enough
weight to prevail over that of the prosecuting witnesses, thus finding
the accused guilty on the first count.
With respect to the second count, the lower court states that the
accused admitted having taken part in the raid of the house of Jose
Unson and in the latter's arrest, but claims that he tried to save Unson,
only the latter was accepted by the lower court, in view of appellant's
behaviour as recalled by witnesses Mercedes Unson, Alejandro Unson,
and Eugenio Ramon Unson. The last that was seen of Jose Unson, was
his skull as exhumed in a school yard in Lukban, several months after
the arrest, the exhumation having been effected with the aid of those
who claimed to have seen how his life was ended. These facts relate to
the second count.
With respect to the third count, upon the declarations of Elena Romulo
and Enriqueta Alviar, the lower court found that on February 10, 1945,
in the company of Japanese kempei and Filipino spies, the accused
raided the house of Felixberto Romulo in San Pablo and arrested him as
alleged guerrilla. The accused simply alleged in his defense the alibi
that on said date he was in Gagalañgin, Manila.
In regard to the fourth count, the accused alleged that he was merely
asked by the Japanese kempei to accompany them in the raid on
Hermogenes Caluag's house and admitted that he was present
throughout the investigation and torture of Caluag who, according to
the accused himself, was tied suspended in the air for fully twenty
minutes, but the lower court did not accept this defense, considering it
rather as corroborative of the facts alleged in the information and
proved by the witnesses for the prosecution.
Appellant's participation in the arrest of Melecio Labalan, alleged in the
sixth count, according to the lower court, has been abundantly
established, disbelieving appellant's feigned ignorance of the arrest
because appellant himself testified that he promised to see what he
could do about Labalan and accepted three chickens from the latter's
wife which he gave to the interpreter at the kempei office.
Counts five and seven were not proven.
Upon the record, it appears that the lower court's conclusions on the
overt acts alleged in counts one, two, three, four, and six of the
information are fully supported by the evidence. A perusal of
appellant's brief alone, in taken. It is highly significant that, although
appellant's brief compromises one hundred thirty printed pages, it
failed completely to point out any specific error in the conclusions of
fact of the lower court, counsel limiting himself into raising legal
questions, maintaining that the penalty imposed is unjustified, and that
the acts committed by the accused do not constitute treason but
ordinary crimes against the victimized persons.
Admitting that appellant's conduct during the Japanese occupation has
not been impeccable, counsel wants us to consider what the accused
did in behalf of the guerrillas in mitigation of his criminal responsibility,
and that the purpose of a penalty, not being to satisfy public
vengeance, but to attain the correction of the guilty person, such
purpose will not be attained with appellant's death as decreed by the
lower court.
CRIMINAL LAW FULL CASES
Appellant tried to show in his testimony that he was not a spy; that he
joined the Japanese in their raids only because he was forced to do so;
that in the instances he had to go to the Japanese garrison he did it
either in obedience to a summon of his friend Captain Yuki or to
intercede in behalf of some prisoners; that he remained in Lucena
heeding the advice of Sor Constancia, who appealed to him not to go
to the mountains so he may continue helping those who were detained
by the Japanese; and that in October 1943, he was arrested by the
Japanese for aiding the guerrillas, and that he was released only after
he had been made to promise to indicate who the guerrillas were but,
notwithstanding the involuntary promise exacted from him, he did not
cause the arrest of any guerrilla. Even if we accept this testimony of
appellant it cannot overthrow the clear, positive, and straightforward
declarations of the witnesses, for the prosecution. Appellant's claim
that he, too, was a guerrilla, had helped the resistance movement, and
in fact, succeeded in interceding for some Filipino prisoners, does not
relieve him from criminal responsibility for the acts he had committed
as alleged in the counts in the information which were declared proven
by the People's Court.
The performance of righteous action, no matter how meritorious they
may be, is not, as correctly stated by the Solicitor General, a justifying,
exempting, or mitigating circumstance in the commission of wrongs,
and although appellant had saved the lives of a thousand and one
persons, if he had caused the killing of a single human being to give aid
and comfort to the enemy, he is, nonetheless, a traitor. It was already
said that: "For whosoever shall keep the whole law, and yet offend in
one point, he is guilty of all" (James 2:10).
We do not find any merit in appellant's allegations that the acts
committed by him are not punishable as treason and that the People's
Court who tried him had no jurisdiction, they being merely upshots of
the wrong theory of suspended allegiance and sovereignty.
Although this Court is unanimous in finding appellant guilty of treason
as found by the lower court, there is disagreement as to the penalty
that should be imposed, because, while nine of the ten members
taking part in the decision of this case voted for the affirmance of the
death penalty imposed by the lower court, the writer of this opinion
takes the position that the penalty the accused deserves is that
of reclusion perpetua, the medium penalty provided by law.
The Solicitor General recommends the imposition of the supreme
penalty of death in view of the presence of the aggravating
circumstances alleged in the information as follows:
That the commission of the above-mentioned acts was attended by the
aggravating circumstances of treachery, the aid of armed persons to
insure or afford impunity, and deliberately augmenting the crimes by
causing other wrongs not necessary in the commission thereof.
The majority are of the opinion that these circumstances should be
considered as aggravating, while the undersigned maintains that in
appellant's case, the circumstances in question are essential elements
of the treason he has committed. The crime is of such a nature that it
may be committed by one single act, by a series of acts, or by several
series thereof, not only in a single time, but in different times, it being
a continuous crimes as was held by this Court in Guinto vs. Veluz (77
Phil., 801), so much so that there are some accused of treason for just
one count and there are others for several counts, their number not
changing the nature of the offense committed.
For all the foregoing, there being no unanimity of all the members of
this Court in the imposition of the death penalty, the People's Court's
decision is modified, and appellant is sentenced to reclusion
perpetua and to pay a fine of P15,000 and costs.
Moran, C.J., Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason,
JJ., concur.
Separate Opinions
FERIA, J., concurring:
I concur with the majority (except Mr. Justice Perfecto) that find the
appellant guilty of the crime of treason as alleged in the information,
that is, with two aggravating circumstances. Among the atrocities
committed by the appellant and companions stand, in bold relief, those
testified to by Mrs. Federico Unson, Jr., and Dolores Calacasan and
related in the same decision of this Court, to the effect that Federico
Unson, Jr., was crucified against and tied to a tree, and then
disemboweled with bayonet thrusts; and that Isaias Perez's body was
mutilated with his ankles severed from the trunk and thrown around
the place where the crime was committed. And I dissent from the
dissenting vote of the writer of the decision, Mr. Justice Perfecto,
which prevented the imposition by this Court of the death penalty
imposed upon the appellant by the lower court.
The killing of the victim was unquestionably attended by treachery,
that is, by means, method or forms in the execution thereof which tend
directly to insure its execution without risk to the offender arising from
the defense which the offended party might make, and by a deliberate
augment of the wrong done by the offense by causing other wrongs
not necessary for its commission. But the writer of the opinion says:
The majority are of the opinion that these circumstances should be
considered as aggravating, while the undersigned maintains that in
appellant's case, the circumstances in question are essential elements
of the treason he has committed. The crime is of such a nature that it
may be committed by one single act, by a series of acts, or by several
series thereof, not only in a single time, but in different times, it being a
continuous crime as was held by this Court in Guinto vs. Veluz (77 Phil.,
801), so much so that there are some accused of treason for just one
count and there are others for several counts, their number not
changing the nature of the offense committed.
The reason or ground on which the dissenter bases his conclusion that
the aggravating circumstances above specified cannot be taken into
consideration in the present case, is clearly wrong. Said aggravating
circumstances have nothing to do with the integral elements of the
crime of treason as charged and committed by the appellant. The fact
that the crime of treason may be committed by a single overt act or a
series of overt acts, committed at one and the same time or at
different times, does not, by any means, make those circumstances
essential elements of the offense committed by the appellant. Said
circumstances were not even inherent in or included by the law in
defining the crime of treason. The words "treason" as defined and
penalized in the Revised Penal Code is completely different and
independent from "treachery" as an aggravating circumstance
provided for in the same Code.
The crime of treason is committed by a citizen, not by merely adhering
to the enemy and giving the latter aid and comfort in abstract, but by
committing one or more overt acts which constitute aid and comfort to
the enemy to which the traitor adheres; and evidently, the commission
of such overt act as the killing of the victim in aid of the enemy may be
attended by the aggravating circumstances above specified, for they
were not necessary in order to give aid and comfort to the enemy. Of
course, if one of the aggravating circumstances provided by law is
inherent or included in the overt acts charged as in aid or comfort of
the enemy, it cannot be taken into consideration as aggravating
circumstance attending the commission of that particular crime of
treason.
PARAS, J., concurring and dissenting:
I concur partly in the result. The information and the evidence
sufficiently make out at least a case of murder, qualified by treachery.
Appellant had committed other atrocities for which he could
correspondingly be convicted under the information and evidence of
record. As spy, he may also be tried in a military tribunal and, if found
guilty, sentenced accordingly. While he might be guilty of a violation of
article 114 of the Revised Penal Code, I hold, in conformity with my
dissenting opinion in Laurel vs. Misa (77 Phil., 856), that said legal
provisions was not in force at the time of the commission of the crime.
CRIMINAL LAW FULL CASES
The penalty of reclusion perpetua is in accordance with the law, but the
provision regarding payment of a fine should be eliminated and the
appellant sentenced to indemnify in the proper amount the heirs of
the victim.
December 31, 1947
G.R. No. L-895
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  marine officers were not pressed by the Japanese precisely because
vs.
JOSE LUIS GODINEZ, defendant-appellant.
Cardenas and Casal for appellant.
Assistant Solicitor General Manuel P. Barcelona and Acting Solicitor
Pedro Ocampo for appellee.
BENGZON, J.:
Prosecuted and tried for treason, the accused-appellant Jose Luis
Godinez was found guilty by the Fifth Division of the People's Court,
Judge F.V. Borromeo dissenting.
He was a shipmaster in the Philippines coastwise trade before the
Pacific War. After the Japanese invasion, from May, 1942 to June,
1943, he rendered services to the Japanese Navy, as pilot in the Port of
Cebu, bringing their ships into harbor and otherwise performing work
connected with navigation. He was paid monthly salaries. After a
period of rest due to ill health, he was again engaged by the Japanese
Army to do the same chores from May, 1943 to October, 1944, at
varying rates of compensation.
The prosecution's case rests on such acts of cooperation interpreted in
the light of incidents, hereafter mentioned which, it is argued,
demonstrate treasonable adherence to the enemy, making defendant
guilty as charged.
In his defense the accused swore that he had to serve the Japanese
because he was required by them to do so, that he could not give any
valid excuses, that if he made any false statements he would be
caught, and killed; and that even if he could escape, the many
members of his immediate family would be left to their ruthless ill-will.
The majority of the trial judges discounted this explanation saying, in
effect, that the danger to the accused was not imminent, because
other merchant marine officers, like Captain Obosa and Joaquin Alex
succeeded in evading service to the Japanese and were not molested.
It was not demonstrated, however, that these seamen were
surrounded by the same circumstances of herein indictee, as to family
members, means of evasion, personal relations or conditions, etc., all
of which necessarily affected any decision to serve or not to serve. To
clinch its case the prosecution should have attested that appellant had
a valid excuse or that he could eluded the wrath of the masters.
Furthermore, the mere fact that some Filipinos were brave enough to
refuse and were lucky enough to be let alone is no conclusive reason to
hold that in truth there was no danger in denying the conqueror's
demands. There were persons put to death or maltreated for so
refusing, and that was known at the time, as admitted on the stand by
the people's witness Francisco Garcia. Again, it may be that such
the herein accused and others (Eduardo Gonzales, Marcelo Ayesa) had
consented to render pilotage service. Those who refused to cooperate,
in the fact of danger, were patriotic citizens; but it does not follow that
the faintheart, who gave in, were traitors. On this subject the
statement of President Osmeña in November 1944, may be quoted:
. . . Not all public officials could take to the hills to carry on the heroic
struggle. Some had to remain in their posts to maintain a semblance of
government, to protect the population from the oppressor to the
extent possible by human ingenuity and to comfort the people in their
misery. Had their services not been available, the Japanese would
either have themselves governed directly and completely or utilized
unscrupulous Filipino followers capable of any treason to their people.
The result would have been calamitous and the injuries inflicted to our
body politic beyond cure.
The problem under consideration must be solved with justice and
dignity. Every case should examined impartially and decided on it own
merits. Persons holding public office during enemy occupation, for the
most part, fall within three categories; those prompted by a desire to
protect the people, those actuated by fear of enemy reprisals, and
those motivated by disloyalty to our government and cause. The
motives which caused the retention of the office and conduct while in
office, rather than the sole fact of its occupation, will be the criteria
upon which such persons will be judged. (Official Gazette, Vol. 41, No.
1, p. 102.)
It is now undisputed that the mere governmental work under the
Japanese  exhibited adherence to the foe, unless it is shown that he wanted, or
regime — and pilotage service may be considered in the same
light[[1]] — does not constitute per se indictable disloyalty.
It is contended, however, that appellant's help to the
Japanese together with criminal intention to betray render him guilty
of treason. Proof of this traitorous intent is made to consist of five
circumstances described in the brief of the Solicitor General as follows:
(1) During the year 1943, accused often went to the coffee shop of S. P.
Banis and during the discussion between Banis and appellant, the latter
always showed his pro-Japanese sentiments. On one occasion, during
November, 1943, Banis told him about the expected arrival of the
Americans, and the appellant exclaimed that Banis was crazy in
believing that the Americans were coming back to the Philippines,
because according to the appellant, the American forces would never
back to these Islands (testimony of S. P. Banis, p. 10, t.s.n., Lopez).
(2) Sometime in July, 1942, Capt. Canuto Obosa was in Cebu City for a
few days. He saw the appellant inside his own automobile which
carried a Japanese flag and on his left arm, appellant was wearing a
band with Japanese characters (testimony of Capt. Canuto Obosa, pp.
1-2, t.s.n., Lopez).
(3) When the Japanese landed in Cebu City on April 11, 1942, the
accused with two other persons went up a Japanese ship anchored
alongside the Pier, presented his respects to the Japanese officer in
charge of the boat, handed to him a revolver which was examined by
said Japanese officer. The appellant showed how the firearm worked
by firing the pistol (testimony of Antonio Yee, pp. 14-15, t.s.n., Lopez).
(4) From April 1942 to October, 1944, the appellant had a Japanese flag
placed on the door of his house situated at D. Jakosalem Street, Cebu
City about a foot wide and about two feet long and on the left side of
the door was a piece of board with Japanese Characters written on it
(testimony of Antonio Yee, p. 15, t.s.n., Lopez.)
(5) During the middle of September, 1944, when American planes were
dropping bombs in Cebu City, the appellant who was in the lawn of his
house said, more or less, the following:
"Those sons of the bitches of Americans (referring to the American
aviators) are the gangsters of the United States; they are drunk, they
will go down". (Testimony of William del Villar, p. 7, t.s.n., Dizon.)
I. On the first point, the accused denied having stated the Americans
could never come back, admitting, however, having expressed the
belief that it was not easy for them to return, in view of the successive
victories of the Imperial hordes at that time. Even if appellant had
uttered the words attributed to him, it is doubtful whether they
rejoiced in the inability to return of the American forces. But it is hard
to believe appellant wished the defeat of our allies, because he had
two sons in the guerrilla forces. And if he ever made the remark, it was
probably as one of those arm-chair strategists dishing out war opinions
on the basis of doctored news fed by the propaganda machine to the
local newspapers and broadcasting stations. The man was sadly in
error; he underestimated the publicity corps of the Japanese Army; but
should he be jailed for it?
II. The second point has no merit. Although there was proof about a
Nippon flag fluttering on the automobile the appellant rode, no
evidence was adduced that the car belonged to him.
CRIMINAL LAW FULL CASES
III. On the third point the appellant swore that when the Japanese
arrived in Cebu, they arrested him, and when they found, after
investigation, that he was a marine officer they ordered him to report
the next day to the Port Surveyor, bringing any firearms he had in his
possession; that he did as directed and surrendered his pistol. His
version is entirely credible. Those who were in Manila during the first
days of January, 1942, remember identical directives of the Military
Commander. And if surrender of the firearm meant treasonable
collaboration, thousands of Manila residents would be traitors too.
IV. About the display of the Rising Sun. The witness of the prosecution
had to admit that after the fall of Cebu City the Japanese issued orders
requiring every resident to hoist a Japanese flag in their houses and
that refusal to obey meant death. Naturally, compliance with this
decree should not be chalked against appellant, a resident therein.
V. The accused denied having made the insulting statements imputed
to him by William de Villar against American aviators that raided Cebu,
and proved that said witness bore a grudge against him that probably
colored the testimony. Anyway, his counsel, pleading in extenuation,
submitted some endorsable comments upholding the proposition of
one undergoing the nerve-racking experience of aerial bombardments,
for caustic remarks spoken in private motivated by his apprehension
for the safety of his family and his own.
After considering all matters, the Court reaches the conclusion that
defendant's disloyal heart or treacherous mind has not been
established beyond reasonable doubt. He is absolved, with costs de
oficio.
March 29, 1949
G.R. No. L-456
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  adherence to said enemy with treasonable intent to give as he did give
vs.
CUCUFATE ADLAWAN, defendant-appellant.
C. de la Victoria & Ramon Duterte and Sotto & Sotto for appellant.
First Assistance Solicitor General Jose B.L. Reyes and Solicitor Jose B.
Jimenez for appellee.
REYES, J.:
We are called upon in this case to review the sentence of death and a
fine of P20,000 imposed by the People's Court upon the appellants
who was charged with treason but convicted of what the said court
terms "complex crime of crime of treason with murder robbery and
rape."
The convicted is based on defendants plea of guilty to a complaint
which as amended contains the following counts:
1. That on or about and during the period comprised between March
1943 and May 3, 1945 in the city of Cebu. Philippines and within the
Jurisdiction of this court the accused Cucufate Adlawan adhering to the
enemy the Empire of Japan and its Imperial Japanese forces with
treasonable intent to give as he did give aid and comfort to said enemy
did then and there wilfully unlawfully feloniously and treasonably join
and become a member of the so-called Philippines Constabulary, an
enemy-sponsored military organization knowing fully well that the
aims and purposes of said organization are among other to extend
every aid and cooperation with said enemy in the prosecution of her
war efforts against the United States of America and the
Commonwealth of the Philippines and during the period aforesaid as a
member of said enemy-sponsored Philippines Constabulary the said
accused further adhering to the enemy with treasonable intent to give
as he did give aid and comfort to them did go out on numerous patrol
in company with Japanese soldier in search of guerrilla and other
elements and other elements resisting said enemy in the Philippines.
2. That on our about and during the period comprised between
December 1, 1943 and May 3, 1945, and the City of Cebu Philippines
and within the Jurisdiction of this court the accused Cucufate Adlawan
adhering to the enemy the Empire of Japan and the Imperial Forces
with treasonable to give as he did give aid and comfort to said enemy
in violation of his allegiance and fidelity to the United States of America
and the Commonwealth of the Philippines did then and there willfully
unlawfully feloniously and treasonably join the Japanese Military Police
otherwise known as the Kempei-tai under the command of a T.
Yushida, performing the function and duties of an informer spy and
chief undercover man of the Cebu district of said military police and did
during the period aforesaid in various places in the Province of Cebu
Philippines and within the jurisdiction of this Court in furtherance of his
and comfort aid and comfort to them did in company with other
member of the Japanese Military Police go out on patrols to apprehend
guerrilla as they did apprehend capture and torture guerrillas loot
civilians and otherwise commit acts of atrocities in furtherance of the
hostile design of the enemy and to weaken the cause of the United
States of America in the Philippines.
3. That sometime in June 1944 in various places in the Province of
Bohol Philippines and within the jurisdiction of this Court the accused
Cucufate Adlawan adhering to the enemy the Empire of Japan and the
Imperial Japanese Forces with treasonable intent to give as he did give
aid and comfort to said enemy in his capacity as a member of the
enemy-sponsored constabulary attached to the Japanese Military
Police and a guide of the Japanese Army Jointly and in cooperation
with soldier of the Japanese Imperial Army did then and there wilfully
unlawfully feloniously and treasonably conduct and carry out a so-
called mopping up operation for the purpose of suppressing guerrillas
and other element engaged in resistance against said enemy and as a
result thereof ten guerrillas were killed.
4. That on or about during the period comprised between September
1944 and November 1944 in the City of Cebu Philippines and within the
Jurisdiction of this Court the accused Cucufate Adlawan adhering to the
enemy the Empire of Japan and the Imperial Japanese Forces with
treasonable intent to give as he did give aid and comfort to said enemy
did then and there wilfully unlawfully feloniously and treasonably help
in the a construction of air raid shelters for the protection of Japanese
soldier against allied air raids and did help in the acquisition of as he
did acquire food supplies for the enemy in preparation against the
expected landing of America forces.
5. That on or about August 18, 1944 in the municipality of Minglanilla
province of Cebu Philippines the accused Cucufate Adlawan adhering
the enemy the Empire of Japan and the Imperial Japanese Forces with
treasonable intent to give as he did aid and comfort to the said enemy
in company with Japanese Military soldier of the Japanese Military
Police and other Filipino enemy spies did then and there wilfully
unlawfully feloniously and treasonably arrest maltreat and otherwise
torture Primitivo Cansancio in an effort to force the latter to disclose
the whereabouts of Lt. Antonio Karedo a guerrilla officer to cause said
Primitivo Cansancio to confess his guerrilla activities.
6. That on or about December 7, 1944 in the municipality of Minglanilla
Province of Cebu Philippines and within the jurisdiction of this Court
Empire of Japan and the Imperial Japanese forces with treasonable
intent to give as he did give aid and comfort to said enemy in company
with a patrol of Japanese soldier s of the Japanese Military Police and
other enemy spices and informers did then and there willfully,
unlawfully, feloniously and treasonably apprehend and arrest Francisco
Larrobia and did kick said Francisco Larrobia strike him on the face and
head with a pistol and subsequently bayoneting and killing said
Francisco Larrobia on the suspicion that he was a guerrilla.
7. That on or about September 6, 1944 in the municipality of Talisay
province of Cebu, Philippines and within the Jurisdiction of this court
the accused Cucufate Adlawan adhering to the enemy the Empire of
Japan and its Imperial Japanese Forces with treasonable intent to give
as he did give aid and comfort to the said enemy in his capacity as chief
undercover man for the Japanese Military Police Cebu District in
company with Japanese soldier and Santiago Bernaba another
Japanese spy did then and there willfully unlawfully feloniously and
treasonably arrest Numariano Bellesa on suspicion of being a guerrilla
thereafter taking said Numeriano Bellesa to Inayawan Cebu City and
thereat herein accused did investigate said Numeriano Bellesa about
the latter's firearms in order to help said enemy in gathering up arms in
gathering up arms in furtherance of their hostile design and did strike
said Numeriano Bellesa on the face and body and otherwise maltreat
him in the course of said investigation.
CRIMINAL LAW FULL CASES
8. That on or about August 18, 1944 in Sitio Tubod municipality of
Minglanilla Province of Cebu Philippines and within the jurisdiction of
this court the accused Cucufate Adlawan adhering to the enemy the
Empire of Japan and its imperial Forces with treasonable intent to give
as he did give aid he did give aid and comfort to said enemy acting in
his capacity as chief undercover man informer and spy of the Japanese
Military Police Cebu District and in company with Japanese soldier of
the Japanese Military Police did then and there wilfully, feloniously and
treasonably apprehend and arrest Cipriano Trazona and did investigate
the latter as to the whereabouts of guerrillas especially Nicolas
Adlawan food procurement officer of the guerrilla and upon his denial
of knowledge of said whereabouts herein accused did torture said
Cipriano Trazona by hanging the latter by the arms so that his body
dangled down striking his stomach and with an empty bottle inflicting
wounds on his head and finally striking his mouth with a flashlight
splitting said Cipriano Trazona's lower lips.
9. That on or about October 2, 1944 in the municipality of Talisay
Province of Cebu Philippines and within the Jurisdiction of this court
the accused Cucufate Adlawan adhering to the enemy the Imperial
Japanese Government and her armed forces with treasonable intent to
give as he did give aid and comfort to said enemy acting in his capacity
as chief undercover man informer and spy in the employ of the
Japanese Military Police Cebu District in company with other informers
said Military Police, did then and there apprehend and arrest Albina
Alpez and accused herein did wilfully and treasonably investigate said
Albina Alpez as to the whereabouts of her husband Ponciano Alpez, a
guerrilla, attached to the 2nd Division Cebu Area Command and when
said Albina Alpez denied knowledge of her aforesaid husband's
whereabouts herein accused did slap kick and throw her to the ground
hang her by the arms strike her on the breast with his revolver
threaten her with a dagger pointed at her throat and otherwise
maltreat and torture said Albina Alpez.
10. That on or about December 25, 1944 in the municipality of
Minglanilla province of Cebu Philippines and within the jurisdiction of
this court the accused. Cucufate Adlawan adhering to the enemy the
Empire of Japan and its Imperial of Japan its Imperial Japanese Forces
with treasonable intent to give as he did give aid and comfort said
enemy in company with five Japanese soldier and fourteen agent of
the Japanese Military Police otherwise known as the Kempei-Tai and
his capacity Military Police for the Cebu District did then and there
wilfully, unlawfully, feloniously and treasonably apprehend and arrest
Victoriano Primacio and one Juan Unadia on suspicion of being
guerrillas and said accused did box, beat slap and strike said Victoriano
Primacio and Juan Unadia with his rifle several times and did turn over
said Victoriano Primacio and Juan Unadia to the Japanese Military
Police on the ground that said person were guerrilla and as a result of
which said Victoriano Primacio and Juan Unadia have not been heard
of ever since then.
11. That on or about January 27, 1944 at sitio Tacba, Cebu City,
Philippines and within the jurisdiction of this court the accused
Cucufate Adlawan adhering to the enemy the Empire of Japan and its
Imperial Japanese Forces with treasonable intent to give as he did give
aid and comfort to said enemy acting in his capacity as chief
undercover man informer and spy of the Japanese Military Police Cebu
District, did, then and there, wilfully, unlawfully, feloniously and
treasonably shoot and kill Lt. Miguel Dacallos, a USAFFE officer, in
furtherance of the hostile designs of said enemy.
12. That on or about September 6, 1944, at sitio San Isidro,
municipality of Talisay, Province of Cebu, Philippines, and within
furtherance of his adherence to the enemy, the Empire of Japan and its
Imperial Japanese Forces, with treasonable intent to give, as he did
give aid and comfort to said enemy, acting in his capacity as chief
undercover man, informer and spy of the Japanese Military Police,
Cebu District, and inn company with Japanese soldier, did, then and
there wilfully, unlawfully, feloniously and treasonably arrest one Jose
Murillo on suspicion that the latter was a guerrilla.
13. That on or about November 13, 1944 in the City of Cebu,
Philippines, and within the jurisdiction of this Court, the accused,
Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its
Imperial Japanese Forces, with treasonable intent to give, as he did and
comfort to said enemy, did then and there, wilfully, feloniously and
treasonably apprehend and arrest Basilia Arong and did take the latter
to headquarters of the Japanese Military Police and thereat herein
accused did question and investigate said Basilia Arong as to the
whereabouts by the enemy of guerrilla activities, and when said Basilia
Arong denied knowledge of their whereabouts, herein accused did said
Basilia Arong by her arms, strip her of her clothing, severely beat her
and otherwise torture her, finally forcing said Basilia Arong to sign a
letter addressed to her aforesaid husband, Pedro Arong asking the
latter to report top the Japanese Kempei-Tai headquarters and when
said Pedro C. Arong did report to said headquarters in compliance of
said letter, he not been seen ever since.
14. That on or about August 10, 1944, at Sitio Gapas, Gaps Island, in
the Province of Cebu, Philippines and within the jurisdiction of this
Court the accused Cucufate Adlawan, adhering to the enemy, the
Empire of Japan and its Imperial Japanese Forces, with treasonable to
give as he did give aid comfort to, said enemy, acting in his capacity as
chief undercover man, informer and spy of the Japanese Military Police
of Cebu District and in company with Japanese Kempei-Tai informers
and spies, did then and there wilfully, feloniously and treasonably
apprehend and arrest Pedro Cabanada and did question the latter as
the whereabouts of Alejandrino Ciriaco, a guerrilla Intelligence
operative, and, in the course of said investigation, the accused did hang
said Pedro Cabanada by his arms, strike him with clubs and an iron pipe
thereby inflicting several wounds on his head for the latter's refusal to
divulge said guerrilla whereabouts.
15. That on or about June 2, 1944, in sitio Basac, Mambaling, in the City
of Cebu Philippines and within the Jurisdiction of this court the
accused, Cucufate Adlawan, adhering to the enemy, the Empire of
Japan and its Imperial Japanese Forces, with treasonable intent to give,
as he did give aid comfort to said enemy, acting in his capacity as chief
undercover man, informer and spy in the employ of the Japanese
Military Police of the Cebu District, in company with two Japanese
soldiers and three other Japanese informers and spies, did then and
there wilfully, unlawfully, feloniously and treasonably apprehend and
arrest Marciano Alejandro, Carlos Numera and Jose Rada, killing said
Marciano Alejandro, and Carlos Numera, and wounding said Jose Rada
on the charge that said person had contact with guerrillas.
16. That on or about October 8, 1943, in the municipality of Tisa,
Province of Cebu, Philippines, and within the jurisdiction of this court,
the accused Cucufate Adlawan, adhering to the enemy, the Empire of
Japan and its Imperial Japanese Forces, with treasonable intent to give,
as he did give aid and comfort to said enemy, acting in his capacity as
an informer and spy of said enemy, did, then and there wilfully,
unlawfully, feloniously and treasonably shoot and kill Bernardo
Laborte, a guerrilla soldier for the latter's guerrilla activities and
resistance to said enemy.
17. That sometime in the month of April, 1944, in different place in the
Province of Cebu, Philippines, particularly in the area comprised
between Tubano and Minglanilla, and within the jurisdiction of this
Court, the accused, Cucufate Adlawan, adhering to the enemy, thee
Empire of Japan and its Imperial Japanese Forces, with treasonable
intent to give, as he did give aid and comfort to said enemy, as member
of the enemy-sponsored constabulary and as informer and spy of the
Japanese Army, did then and there, willfully, unlawfully, feloniously
and treasonable join and take part in the general mopping up
operation conducted by the Japanese Army under the command of
Sergeant T. Yushida, particularly in the area of Tubonok to Minglanilla
for the Purpose of apprehending guerrillas and other elements
engaged in resisting said enemy.
18. That on or about August 19, 1944, in the municipality of Cordoba,
Province of Cebu, Philippines and within the jurisdiction of this Court,
the accused, Cucufate Adlawan, adhering to the enemy, Empire of
Japan and its Imperial Japanese Forces, with treasonable intent to give,
as he did give aid and comfort to said enemy, acting in his capacity as
chief informer and spy under the employ of the Japanese Military
Police, Cebu District, in company with the member of said Japanese
Military Police under the command of Sergeant T. Yushida of the
Japanese Army, did, then and there wilfully, unlawfully, feloniously and
treasonably arrest, maltreat and torture Martin Francisco and did
expose the latter's wife and some Filipino girls naked, raping them,
and, did steal and carry away the following articles belonging to said
Martin Francisco:
CRIMINAL LAW FULL CASES
2 diamond rings, a ring and one wrist watch
P500 in Cebu Emergency and Currency Notes
P1,858 in Japanese Military Notes
3 pairs white pants
2 out shirts
2 pairs shoes
1 buntal hat
1 wedding ring
on suspicion that said Martin Francisco was a guerrilla.
19. That sometime in 1944, at sitio Cabadiangan, Province of Cebu,
Philippines, and within the Jurisdiction of this Court, the accused,
Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its
Imperial Japanese forces, with treasonable intent to give, as he did give
aid and comfort to said enemy, acting as an informer to the enemy and
in company with soldiers of the Japanese Army, did then and there
wilfully, unlawfully, feloniously and treasonably conduct and carry out
a raid for the purpose of apprehending guerrillas and as a result of
which, Governor Hilario Abellana of Cebu then in hiding from said
enemy, was captured.
20. That on or about February 12, 1944, in the City of Cebu, Philippines
and within the Jurisdiction of this Court, the accused, Cucufate
Adlawan, adhering to the enemy, the Empire of Japan and its Imperial
Japanese Forces, with treasonable intent give, as he did give aid and
comfort to said enemy, acting in his capacity as chief undercover man,
informer and spy of the Japanese Military Police, Cebu District, did
then and there, wilfully, unlawfully, feloniously and treasonably beat
and strike Vicente Padilla with a baseball bat, hang said Vicente Padilla
by the arms, and otherwise torture him in an effort to extract
confession of the latter's connection with guerrillas.
21. That on or about July 19, 1944 at Cebu, City Philippines and within
the Jurisdiction of this Court, the accused, Cucufate Adlawan, adhering
to the Empire of Japan and its Imperial Japanese Forces, with
treasonable intent to give, as he did give aid and comfort to said
enemy, acting as chief informer and spy of the Japanese Military Police
of the Cebu District, in company with Japanese soldier and other agent
of the Japanese Military Police otherwise known as the Kempei-tai, did
then and there, wilfully, unlawfully, feloniously and treasonably arrest
Bartolome Rosal, Antonio de la Serna, and Braulio Padilla and did tie up
the hands of said persons, severely inflicting wounds on them, on
suspicion of being guerrillas and as consequence of said maltreatment
and torture, Braulio Padilla died a few days thereafter.
22. That on or about December 20, 1944, in the city of Cebu,
Philippines and within the Jurisdiction of this Court, the accused,
Cucufate Adlawan, adhering to the enemy, Empire of Japan and its
Imperial Japanese Forces, with treasonable intent to give, as did give
and comfort to said enemy, acting in his capacity as chief informer, spy
and undercover man of the Japanese Military Police of the Cebu
District, did and there wilfully unlawfully, feloniously arrest at the point
of his gun, Paulita Delgado and "John Doe" her husband, on suspicion
that said persons were cooperating and helping the guerrillas and did
thereafter bring said Paulita Delgado and her husband to the Kempei-
Tai headquarters and once thereat herein accused did torture them by
hanging them by their arms did otherwise maltreat them.
23. That sometime in September, 1944, at Pasil Market, Cebu City,
Philippines and within the jurisdiction of this Court the accused
Cucufate Adlawan, adhering to the enemy, the Empire of Japan and
Imperial Japanese Army, with treasonable intent to give, as he did give
aid and comfort to said enemy, acting in his capacity as member of the
enemy-sponsored Philippines Constabulary attached to the Japanese
Military Police, did then and there, wilfully, unlawfully, feloniously and
treasonably kill Dionisio Abatol, a guerrilla, for his activities and
resistance to the said enemy.
By his plea of guilty appellant admit having committed the treasonous
acts alleged in the information. But he now pleads for modification of
the sentence, contending that the lower court erred:
1. In not taking into consideration, as mitigating circumstances, the
following facts:(1) voluntary surrender; (2) the facts that the accused
has been and is being utilized as witness by the CIC in cases against
Japanese soldiers under trial by the military commission; on and (3) the
facts that the accused helped and saved the lives of many civilian and
from death in the hands of the Japanese;
2. In making as a matter of set-off the plea of guilty entered by the
defendant-appellant on the strength of the assurance that no death
penalty would be imposed upon him;
3. In considering, as aggravating circumstances, treachery, abuse of
superiority and unnecessary cruelty;
4. In holding that the crime committed by then accused is a complex
crime of treason with murder, rape and robbery;
5. In sentencing the accused to death and to pay a fine of P20,000.
Taking up first the fourth alleged error, we find merit in the contention
that appellant should not have been convicted of the so-called
"complex crime of treason with murder, robbery, and rape." The
killings, robbery, and raping mentioned in the information are therein
alleged not as specific offenses but as mere elements of the crime of
treason for which the accused is being prosecuted. Being merged in
and identified with the general charge, they can not be used in
combination with treason to increase the penalty under article 48 of
the Revised Penal Code. (People vs. Prieto,[[1]]L-399, January 29, 1948.)
Appellant should, therefore, be held guilty of treason only.
Appellant's claim of voluntary surrender has not been satisfactorily
proved. On the other hand, his admission that he was "taken" from the
house of his mother by an agent of the CIC, is proof that he was in fact
arrested. Where there has been actual arrest the mitigating
circumstance of voluntary surrender cannot be invoked
(Peoplevs. Conwi, 40 Off. Gaz. [14th Supp.], No. 23, p.
166[[2]]; People vs. Siojo, 61 Phil., 307.)
The meritorious acts which appellant claims to have performed in aid
of the CIC and his countrymen have not been established by
satisfactory proof and may not in any event be considered as mitigating
circumstances under the Revised Penal Code.
There is nothing to the claim that appellant entered a plea guilty on the
assurance that he would not be sentenced to death. The claim is not
supported by proof. On the other hand, it is denied by both the
prosecution and the trial court, the latter stating in its order denying
appellant' motions for reconsideration that "No responsible judge can
or would advance his opinion in connection with the decision to be
rendered in any case before he has properly deliberated on the merit
of the same."
There is, however, merit in the contention that the aggravating
circumstances of treachery and abuse of superior strength should not
have been considered. These circumstances are "by their nature,
inherent in the offense of treason and may not be taken to aggravate
the penalty." (People vs. Racaza, 82 Phil., 623) But the facts alleged in
the information show that appellant in committing the crime of
treason, deliberately augmented the wrong by being unnecessarily
cruel to captured guerrilla suspects, subjecting them to barbarous
forms of torture and finally putting them to death, and as appears in
count No. 18, he also chose to add ignominy to his treasonous act in
arresting and maltreating a guerrilla suspect by stripping his wife of her
clothes and then abusing her together with other Filipino girls. Clearly
shown as they are by the allegations of the complaint and deemed
admitted by appellant's plea of guilty, these two aggravating
circumstances of unnecessary cruelty and ignominy may be
appreciated against him. As this said in the case of People vs.
Racaza, supra.
But the law does abhor inhumanity and the abuse of strength to
commit acts unnecessary to the commission of treason. There is no
incompatibility between treason and decent, human treatment of
prisoners. Rapes, wanton robbery for personal grain and other forms of
cruelties are condemned and their perpetration will be regarded as
aggravating circumstances of ignominy will be regarded as aggravating
circumstances of ignominy and of deliberately augmenting unnecessary
wrong to the main criminal objective under paragraphs 17 and 21 of
CRIMINAL LAW FULL CASES
article 14 of the Revised Penal Code. The atrocities above mentioned of
which the appellant is beyond doubt guilty, fall within the term of the
above paragraphs.
For the very reason that premeditation treachery and use of superior
strength are adsorbed in treason characterized by killings, the killings
themselves and other and other accompanying crimes should be taken
in to consideration for measuring the degree and gravity of criminal
responsibility irrespective of the manner in which they were
committed. Were not this the rule treason, the highest crime known to
law, would confer on its perpetrators advantages that are denied
simple murderers. To avoid such incongruity and injustice, the penalty
in treason will be adapted, within the range provided in the Revised
Penal Code, to the danger and harm to which the culprit has exposed
his exposed his country and his people and to the wrongs and injuries
that resulted from his deed. The letter and pervading spirit of
the Revised Penal Code just penalties to the perversity of the mind that
conceived and carried the crime into execution. Where the system of
graduating penalties by the prescribed standards is inapplicable, as in
the case of homicides connected with treason, the method of analogies
to fit the punishment with the enormity of the offense may be
summoned to the service of justice and consistency and in furtherance
of the law's aims.
The penalty prescribed for the crime of treason is reclusion temporal to
death and a fine of not to exceed P20,00 Giving the appellant the
benefit of the mitigating circumstances of voluntary confession of
guilty, but appreciating against him the aggravating circumstances of
ignominy and unnecessary cruel, the said penalty should be imposed in
its maximum. But since five member of this court are opposed to the
imposition of the death penalty in this case, the appellant can only be
sentenced toreclusion perpetua and a fine of P20,000.
Wherefore, the judgment below is modified in the sense that the
appellant is declared guilty of treason and sentenced to reclusion
perpetua and to pay a fine of P20,000, with costs in this instance de
oficio.
January 21, 1949
G.R. No. L-365
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  denying of having any pistol, said accused and his companions did hang
vs.
ANTONIO RACAZA, defendant-appellant.
Pedro C. Mendiola for appellant.
Assistant Solicitor Manuel P. Barcelona and Solicitor Francisco Carreon
for appellee.
TUASON, J.:
Antonio Racaza was charged with treason on 14 counts and tried din
the City of Cebu before the First Division of the People's Court. The
information is as follows:
That during the period comprised between January , 1944 and
February, 1945, more specifically on or about the dates and periods
herein below mentioned, in the municipalities hereinafter stated all
within the Provincial of Cebu and Bohol, Philippines, within the
jurisdiction of this Court, said accused not being a foreigner but a
Filipino citizen owing allegiance to the United States of America and
the Commonwealth of the Philippines, in violation of said duty of
allegiance did, then and there wilfully, unlawfully, feloniously and
treasonably adhere to the Empire of Japan with which the United
States and the Philippines were then at war, giving said enemy the
Empire of Japan and the Imperial Japanese forces in the Philippines, aid
and/or comfort in the following manner, to wit:
"1. That on or about May 8, 1944, in the City of Cebu, Philippines, for
the purpose of giving and with the intent to give aid and comport fort
to the enemy said accused did, then and there wilfully, unlawfully,
feloniously and treasonably acting as a Japanese spy lead, guided and
accompany a patrol composed of Japanese soldiers and Filipino
undercovers, which apprehended Custodio Abella; that the Filipino
undercovers, which apprehended Custodio Abella; that the
aforementioned accused did question Abella as to the hiding place of
Captain Ibañez, G-2 of guerrilla forces; that during the investigation,
the herein accused hit Custodio Abella several times with a revolver
and did threaten to kill him if he did not give the desired information;
and while Abella's hands were tied behind his back, the herein accused
did knock him down and choke him, while another companion did
jump up and down several times on Abella's stomach; that said
Antonio Abella was finally taken and detained at the Japanese Kempei
TaiHeadquarters for fifteen days:
"2. That sometime during the month of August, 1944, in the
municipality of Mandawe, Province of Cebu, the accused therein acting
as a Japanese spy and undercover with the purpose of giving and with
the intent to give aid and comport to the enemy did, then and there
willfully, unlawfully, feloniously and treasonably lead, guide and
accompany a patrol composed of two Japanese soldiers and twelve
Filipino undercovers which apprehended one Florencio Perez as a
guerrilla suspect; that over his pistol to the accused as and upon
him with a rope and while he was thus suspended in mid air, the herein
accused and his companions hit Florencio Perez on the head hand in
other parts of the body with the butts of the revolvers and with their
fists; that the accused then took Florencio Perez outside the house and
threatened to shoot him on the back of his head unless he told where
his pistol was;
"3. That on or about December 2, 1944, in the municipality of
Mandawe. Province of Cebu, the aforesaid accused acting as a
Japanese spy for the purpose of giving and with the intent to give aid
and comfort to the enemy did, then and there wilfully, unlawfully,
feloniously and treasonably lead, guide and accompany three Japanese
soldiers to the house of Pablo Seno; that upon arrival at the said house,
the herein accused and his companions did apprehend the said house,
the herein accused and his companions did apprehend Pablo Seno and
his daughter Anunsacion Seno for alleged guerrilla activities and
connections and did ransack and take away many objects therein; that
said Pablo Seno and Anunsacion Seno after having been tied and
tortured by the accused and his companions were imprisoned at the
Japanese Kempei Tai Headquarters and since then nothing more was
heard of them nor are their whereabouts known;
"4. That on or about December 2, 1944, in the municipality of
Mandawe, Province of Cebu, for the purpose of giving and with the
intent to give aid and comfort to the enemy, the aforesaid accused
acting as a Japanese spy did, then and there wilfully, unlawfully,
feloniously and treasonable lead and guide a patrol of Japanese
soldiers and Filipino undercovers to the house of one Rufino Seno for
being a guerrilla suspect; that said Rufino Seno was tied, beaten and
tortured and brought to and detained at the Japanese Kempei Tai
Headquarters at Cebu City and since then nothing more was heard of
him nor are his whereabouts known;
"5. That on or about the first day of July, 1944, in the municipality of
Clarin, Province of Bohol, Philippines, said accused, acting as Japanese
spy and with the purpose of giving and with the intent to give aid and
comfort to the enemy did, them and there wilfully, unlawfully,
feloniously and treasonably lead and guided a patrol composed of
Japanese soldiers and Filipino undercovers for the enemy which
apprehended Leonilo Mercado and Jovito C. Soria for alleged guerrilla
activities; that Leonilo Mercado was brought to the municipal jail of
Clarin, and detained up to July 12, 1944 when his wife visited him; and
since then Leonilo Mercado was not seen again nor heard from, nor are
his whereabouts known;
"6. That on or about August 19, 1944, in the City of Cebu, the herein
accused who was a Japanese spy, with the purpose of giving and with
the intent to give aid and comfort to the enemy did, then and there
wilfully, unlawfully, feloniously and treasonably lead and guide a patrol
of Japanese soldiers and Filipino undercovers to the house of Silvina
Caballon; that upon arrival at said house, the herein a accused and his
companions did ask Silvina about the whereabouts of her brother who
was a guerrilla and to surrender the latter's revolver; that upon
receiving an unsatisfactory reply, said accused forcibly undress her,
choke and beat her; that the aforesaid accused then took her to
another house where through force, violence and intimidation he
attempted to have sexual intercourse with her, but which criminal
purpose the accused did not realize on account of reasons independent
of his own will;
CRIMINAL LAW FULL CASES
"7. On or about the 24th day of August, 1944, in the Mandawe,
Province of Cebu, Philippines, said accused acting as Japanese spy, with
the purpose of giving and with the intent to give aid and comfort to the
enemy did, then and there wilfully, unlawfully, feloniously and
treasonably lead, guide and accompany a patrol of fifteen Filipino pro-
Japanese undercovers and two Japanese soldiers in search of guerrillas,
guerrilla suspect and their supporters, and did apprehended Patricio
Suico, Leonardo Ouano and Eduardo Ouano from their homes and did
bring them to the Japanese Navy Kempei Tai Headquarters in Cebu City
where they were questioned on the whereabouts of Sulpicio Ouano,
brother of Leonardo Ouano and a guerrilla suspect, and Patricio Suico
was questioned and blamed for not taking proper steps against the
guerrillas as barrio lieutenant; that the accused therein and his
companions did bring the aforesaid three persons back to Leonardo's
house at Banilad where they again tied, hung tortured on account of
which Patricio became unconscious; that while said Patricio Suico was
thus unconscious, the accused and his companions did build a fire
under the sled where Patricio Suico was, on account of which said
Patricio was burned and died; that while being detained in Cebu City,
Leonardo and Eduardo Ouano managed to escape and fled to the
mountains;
"8. Sometimes during the month of December, 1944, in the
municipality of Lahug, Province of Cebu, Philippines, the accused
herein acting as Japanese spy with four other Filipino undercovers for
the Japanese Army, with the purpose of giving and with the intent to
give aid and comport to the enemy did then and there wilfully,
unlawfully, feloniously and treasonably capture Pedro Lavares and Luis
Hallares and did detain, tie and torture them at the Kempei Tai
Headquarters for alleged guerrilla activities; that said accused and his
aforesaid companions did detain likewise in said Kempei Tai
Headquarters Bonifacio Suico and Aniceto Taranza and did torture
them by giving them fist blows tying them with ropes, hitting them
with bamboo poles and wooden pestles to force them to tell the real
connections of Major Alejandro Fortuna with the guerrillas that due to
said punishment and torture, Bonifacio Suico died; that after torturing
Aniceto Taranza, said accused and his companions did bring him to the
river bank near by and did kill him with a saber;
"9. On or about July 28, 1944, in the Mabaling, City of Cebu,
Philippines, said accused acting as Japanese spy with the purpose of
giving and with the intent to give aid comfort to the enemy did, then
and there wilfully, unlawfully, feloniously and treasonably lead, guide
and accompany a patrol of Japanese soldiers and Filipino undercovers
for the Japanese Army and did capture Vicente Abadiano, Nazario
Abadiano, Tereso Sanchez, Fidencio Delgado and some twenty Filipinos
whose names cannot now be stated all suspected of being guerrillas
and of having allegedly taken part in the ambush of Japanese soldiers
on board a truck while passing at the boundary of Mambaling on July
25, 1944; that all the persons above-named and twenty mountains
near Ponta Princesa and after having been questioned and tortured,
twelve of them including Nazario Abadiano and Tereso Sanchez were
shot by the herein accused and his companions, all of whom died Japanese spy, did, then and there wilfully, unlawfully, feloniously and
except Tereso Sanchez who is now an invalid due to wounds he treasonably lead a group a Filipinos who were enemy undercovers to
received; the house of Susana Singson; that upon arrival at the said house, said
accused and his companions did catch Hospicio Singson, brother of
Susana Singson and who was a guerrilla suspect; that the herein
"10. On or about July 21, 1944, in the City of Cebu, Province of Cebu,
accused and his companions tied and tortured Hospicio Singson and
Philippines, said accused acting as Japanese spy with the purpose of
brought him to the Japanese Kempei Tai Headquarters in the City of
giving and with the intent to give aid and comfort to the enemy did,
Cebu and that from that date Hospicio Singson was not seen again nor
then and there wilfully, unlawfully, feloniously and treasonably in
heard from, nor are his whereabouts known;
company with three Filipino undercovers like the accused and two
Japanese soldiers, capture Jose Roda for being the brother of Apolonio
Roda alleged G-2 operative for the guerrilla who could not be found, "14. That on or about January 25, 1945, in Minglanilla, Province of
Claros Numeran for being related with Santiago Numeran a guerrilla Cebu, Philippines, said accused who was a Japanese spy, for the
suspect whom accused and his companions were looking for, and purpose of giving and with the intent to give aid and comfort to the
Marciano Alejandrino a guerrilla suspect, and did maltreat and torture enemy did, then and there wilfully, unlawfully, feloniously and
said Jose Roda, Claros Numeran and Marciano Alejandrino and later did treasonably lead and accompany five other Filipino undercovers and
bring them to a secluded spot at Mambaling and shoot them to death; did arrest Anacleta Eben, that the herein accused and his companions
that due to the fact that the wounds of Jose Roda were not serious, he did take Anacleta to the Japanese Kempei Tai Headquarters where she
survived; was questioned on the whereabouts and activities of her daughter who
was a member of the Women's Auxiliary Service (Guerrilla); that during
the questioning Anacleta Eben was tied, hung, boxed, beaten and
"11. On or about November 17, 1944, in the municipality of Mandawe,
beaten and tortures, and while said accused was questioning her, he
Province of Cebu, Philippines, said accused acting as Japanese spy, for
did choke and threaten to kill her with a gun.
the purpose of giving and with the intent to give aid and comfort to the
enemy did, then and there willfully, unlawfully, feloniously and
treasonably guide, lead and accompany a patrol composed of ten The trial court found the defendant guilty of all the counts and
Filipino undercovers for the Japanese Army and two Japanese soldiers sentenced him to death ands to pay a fine of P20,000 and costs, It said
for the purpose of apprehending guerrillas, guerrilla suspects and their that "the prosecution substantiated the overt acts specified in counts
relatives and the herein accused and his companions did catch Hipolito Nos. 2,3,4,5,6,7,9,11,12, and 13 by two competent witnesses, and the
Cabahug, Dioniso del Castillo, Victorino del Castillo and Demetrio through the confession of the defendant in open Court."
Congson and did whip and torture the last three persons for being
allegedly messengers for the guerrillas; that said accused and his
The trial was not conducted in strict accordance with law and the rules
companions finally did kill Dionisio del Castillo and Victorino del Castillo
of practice and procedure, giving rise to confusions, misunderstanding,
by inflicting fatal wounds on theirs necks with swords;
and non-presentation of evidence on some charges. The court below
itself was led into serious errors.
"12. Sometimes in January, 1945, in Inawayan, Pardo, Cebu Province,
said accused who was a Japanese spy, with the purpose of giving and
After several witnesses for the prosecution had given testimony,
with the intent to give aid and comfort to the enemy did, then and
defendants counsel informed the court that his client, upon the latter's
there willfully, unlawfully, feloniously and treasonably lead, guide and
insistence, was willing "to enter a plea of guilty and ask whatever
accompany a patrol composed of Japanese soldiers and Filipino
consideration or mercy the court will give him." Upon being asked
undercovers for the Japanese to Inawayan, Pardo, Cebu for the
whether or not he ratified the statement of his counsel, the defendant
purpose of apprehending guerrillas; that the herein accused and his
answered yes. He also answered yes to the question whether he was
companions did catch one Hospicio Singson from his house, tie him
aware of the consequences of a plea of guilty (t. s. n., pp. 50-51).
with a rope, hang and torture him urging him to till about reports and
However, when the information was read over again, the accused said
papers from the mountains (guerrilla reports) and questioning him
that he admitted some of the charges but not all (t. s. n., pp. 51-52).
about money contributions to guerrillas; that thereafter said Hospicio
Specifically, he said he pleaded guilty to counts 2, 3, 4, 7, 12, an 14 and
Singson was carried by accused and his companions to the local
not guilty to counts 1, 5, 6, 8, 9, 10 and 11 (t. s. n., pp. 54-55).
Japanese garrison and since then he was not seen again nor heard
from, nor are his whereabouts known;
The prosecution then resumed the presentation of evidence and called
witnesses to substantiate the charges to which a plea of not guilty was
"13. On or about the 5th day of January, 1945, in the municipality of
entered. But after three new witnesses, had taken the stand, and while
Cebu Province of Cebu, with the purpose of giving and with the intent
the third of them was testifying, counsel for the accused reiterated "his
to give aid and comfort to the enemy the aforesaid accused acting as
petition at he instance of the accused himself", that the latter be
CRIMINAL LAW FULL CASES
allowed to changed his plea of not guilty to that of guilty to all the 14
counts. Informed of his attorney's statement, the defendant said "I am
pleading guilty. I accept my guilt" (t. s. n., pp. 71-73).
As counsel insisted on putting his client on the stand, the prosecution
went ahead with its witnesses who testified on counts 6, 9, 12 and 13.
Then it rested and the accused testified on his own behalf.
According to defense counsel the purpose of the defendant's
testimony was not to deny his guilt for the crime of treason; it was, he
added, to "clarify certain points which he (accused) denied when he
was informed again of the contents of the information filed against
him."
After having been sworn the defendant again said that some of the
charges filed against him were not true; that in some of those cases
there were other persons responsible for the commission of the crime,
9, he said who were tortured because of their refusal to give
information, be taken to Isisaki and Muraki, after which they were
marched off to Lensa by Japanese soldiers. There were about 20
prisoners, he said. Upon arriving at Lensa they were shot by Muraki
and Isisaka in the presence of Captain Suriyama. He admitted having
gone with these people and seen Isisaka and Muraka shoot the
prisoners with luggers. He said about 700 civilians were herded on that
particular date and that it was among these 700 that 20 were
executed.
In answer to a question of Judge Saguin if he wanted to make any
statement regarding counts 3 and 4, to which he had pleaded guilty,
the defendants answered in the affirmative. He said that when they
apprehended Pablo Seno and Anunciacion Seno, he and Pedro Labares
stood guard under the house while the Japanese went up. When the
Japanese came down they brought the Senos. From there they
returned to the Normal School where prisoners were confined. That
was, he said, all he could say.
As to Del Castillo (count 11), he said he was not the one who killed him
but two Japanese by the names of Isituca and Pujisaki; that it was
Pedro Labares and not he who reported Del Castillo to the Japanese;
that he accompanied Labares because the Japanese ordered him to do
so. He said that his sole connection with the Japanese was as a driver
of Watanabi. He said that after he was captured as a guerrilla he was
told that he should drive their car or else he would be killed (t.s.n., pp.
98-102).
Regarding count 2, he said it was Japanese accompanied by some
Filipinos, one of whom was Antonio Tancingco, who arrested Florencio
Perez. Reminded that he had pleaded guilty to this count, the accused
after the session, he had been struck in the head and that when he
came back to court he was still confused. Nevertheless, he said having
guilt he wanted to abide by his plea fully realizing its consequences,
now that his mind was already clear. (T. s. n., pp. 102-104).
In answer to a direct question of Judge Borromeo, the accused
answered in the affirmative the question whether he admitted the
facts and pleaded guilty to counts 2, 3, 4,7, 12, 13 and 14 (t. s. n., p.
104). But when these last counts were read over again and he was told
to plea after each count was read, he pleaded guilty to counts 2 and 3,
and not guilty to counts 4, 7, 12, 13 and 14 (t.s.n., p. 105).
With specific reference to count 7, he said: "When we apprehended
Suico and Ouano, they were brought to the pier before Yusidati, a
sergeant of the Japanese Military Police here. At night time, Ouano, his
nephew and Patricio were taken by four Japanese by the names of
Muraki, Isisaki, Pujisaki and Koydi and other members of the Japanese
Military Police. We started from the pier about 9:00 o'clock of that
evening and they took a truck and proceeded to Mandawe. Upon
reaching Mandawe, right in the house of Leonardo Ouano, there they
were investigated by Muraki. In the affidavit, it says that Patricio Suico
was burned and that is not true. The truth is that, during that night,
those three were brought back here to the pier, and from that time on
Ouano and Suico were never heard by me any more." He admitted that
he took part in the apprehension of these persons but said that he was
ordered to do so by Watanabi (t. s. n., pp. 106-107).
With respect to count No. 12, he said that those who took part in the
apprehension of Hospicio Singson was Maximo Bati alias Pacho (t. s. n.,
p. 108).
With regard to count 13, he said he had nothing to say and renewed
his plea of guilty to this charge (t. s. n., pp. 108-109).
As to the counts which the defendant denied or qualified, his plea does
not posses the requirement of a plea and should have been rejected
and the parties directed to introduce their evidence. A plea of guilty
must be unconditional save to explain mitigating circumstances. The
defendant's responsibility on these counts therefore have to be gauged
by the prosecution's evidence and defendant's admissions.
From the defendant's changing attitude, changing pleas and
statements, only counts 2, 3, and 13 survive the test of having been
confessed in open court. The prosecution's evidence and defendant's
testimony substitute counts 4, 6, 9 and 11. On count 7, only one
witness testified; on the rest none whatever.
Count 4. Maximina Basubas, 46 years old, testified that on December 2,
1944, the accused apprehended her son Rufino Seno for being a
guerrilla; that Rufino Seno was tied, beaten, tortured, and taken to and
detained at the Japanese Kempei Tai headquarters in Cebu City; that
since then he heard nothing more of him; that with the accused were
other Filipinos and Japanese.
Jose Cui, 24 years old, testified that on December 2, 1944, Antonio
Racaza "raided our place". Racaza was accompanied by other persons,
Japanese and Filipinos; that he (witness) was arrested with four others,
among them Apolonio Ceniza and Rufino Seno. They were taken to the
U.P. Building in the city of Cebu, near which he was punished
personally by Antonio Racaza, hung by the hands tied at his back and
whipped with a golf club (witness showed the scar). He said that he
was accused of being a guerrilla; that Rufino Seno was brought with
him and others in the afternoon of December 3 to the Kempei Tai; that
a Japanese took Rufino Seno out and he had not seen Rufino since.
Count 6. Silvana Cabello, 22 years old, single, testified that in August
1944, Antonio Racaza and others came to their house looking for
somebody — her brother who was a soldier. Among the men who
came she recognized only the accused. In her house the accused and
others undressed her. She prayed to God and pleaded that she be not
undressed. They succeeded in their purpose however and her naked
body was exposed. They pushed her mother when the latter was not
able to produce any arm. From that place they took her to Buakaw
where they went up a house apparently in search of something. when
they did not find anything they moved to another house. In the latter
house they caught a man, took him behind a tree and there killed him.
Then a soldier, Teofilo Navarro, who had killed that person,
approached her and said, "Well, how do you like to come along with
me behind the cassava trees?" She refused and then they proceeded to
the provincial road with her; she was crying. At Basac, near a big house
owned by Filemon Rago, Antonio Racaza told her, "Come along with
me." Once in that place he hugged her and kissed her and told her to
take off her panties. Then she said her devotion to the Virgin Mary
praying that she might be delivered from her aggressors. Luckily, the
accused did not succeed. Afterward one companion of the accused,
Jose Abascas, slammed her against a coconut tree and embraced her.
Later, a truck passed by and she was told to get on. Then Racaza
approached the Japanese and later she was released.
Raymunda Sabillano, 42 years old, testified that on August 19, 1944,
Antonio Racaza came to her house at night (it was Saturday) looking for
her son who was a guerrilla soldiers. He had many companions among
whom were two Japanese. They were armed but Racaza was not. As
she was not so, they undressed her daughter, Silvina Cabellon, and
Antonio Racaza told witness to step out. when she heard her daughter
cry out she tried to get inside but they blocked her way. Afterward they
left her daughter dress up again and took her away. About 3 o'clock in
the morning the girl returned. Her house is in Pardo, Cebu City.
Count 9. Hilario Cabañezas, 56 years old, testified that on the 29th of
July, 1944, her house was surrounded and she and the inhabitants of
the house were apprehended and taken to a place near the Normal
CRIMINAL LAW FULL CASES
School in Basac. Those who arrested them were, among others,
Antonio Racaza, Carding and Loloy. These three tied them and she
pleaded for mercy. From her house she could see may people tortured
in the Basac school building. There must have been around 1,000
people there.
Pastor Abadiano, 45 years old, testified that on the 29th of July, 1944
the accused and his several companions with Japanese came up to hi
house and maltreated him, trampling on his body. When he could not
endure the punishment any longer they asked him where his nephew
Inocencio was. Inocencio was a guerrilla soldier. Among those who
were tortured and killed were Sario Abadiano, Tomas Bacalla, Quirico
Abellanosa and Lope Bacon. The witness was allowed to go when they
found the brother of Inocencio. Vicente Abadiano was one of those
who survived the torture.
Tereso Sanchez, 25 years old, testified that he knew Antonio Racaza.
On July 29, 1944, he was arrested by Filipino spies. About 1,000 were
apprehended and taken to the school building in Basac. They were
taken there to be screened building in Basac. They were taken there to
be screened for guerrillas. Among those who tortured civilians was
Antonio Racaza. He saw Jose de la Cerna. Antonio Racaza was armed
with a revolver. After he was tortured he was taken to the mountain of
Lensa. With him were about 24; all of them were tied. When they
arrived at the mountain, the Japanese and their Filipino cohorts told
them to sit down . The prisoners were taken by the Japanese to
another place where they were shot. The witness was shot by Filemon
Delgado and was hit in the neck, the bullet coming out his left eye. He
was left for dead and that was how he lived to tell the story. Before he
was shot, Nazario Abadiano was shot by Antonio Racaza and killed
immediately.
Vicente Abadiano, 19 years old, testified that he was apprehended on
July 29 and brought to a place where his bother Nazario was killed. His
brother was apprehended on July 29 and brought up where he was
killed by Antonio Racaza. He actually saw Racaza shoot his brother; it
was in Lensa, in the mountain. His brother had his back on Racaza
when Racaza shot him in the buttock. He saw Tereso Sanchez as one of
the victims in that massacre. He also witnessed the mass torture in the
school building before the victims were marched up to the mountains.
Jose de la Cerna, 34 years old, testified that on July 29, he was one of
the people arrested in Basac and concentrated in the school building.
Those who made the arrests were Japanese and Filipino undercovers.
Among these were Antonio Racaza, Antonio Tancinco, Roberto
Bautista alias Eriberto Ocampo, Filemon Delgado, Margarito Campos
and Jesus Campos. Antonio Racaza was one of those who beat him
(witness) with an iron bar, kicked him, boxed him and inserted a
galvanized iron tube into his throat through which sand was poured.
He was choked and was unconscious for several minutes. When he
came to, they questioned him as to the whereabouts of his brother
who was with Governor Abellanosa. Then he was hung from two to five
o'clock in the afternoon. The cause of the massacre and mass torture in
Basac was that about three or four days before July 29, the guerrillas
attacked a train loaded with naval officers on Mambaling bridge in
Dulho, Cebu.
Count 11, Hipolito Cabahug, 18 years old, widow, testified that her
husband was captured by Racaza and his companions on November 16,
1944, in the municipality of Mandawe, Province of Cebu. On that date
Antonio Racaza came up to her house leaving his companions below.
He threatened the people in the house with his sword, told them not
to move, and asked the witness whether her husband was a soldier.
Because her answers were not satisfactory, he arrested her and her
husband and Antonio Racaza hung her husband. While her husband
was hanging in mid-air they beat him with a big bat. Then they lowered
her husband and Racaza hung her instead. While she was dangling in
the air they stepped on her husband's prostrate body trying to force
him to admit that he was a guerrilla. They put o his neck a piece of
lumber and stepped a man sat astride her husband's abdomen.
Afterward they hung her husband again. After he was released this
time he was taken across a creek; that was the last she saw of him. The
cadaver was found by her father-in-law Gregorio Del Castillo. Her
brother-in-law, Victorino del Castillo, was taken the next morning and
brought to the same place. They also hung Victorino and beat him
while hanging. He died before his body was brought down.
Gregorio del Castillo 50 years old, testified that this sons are dead
because they were arrested by Antonio Racaza at their place It was
November 16, about 9 o'clock in the evening. Hipolita Cabahug is his
daughter-in-law living with him. He was present when his sons were
arrested. Hipolita was told to come along. He found the next day the
bodies of his son in a creek. One of them was naked with several
wounds and the neck was almost severed from the body. Rope was still
tied around his hands.
To sum up, we find the defendants guilty of counts 2, 3 and 13 by the
defendant's plea of guilty, and of counts 4, 6, 9, and 11 by the
testimony of two or more eye-witnesses to the overt acts. These
admitted and proven charges, in the opinion of the majority of the
court, lead to the same result reached by the trial court.
The trial court found the aggravating circumstances of evident
premeditation, superior strength, treachery and employment of means
for adding ignominy to the natural effects of the crime.
The first three circumstances are, by their nature inherent in the
offense of treason and may not be taken to aggravate the penalty.
Adherence and the giving of aid and comfort to the enemy is, in many
cases, as in this, a long, continued process requiring, for the successful
consummation of the traitor's purpose, fixed, reflective and persistent
determination and planning.
So are superior strength and treachery included in the crime of
treason. Treachery is merged in superior strength; and to overcome
the opposition and wipe out resistance movements, which was
Racaza's purpose in collaborating with the enemy, the use of a large
force and equipment was necessary. The enemy to whom the accused
adhered was itself the personification of brute, superior force, and it
was this superior force which enabled him to overrun the country and
for a time subdue its inhabitants by his brutal rule. The law does not
expect the enemy and its adherents to meet their foes only on even
terms according to the romantic traditions of chivalry.
But the law does abhor inhumanity and the abuse of strength to
commit acts unnecessary to the commission of treason. There is no
incompatibility between treason and decent, human treatment of
prisoners. Rapes, wanton robbery for personal gain, and other forms of
cruelties are condemned and the perpetration of these will be
regarded as aggravating circumstances of ignominy and of deliberately
augmenting unnecessary wrongs to the main Criminal objective under
paragraphs 17 and 21 of article 14 of the Revised Penal Code. The
atrocities above mentioned, of which the appellant is beyond doubt
guilty, fall within the terms of the above paragraphs.
For the very reason that premeditation, treachery and use of superior
strength are absorbed in treason characterized by killing, the killings
themselves and other accompanying crimes should be taken into
consideration for measuring the degree and gravity of criminal
responsibility irrespective of the manner in which they were
committed. Were not this the rule, treason, the highest crime known to
law, would confer on its perpetrators advantages that are denied
simple murderers. to avoid such incongruity and injustice, the penalty
in treason will be adapted, within the range provided in the Revised
Penal Code, to the danger and harm to which the culprit has exposed
his country and his people and to the wrongs and injuries that resulted
from his deeds. The letter and pervading spirit of the Revised Penal
Code adjust penalties to the perversity of the mind that conceived and
carried the crime into execution. Where the system of graduating
penalties by the prescribed standards is inapplicable, as in the case of
homicides connected with treason, the method of analogies to fit the
punishment with the enormity of the offense my be summoned to the
service of justice and consistency and in furtherance of the law's aims.
The judgment appealed from is correct in this result and the same
should be affirmed with costs. However, as four justices dissent from
the imposition of the death penalty, the appealed sentence is modified
and reduced to reclusion perpetua and legal accessories, a fine of
P20,000 and costs.
Moran, C.J., Paras, Feria, Pablo, Bengzon, Briones, Tuason and
Montemayor, JJ., concur.
Separate Opinions
CRIMINAL LAW FULL CASES
PERFECTO, J., concurring:
"A big crowd gathered at the plaza of the Cebu capitol during the three
days of trial and right there the public showed visible indignation with
an eager desire that the collaborators be dealt with by the court of
justice without mercy."
The above quotation comes from the appealed decision finding
appellant guilty of the crime of treason and sentencing him to death
and to pay a fine of P20,000 and the costs.
There is no question as to appellant's guilt. The evidence on record is
conclusive, and defendant himself pleaded guilty to several of the
counts of the information. We find that he committed the acts alleged
in the information. The only question raised in this appeal refers to the
penalty imposed by the People's Court.
Counsel de oficio makes two assignments of error: First, that the lower
court erred in not considering the plea of guilty entered by the
defendant as a mitigating circumstance, and second, in considering
evident premeditation, taking advantage of superior strength,
treachery and employing means to add ignominy to the natural effects
of his acts, as aggravating circumstances, and prays that the appealed
judgment be modified to any degree within the limits of reclusion
temporal and to a fine of P10,000.
The prosecution maintains that the plea of guilty cannot be considered
as a mitigating circumstance in favor of appellant because it had been
entered after seven witnesses for the prosecution had already testified.
But counsel de oficio points out that the plea should be considered as a
mitigating, circumstances, although entered after some witnesses for
the prosecution had testified, because of the provisions of paragraph
10 of article 13 of the Revised Penal Code, which provides that "any
other circumstance of a similar nature and analogous to those above-
mentioned," should be considered, referring to the specified mitigating
circumstances. the similarity or analogy between a plea of guilty
entered after some of the witnesses for the prosecution had testified
cannot seriously be disputed. The circumstances in question should be
taken into consideration in the judgment.
The appealed decision states that the aggravating circumstances in
question concurred "in most of the overt acts committed by the
defendant, " but without specifying the specific acts constituting said
circumstances. The prosecution's brief supplies the needed
specifications.
The undressing to two women and attempted rape of one of them are
pointed out as adding ignominy to the crime. According to the
evidence, Silvina Cabellon was the only one undressed. The attempted
rape on the person of Silvina Cabellon may be considered as ground for
the prosecution of a different offense, but cannot be considered as
aggravating treason, a crime political in nature. In the attempted rape
there was nothing political and it had nothing to do with defendant's
adherence and aid to the enemy.
Nighttime, superior strength, aid of armed forces, treachery, and
evident premeditation should be considered as essential elements of
the treason committed by appellant. We take judicial notice of the fact
that said elements have always or almost always accompanied the
procedures under taken by the Japanese for the suppression of
guerrillas. The accused, having adhered to the enemy and allowed the
underground movement, it was natural for him to follow the same
tactics of his masters.
The medium penalty provided by article 114 of the Revised Penal
Code be imposed upon appellant, as no aggravating nor mitigating
circumstances can effect his legal responsibility. Although his plea of
guilty should be considered in his favor, it should be considered only
with regard to the counts to which he pleaded guilty, and there are
other counts in the information to which he did not plead guilty and
which are fully supported by the evidence on record.
A majority voted to affirm the appealed decision, but in view of the
contrary opinion of the writer, the principal penalty is modified
to reclusion perpetua, and affirmed in all other respects.
We cannot vote for the affirmance of the appealed penalty. not only
for the reasons as above stated, but for the further reason that it is not
beyond the realm of probability that the trial court could not have
been completely free from the psychological of the mob frenzy
described in the a quo decision the pertinent paragraph of which is
quoted at the beginning of this opinion.
November 3, 1906
G.R. No. 2189
THE UNITED STATES, plaintiff-appellee,
vs.
FRANCISCO BAUTISTA, ET AL., defendants-appellants.
Aguedo Velarde and Pineda and Escueta, for appellants.  secretly 200 pesos; that after the arrival of Ricarte, Bautista was
Office of the Solicitor-General Araneta, for appellee.  present, taking part in several of the above-mentioned meetings
CARSON, J.:
The appellants in this case was convicted in the Court of First Instance
of Manila of the crime of conspiracy to overthrow, put down, and
destroy by force the Government of the United States in the Philippine
Islands and the Government of the Philippine Islands, as defined and
penalized in section 4 of Act No. 292 of the Philippine Commission.
The appellant Francisco Bautista was sentenced to four years'
imprisonment, with hard labor, and $3,000 fine, and Aniceto de
Guzman and Tomas Puzon, and each of them, to three years'
imprisonment, with hard labor, and a fine of $2,000, and all and each
of the said appellants to pay their proportionate share of the costs of
the trial and to undergo subsidiary imprisonment in the event of
insolvency and failure to pay their respective fines.
The evidence of record conclusively establishes that during the latter
part of the year 1903 a junta was organized and a conspiracy entered
into by a number of Filipinos, resident in the city of Hongkong, for the
purpose of overthrowing the Government of the United States in the
Philippine Islands by force of arms and establishing in its stead a
government to be known as the Republica Universal Democratica
Filipina; that one Prim Ruiz was recognized as the titular head of this
conspiracy and one Artemio Ricarte as chief of the military forces to
the organized in the Philippines in the furtherance of the plans of the
conspirators; that toward the end of December, 1903 the said Ricarte
came to Manila from Hongkong in hidding on board the
steamship Yuensang; that after his arrival in the Philippines he held a
number of meetings in the city of Manila and the adjoining provinces
whereat was perfected the above-mentioned conspiracy hatched in
Hongkong that at these meetings new members were taken into the
conspiracy and plans made for the enlistment of an army of revolution
and the raising of money by national and private loans to carry on the
campaign; that to this end bonds were issued and commissions as
officers in the revolutionary army were granted to a number of
conspirators, empowering the officers thus appointed to raise troops
and take command thereof; and that the conspirators did in fact take
the field and offered armed resistance to the constituted authorities in
the Philippines, only failing in their design of overthrowing the
Government because of their failure to combat successfully with the
officers of the law who were sent against them and of the failure of the
people to rise en masse in response to their propaganda.
It further appears from the evidence that the appellant Francisco
Bautista, a resident of the city of Manila, was an intimate friend of the
said Ricarte; that Ricarte wrote and notified Bautista of his coming to
Manila and that, to aid him in his journey, Bautista forwarded to him
whereat the plans of the conspirators were discussed and perfected,
and that at one of these meetings Bautista, in answer to a question of
Ricarte, assured him that the necessary preparations had been made
and that he "held the people in readiness."
It further appears that the appellant, Tomas Puzon, united with the
conspirators through the agency of one Jose R. Muñoz, who was
CRIMINAL LAW FULL CASES
proven to have been a prime leader of the movement, in the intimate
confidence of Ricarte, and by him authorized to distribute bonds and
nominate and appoint certain officials, including a brigadier-general of
the signal corps of the proposed revolutionary forces; that at the time
when the conspiracy was being brought to a head in the city of Manila,
Puzon held several conferences with the said Muñoz whereat plans
were made for the coming insurrection; that at one of these
conferences Muñoz offered Puzon a commission as brigadier-general
of the signal corps and undertook to do his part in organizing the
troops; and that at a later conference he assured the said Muñoz that
he had things in readiness, meaning thereby that he had duly organized
in accordance with the terms of his commission.
Puzon at the trial declared that he had never united himself with the
conspirators; that he had accepted the appointment as brigadier-
general of the signal corps of the revolutionary forces with no intention
of ever taking any further action in the matter, and merely because he
did not wish to vex his friend Muñoz by refusing to do so, and that
when Muñoz offered him the appointment as brigadier-general he did
so in "a joking tone," and that he, Puzon, did not know that Ricarte was
in Manila organizing the conspiracy at that time.
These statements, however (except in so far as they corroborate the
testimony of Muñoz as to the fact that he had several interviews with
Puzon at which plans were entered into for the advancement of the
cause of the conspirators), can not be accepted as true in the light of a
written statement signed by Puzon himself at the time when he was
first arrested, part of which is as follows:
Q. What is your name and what is your age, residence, and
occupation? — A. My name is Tomas Puzon; born in Binondo in the
Province of Manila; 37 years of age; married; by profession a teacher of
primary and secondary schools, and residing in Calle Concepcion, No.
195, district of Quiapo.
Q. Do you know Artemio Ricarte? — A. Personally I do not know him,
but by name, yes.
Q. Did you have any information that Ricarte was in these Islands and
with what object he came here? And if you know it to be true, through
whom did you get such information? — A. In the first place I had notice
of his coming to the Islands as well as his object by reading the
newspapers of Manila, and secondly because J. R. Muñoz told me the
same on one occasion when I was in his house to visit him.
Q. Did you acquire this information through any other person? — A.
No, sir; I have no more information than that which I have mentioned.
Q. Are you a part of his new revolution presided over by Ricarte? — A.
Yes, sir.
Q. What is the employment (empleo) which you have in this
organization, and who is it who invited you to join it? — A. J. R. Muñoz,
who is general of division of this new organization, spoke to me with
much instance, asking me to accept employment as brigadier-general,
chief of signal corps, to which I, on account of his request and in view
of the fact that the said Muñoz is a friend of mine from my youth,
acceded; nevertheless I have organized absolutely nothing in respect to
this matter.
Q. Did you accept the employment and did they give you any
commission for it? — A. Yes, sir; I accepted said employment and
although they gave me an order to organize in my brigade I did not do
it, because I had neither the confidence nor the will.
Q. If you didn't have faith in the said authorization nor the will to carry
out what was intrusted to you, why did you accept employment as
general of the brigade? — A. I accepted it on account of friendship and
not to vex a friend, but I never have the intention of fulfilling the
obligations.
Puzon, when on the stand in his own behalf, did not deny that he made
this statement, but he attempted to explain it away by saying that
when he made it he was so exited that he did not know just what he
was saying. He does not allege that improper means were taken to
procure the confession, and it was proven at the trial that it was freely
and voluntarily made and not the result of violence, intimidation,
threat, menace, or promise of reward or leniency. The accused appears
to be an intelligent man and was for eighteen years a school-teacher
and later a telegraph operator under the Spanish Government, and
during the insurrection he held a commission as an officer in the signal
corps of the revolutionary army. His confession is clear and intelligible
and in no way supports his pretense that he was so excited as not to
know what he was saying when he made it, and its truth and accuracy
in so far it inculpates him is sustained by other evidence of record in
this case.
It is contended that the acceptance or possession of an appointment as
an officer of the military forces of the conspiracy should not be
considered as evidence against him in the light of the decisions of this
court in the cases of the United States vs. Antonio de los Reyes[[1]] (2
Off. Gaz., 364), United States vs. Silverio Nuñez et al.[[2]] (3 Off. Gaz.,
408), the United States vs. Eusebio de la Serna et al.[[3]] (3 Off. Gaz.,
528), and United States vs. Bernardo Manalo et al.[[4]] (4 Off. Gaz., 570).
But the case at bar is to be distinguished from these and like cases by
the fact that the record clearly disclose that the accused actually and
voluntarily accepted the apppointment in question and in doing so
assumed all the obligations implied by such acceptance, and that the
charge in this case is that of conspiracy, and the fact that the accused
accepted the appointment is taken into consideration merely as
evidence of his criminal relations with the conspirators. In the first of
these cases — the United States vs. De los Reyes — the accused was
charged with treason, and the court found that the mere acceptance of
a commission by the defendant, nothing else being done either by
himself or by his companions, was not an "overt act" of treason within
the meaning of the law, but the court further expressly held that —
That state of affairs disclosed body of evidence, . . . the playing of the
game of government like children, the secretaries, colonels, and
captains, the pictures of flags and seals and commission, all on proper,
for the purpose of duping and misleading the ignorant and the
visionary . . . should not be dignified by the name of treason.
In the second case — the United States vs. Nuñez et al. -- wherein the
accused were charged with brigandage, the court held that, aside from
the possession of commissions in an insurgent band, there was no
evidence to show that it they had committed the crime and,
"moreover, that it appeared that they had never united with any party
of brigands and never had been in any way connected with such parties
unless the physical possession of these appointments proved such
relation," and that it appeared that each one of the defendants "were
separately approached at different times by armed men while working
in the field and were virtually compelled to accept the commissions."
In the case of the United States vs. de la Serna et al. it was contended
that de la Serna had confessed that "he was one of the members of
the pulajanes, with a commission as colonel," but the court was of
opinion that the evidence did not sustain a finding that such confession
had in fact been made, hence the doctrine laid down in that decision,
"that the mere possession of such an appointment, when it is not
shown that the possessor executed some external act by the virtue of
the same, does not constitute sufficient proof of the guilt of the
defendant," applies only the case of Enrique Camonas, against whom
the only evidence of record was "the fact that a so-called appointment
of sergeant was found at his house."
In the case of the United States vs. Bernardo Manalo et al. there was
testimony that four appointments of officials in a revolutionary army
were found in a trunk in the house of one Valentin Colorado, and the
court in said case reaffirmed the doctrine that "the mere possession of
the documents of this kind is not sufficient to convict," and held,
furthermore, that there was "evidence in the case that at the time
these papers were received by the appellant, Valentin Colorado, he
went to one of the assistant councilmen of the barrio in which lived, a
witness for the Government, showed him the envelope, and stated to
him he had received these papers; that he didn't know what they were
and requested this councilman to open them. The coucilman did not
wish to do that but took the envelope and sent it to the councilman
Jose Millora. We are satisfied that this envelope contained the
appointments in question and that the appellant did not act under the
appointment but immediately reported the receipt of them to the
authorities."
CRIMINAL LAW FULL CASES
It is quite conceivable that a group of conspirators might appoint a
person in no wise connected with them to some high office in the
conspiracy, in the hope that such person would afterwards accept the
commission and thus unite himself with them, and it is even possible
that such an appointment might be forwarded in the mail or otherwise,
and thus come into the possession of the person thus nominated, and
that such appointment might be found in his possession, and,
notwithstanding all this, the person in whose possession the
appointment was found might be entirely innocent of all intention to
join the conspiracy, never having authorized the conspirators to use his
name in this manner nor to send such a commission to him. Indeed,
cases are not unknown in the annals of criminal prosecutions wherein
it has been proven that such appointments have been concealed in the
baggage or among the papers of the accused persons, so that when
later discovered by the officers of the law they might be used as
evidence against the accused. But where a genuine conspiracy is shown
to have existed as in this case, and it is proven that the accused
voluntarily accepted an appointment as an officer in that conspiracy,
we think that this fact may properly be taken into consideration as
evidence of his relations with the conspirators.
Counsel for appellants contend that the constitutional provision
requiring the testimony of at least two witnesses to the same overt act,
or confession in open court, to support a conviction for the crime of
treason should be applied in this case, but this court has always held, in
conformance with the decisions of the Federal courts of the United
States, that the crime of conspiring to commit treason is a separate
and distinct offense from the crime of treason, and that this
constitutional provision is not applicable in such cases. (In re Bollman,
4 Cranch, 74; U. S. vs. Mitchell, 2 Dall., 348.)
The evidence of record does not sustain the conviction of Aniceto de
Guzman. The finding of his guilt rest substantially upon his acceptance
of a number of bonds from one of the conspirators, such bonds having
been prepared by the conspirators for the purpose of raising funds for
carrying out the plans of the conspiracy, but it does not affirmatively
appear that he knew anything of the existence of the conspiracy or
that, when he received the bonds wrapped in a bundle, he knew what
the contents of the bundle was, nor that ever, on any occasion,
assumed any obligation with respect to these bonds. He, himself,
states that when he opened the bundle and discovered the nature of
the contents he destroyed them with fire, and that he never had any
dealings with the conspirators in relation to the conspiracy or the
object for which it was organized.
We are of opinion, therefore, that the judgment and sentence before
us, in so far as it affects the said Aniceto de Guzman, should be
reversed, with his proportionate share of the costs of both
instances de oficio, and that the said Anecito de Guzman should be
acquitted of the crime with which he is charged and set a liberty
forthwith, and that the judgment and sentence of the trial court, in so
far as it applies to Francisco Bautista and Tomas Puzon, should be, and
is hereby, affirmed, except so far as it imposes subsidiary imprisonment
in the event of insolvency and failure to pay their respective fines, and,
there being no authority in law of such provision, so much of the
sentence as undertakes to impose subsidiary imprisonment is hereby
reversed.
After ten days let judgment be entered in accordance herewith, when
the record will be returned to the trial court for execution. So ordered.
October 10, 1947
G.R. No. L-778
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  they were patrolling or camping in the hideouts of the guerrilla forces, I
vs.
NEMESIO L. AGPANGAN, defendant-appellant.
Alfredo Gonzales for appellant.
Acting First Assistant Solicitor General Roberto A. Gianzon and Solicitor
Federico V. Sian for appellee.
PERFECTO, J.:
Appellant stands accused of treason, committed between December,
1944, and January, 1945, in the Province of Laguna, on only one count
alleged in the information as follows:
That on or about December 20, 1944, the accused, a member of the
Ganap, a subversive pro-Japanese organization, joined the Pampars, a
military organization supporting the Imperial Japanese Army and
designed to bear arms against the army of the United States and the
Commonwealth of the Philippines and the guerrillas in the Philippines;
that he was equipped with a 1903 Springfield rifle, caliber .30, and was
made to undergo 10 days training, consisting of military drill, manual of
arms, and target practice; and that from or about January 12, 1945 to
March 15, the said accused was assigned to guard duty once a week;
that he was armed with a rifle with orders to shoot any of the Filipino
prisoners whom he was guarding who might attempt to escape and
also any guerrilla or American soldier who might approach the
Japanese garrison.
The lower court found him guilty and sentenced him to reclusion
perpetua, with the accessory penalties provided by law, and to pay a
fine of P10,000 and the costs.
Three witnesses testified for the prosecution.
Tomas C. Serrano, 46, farmer, resident of Siniloan, Second Lieutenant
in the Marking's guerrilla organization, testified that on December,
1944, he saw the accused in the Japanese garrison in Siniloan, "he was
a member of the Makapili organization;" "he was doing guard duty,
with a rifle, with a bayonet at his side;" "he was at the entrance of the
garrison and he made all civilians passing through the entrance bow to
him." If they did not bow, "he dragged them by the arms and brought
them to the captain of the garrison;" he served as guard "since
November, 1944, when the Japanese garrison was established in
Siniloan, up to the time I was arrested on March 25, 1945;" he saw the
accused on guard duty in the garrison "many times;" "I often saw him
confiscating foodstuffs such as rice, fruits, calabasa, and other
vegetables, for the support of the Japanese soldiers;" "he was with
arms accompanied by Japanese soldiers and other members of the
Makapili;" "I often saw him accompanied by Japanese soldiers and
other Makalipi members, arresting suspected guerrillas and sometimes
cannot tell how many times, but I often saw him;" the witness was
arrested on March 25, 1945, by the Japanese soldiers and Makapilis,
with whom the accused was; "the next morning we, the thirteen
prisoners, were brought to the place where we were to be executed;
but luckily while we were on our way to the barrio, the American
planes came roaring, so the guards took cover;" "they were pulling the
rope that tied us, and luckily I was able to slip away because I was the
second to the last man in the line, and the rope was cut;" "I could not
run fast because I was lame;" the rest were executed, naming the
following: "Alejandro Serrano, Custodio Adaro, Emilio Javier, Peter
Sardal, Elias Rodolfo, Ignacio Cavano, Biato Optis, Napoleon
Pagtakhan, Bienvenido Agpangan, and myself;" Miguel Palma "was in
my back to the last, so we two remained, and Pacifico (Adopina)
remained untied" because he was carrying food, and when the
Japanese ran, "he escaped." Asked to explain that he knew about the
lot of those who were executed, the witness said that he went home
when the town was liberated, and he visited the place "because I know
the place," and we reached the spot "I smelled very bad odor, and I
recognized the soil which swelled, so I said to myself that this is the
place where our son was buried;" "I went home and I told the other
parents of the victims" about the spot; " the next month, about thirty
days," the witness and the other parents requested the municipal
authorities to be allowed to exhume the bodies; when his son is being
taken to the place of execution. "I had not seen him that time;" the
witness based his knowledge as to appellant's being a Makapili on
Exhibit A and he saw him armed, guarding the Japanese garrison,
confiscating foodstuffs for the Japanese, and arresting guerrilla
suspects in the town; Bienvenido Agpangan, one of those who were
executed by the Japanese, "was the son" of appellant; "I can not tell
you whether he (appellant) was reporting to his officers any guerrilla;"
Angel Javier and Custodio Adaro were arrested by a party of which the
accused was a member, and "I know because he was with them when
they were arrested;" the witness does not know whether the accused
was present during the execution "because there was nobody present;
only God had witnessed the killing of those persons."
Mauricio Adaro, 47, farmer, resident of Siniloan, testified that in
December, 1944, he saw the accused in the Japanese garrison in
Siniloan; " he was mounting guard;" asked from what date to what
CRIMINAL LAW FULL CASES
date he saw him in the garrison, the witness answered that "I cannot
remember the month in 1944 because we used to go out of Siniloan
every time;" appellant "was getting food supplies from the civilians and
giving them to the Japanese;" "the accused and the Japanese
companions of his arrested my son (Custodio) in our house;" the
witness was not arrested, "because I was able to hide;" he saw
defendant mounting guard in the Japanese garrison "many times;"
"more than ten times;" the garrison was located "in the school
building."
Delfin Redor, 55, mayor of Siniloan, since 1937, testified hat appellant
"has been my barrio lieutenant;" he belongs to Pampar Makapili,
and Pampar and Makapili, "I believe are the same;" from December,
1944, to March, 1945, the witness saw the accused "in
the Makapili garrison, in the Siniloan plaza;" "I believe that he was a
member of theMakapili;" "Sometimes he was detailed as guard in front
of the garrison with arms and ammunitions — bayonet;" he saw as
such "many times;" the witness was not a mayor during the Japanese
occupation because "in 1944, March, I escaped because, you know, I
was wanted by the Japanese because I was also a guerrilla; before that
"I was mayor of the town;" during December, 1944, up to March,
because you know, I left the office, I was still in the town of Siniloan
collecting some supplies for the guerrillas;" after abandoning the office
of mayor, the witness "remained living in the poblacion of Siniloan;" he
"never stopped living in the poblacion;" "I had three times seen the
accused accompanied by the Japanese in raiding outside poblacion;"
the accused commandeered foodstuffs "and took them to the garrison
for food;" "the Japanese garrison was in the Intermediate Building and
the Makapili garrison is in Baybay Academy, about one kilometer
distant;" the witness saw the accused "in Makapiligarrison;" the
witness was a captain of the guerrillas and was arrested by the
Japanese four times, and in those occasions he did not see the accused
in the garrison; the witness does no know of anybody who had been
pointed out by the accused to the Japanese and was arrested by the
same.
The Constitution provides that "in all criminal prosecutions the accused
shall be presumed to be innocent until the contrary is proved." (Article
II, section 1 [17].) To overcome this constitutional presumption, the
guilt of the accused must be proved beyond all reasonable doubt. The
evidence presented by the prosecution in this case does not offer that
degree of proof. None of the several overt acts alleged in the
information has been proved in accordance with the two-witness rule
provided in the article 114 of the Revised Penal Code.
It is imputed to the appellant, in the first place, that he is a member of
the Ganap, "a subversive pro-Japanese organization," and "joined
the Pampar, a military organization supporting the Imperial Japanese
Army and designed to bear arms against the Army of the United States
in Commonwealth of the Philippines and the guerrillas in the
Philippines." No witness has testified that appellant is the member of
the Ganap. Only one witness, Redor, testified that appellant belonged one, and another as to the other, is not enough. Any number of
to Pampar, but he did not testify as to its nature. witnesses may testify against an accused for treason as to a long line of
successive treasonous overt acts; but notwithstanding the seriousness
of the acts nor their number, not until two witnesses, at least, shall
The next allegation of the information is that appellant "was equipped
have testified as to the perpetration of a single but the same and
with a 1903 Springfield rifle, caliber 30, and was made to undergo ten
precise overt act, can conviction be entertained.
days training, consisting of military drill, manual of arms, and target
practice. "No evidence has been presented in support of this allegation.
In justice to appellant, we feel it necessary to state that our decision to
acquit him is not only based on the reasonable doubt we entertain as
The third allegation against appellant is that "from or about January 12,
to his guilt, because the prosecution has not satisfied the requirements
1945, to March 15, 1945, the said accused was assigned to guard duty
of the two-witness rule, but because we are rather inclined to believe
once a week." The fourth and the last allegation is that "he was armed
his testimony to the effect that a guerrilla member, Vicente Auxilio,
with a rifle with orders to shoot any of the Filipino prisoners whom he
was caught by the Japanese in appellant's house, tortured and, finally,
was guarding who might attempt to escape and also any guerrilla or
killed. For said reason, appellant was called by the Japanese,
American soldier who might approach the Japanese garrison." In
investigated, and then told to do some work in the garrison, otherwise
connection with these two allegation, the only thing that the
he would have the same fate that befell Vicente Auxilio. "To save my
prosecution attempted to prove is that appellant did guard duty and
life, I accepted the order and worked there," he testified, adding: "The
was armed with rifle. But the attempt does not meet the test under the
Japanese, not being contended with my work, they got my carabao and
two-witness rule.
on March, 1945, they got my son, who was tortured and killed."
The first two witnesses for the prosecution testified that they had seen
This son is the same Bienvenido Agpangan who, according to the first
the accused doing guard duty in the Japanese garrison in Siniloan
witness for the prosecution, was executed by the Japanese with several
"many times," more than "ten times," but neither of them has
other victims. We do not believe that appellant could have adhered to
mentioned any specific time, day and hour. They were able to mention
the Japanese, the same who tortured and killed his own son. We do
only years and months. There is no way of concluding the two
not believe that, in the absence of proof, he can be such a monster.
witnesses testified about the same overt act. The "many times" or
more than "ten times" mentioned by them may refer either to two
different sets of moments, not one instant of one set coinciding with The decision of the People's Court is reversed and appellant is
any one of the other, or to only one and identical set of instances or, acquitted. He shall be released from the custody of the agent of the
although referring to two sets, some of the instances are the same in law upon the promulgation of this decision.
both. As there is no basis on record upon which we may determine
which, among the two alternatives, is the correct one, the doubt must
Moran, C.J., Pablo, Bengzon, Briones, Padilla, and Tuazon, JJ., concur.
be decided by taking the first alternative, the one compatible with the
presumption of innocence stated in the fundamental law. The case for
the prosecution is further weakened by the fact that it is first two PARAS, J.:
witnesses are contradicted by the third, who testified that appellant
did guard duty "many times," more than "ten times," in I concur in the result.
the Makapili garrison, located in the Baybay Academy, one kilometer
from the Intermediate School building, where the Japanese garrison
Separate Opinions
was located.
To meet the test under two-witness rule, it is necessary that, at least, FERIA, J., concurring and dissenting:
two witnesses should testify as to the perpetration of the same
treasonous overt act, and the sameness must include not only identity The information filed against the appellant with the People's Court
of kind and nature of the act, but as to the precise one which has contains only one count to wit:
actually been perpetrated. The treasonous overt act of doing guard
duty in the Japanese garrison on one specific date cannot be identified
That on or about December 20, 1944, the accused, a member of the
with the doing of guard duty in the same garrison in a different date.
Ganap, a subversive pro-Japanese organization, joined the Pampars, a
Both overt acts, although of the same nature and character, are two
military organization supporting the Imperial Japanese Army and
distinct and inconfusable acts, independent of each other, and either
designed to bear arms against the army of the United States and the
one, to serve as a ground for conviction of an accused for treason,
Commonwealth of the Philippines and the guerrillas in the Philippines;
must be proved by two witnesses. That one witness should testify as to
that he was equipped with a 1903 Springfield rifle, caliber 30, and was
CRIMINAL LAW FULL CASES
made to undergo 10 days training, consisting of military drill, manual of
arms, and target practice; and that from or about January 12, 1945 to
March 15, 1945, the said accused was assigned to guard duty once a
week; that he was armed with a rifle with orders to shoot any of the
Filipino prisoners whom he was guarding who might attempt to escape
and also any guerrilla or American soldier who might approach the
Japanese garrison.
From the above it clearly appears that defendant is charge with having
committed only overt act, that is, with having joined or become an
active member of the Pampars, "a military organization supporting the
Imperial Japanese army and designed to bear arms against the army of
the United States and the guerrillas in the Philippines." The allegations
"that he was equipped with a 1903 Springfield rifle, caliber .30, and
was made to undergo 10 days training consisting of military drill,
manual of arms, and target practice," and that "from January 12, 1945
to March 15, 1945, the said accused was assigned to guard duty once a
week," do not constitute to overt acts separate and independent from
the treasonous or over act of joining and becoming an active member
of the said military organization named Pampars. Each one of those
facts is a part and parcel of said treasonous act, since by becoming an
active member or soldier of said military organization, the appellant
must have necessary been armed, undergone training and done guard
duty.
In the case of People vs. Alarcon, G.R. No. L-407, [[1]] already decided by
this Court the defendant appellant Alarcon was charged with the crime
of treason consisting, according to the information, of several overt
acts alleged separately in several counts. In the first count he was
charged with having joined and acted as a member of the pro-Japanese
military organization name Makapili; and in the fourth having retreated
in December 1944 with the Japanese forces towards Boñgabong,
Nueva Ecija, before the arrival of the American Forces in Cabanatuan.
This Court in decision unanimously concurred in by all the members
who voted, including the Justice who pens the decision of the majority
in this case, held that "the acts alleged in the fourth count constitute
only a part of the overt act charged in the first count, since the
appellant, as one of the members of said Makapili organization, had to
retreat with the Japanese soldier and other Makapilis to the
mountains."
In view of the foregoing, it is that the following fundamental conclusion
in the majority decision is erroneous and misleading. The conclusion
says: "The treasonous overt act of doing guard duty in the Japanese
garrison on one specific date can not be identified with the doing of
guard duty in the same garrison on a different date. Both overt acts,
although of the same nature and character, are two distinct and
inconfusableacts independent of each other, and either one, to serve as
a ground for conviction of an accused for treason, must be proved by
two witnesses." We say that it is erroneous and misleading, because
the mere act of doing guard duty member in a Japanese garrison,
independent from that of being a member of the Japanese Army or a
military organization of Filipino civilians and allied with the Japanese
forces, does not of itself constitute an overt act. Doing guard duty in a
Japanese garrison on a specific date, and standing guard in the same or
another Japanese garrison on a different date, are but parts or bits of
the continuous treasonous act of being an active member of such
organization. The mere acceptance of a commission in a traitorous
army is not sufficient to constitute overt act of treason. To be so, there
must be at least an attempt to act as such. (U.S. vs. Manalo, 6 Phil.,
364; U.S. vs. Villariño, 5 Phil., 697; U.S. vs. De los Reyes, 3 Phil.,
349; U.S. vs. Magtibay, 2 Phil., 703.)
In view of the failure on the part of the prosecution to establish the
treasonous overt act, and of each part or bit therefore charge in the
information against the appellant, by the testimony of the two
witnesses, the decision of the People's Court appealed from is reversed
and the appellant acquitted. So ordered.
April 18, 1949
G.R. No. L-856
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
SUSANO PEREZ (alias KID PEREZ), defendant-appellant.
Crispin Oben and Isidro Santiago for appellant.
Assistance Solicitor General Manuel P. Barcelona and Solicitor
Esmeraldo Umali for appellee.
TUASON, J.:
Susano Perez alias Kid Perez alias Kid Perez was convicted of treason by
the 5th Division of the People's Court sitting in Cebu City and
sentenced to death by electrocution.
Seven counts were alleged in the information but the prosecution
offered evidence only on counts 1, 2, 4, 5 and 6, all of which, according
to the court, were substantiated. In a unanimous decision, the trial
court found as follows:
"As regards count No. 1 —
Count No. 1 alleges that the accused, together with the other Filipinos,
recruited, apprehended and commandeered numerous girls and
women against their will for the purpose of using them, as in fact they
were used, to satisfy the immoral purpose and sexual desire of Colonel
Mini, and among such unfortunate victims, were Felina Laput, Eriberta
Ramo alias Miami Ramo, Eduarda Daohog, Eutiquia Lamay, Feliciana
Bonalos and Flaviana Bonalos.
It would be unnecessary to recite here the testimonies of all the victims
of the accused; it sufficient to reproduce here succinctly the testimony
of Eriberta Ramo. She testified that on June 15, 1942, the accused
came to her house to get her and told her that she was wanted in the
house of her aunt, but instead, she was brought to the house of the
Puppet Governor Agapito Hontanosas; that she escaped and returned
to Baclayon her hometown; that the accused came again and told her
that Colonel Mini wanted her to be his Information Clerk; that she did
not accept the job; that a week later the accused came to Baclayon to
get her, and succeeded in taking some other girls Puppet Governor
Agapito Hontanosas; that Governor Hontanosas told her that Colonel
Mini wanted her to be his wife; that when she was brought to Colonel
Mini the latter had nothing on but a "G" string; that he, Colonel Mini
threatened her with a sword tied her to a bed and with force
succeeded in having carnal knowledge with her; that on the following
night, again she was brought to Colonel Mini and again she was raped;
that finally she was able to escape and stayed in hiding for three weeks
and only came out from the hiding when Colonel Mini left Tagbilaran.
"As regards count No. 2 —
Count No. 2 of the information substantially alleges: That accused in
company with some Japanese and Filipinos took Eriberta Ramo and her
sister Cleopatra Ramo from their home in Baclayon to attend a banquet
and a dance organized in honor of Colonel Mini by the Puppet
Governor, Agapito Hontanosas in order that said Japanese Colonel
might select those first who would later be taken to satisfy his carnal
appetite and that by means of threat, force and intimidation, the above
mentioned two sister were brought to the headquarters of the
Japanese Commander at the Mission Hospital in Tagbilaran where
Eriberta Ramo was forced to lived a life of shame. All these facts
alleged in count No. 2 were testified to by said witnesses Eriberta
Ramo her mother Mercedes de Ramo. It is not necessary here to recite
once more their testimony in support of the allegations in court No. 2;
this Court is fully convinced that the allegation in said count No. 2 were
fully substantiated by the evidence adduced.
"As regards count No. 4 —
Count No. 4 substantially alleges that on July 16, 1942, the two girls
named Eduardo S. Daohog and Eutiquia Lamay, were taken from their
homes in Corella, Bohol, by the accused and his companion named
Vicente Bullecer, and delivered to the Japanese Officer, Dr. Takibayas
to satisfy his carnal appetite, but these two, the accused Susano Perez
and his companion Vicente Bullecer, before delivering them to said
Japanese Officer, satisfied first their lust; the accused Susano Perez
raping Eduarda S. Daohog and his companion, Vicente Bullecer, the
other girl Eutiquia Lamay. Eduarda S. Daohog, testifying, said: that
while on the way to Tagbilaran, the accused though force and
intimidation, raped her in an uninhabited house; that she resisted with
all her force against the desire of the accused, but of no avail; that
CRIMINAL LAW FULL CASES
upon arriving in Tagbilaran, she was delivered to the Japanese Officer
named Takibayas who also raped her. Eutiquia Lamay testified that on
July 16, 1942, the accused and his companion, Bullecer, went to her
house to take her and her sister; that her sister was then out of the
house; that the accused threatened her with a revolved if she refuses
to go; that she was placed in a car where Eduarda Daohog was; that
while they were in the car, the accused carried Eduarda out of the car,
and their companion Bullecer took the other witness (Eutiquia Lamay);
that when the accused and Eduarda returned to the car, the latter;
Eduarda, covered her face, crying; that later, she and Eduarda were
taken to the Governor's house; that on arriving and in the presence of
the Puppet Governor Hontanosas, the Governor exclaimed: "I did not
call for these girls": but the accused replied saying: "These girls talked
bad against the Japanese , and that is why we arrested them"; that the
said Governor Hontañosas then, said: "Take them to the Japanese ";
that the accused and Bullecer brought the two girls to the Japanese
headquarters; that Eduarda was taken to one room by the Japanese
Captain called Dr. Takibayas, and she (Eutiquia Lamay) was taken to
another room by another Japanese living in that house; that she was
raped by that Jap while in the room; that she resisted all she could, but
of no avail.
In the light of the testimonies of these two witnesses, Eduarda S.
Daohog and Eutiquia Lamay, all the allegations in Court No. 4 were fully
proven beyond reasonable doubt.
"As regards count No. 5 —
Count No. 5 alleges: That on or about June 4, 1942, the said accused
commandeered Feliciana Bonalos and her sister Flaviana Bonalos on
the pretext that they were to bee taken as witnesses before a Japanese
Colonel in the investigation of a case against a certain Chinese (Insik
Eping), and uponarriving at Tagbilaran, Bohol, the accused brought the
aforesaid two girls to the residence of Colonel Mini, Commander of the
Japanese Armed Forces in Bohol and by means of violence threat and
intimidation, said Japanese Colonel abused and had sexual intercourse
with Flaviana Bonalos; that the accused subsequently of Colonel Mini
and through violence, threat and intimidation, succeeded in having
carnal knowledge with her against her will; that two days, later, upon
the pretext of conducting the unfortunate girls to their home, said
accused brought the other girls Feliciana Bonalos to a secluded place in
Tagbilaran, Bohol, and in the darkness, by mean of threat and violence
had carnal knowledge with her against her will.
Feliciana Bonalos testifying in this count, declared that the accused
came to get her on the pretext that she was to be used as witness in a
case affecting certain Chinaman before Colonel Mini; that she and her
younger sister Flaviana were brought in a car driven by the accused;
they were brought to the house of Colonel Mini; that sister Flaviana
was conducted into a room and after remaining in the same for about
an hour, she came out with her hair and her dress in disorder; that
Flaviana told her immediately that she was raped against her will by
Colonel Mini; that she (Feliciana), after leaving the residence of said Jap
officer, was taken by Perez to an uninhabited house and there by
threat and intimidation, the accused succeeded in raping her; that
when she returned to her (the witness), Flaviana was crying; that the
following day while conducting the two girls back to their hometown,
she (Feliciana) was also raped by the accused in an uninhabited house,
against her will.
Victoriana Arayan (mother of Feliciana and Flaviana Bonalos) testified
as following: That on June 15, 1942, the accused came and told her
that the Japanese needed her daughters to be witnesses; that
accordingly, he daughters, under that understanding, started for
Tagbilaran; that later, she went to Tagbilaran to look for her daughters
and she found them in the office of the Puppet Governor; that on
seeing her, both daughters wept and told her that they were turned
over to the Japanese and raped them; that her daughter Flaviana told
her (the witness) that after the Japanese had raped her the accused
also raped her (Flaviana) in an uninhabited house; that the accused did
not permit her two daughter to return home on the pretext that the
Puppet Governor was then absent and in the meanwhile they stayed in
the house of the accused Perez; that when her daughter returned to
her house ultimately, they related to her (mother) what happened;
that both daughters told her they would have preferred death rather
than to have gone to Tagbilaran; that Feliciana told her (the mother)
that the accused had raped her.
The information give by Feliciana to her mother is admitted in evidence
as a part of the res gestae regardless of the time that had elapsed
between the occurrence and the time of the information. In the
manner these two witnesses testified in court, there could be no doubt
that they were telling the absolute truth. It is hard to conceived that
these girls would assume and admit the ignominy they have gone
through if they were not true. The Court is fully convinced that all the
allegations contained in Court No. 5 have been proven by the
testimonies of these two witnesses beyond reasonable doubt.
"As regards count No. 6 —
Count No. 6, alleges: That the accused, together with his Filipino
companion apprehended Natividad Barcinas, Nicanora Ralameda and
Teotima Barcinas, nurses of the provincial hospital, for not having
attended a dance and reception organized by the Puppet Governor in
honor of Colonel Mini and other Japanese high ranking officers, which
was held in Tagbilaran market on June 25, 1942; that upon being
brought the Puppet Governor, they were severely reprimanded by the
latter; that on July 8, 1942, against said nurses were forced to attend
another banquet and dance in order that the Jap officers Mini and
Takibayas might make a selection which girls would suit best their
fancy; that the real purpose behind those forcible invitations was to
lure them to the residence of said Japanese Officer Mini for immoral
purposes.
Natividad Barcinas, a Lieutenant of the P.A., testified at length. She
declared: That on June 29, 1942, she and companion nurses, saw the
accused coming to the hospital with a revolver and took them on a car
to the office of the Puppet Governor where they were severely
reprimanded by the latter for not attending the dance held on June and
receptions was to select from among them the best girl that would suit
the fancy of Colonel Mini for immoral purposes that she and her
companions were always afraid of the accused Perez whenever he
came to said hospital; that on one occasion, one of the nurses on
perceiving the approach of the accused, ran up into her room, laid
down on bed and simulated to be sick; that said accused, not satisfied,
went up into the room of that particular nurse and pulled out the
blanket which covered her and telling her that it was only her pretext
that she was sick.
The testimony of Lt. Natividad Barcinas is fully corroborated by that of
Nicanora Ralameda. Said testimony need not be reproduced here.
In a carefully written brief for the appellant these findings are not
questioned, but it is contended that the deeds committed by the
accused do not constitute treason. The Solicitor General submits the
opposite view, and argues that "to maintain and preserve the morale
of the soldiers has always been, and will always be, a fundamental
concern of army authorities, for the efficiency of rests not only on its
physical attributes but also, mainly, on the morale of its soldiers" (citing
the annual report of the Chief of Staff, United State Army, for the fiscal
year ending June 30, 1933).
If furnishing women for immoral purposes to the enemies was treason
because women's company kept up their morale, so fraternizing with
them, entertaining them at parties, selling them food and drinks, and
kindred acts, would be treason. For any act of hospitality without
doubt produces the same general result. yet by common agreement
those and similar manifestation of sympathy and attachment are not
the kind of disloyalty that are punished as treason.
In a broad sense, the law of treason does not prescribe all kinds of
social, business and political intercourse between the belligerent
occupants of the invaded country and its inhabitants. In the nature of
things, the occupation of a country by the enemy is bound to create
relations of all sorts between the invaders and the natives. What aid
and comfort constitute treason must depend upon their nature degree
and purpose. To draw a line between treasonable and untreasonable
assistance is not always easy. The scope of adherence to the enemy is
comprehensive, its requirement indeterminate as was said
Cramer vs. United States. 89 Law. ed., 1441.
CRIMINAL LAW FULL CASES
As general rule, to be treasonous the extent of the aid and comfort
given to the enemies must be to render assistance to them as enemies
and not merely as individuals and in addition, be directly in furtherance
of the enemies' hostile designs. To make a simple distinction: To lend
or give money to an enemy as a friend or out of charity to the
beneficiary so that he may buy personal necessities is to assist him as
individual and is not technically traitorous. On the other hand, to lend
or give him money to enable him to buy arms or ammunition to use in
waging war against the giver's country enhance his strength and by
same count injures the interest of the government of the giver. That is
treason. (See United States vs. Fricke, 259 F., 673; 63 C.J., 816, 817.)
Applying these principles to the case at bar, appellant's first
assignment of error is correct. His "commandeering" of women to
satisfy the lust of Japanese officers or men or to enliven the
entertainment held in their honor was not treason even though the
women and the entertainment helped to make life more pleasant for
the enemies and boost their spirit; he was not guilty any more than the
women themselves would have been if they voluntarily and willingly
had surrendered their bodies or organized the entertainment. Sexual
and social relations with the Japanese did not directly and materially
tend to improve their war efforts or to weaken the power of the United
State. The acts herein charged were not, by fair implication, calculated
to strengthen the Japanese Empire or its army or to cripple the defense
and resistance of the other side. Whatever favorable effect the
defendant's collaboration with the Japanese might have in their
prosecution of the war was trivial, imperceptible, and unintentional.
Intent of disloyalty is a vital ingredient in the crime of treason, which,
in the absence of admission, may be gathered from the nature and
circumstances of each particular case.
But the accused may be punished for the rape of Eriberta Ramo,
Eduarda Daohog, Eutiquia Lamay and Flaviana Bonalos as principal by
direct participation. Without his cooperation in the manner above
stated, these rapes could not have been committed.
Conviction of the accused of rapes instead of treason finds express
sanction in section 2 of Commonwealth Act No. 682, which says:
Provided further, That where, in its opinion, the evidence is not
sufficient to support the offense (treason) charged, the People's Court
may, nevertheless, convict and sentence the accused for any crime
included in the acts alleged in the information and established by the
evidence.
All the above mentioned rapes are alleged in the information and
substantiated by the evidence.
Counsel assails the constitutionality of this of his provision as violative
of section 1, paragraph 17, Article III of the Constitution, which
guarantees to an accused the right "to be informed of the nature and
cause of the accusation against him." The contention is not well taken.
The provision in requires that the private crimes of which an accused of
treason may be convicted must be averred in the information and
sustained by evidence. In the light of this enactment, the defendant
was warned of the hazard that he might be founded guilty of rapes if
he was innocent of treason and thus afforded an opportunity to
prepare and meet them. There is no element of surprise or anomaly
involved. In facts under the general law of criminal procedure
convicted for crime different from that designated in the complaint or
information is allowed and practiced, provided only that such crime "is
included or described in the body of the information, and afterwards
justified by the proof presented during the trial." (Peoplevs. Perez, 45
Phil., 599.)
The defendant personally assaulted and abused two of the offended
girls but these assaults are not charged against him and should be
ruled out. The crime of coercion alleged and founded on count No. 6.
need not be noticed in view of the severity of the penalty for the other
crimes which he must suffer.
We find the defendant guilty of four separate crimes of rape and
sentence him for each of them to an indeterminate penalty of from 10
year of prision mayor to 17 year and 4 months of reclusion temporal,
with the accessories of law, to indemnify each of the offended women
in the sum of P3,000, and to pay the costs; it being understood that the
total duration of these penalties shall not exceed forty years.
Moran, C.J., Feria, Perfecto, Bengzon, Briones and Reyes, JJ., concur.
Paras, J., reserves his vote.
Montemayor, J., concurs in the result.
Separate Opinions
PABLO, M., disidente:
Disiento. En mi opinion, los hechos probados constituyen delito de
traicion.
El acusado de buena reeputacion en Bohol para ponerlas a disposicion
de los oficiales del ejercito enemigo, ha ayudado a ellos en la obra de
destruccion. En la guerra se emplea la destruccion para triunfur, y la
destruccion se realiza en las cosas y en las personas. Inutilizar para el
trabajo o para la guerra a los habitanesdel pais invandido es destruirles
en mayor o menor grado y violar o deshonrar a las mujereses tambien
destruirles material y moralmente y es peor aun que matar y aniquilar.
En el caso presente, el acusado ayudoal Coronel Mini y Dr. Takibayas
en deshonrar a varias senoritas,poniendolas en una situacion peor que
la de las esclavas. Si el reclutar a hombres o mujeres para ser obligados
a constuir trincheraspara el ejercito invasor constituye delito de
traicion; si el apoderarsedel arroz de los ciudadanos en sus casas para
darselo a los soldadoshambrientos del ejercito japones es traicion; por
que no ha de constituirtraicion el reclutar a senoritas para ser utilizadas
por los enemigosen sus desos bestiales, como un medio de
entretenimiento o alivio de sus trabajos? Flaviana y Feliciana Bonalos,
ilegalmente arrestadas y entregadas despues a los dos oficiales-bestias,
en su declaracion, han dicho que hubieran preferido morir que ser
violadas.
El argumento del Procurador General, que merece seria consideracion,
es del tenor siguiente:
In the United States Army, and we believe this is also true in the
Japanese Imperial Forces, a unit known as the United Services
Organization (U.S.O.)functions with the primordial aim and view to
keep at peak the morale of the soldiers. To achieve this, varied forms
of entertainment like movies, dancer, stage show and the like are
provided for at an enormous expense. In fine, the soldiers are
surrounded with all the comfort and opportunities that they ordinarily
enjoy in their civilian life. The reason for this is to tone their nerves and
minimized as much as possible, they heavy strain on them incident to
the nature of their mission in time of war. Such entertainment because
the more imperative when it comes to soldiers who are assigned
overseas, on a foreign soil, in a no man's land, devoid of the inspiring
association of their families, girl friends and those dearest to them.
. . . Clearly, therefore, appellant provident them with what should have
been the burden of the Japanese Imperial Forces, relieving the latter of
the trouble, expense, and difficulty of sending over to these Islands
Japanese women to entertain their soldiers to bolster up their morale.
In other words, the services of the Japanese women who were so
replaced by ours, through the efforts of the appellant could be diverted
to other important phases of military activities either in the homeland
or in this sector. Hence, the aid and comfort to the enemy is evident.
Si el Coronel Mini y Dr. Takibayas del ejercito japones no encontraban
otroconsuelo o solaz para olividar sus preocupaciones y ytritezas mas
que en saciar su lujuria, entonces el proporcionarles mujeres contra la
voluntad de estas es ayudssrles en recuperar entusiasmos perdidos e
infundirles nuevo vigor para proseguir la guerra de conquista. Bien
sabido esta que los soldados no son maquinas de acero que pueden
estar peleando todas las horasde todos los dias; necesitan tiempo de
descanso para recuperar fuerzas perdidas, de entretennimiento para
olvidar lugubres pensamientos y franco esparcimiento para vigorizar su
espiritu. Si para el Coronel Mini y Dr. Takibayas, el violar a las senoritas
reclutadas por el acusado era buenarecompensa de sus esfuerzos
militares, entonces para ellos vale la penade exponer la vida en la
luncha porque despues de todo quedan bien compensados. Que mayor
satisfaccion para ellos como la de disfrutar libremente de las senoritas
de la provincia con la ayuda del acusado? Poresa satisfaccion,
redoblarian sus enfuerzos de conquista para tener otras oportunidades
de saciar sus apetitos bestiales. Bajo tales inclinaciones morbosas,
CRIMINAL LAW FULL CASES
darles entretenimiento, solaz y esparcimiento es ayudarles en la
guerra.
No es exagerado suponer que dichos oficiales japoneses hayan dejado
en su pais hijos, esposas y madddres a quienes quieren de corazon, y
en sus momentosde soledad, de tristeza y de nostalgia no ess
imposible que se acuerden de ellos y lleguen a decir para si mismos:
"¿Que sacamos de esta guerra de invasion, dejando a nuestros hijos,
nuestros hijos, nuestras familias ynuestros hogares abandonados solo
para satisfacer las ambiciones de conquista del emperador? Cada vez
que nos damos cuenta de que no somos mas que unossimples
instrumentos para sacrificar tantas vidas y haciendas para la vanagloria
del japon, se nos rebela la conciencia. Creemos que la guerra es inicua,
injusta: debemos abandonarla. No debemos continuarr invadiendo
territorios." Si estos pensamientos persistiesen en la mennte de dichos
oficiales, indudablemente perderian su entusiasmo, su eficiencia en el
servicio: su obsesion les haria indiferentes, pasivos, inutiles para
laguerra. Pueden deponer su actitud, pueden cruzarse de brazos e
inclusive pueden desertar, y eso seria fatal para la nacion invasora.
Pero si, porinclinacion natural, encuentran entretenimiento,
esparcimiento y alegria en violar mujeres, entonces el
proporcionarseles es una ayuda efectiva. Esdarles calor, entusiasmo y
valor en la guerra de conquista.
¿Hay mayor traicion como el poner a disposicion de los enemigos al ser
mas querido, a la mujer? Que se apoderen de todas nuestros
production nuestros recursos: de todo cuanto encuentran a su paso;
pero, por Dios, salvemosel honor de nuestras mujeres.
Voto por que el acusado sea condenado por el delito de traicion.
G.R. No. 153675             April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION,
represented by the Philippine Department of Justice, Petitioner, 
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO
MUÑOZ, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of
the 1997 Rules of Civil Procedure, as amended, seeking to nullify the
two Orders of the Regional Trial Court (RTC), Branch 8, Manila
(presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil
Case No. 99-95773. These are: (1) the Order dated December 20, 2001
allowing Juan Antonio Muñoz, private respondent, to post bail; and (2)
the Order dated April 10, 2002 denying the motion to vacate the said
Order of December 20, 2001 filed by the Government of Hong Kong
Special Administrative Region, represented by the Philippine
Department of Justice (DOJ), petitioner. The petition alleges that both
Orders were issued by respondent judge with grave abuse of discretion
amounting to lack or excess of jurisdiction as there is no provision in
the Constitution granting bail to a potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then
British Crown Colony of Hong Kong signed an "Agreement for the
Surrender of Accused and Convicted Persons." It took effect on June
20, 1997.
On July 1, 1997, Hong Kong reverted back to the People’s Republic of
China and became the Hong Kong Special Administrative Region.
Private respondent Muñoz was charged before the Hong Kong Court
with three (3) counts of the offense of "accepting an advantage as
agent," in violation of Section 9 (1) (a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of
the offense of conspiracy to defraud, penalized by the common law of
Hong Kong. On August 23, 1997 and October 25, 1999, warrants of
arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong
Department of Justice a request for the provisional arrest of private
respondent. The DOJ then forwarded the request to the National
Bureau of Investigation (NBI) which, in turn, filed with the RTC of
Manila, Branch 19 an application for the provisional arrest of private
respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of
Arrest against private respondent. That same day, the NBI agents
arrested and detained him.
On October 14, 1999, private respondent filed with the Court of
Appeals a petition for certiorari, prohibition andmandamus with
application for preliminary mandatory injunction and/or writ of habeas
corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision
declaring the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for
review on certiorari, docketed as G.R. No. 140520, praying that the
Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the
petition of the DOJ and sustaining the validity of the Order of Arrest
against private respondent. The Decision became final and executory
on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong
Special Administrative Region filed with the RTC of Manila a petition for
the extradition of private respondent, docketed as Civil Case No. 99-
95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr.
For his part, private respondent filed, in the same case,-a petition for
bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an
Order denying the petition for bail, holding that there is no Philippine
law granting bail in extradition cases and that private respondent is a
high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further
hearing Civil Case No. 99-95733. It was then raffled off to Branch 8
presided by respondent judge.
On October 30, 2001, private respondent filed a motion for
reconsideration of the Order denying his application for bail. This was
granted by respondent judge in an Order dated December 20, 2001
allowing private respondent to post bail, thus:
In conclusion, this Court will not contribute to accused’s further
erosion of civil liberties. The petition for bail is granted subject to the
following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused
hereby undertakes that he will appear and answer the issues raised in
these proceedings and will at all times hold himself amenable to orders
and processes of this Court, will further appear for judgment. If
accused fails in this undertaking, the cash bond will be forfeited in
favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion
of filing its own motion for hold departure order before this Court even
in extradition proceeding; and
4. Accused is required to report to the government prosecutors
handling this case or if they so desire to the nearest office, at any time
and day of the week; and if they further desire, manifest before this
Court to require that all the assets of accused, real and personal, be
filed with this Court soonest, with the condition that if the accused
flees from his undertaking, said assets be forfeited in favor of the
CRIMINAL LAW FULL CASES
government and that the corresponding lien/annotation be noted
therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the
above Order, but it was denied by respondent judge in his Order dated
April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court
committed grave abuse of discretion amounting to lack or excess of
jurisdiction in admitting private respondent to bail; that there is
nothing in the Constitution or statutory law providing that a potential
extraditee has a right to bail, the right being limited solely to criminal
proceedings.
In his comment on the petition, private respondent maintained that
the right to bail guaranteed under the Bill of Rights extends to a
prospective extraditee; and that extradition is a harsh process resulting
in a prolonged deprivation of one’s liberty.
Section 13, Article III of the Constitution provides that the right to bail
shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction.
Nonetheless, this is not the first time that this Court has an occasion to
resolve the question of whether a prospective extraditee may be
granted bail.
In Government of United States of America v. Hon. Guillermo G.
Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B.
Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through
then Associate Justice Artemio V. Panganiban, later Chief Justice, held
that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the
constitutional provision on bail quoted above, as well as Section 4, Rule
114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does
not apply to extradition proceedings because extradition courts do not
render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption
of innocence in favor of every accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt" (De la Camara v.
Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando,J., later CJ). It
follows that the constitutional provision on bail will not apply to a case
like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is
suspended" does not detract from the rule that the constitutional right
to bail is available only in criminal proceedings. It must be noted that
the suspension of the privilege of the writ of habeas corpusfinds
application "only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion" (Sec. 18, Art. VIII,
Constitution). Hence, the second sentence in the constitutional
provision on bail merely emphasizes the right to bail in criminal
proceedings for the aforementioned offenses. It cannot be taken to
mean that the right is available even in extradition proceedings that
are not criminal in nature.
At first glance, the above ruling applies squarely to private
respondent’s case. However, this Court cannot ignore the following
trends in international law: (1) the growing importance of the
individual person in public international law who, in the 20th century,
has gradually attained global recognition; (2) the higher value now
being given to human rights in the international sphere; (3) the
corresponding duty of countries to observe these universal human
rights in fulfilling their treaty obligations; and (4) the duty of this Court
to balance the rights of the individual under our fundamental law, on
one hand, and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on
the worth of the individual person and the sanctity of human rights.
Slowly, the recognition that the individual person may properly be a
subject of international law is now taking root. The vulnerable doctrine
that the subjects of international law are limited only to states was
dramatically eroded towards the second half of the past century. For
one, the Nuremberg and Tokyo trials after World War II resulted in the
unprecedented spectacle of individual defendants for acts
characterized as violations of the laws of war, crimes against peace,
and crimes against humanity. Recently, under the Nuremberg principle,
Serbian leaders have been persecuted for war crimes and crimes
against humanity committed in the former Yugoslavia. These significant
events show that the individual person is now a valid subject of
international law.
On a more positive note, also after World War II, both international
organizations and states gave recognition and importance to human
rights. Thus, on December 10, 1948, the United Nations General
Assembly adopted the Universal Declaration of Human Rights in which
the right to life, liberty and all the other fundamental rights of every
person were proclaimed. While not a treaty, the principles contained
in the said Declaration are now recognized as customarily binding
upon the members of the international community. Thus, in Mejoff v.
Director of Prisons,2 this Court, in granting bail to a prospective
deportee, held that under the Constitution,3 the principles set forth in
that Declaration are part of the law of the land. In 1966, the UN
General Assembly also adopted the International Covenant on Civil and
Political Rights which the Philippines signed and ratified. Fundamental
among the rights enshrined therein are the rights of every person to
life, liberty, and due process.
The Philippines, along with the other members of the family of nations,
committed to uphold the fundamental human rights as well as value
the worth and dignity of every person. This commitment is enshrined in
Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full respect
for human rights." The Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to liberty and due
process, ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on the
legality of the detention and order their release if justified. In other
words, the Philippine authorities are under obligation to make
available to every person under detention such remedies which
safeguard their fundamental right to liberty. These remedies include
the right to be admitted to bail. While this Court in Purganan limited
the exercise of the right to bail to criminal proceedings, however, in
light of the various international treaties giving recognition and
protection to human rights, particularly the right to life and liberty, a
reexamination of this Court’s ruling in Purganan is in order.
First, we note that the exercise of the State’s power to deprive an
individual of his liberty is not necessarily limited to criminal
proceedings. Respondents in administrative proceedings, such as
deportation and quarantine,4 have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes
to our jurisprudential history. Philippine jurisprudence has not limited
the exercise of the right to bail to criminal proceedings only. This Court
has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to
persons in detention during the pendency of administrative
proceedings, taking into cognizance the obligation of the Philippines
under international conventions to uphold human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese
facing deportation for failure to secure the necessary certificate of
registration was granted bail pending his appeal. After noting that the
prospective deportee had committed no crime, the Court opined that
"To refuse him bail is to treat him as a person who has committed the
most serious crime known to law;" and that while deportation is not a
CRIMINAL LAW FULL CASES
criminal proceeding, some of the machinery used "is the machinery of
criminal law." Thus, the provisions relating to bail was applied to
deportation proceedings.
In Mejoff v. Director of Prisons 6 and Chirskoff v. Commission of
Immigration,7 this Court ruled that foreign nationals against whom no
formal criminal charges have been filed may be released on bail
pending the finality of an order of deportation. As previously stated,
the Court in Mejoff relied upon the Universal declaration of Human
Rights in sustaining the detainee’s right to bail.
If bail can be granted in deportation cases, we see no justification why
it should not also be allowed in extradition cases. Likewise, considering
that the Universal Declaration of Human Rights applies to deportation
cases, there is no reason why it cannot be invoked in extradition cases.
After all, both are administrative proceedings where the innocence or
guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this
jurisdiction must be viewed in the light of the various treaty obligations
of the Philippines concerning respect for the promotion and protection
of human rights. Under these treaties, the presumption lies in favor of
human liberty. Thus, the Philippines should see to it that the right to
liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine
Extradition Law) defines "extradition" as "the removal of an accused
from the Philippines with the object of placing him at the disposal of
foreign authorities to enable the requesting state or government to
hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or
criminal law of the requesting state or government."
Extradition has thus been characterized as the right of a foreign power,
created by treaty, to demand the surrender of one accused or
convicted of a crime within its territorial jurisdiction, and the
correlative duty of the other state to surrender him to the demanding
state.8 It is not a criminal proceeding.9 Even if the potential extraditee
is a criminal, an extradition proceeding is not by its nature criminal, for
it is not punishment for a crime, even though such punishment may
follow extradition.10 It is sui generis, tracing its existence wholly to
treaty obligations between different nations.11 It is not a trial to
determine the guilt or innocence of the potential extraditee. 12 Nor is it
a full-blown civil action, but one that is merely administrative in
character.13 Its object is to prevent the escape of a person accused or
convicted of a crime and to secure his return to the state from which
he fled, for the purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is characterized by
the following: (a) it entails a deprivation of liberty on the part of the
potential extraditee and (b) the means employed to attain the
purpose of extradition is also "the machinery of criminal law." This is
shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law)
which mandates the "immediate arrest and temporary detention of
the accused" if such "will best serve the interest of justice." We further
note that Section 20 allows the requesting state "in case of urgency" to
ask for the "provisional arrest of the accused, pending receipt of the
request for extradition;" and that release from provisional arrest "shall
not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative,
bears all earmarks of a criminal process. A potential extraditee may be
subjected to arrest, to a prolonged restraint of liberty, and forced to
transfer to the demanding state following the
proceedings. "Temporary detention" may be a necessary step in the
process of extradition, but the length of time of the detention should
be reasonable.
Records show that private respondent was arrested on September 23,
1999, and remained incarcerated until December 20, 2001, when the
trial court ordered his admission to bail. In other words, he had been
detained for over two (2) years without having been convicted of any
crime. By any standard, such an extended period of detention is a
serious deprivation of his fundamental right to liberty. In fact, it was
this prolonged deprivation of liberty which prompted the extradition
court to grant him bail.
While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from
filing a motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the
same as that in criminal proceedings. In the latter, the standard of due
process is premised on the presumption of innocence of the accused.
As Purganancorrectly points out, it is from this major premise that the
ancillary presumption in favor of admitting to bail arises. Bearing in
mind the purpose of extradition proceedings, the premise behind the
issuance of the arrest warrant and the "temporary detention" is the
possibility of flight of the potential extraditee. This is based on the
assumption that such extraditee is a fugitive from justice.15 Given the
foregoing, the prospective extraditee thus bears the onus probandi of
showing that he or she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the
Philippines honor its obligations under the Extradition Treaty it entered
into with the Hong Kong Special Administrative Region. Failure to
comply with these obligations is a setback in our foreign relations and
defeats the purpose of extradition. However, it does not necessarily
mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditee’s rights to life, liberty, and due process.
More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions, to which the
Philippines is a party. We should not, therefore, deprive an extraditee
of his right to apply for bail, provided that a certain standard for the
grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof
required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative
cases cannot likewise apply given the object of extradition law which is
to prevent the prospective extraditee from fleeing our jurisdiction. In
his Separate Opinion in Purganan, then Associate Justice, now Chief
Justice Reynato S. Puno, proposed that a new standard which he
termed "clear and convincing evidence" should be used in granting
bail in extradition cases. According to him, this standard should be
lower than proof beyond reasonable doubt but higher than
preponderance of evidence. The potential extraditee must prove by
"clear and convincing evidence" that he is not a flight risk and will
abide with all the orders and processes of the extradition court.
In this case, there is no showing that private respondent presented
evidence to show that he is not a flight risk. Consequently, this case
should be remanded to the trial court to determine whether private
respondent may be granted bail on the basis of "clear and convincing
evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the
trial court to determine whether private respondent is entitled to bail
on the basis of "clear and convincing evidence." If not, the trial court
should order the cancellation of his bail bond and his immediate
detention; and thereafter, conduct the extradition proceedings with
dispatch. SO ORDERED.
February 27, 1922
G.R. No. 17958
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers
like Captain Avery and Captain Kidd and Bartholomew Roberts gripped
the imagination, when grostesque brutes like Blackbeard flourished,
seem far away in the pages of history and romance. Nevertheless, the
CRIMINAL LAW FULL CASES
record before us tells a tale of twentieth century piracy in the south
seas, but stripped of all touches of chivalry or of generosity, so as to
present a horrible case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession,
for Peta, another Dutch possession. In one of the boats was one
individual, a Dutch subject, and in the other boat eleven men, women,
and children, likewise subjects of Holland. After a number of days of
navigation, at about 7 o'clock in the evening, the second boat arrived
between the Islands of Buang and Bukid in the Dutch East Indies. There
the boat was surrounded by six vintas manned by twenty-four Moros
all armed. The Moros first asked for food, but once on the Dutch boat,
too for themselves all of the cargo, attacked some of the men, and
brutally violated two of the women by methods too horrible to the
described. All of the persons on the Dutch boat, with the exception of
the two young women, were again placed on it and holes were made in
it, the idea that it would submerge, although as a matter of fact, these
people, after eleven days of hardship and privation, were succored
violating them, the Moros finally arrived at Maruro, a Dutch
possession. Two of the Moro marauder were Lol-lo, who also raped
one of the women, and Saraw. At Maruro the two women were able to
escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-
Tawi, Sulu, Philippine Islands. There they were arrested and were
charged in the Court of First Instance of Sulu with the crime of piracy. A
demurrer was interposed by counsel de officio for the Moros, based on
the grounds that the offense charged was not within the jurisdiction of
the Court of First Instance, nor of any court of the Philippine Islands,
and that the facts did not constitute a public offense, under the laws in
force in the Philippine Islands. After the demurrer was overruled by the
trial judge, trial was had, and a judgment was rendered finding the two
defendants guilty and sentencing each of them to life imprisonment
(cadena perpetua), to return together with Kinawalang and Maulanis,
defendants in another case, to the offended parties, the thirty-nine
sacks of copras which had been robbed, or to indemnify them in the
amount of 924 rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the
attorney de officio. By a process of elimination, however, certain
questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of
piracy are present. Piracy is robbery or forcible depredation on the high
seas, without lawful authority and done animo furandi, and in the spirit
and intention of universal hostility.
It cannot be contended with any degree of force as was done in the
lover court and as is again done in this court, that the Court of First
Instance was without jurisdiction of the case. Pirates are in lawhostes
humani generis. Piracy is a crime not against any particular state but
against all mankind. It may be punished in the competent tribunal of
any country where the offender may be found or into which he may be
carried. The jurisdiction of piracy unlike all other crimes has no
territorial limits. As it is against all so may it be punished by all. Nor
does it matter that the crime was committed within the jurisdictional 3-
mile limit of a foreign state, "for those limits, though neutral to war,
are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for
decision for the first time is whether or not the provisions of the Penal
Code dealing with the crime of piracy are still in force. Article 153 to
156 of the Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the
subjects of another nation not at war with Spain, shall be punished
with a penalty ranging from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another
nation at war with Spain, it shall be punished with the penalty
of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first
paragraph of the next preceding article shall suffer the penalty
of cadena perpetua or death, and those who commit the crimes
referred to in the second paragraph of the same article, from cadena
temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing upon
the same.
2. Whenever the crime is accompanied by murder, homicide, or by any
of the physical injuries specified in articles four hundred and fourteen
and four hundred and fifteen and in paragraphs one and two of article
four hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against chastity
specified in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means
of saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all
others of this code, when Spain is mentioned it shall be understood as
including any part of the national territory.
ART. 156. For the purpose of applying the provisions of this code, every
person, who, according to the Constitution of the Monarchy, has the
status of a Spaniard shall be considered as such.
The general rules of public law recognized and acted on by the United
States relating to the effect of a transfer of territory from another State
to the United States are well-known. The political law of the former
sovereignty is necessarily changed. The municipal law in so far as it is
consistent with the Constitution, the laws of the United States, or the
characteristics and institutions of the government, remains in force. As
a corollary to the main rules, laws subsisting at the time of transfer,
designed to secure good order and peace in the community, which are
strictly of a municipal character, continue until by direct action of the
new government they are altered or repealed. (Chicago, Rock Islands,
etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the
Philippines by the Instructions of President McKinley of May 19, 1898,
to General Wesley Meritt, the Commanding General of the Army of
Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and supreme,
and immediately operate upon the political condition of the
inhabitants, the municipal laws of the conquered territory, such as
affect private rights of person and property, and provide for the
punishment of crime, are considered as continuing in force, so far as
they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and practice
they are not usually abrogated, but are allowed to remain in force, and
to be administered by the ordinary tribunals, substantially as they were
before the occupations. This enlightened practice is so far as possible,
to be adhered to on the present occasion. (Official Gazette, Preliminary
Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of
August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code
dealing with piracy were meant to include the Philippine Islands. Article
156 of the Penal Code in relation to article 1 of the Constitution of the
Spanish Monarchy, would also make the provisions of the Code
applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same
thing as piracy by the civil law, and he has never been disputed. The
specific provisions of the Penal Code are similar in tenor to statutory
provisions elsewhere and to the concepts of the public law. This must
necessarily be so, considering that the Penal Code finds its inspiration
in this respect in the Novelas, the Partidas, and the Novisima
Recopilacion.
The Constitution of the United States declares that the Congress shall
have the power to define and punish piracies and felonies committed
CRIMINAL LAW FULL CASES
on the high seas, and offenses against the law of nations. (U.S. Const.
Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the
necessary ancillary legislation, provided that whoever, on the high
seas, commits the crime of piracy as defined by the law of nations, and
is afterwards brought into or found in the United States, shall be
imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death:
U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and the
members of Congress were content to let a definition of piracy rest on
its universal conception under the law of nations.
It is evident that the provisions of the Penal Code now in force in the
Philippines relating to piracy are not inconsistent with the
corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United
States. A logical construction of articles of the Penal Code, like the
articles dealing with the crime of piracy, would be that wherever
"Spain" is mentioned, it should be substituted by the words "United
States" and wherever "Spaniards" are mentioned, the word should be
substituted by the expression "citizens of the United States and citizens
of the Philippine Islands." somewhat similar reasoning led this court in
the case of United States vs. Smith ([1919], 39 Phil., 533) to give to the
word "authority" as found in the Penal Code a limited meaning, which
would no longer comprehend all religious, military, and civil officers,
but only public officers in the Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code
would read as follows:
The crime of piracy committed against citizens of the United States and
citizens of the Philippine Islands, or the subjects of another nation not
at war with the United States, shall be punished with a penalty ranging
from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another
nation at war with the United States, it shall be punished with the
penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of
piracy, notably articles 153 and 154, to be still in force in the
Philippines.
The crime falls under the first paragraph of article 153 of the Penal
Code in relation to article 154. There are present at least two of the
circumstances named in the last cited article as authorizing
eithercadena perpetua or death. The crime of piracy was accompanied
by (1) an offense against chastity and (2) the abandonment of persons
without apparent means of saving themselves. It is, therefore, only
necessary for us to determine as to whether the penalty of cadena
perpetua or death should be imposed. In this connection, the trial
court, finding present the one aggravating circumstance of nocturnity,
and compensating the same by the one mitigating circumstance of lack
of instruction provided by article 11, as amended, of the Penal Code,
sentenced the accused to life imprisonment. At least three aggravating
circumstances, that the wrong done in the commission of the crime
was deliberately augmented by causing other wrongs not necessary for
its commission, that advantage was taken of superior strength, and
that means were employed which added ignominy to the natural
effects of the act, must also be taken into consideration in fixing the
penalty. Considering, therefore, the number and importance of the
qualifying and aggravating circumstances here present, which cannot
be offset by the sole mitigating circumstance of lack of instruction, and
the horrible nature of the crime committed, it becomes our duty to
impose capital punishment.
The vote upon the sentence is unanimous with regard to the propriety
of the imposition of the death penalty upon the defendant and
appellant Lo-lo (the accused who raped on of the women), but is not
unanimous with regard to the court, Mr. Justice Romualdez, registers
his nonconformity. In accordance with provisions of Act No. 2726, it
results, therefore, that the judgment of the trial court as to the
defendant and appellant Saraw is affirmed, and is reversed as to the
defendant and appellant Lol-lo, who is found guilty of the crime of
piracy and is sentenced therefor to be hung until dead, at such time
and place as shall be fixed by the judge of first instance of the Twenty-
sixth Judicial District. The two appellants together with Kinawalang and
Maulanis, defendants in another case, shall indemnify jointly and
severally the offended parties in the equivalent of 924 rupees, and
shall pay a one-half part of the costs of both instances. So ordered.
G.R. No. L-60100 March 20, 1985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  aforementioned owners in the total amount of THREE MILLION SIX
vs.
JAIME RODRIGUEZ alias JIMMY alias WILFRED DE LARA y MEDRANO
and RICO LOPEZ, accused-appellants.
G.R. No. L-60768 March 20, 1985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  shot and, taking advantage of superior strength, use personal violence
vs.
DARIO DE REYES alias DARIO DECE RAYMUNDO y ELAUSA, accused-
appellant.
G.R. No. L-61069 March 20, l985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  Bandahala, Asola Mohammaddin, Batoto Sulpicio, Sakirani Bassal,
vs.
PETER PONCE y BULAYBULAY alias PETER POWE, accused-appellant.
 
PER CURIAM:
Appellants Jaime Rodriguez alias Jimmy alias Wilfred de Lara y
Medrano, Rico Lopez, Davao Reyes alias Dario Dece Raymundo y Elausa
and Peter Ponce y Bulaybulay alias Peter Power were charged of the
crime of piracy in an information filed before the then Court of First
Instance of Sulu and Tawi-Tawi, which reads:
That on or about 3:15 in the morning of August 31, 1981, at the vicinity
of Muligin Island and within the territorial waters of the Municipality of
Cagayan de Tawi-Tawi, Province of Tawi-Tawi, and within the
jurisdiction of this honorable Court, the above-named accused Wilfred
de Lara y Medrano, alias Jaime Rodriguez (Jimmy) Dario Dece
Raymundo y Elausa; Rico Lopez y Fernandez and Peter Ponce y
Bulaybulay alias Peter Power being crew members of the M/V Noria
767, a barter trade vessel of Philippine registry, conspiring and
confederating together and mutually helping one another and armed
with bladed weapons and high caliber firearms, to wit: three (3)
daggers, two (2) M-14, one (1) garand and one (1) Browning Automatic
Rifle, with intent of gain and by means of violence and intimidation
upon persons, did then and there willfully and unlawfuflly, and
feloniously take, steal and carry away against the consent of the
owners thereof, the equipments and other persona) properties
belonging to the crew members and passengers of the said M/V Noria
767, consisting of cash money amounting to Three Million Five
Hundred Seventeen Thousand Three Hundred Pesos (P3,517,300.00),
personal belongings of passengers and crew amounting to One
Hundred Thirty Thousand Pesos (P130,000.00), the vessel's compass,
navigational charts and instruments amounting to Forty Thousand
Pesos (P40,000.00) to the damage and prejudice of the
HUNDRED EIGHTY SEVEN THOUSAND THREE HUNDRED PESOS
(P3,687,300.00) Philippine Currency; that by reason of and on the
occasion of the said piracy and for the purpose of enabling the
abovenamed accused to take, steal and carry away the properties
abovementioned, the herein accused in pursuance to their conspiracy,
did then and there willfully, unlawfully and feloniously with intent to
kill and with evident premeditation, treacherously attack, assault, stab,
upon the persons of Abdusador Sumihag, Vicente America, Perhan Tan,
Marcos Que, Ismael Turabin, Mabar Abdurahman, Wadi Aduk Rasdi
Alfad, Kasmir Tan, Peter Paul Chiong, Juaini Husini Ismael Ombra,
Sabturani Ulag, Mutalib Sarahadil, Bajubar Adam, Quillermo Wee,
Reuben Segovia Ho, Michael Lao, Yusop Abubakar, Hahji Hussin
Kulavan, Amjad Quezon, Rebuan Majid Edgar Tan, Abdurasul Alialam
Federico Canizares, Omar Tahil Gilbert Que, Arajul Salialam, Masihul
Ibrahim Jamil, Saupi Malang and Gulam Sahiddan, thereby inflicting
upon them multiple gunshot wounds which caused their instantaneous
death and likewise causing physical injuries upon the persons of Inggal
CRIMINAL LAW FULL CASES
Issao Abduhasan Indasan Hadji Yusop H. Alfad and Hadji Mahalail Alfad,
thus performing all acts of execution which could have produced the
death of said persons, but nevertheless did not produce it by reason or
cause independent of the will of said accused, that is, by the timely and
able medical assistance rendered to said victims which prevented
death.
CONTRARY TO LAW, with the aggravating circumstances of treachery,
evident premeditation, night time and the use of superior strength.
(pp. 97-98, Rollo of L-61069)
Upon arraignment on February 25, 1982, Jaime Rodriguez and Rico
Lopez, assisted by their counsel, pleaded guilty to the charge, were
convicted on March 5, 1982 and sentenced each "to suffer the extreme
penalty of death."
Dario Dece Raymundo, upon arraignment, interposed a plea of not
guilty. However, he withdrew his plea and substituted it with that of
guilty. On March 10, 1982 he was convicted of the crime charged and
sentenced "to suffer the extreme penalty of death."
Peter Ponce y Bulaybulay entered the plea of not guilty.
After trial, he was found guilty and was also sentenced "to suffer the
extreme penalty of death."
No pronouncement was made with respect to the civil liabilities of the
four defendants because "there was a separate civil action for breach
of contract and damages filed with the same trial court in Civil Case No.
N-85 against the several defendants, including the four accused
aforementioned." (p. 26, L-61069)
The case of the four convicted defendants is now before Us on
automatic review.
Evidence shows that on August 29, 1981, at about 7:30 in the evening,
the vessel M/V Noria 767, owned and registered in the name of Hadji
Noria Indasan left Jolo wharf for Cagayan de Tawi-Tawi. It arrived at
the port of Cagayan de Tawi-Tawi the following day, August 30, 1981,
at around 2:00 in the afternoon. In the evening of the same date, the
vessel left for Labuan. On board the vessel were several traders and
crew members. Two or three hours after its departure, while sailing
about 25 miles from Cagayan de Tawi-Tawi, a commotion occurred in
one of the cabins of the vessel.
Three witnesses testified on what they saw and heard.
Mr. Clyde Que, a passenger, heard noises inside a cabin and, after
awhile, he heard shots being fired. He rushed to the motor launch to
hide and on his way through the engine room, he saw appellant Peter
Ponce. Then appellants Jaime Rodriguez, Dario Dece and Rico Lopez, all
armed with rifles, started firing towards Que's companions after which
they brought Que to the pilot's house to handle the steering wheel. He
was substituted by Usman, another passenger, while Que and the
other crew members were ordered to throw overboard sacks of copra
and the dead bodies of Peter Chiong, Michael Lao, Casmin Tan and
Vicente America. At the time, appellant Peter Ponce, armed with a M-
14 rifle, stood guard.
Hadji Mahalail Alfad, another passenger, heard commotions from the
motor launch, followed by gunfire. He hid by laying down among the
sacks of copra. He saw appellants Peter Ponce, Jaime Rodriguez, Rico
Lopez and Dario Dece coming down the stairs as they were firing shots
until Fred Canizares and Guilbert Que were hit, their bodies falling
upon him. When he tried to move, he realized that he was also hit on
the right side of his stomach. Thereafter, he pretended to be dead till
daytime.
Emil Macasaet, Jr., the skipper of the vessel heard the commotion from
one of the cabins. He ordered his men to open the door but it could
not be opened. After awhile, the door opened and he saw a gun
pointed at them. Whereupon, he hid behind the bags of copra until
appellant Jaime Rodriguez came and fired at him. Luckily, he was not
hit. He and some of his men crawled and they took cover in the bodega
of copra. While in hiding there were gunfires coming from Dario Dece
and Peter Ponce. About four (4) hours later, his Chief Mate Usman
persuaded him to come out otherwise something worse would
happen. He saw Jaime Rodriguez who ordered him to direct his men to
throw the copras as well as the dead bodies overboard.
About ten o'clock in the morning of the same day, the vessel reached
an island where the four appellants were able to secure pumpboats.
Macasaet was ordered to load in one of the pumpboats nine (9)
attache cases which were full of money. Rico Lopez and Jaime
Rodriguez boarded one pumpboat, while Peter Ponce and Dario Dece
boarded another, bringing with them: dressed chicken, softdrinks,
durian, boxes of ammunitions, gallons of water and some meat, as well
as rifles.
Municipal Health Officer Leopoldo Lao went aboard the vessel M/V
Noria when it arrived at Cagayan de Tawi-Tawi on September 2, 1981
and saw at the wharf ten dead bodies, all victims of the sea-jacking,
namely: Gulam Sahiddan, Arajul Naran Salialam, Mallang Saupi,
Guilbert Que, Frederico Canizares, Masihul Bandahala, Ribowan Majid
Edgar Tan, Omar Sabdani Tahir and Abdurasul Salialam.
In their brief, appellants Jaime Rodriguez, Rico Lopez and Dario Dece
claim that the trial court erred (1) in imposing the death penalty to the
accused-appellants Jaime Rodriguez alias Wilfred de Lara, Rico Lopez y
Fernandez and Davao de Reyes, alias Dario Dece Raymundo y Elausa
despite their plea of guilty; (2) in giving weight to the alleged sworn
statements of Peter Ponce y Bulaybulay, Identified as Exhibits "C" to
"C-10" and Exhibits "I to I-5", as evidence against Peter Ponce y
Bulaybulay; (3) in holding that accused-appellant Peter Ponce y
Bulaybulay is guilty of the crime of piracy; (4) in holding that the
defense of Peter Ponce y Bulaybulay was merely a denial; and, (5) in
holding that Peter Ponce y Bulaybulay entrusted the P1,700.00 which
was his personal money to Atty. Efren Capulong of the National Bureau
of Investigation.
There is no merit in this appeal of the three named defendants,
namely: Jaime Rodriguez and Rico Lopez in G.R. No. L-60100, and Dario
Dece in G.R. No. L-60768.
Anent the first assigned error, suffice it to say that Presidential Decree
No. 532, otherwise known as the Anti-Piracy Law, amending Article 134
of the Revised Penal Code and which took effect on August 8, 1974,
provides:
SEC. 3. Penalties.—Any person who commits piracy or highway
robbery/brigandage as herein defined, shall, upon conviction by
competent court be punished by:
a) Piracy.—The penalty of reclusion temporal in its medium and
maximum periods shall be imposed. If physical injuries or other crimes
are committed as a result or on the occasion thereof, the penalty of
reclusion perpetua shall be imposed. If rape, murder or no homocide is
committed as a result or on the occasion of piracy, or when the
offenders abandoned the victims without means of saving themselves,
or when the seizure is accomplished by firing upon or boarding a
vessel, the mandatory penalty of death shall be imposed. (Emphasis
supplied)
Clearly, the penalty imposable upon persons found guilty of the crime
of piracy where rape, murder or homicide is committed is mandatory
death penalty. Thus, the lower court committed no error in not
considering the plea of the three (3) defendants as a mitigating
circumstance. Article 63 of the Revised Penal Code states that:
b) ART. 63. Rules for the application of indivisible penalties.—In all
cases in which the law prescribes a single indivisible penalty, it shag be
applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed.
With respect to the other assigned errors, We also find them to be
devoid of merit. Appellants Peter Ponce gave a statement (Exhibits "C"
to "C-11") to the Malaysian authorities and another statement (Exhibits
"I" to "I-15") before the National Bureau of Investigation of Manila.
When said statement (Exhibits "C" to "C-11") was offered in evidence
by the prosecution, the same was not objected to by the defense, aside
CRIMINAL LAW FULL CASES
from the fact that Peter Ponce, on cross examination, admitted the
truthfulness of said declarations, thus:
Q And the investigation was reduced into writing is that correct?
A Yes. sir.
Q And you were investigated by the police authority of Kudat and Kota
Kinabalo, is that right?
A Yes, sir. Only in Kudat.
Q And that statement you gave to the authority at Kudat, you have
signed that statement, is that correct?
A Yes, sir.
Q And what you stated is all the truth before the authority in Kudat?
A Yes, sir. (pp. 33-34, tsn, May 28, 1982)
Relative to the appeal of appellant Peter Ponce (G.R. No. L-61069),
which We likewise declare to be without merit, evidence shows that
his participation in the commission of the offense was positively
testified to by the master of the vessel, Emil Macasaet, Jr., and a
passenger, Hadji Mahalail Alfad. Another witness, passenger Clyde Que
also pointed to have seen him (Peter Ponce) armed with an M-14 rifle.
Considering the testimonies of Clyde Que and Emil Macasaet, Jr. who
actually saw appellant Peter Ponce firing his weapon indiscriminately at
the passengers and crew members in wanton disregard of human lives
and the fact that after the looting and killing, appellant Peter Ponce,
still armed, joined Dario Dece in one pumpboat, there can be no
question that he was in conspiracy with the three other defendants.
After his arrest, Ponce gave a statement to the authorities stating
therein his participation as well as those of his companions (Exhibits "I"
to "I-1").
The four (4) appellants were arrested and detained by the Malaysian
authorities. On January 8, 1982, the National Bureau of Investigation
authorities fetched and brought them to Manila where they executed
their respective statements after Rico Lopez and Peter Ponce delivered
to the NBI, P3,700.00 and P1,700.00, respectively, aside from the
P527,595.00 and one Rolex watch which the Malaysian authorities also
turned over to the Acting In-Charge of the NBI in Jolo.
The statement of Ponce (Exhibit " I ") contains the questions and
answers pertinent to Section 20 of the 1973 Constitution, to wit:
l. QUESTION: Mr. Peter Ponce, we are informing you that you are
under investigation here in connection with the robbery committed on
the M/V Noria last August 31, 1981, where you are an Assistant
Engineer. You have a right to remain silent and to refuse to answer any
of our questions here. You have the right to be represented by counsel
of your choice in this investigation. Should you decide to be
represented by a lawyer but cannot afford one we will provide a lawyer
for you free. Should you decide to give a sworn statement, the same
shall be voluntary and free from force or intimidation or promise of
reward or leniency and anything that you saw here maybe used for or
against you in any court in the Philippines. Now do you understand an
these rights of yours?
ANSWER: Yes, sir.
2. Q: Do you need the services of a lawyer?
A: No, sir.
3. Q: Are you willing to affix your signature hereinbelow to signify that
you so understand all your rights as above stated and that you do not
need the services of a lawyer?
A: Yes, sir. (p. 11 6, Rollo)
Thus, it is clear that Peter Ponce was fully advised of his constitutional
right to remain silent and his right to counsel.
Considering the written statements of all the appellants, (Exhibits "E",
"F", "G", "H", "J" and "K"), interlocking as they are with each other as
each admits his participation and those of the other co-accused, there
is no room for doubt that conspiracy existed among them. The conduct
of appellant
Peter Ponce before, during and after the commission of the crime is a
circumstance showing the presence of conspiracy in the commission of
the crime. As a consequence, every one is responsible for the crime
committed.
WHEREFORE, the decision appealed from is hereby AFFIRMED.
SO ORDERED.
Makasiar, Aquino, Concepcion, Jr., Abad Santos, Melencio- Herrera,
Plana, Escolin Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay
JJ., concur.
Fernando, C.J., took no part,
 
Separate Opinions
 
TEEHANKEE, J., concurring:
I concur with the judgment of conviction, there being sufficient direct
evidence and positive Identification by eyewitnesses.
I take exception, however, to the statement therein that accused Peter
Ponce "was fully advised of his constitutional right to remain silent and
his right to counsel." The monosyllabic answers of "Yes" and "No" have
been stricken down by the Court as utterly unacceptable as a voluntary
and intelligent waiver of the constitutional right to silence and to
counsel in People vs. Caguioa (95 SCRA 2). in line with my separate
concurring and dissenting opinion in the recent case of People vs.
Itlanas (G.R. No. 60118, prom. February 28, 1985). As therein stated, I
subscribe to the Court's requirement in Morales, Jr. vs. Ponce
Enrile (121 SCRA 538) that "the right to counsel may be waived but the
waiver shall not be valid unless made with the assistance of counsel" in
order to assure that it is knowingly, voluntarily and intelligently given.
 Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment of conviction, there being sufficient direct
evidence and positive Identification by eyewitnesses.
I take exception, however, to the statement therein that accused Peter
Ponce "was fully advised of his constitutional right to remain silent and
his right to counsel." The monosyllabic answers of "Yes" and "No" have
been stricken down by the Court as utterly unacceptable as a voluntary
and intelligent waiver of the constitutional right to silence and to
counsel in People vs. Caguioa (95 SCRA 2). in line with my separate
concurring and dissenting opinion in the recent case of People vs.
Itlanas (G.R. No. 60118, prom. February 28, 1985). As therein stated, I
subscribe to the Court's requirement in Morales, Jr. vs. Ponce
Enrile (121 SCRA 538) that "the right to counsel may be waived but the
waiver shall not be valid unless made with the assistance of counsel" in
order to assure that it is knowingly, voluntarily and intelligently given.
G.R. No. L-37007               July 20, 1987
CRIMINAL LAW FULL CASES
RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of
Pangasinan, and ARMANDO VALDEZ,petitioners,  and pleaded not guilty.
vs.
ANGELITO C. SALANGA, in his capacity as Judge of the Court of First
Instance of Pangasinan (Branch IV), and JUAN TUVERA,
SR., respondents.
GANCAYCO, J.:
This is a petition for review on certiorari of an order of the Court of
First Instance of Pangasinan, Third Judicial District, in Criminal Case No.
D-529 entitled "The People of the Philippines versus Juan Tuvera, Sr., et
al.," granting the motion to quash the information filed by accused
Juan Tuvera, Sr., herein respondent. The issue is whether a barrio
captain can be charged of arbitrary detention.
The facts are as follows:
On October 12, 1972, an information for Arbitrary Detention was filed
against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat, in the
Court of First Instance of Pangasinan, which reads as follows:
The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr.,
Tomas Mendoza and Rodolfo Mangsat alias Rudy, all of Manaoag,
Pangasinan, of the crime of ARBITRARY DETENTION, committed as
follows:
That on or about the 21st day of April 1973, at around 10:00 o'clock in
the evening, in barrio Baguinay, Manaoag, Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, accused Juan Tuvera,
Sr., a barrio captain, with the aid of some other private persons,
namely Juan Tuvera, Jr., Bertillo Bataoil and one Dianong, maltreated
one Armando Valdez by hitting with butts of their guns and fists blows
and immediately thereafter, without legal grounds, with deliberate
intent to deprive said Armando Valdez of his constitutional liberty,
accused Barrio captain Juan Tuvera, Sr., Cpl. Tomas Mendoza and Pat.
Rodolfo Mangsat, members of the police force of Mangsat, Pangasinan
conspiring, confederating and helping one another, did, then and there,
willfully, unlawfully and feloniously, lodge and lock said Armando
Valdez inside the municipal jail of Manaoag, Pangasinan for about
eleven (11) hours.(Emphasis supplied.)
CONTRARY TO ARTICLE 124 of the R.P.C.
Dagupan City, October 12, 1972.
(SGD.) VICENTE C. CALDONA
Assistant Provincial Fiscal
All the accused, including respondent Juan Tuvera, Sr., were arraigned
On April 4, 1973, Tuvera filed a motion to quash the information on the
ground that the facts charged do not constitute an offense and that the
proofs adduced at the investigation are not sufficient to support the
filing of the information. Petitioner Assistant Provincial Fiscal Ramon S.
Milo filed an opposition thereto.
Finding that respondent Juan Tuvera, Sr. was not a public officer who
can be charged with Arbitrary Detention, respondent Judge Angelito C.
Salanga granted the motion to quash in an order dated April 25, 1973.
Hence, this petition.
Arbitrary Detention is committed by a public officer who, without legal
grounds, detains a person.1 The elements of this crime are the
following:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds.2
The ground relied upon by private respondent Tuvera for his motion to
quash the information which was sustained by respondent Judge, is
that the facts charged do not constitute an offense,3 that is, that the
facts alleged in the information do not constitute the elements of
Arbitrary Detention.
The Information charges Tuvera, a barrio captain, to have conspired
with Cpl. Mendoza and Pat. Mangsat, who are members of the police
force of Manaoag, Pangasinan in detaining petitioner Valdez for about
eleven (11) hours in the municipal jail without legal ground. No doubt
the last two elements of the crime are present.
The only question is whether or not Tuvera, Sr., a barrio captain is a
public officer who can be liable for the crime of Arbitrary Detention.
The public officers liable for Arbitrary Detention must be vested with
authority to detain or order the detention of persons accused of a
crime. Such public officers are the policemen and other agents of the
law, the judges or mayors.4
Respondent Judge Salanga did not consider private respondent Tuvera
as such public officer when the former made this finding in the
questioned order:
Apparently, if Armando Valdez was ever jailed and detained more than
six (6) hours, Juan Tuvera, Sr., has nothing to do with the same because
he is not in any way connected with the Police Force of Manaoag,
Pangasinan. Granting that it was Tuvera, Sr., who ordered Valdez
arrested, it was not he who detained and jailed him because he has no
such authority vested in him as a mere Barrio Captain of Barrio
Baguinay, Manaoag, Pangasinan. 5
In line with the above finding of respondent Judge Salanga, private
respondent Tuvera asserts that the motion to quash was properly
sustained for the following reasons: (1) That he did not have the
authority to make arrest, nor jail and detain petitioner Valdez as a
mere barrio captain;6 (2) That he is neither a peace officer nor a
policeman,7(3) That he was not a public official;8 (4) That he had
nothing to do with the detention of petitioner Valdez;9 (5) That he is
not connected directly or indirectly in the administration of the
Manaoag Police Force;10 (6) That barrio captains on April 21, 1972 were
not yet considered as persons in authority and that it was only upon
the promulgation of Presidential Decree No. 299 that Barrio Captain
and Heads of Barangays were decreed among those who are persons in
authority;11 and that the proper charge was Illegal Detention and Not
Arbitrary Detention.12
We disagree.
Long before Presidential Decree 299 was signed into law, barrio
lieutenants (who were later named barrio captains and now barangay
captains) were recognized as persons in authority. In various cases, this
Court deemed them as persons in authority, and convicted them of
Arbitrary Detention.
In U.S. vs. Braganza,13 Martin Salibio, a barrio lieutenant, and Hilario
Braganza, a municipal councilor, arrested Father Feliciano Gomez while
he was in his church. They made him pass through the door of the
vestry and afterwards took him to the municipal building. There, they
told him that he was under arrest. The priest had not committed any
crime. The two public officials were convicted of Arbitrary Detention.14
In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with the
help of Filoteo Soliman, bound and tied his houseboy Sixto Gentugas
with a rope at around 6:00 p.m. and delivered him to the justice of the
peace. Sixto was detained during the whole night and until 9:00 a.m. of
the next day when he was ordered released by the justice of the peace
because he had not committed any crime, Gellada was convicted of
Arbitrary Detention.16
Under Republic Act No. 3590, otherwise known as The Revised Barrio
Charter, the powers and duties of a barrio captain include the
following: to look after the maintenance of public order in the barrio
and to assist the municipal mayor and the municipal councilor in
charge of the district in the performance of their duties in such
CRIMINAL LAW FULL CASES
barrio;17 to look after the general welfare of the barrio; 18 to enforce all
laws and ordinances which are operative within the barrio;19 and to
organize and lead an emergency group whenever the same may be
necessary for the maintenance of peace and order within the barrio. 20
In his treatise on Barrio Government Law and Administration, Professor
Jose M. Aruego has this to say about the above-mentioned powers and
duties of a Barrio Captain, to wit:
"Upon the barrio captain depends in the main the maintenance of
public order in the barrio. For public disorder therein, inevitably people
blame him.
"In the event that there be a disturbing act to said public order or a
threat to disturb public order, what can the barrio captain do?
Understandably, he first resorts to peaceful measures. He may take
preventive measures like placing the offenders under surveillance and
persuading them, where possible, to behave well, but when necessary,
he may subject them to the full force of law.
"He is a peace officer in the barrio considered under the law as a
person in authority. As such, he may make arrest and detain persons
within legal limits.21 (Emphasis supplied.)
One need not be a police officer to be chargeable with Arbitrary
Detention. It is accepted that other public officers like judges and
mayors, who act with abuse of their functions, may be guilty of this
crime.22 A perusal of the powers and function vested in mayors would
show that they are similar to those of a barrio captain23 except that in
the case of the latter, his territorial jurisdiction is smaller. Having the
same duty of maintaining peace and order, both must be and are given
the authority to detain or order detention. Noteworthy is the fact that
even private respondent Tuvera himself admitted that with the aid of
his rural police, he as a barrio captain, could have led the arrest of
petitioner Valdez.24
From the foregoing, there is no doubt that a barrio captain, like private
respondent Tuvera, Sr., can be held liable for Arbitrary Detention.
Next, private respondent Tuvera, Sr. contends that the motion to
quash was validly granted as the facts and evidence on record show
that there was no crime of Arbitrary Detention;25 that he only sought
the aid and assistance of the Manaoag Police Force;26 and that he only
accompanied petitioner Valdez to town for the latter's personal
safety.27
Suffice it to say that the above allegations can only be raised as a
defense at the trial as they traverse what is alleged in the Information.
We have repeatedly held that Courts, in resolving a motion to quash,
cannot consider facts contrary to those alleged in the information or
which do not appear on the face of the information. This is because a
motion to quash is a hypothetical admission of the facts alleged in the
information.28 Matters of defense cannot be proved during the hearing
of such a motion, except where the Rules expressly permit, such as
extinction of criminal liability, prescription, and former jeopardy.29 In
the case of U.S. vs. Perez,30 this Court held that a motion to quash on
the ground that the facts charged do not constitute an offense cannot
allege new facts not only different but diametrically opposed to those
alleged in the complaint. This rule admits of only one exception and
that is when such facts are admitted by the prosecution.31lawphi1
Lastly, private respondent claims that by the lower court's granting of
the motion to quash jeopardy has already attached in his favor32 on the
ground that here, the case was dismissed or otherwise terminated
without his express consent.
Respondent's contention holds no water. An order granting a motion
to quash, unlike one of denial, is a final order. It is not merely
interlocutory and is therefore immediately appealable. The accused
cannot claim double jeopardy as the dismissal was secured not only
with his consent but at his instance.33
WHEREFORE, in view of the foregoing, the Petition for certiorari is
GRANTED. The questioned Order of April 25, 1973 in Criminal Case No.
D-529 is hereby set aside. Let this case be remanded to the appropriate
trial court for further proceedings. No pronouncement as to costs. SO
ORDERED.
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
CRIMINAL LAW FULL CASES
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]
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,
2001[21] which was denied by the Sandiganabayan in a Resolution dated
September 28, 2001.[22] A Second Motion for Reconsideration dated
October 24, 2001[23] 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
CRIMINAL LAW FULL CASES
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:
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, Before closing, it may not be amiss to quote the words of Justice
misapprehended or misinterpreted.[45] Nothing in the case at bar Perfecto in his concurring opinion in Lino v. Fugoso, wherein he decried
prompts us to deviate from this doctrine.  Indeed, the fact that SPO1 the impunity enjoyed by public officials in committing arbitrary or
Capoquian is not one of the private complainants is completely illegal detention, and called for the intensification of efforts towards
irrelevant.  Neither penal law nor the rules of evidence requires bringing them to justice:
damning testimony to be exclusively supplied by the private
complainants in cases of Arbitrary Detention.  Furthermore, Mayor
The provisions of law punishing arbitrary or illegal detention
Astorga’s claim that SPO1 Capoquian was “not exactly privy” to what
committed by government officers form part of our statute books even
transpired between Simon and himself is belied by the evidence.  SPO1
before the advent of American sovereignty in our country. Those
Capoquian testified that he accompanied Simon when the latter went
provisions were already in effect during the Spanish regime; they
to talk to petitioner.[46] He heard all of Mayor Astorga’s threatening
remained in effect under American rule; continued in effect under the
remarks.[47] He was with Simon when they were encircled by the men
Commonwealth. Even under the Japanese regime they were not
dressed in fatigues and wielding M-16 and M-14 rifles.[48] In sum, SPO1
repealed. The same provisions continue in the statute books of the free
Capoquian witnessed all the circumstances which led to the Arbitrary
and sovereign Republic of the Philippines. This notwithstanding, and
Detention of the team at the hands of Mayor Astorga.
the complaints often heard of violations of said provisions, it is very
seldom that prosecutions under them have been instituted due to the
Petitioner submits that it is unclear whether the team was in fact fact that the erring individuals happened to belong to the same
prevented from leaving Brgy. Lucob-Lucob or whether they had simply government to which the prosecuting officers belong. It is high time
decided to “while away the time” and take advantage of the purported that every one must do his duty, without fear or favor, and that
hospitality of the accused.[49] On the contrary, SPO3 Cinco clearly and prosecuting officers should not answer with cold shrugging of the
categorically denied that they were simply “whiling away the time” shoulders the complaints of the victims of arbitrary or illegal detention.
between their dinner with Mayor Astorga and their departure early the
following morning.[50] SPO1 Capoquian gave similar testimony, saying
Only by an earnest enforcement of the provisions of articles 124 and
that they did not use the time between their dinner with Mayor
125 of the Revised Penal Code will it be possible to reduce to its
Astorga and their departure early the following morning to “enjoy the
minimum such wanton trampling of personal freedom as depicted in
place” and that, given a choice, they would have gone home.[51]
this case. The responsible officials should be prosecuted, without
prejudice to the detainees’ right to the indemnity to which they may be
Petitioner argues that he was denied the “cold neutrality of an entitled for the unjustified violation of their fundamental rights.[53]
impartial judge”, because the ponente of the assailed decision acted
both as magistrate and advocate when he propounded “very extensive
WHEREFORE, in view of the foregoing, the petition is hereby
clarificatory questions” on the witnesses.  Surely, the Sandiganbayan,
DENIED.  The Decision of the Sandiganbayan in Criminal Case No.
as a trial court, is not an idle arbiter during a trial.  It can propound
24986, dated July 5, 2001 finding petitioner BENITO ASTORGA guilty
clarificatory questions to witnesses in order to ferret out the truth.  The
beyond reasonable doubt of the crime of Arbitrary Detention and
impartiality of the court cannot be assailed on the ground that
sentencing him to suffer the indeterminate penalty of four (4) months
clarificatory questions were asked during the trial.[52]
of arresto mayor, as minimum, to one (1) year and eight (8) months
of prision correccional, as maximum, is AFFIRMED in toto.
Thus, we affirm the judgment of the Sandiganbayan finding petitioner
guilty beyond reasonable doubt of Arbitrary Detention.  Article 124 (1)
Costs de oficio.
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 SO ORDERED.
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 September 6, 1910
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) G.R. No. 5649
months.  Hence, the Sandiganbayan was correct in imposing the THE UNITED STATES, plaintiff-appellee,
indeterminate penalty of four (4) months of arresto mayor, as vs.
minimum, to one (1) year and eight (8) months of prision ISAAC SAMONTE, defendant-appellant.
correccional, as maximum.
Godofredo Reyes, for appellant.
Attorney-General Villamor, for appellee.
CRIMINAL LAW FULL CASES
TRENT, J.:
The defendant, Isaac Samonte, was tried in the Court of First Instance
of the Province of Tayabas on a charge of criminal attempt against an
agent of the authorities, and sentenced to one year eight months and
twenty-one days of prision correctional, to pay a fine of P65, in case of
insolvency to suffer the corresponding subsidiary imprisonment, to the
accessory penalties provided in article 61 of the Penal Code, and to pay
the costs. He appealed to this court.
Counsel for appellant insists, first, that the prosecution has failed to
establish beyond a reasonable doubt that the policeman, Gregorio
Glindo, attempted to arrest the accused in Verdales Street, the place
where the trouble occurred; and, second that if said policeman did
attempt to arrest the defendant at this place he, not having a judicial
warrant, was not, under the circumstances, authorized to make the
arrest which he attempted to make.
About 8 o'clock on the night of September 6, 1908, the appellant, Isaac
Samonte, and Basilio Rabe were together in the house of one Demetrio
Pandeñio in the barrio of Macalalong, jurisdiction of Pitogo, Province of
Tayabas. They both left the house and met shortly afterwards in the
street (Verdades) in said barrio. On meeting there they became
engaged in a quarrel, the appellant knocking or pushing Rabe down,
then proceeded to maltreat him. At this moment Rabe called "police!
police!" Gregorio Glindo, a municipal policeman of Pitogo, being a
patrol duty that night in said barrio, hearing these words went to the
scene, arriving just as the offended party was getting up, and
attempted to arrest the appellant, saying to him: "In the name of the
United States, don't move." The appellant, on seeing the policeman
and hearing this command, said: Don't come near, because I will take
your life." The policeman continued toward the appellant and when
very near him the appellant struck at the policeman with a knife. On
account of this resistance the policeman could not arrest the appellant
at that time, so he went immediately to the house of the councilman of
that barrio, Demetrio Pandenio, and reported the matter. Pandenio
ordered him to arrest the appellant. He returned to obey this order,
being followed by Pandenio. They found the appellant in a place called
Mutingbayan. The policeman attempted to take hold of the appellant,
but he resisted, striking at the policeman again with his knife. The
councilman then ordered the appellant to submit himself, and on
receiving this order the appellant said: "I do not recognize anyone,"
and struck at the councilman with the knife.
The appellant was not arrested on that night on account of this
resistance. He did not lay hands on to touch with his knife either the
policeman or the councilman, but he did refuse to submit himself to
the authorities, and resisted arrest. The policeman did not see the
appellant knock the priest down, neither did he see him kick the said
priest, but we heard the cries of the priest calling for help, saying
"police! police!" and when he arrived on the scene the priest was
getting up and freeing himself from the appellant. When the policeman
heard these cries for help he was only a very short distance — some 6
or 8 brazas — away, and when arrived the trouble had not terminated,
although no active fighting took place after his arrival. Under these
facts and circumstances it was the duty if this police officer to stop this
disturbance by placing the defendant under arrest.
Any officer in charged with the preservation of the public peace may
arrest, without a warrant, any person who is committing, or has
committed, a breach of the peace in his presence. (3 Cyc., 881;
Carolina vs. McAfee, 10 L. R. A., 607; Commonwealth vs. Tobin, 11 Am.,
Rep., 375; People vs. Rounds, 35 N. W., 77; Douglas vs. Barber, 28 Atl.
Rep., 805.)
An offense is committed in the presence or within the view of an
officer, within the meaning of the rule authorizing an arrest without a
warrant, when the officer sees the offense, although at a distance, or
hears the disturbances created thereby and proceeds at once to the
scene thereof; of the offense is continuing, or has not been
consummated, at the time the arrest is made. (3 Cyc., 886; Ramseyvs.
State, 17 S. E., 613; Dilger vs. Com., 11 S. W., 651; State vs. McAfee, 12
S. E., 435; State vs. Williams, 15 S. E., 554; and Hawkins vs. Lutton, 70
N. W., 483.)
In the case at bar Gregorio Glindo, being a peace officer, not only had
authority to arrest the defendant at that time, but it was his duty to do
so, he having heard the priest call for help and having arrived on the
scene before the disturbance had finally ended.
Article 249 of the Penal Code provides that the following commit
criminal attempt:
xxx           xxx           xxx
2. Those who attack the authorities or their agents or employ force
against them, or gravely intimidate them, or offer an equally grave
resistance while they are discharging the functions of their office or on
the occasion thereof.
Article 250 of the same code fixes the penalty to be imposed for those
guilty of an attempt against the authorities or their agents, as provided
in the above article.
The accused in this case, after an attempt had been made to arrest him
by duly authorized police officer in the discharge of his duty a such,
offered grave resistance by refusing to submit himself to arrest and by
striking at the policeman with a knife, thereby attempting to a personal
injury. Although the policeman was not wounded or touched by the
accused, these facts do not receive him from criminal responsibility.
The penalty imposed by the court below being in accordance with the
law and the proofs presented, the same is hereby affirmed, with costs
against the appellant. So ordered.
G.R. No. L-2128             May 12, 1948
MELENCIO SAYO and JOAQUIN MOSTERO, petitioners, 
vs.
THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL
JAIL, BOTH OF CITY OF MANILA,respondents.
Enrique Q. Jabile for petitioners.
Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Nañawa
and D. Guinto Lazaro for respondents.
FERIA, J.:
Upon complaint of Bernardino Malinao, charging the petitioners with
having committed the crime of robbery, Benjamin Dumlao, a
policeman of the City of Manila, arrested the petitioners on April 2,
1948, and presented a complaint against them with the fiscal's office of
Manila. Until April 7, 1948, when the petition for habeas corpusfiled
with this Court was heard, the petitioners were still detained or under
arrest, and the city fiscal had not yet released or filed against them an
information with the proper courts justice.
This case has not been decided before this time because there was not
a sufficient number of Justices to form a quorum in Manila, And it had
to be transferred to the Supreme Court acting in division here in Baguio
for deliberation and decision. We have not until now an official
information as to the action taken by the office of the city fiscal on the
complaint filed by the Dumlao against the petitioners. But whatever
night have been the action taken by said office, if there was any, we
have to decide this case in order to lay down a ruling on the question
involved herein for the information and guidance in the future of the
officers concerned.
The principal question to be determined in the present case in order to
decide whether or not the petitioners are being illegally restrained of
their liberty, is the following: Is the city fiscal of manila a judicial
authority within the meaning of the provisions of article 125 of the
Revised Penal Code?
Article 125 of the Revised Penal Code provides that "the penalties
provided in the next proceeding article shall be imposed upon the
public officer or employee who shall detain any person for some legal
ground and shall fail to deliver such person to the proper judicial
authorities within the period of six hours."
CRIMINAL LAW FULL CASES
Taking into consideration the history of the provisions of the above
quoted article, the precept of our Constitution guaranteeing individual
liberty, and the provisions of Rules of Court regarding arrest
and habeas corpus, we are of the opinion that the words "judicial
authority", as used in said article, mean the courts of justices or judges
of said courts vested with judicial power to order the temporary
detention or confinement of a person charged with having committed
a public offense, that is, "the Supreme Court and such inferior courts as
may be established by law". (Section 1, Article VIII of the Constitution.)
Article 125 of the Revised Penal Code was substantially taken from
article 202 of the old Penal Code formerly in force of these Islands,
which penalized a public officer other than a judicial officer who,
without warrant, "shall arrest a person upon a charge of crime and
shall fail to deliver such person to the judicial authority within twenty
four hours after his arrest." There was no doubt that a judicial
authority therein referred to was the judge of a court of justice
empowered by law, after a proper investigation, to order the
temporary commitment or detention of the person arrested; and not
the city fiscals or any other officers, who are not authorized by law to
do so. Because article 204, which complements said section 202, of the
same Code provided that "the penalty of suspension in its minimum
and medium degrees shall be imposed upon the following persons: 1.
Any judicial officer who, within the period prescribed by the provisions
of the law of criminal procedure in force, shall fail to release any
prisoner under arrest or to commit such prisoner formally by written
order containing a statement of the grounds upon which the same is
based."
Although the above quoted provision of article 204 of the old Penal
Code has not been incorporated in the Revised Penal Code the import
of said words judicial authority or officer can not be construed as
having been modified by the mere omission of said provision in the
Revised Penal Code.
Besides, section 1 (3), Article III, of our Constitution provides that "the
right of the people to be secure in their persons...against unreasonable
seizure shall not be violated, and no warrant [of arrest, detention or
confinement] shall issue but upon probable cause, to be determined by
the judge after the examination under oath or affirmation of the
complaint and the witness he may produce." Under this constitutional
precept no person may be deprived of his liberty, except by warrant of
arrest or commitment issued upon probable cause by a judge after
examination of the complainant and his witness. And the judicial
authority to whom the person arrested by a public officers must be
surrendered can not be any other but court or judge who alone is
authorized to issue a warrant of commitment or provisional detention
of the person arrested pending the trial of the case against the latter.
Without such warrant of commitment, the detention of the person
arrested for than six hours would be illegal and in violation of our
Constitution.
Our conclusion is confirmed by section 17, Rule 109 of the Rules of empowered in such case to issue a warrant of arrest of the caused.
court, which, referring to the duty of an officer after arrest without (Section 3, Rule 108, in connection with section 6, Rule 108, and
warrant, provides that "a person making arrest for legal ground shall, section 2 of Rule 109.) The preliminary investigation which a city fiscal
without unnecessary delay, and within the time prescribed in the may conduct under section 2, Rule 108, is the investigation referred to
Revised Penal Code, take the person arrested to the in the proceeding paragraph.
proper court orjudge for such action for they may deem proper to
take;" and by section 11 of Rule 108, which reads that "after the arrest
Under the law, a complaint charging a person with the commission of
by the defendant and his delivery to the Court, he shall be informed of
an offense cognizable by the courts of Manila is not filed with
the complaint or information filed against him. He shall also informed
municipal court or the Court of First Instance of Manila, because as
of the substance of the testimony and evidence presented against him,
above stated, the latter do not make or conduct a preliminary
and, if he desires to testify or to present witnesses or evidence in his
investigation proper. The complaint must be made or filed with the city
favor, he may be allowed to do so. The testimony of the witnesses
fiscal of Manila who, personally or through one of his assistants, makes
need not be reduced to writing but that of the defendant shall be
the investigation, not for the purpose of ordering the arrest of the
taken in writing and subscribed by him.
accused, but of filing with the proper court the necessary information
against the accused if the result of the investigation so warrants, and
And it is further corroborated by the provisions of section 1 and 4, Rule obtaining from the court a warrant of arrest or commitment of the
102 of the Rules of Court. According to the provision of said section, "a accused.
writ of habeas corpus shall extend any person to all cases of illegal
confinement or detention by which any person is illegally deprived of
When a person is arrested without warrant in cases permitted bylaw,
his liberty"; and "if it appears that the person alleged to be restrained
the officer or person making the arrest should, as abovestated, without
of his liberty is in the custody of an officer under process issued by a
unnecessary delay take or surrender the person arrested, within the
court or judge, or by virtue of a judgement or order of a court of
period of time prescribed in the Revised Penal Code, to the court or
record, and that the court or judge had jurisdiction to issue the
judge having jurisdiction to try or make a preliminary investigation of
process, render judgment, or make the order, the writ shall not be
the offense (section 17, Rule 109); and the court or judge shall try and
allowed. "Which a contrario sensu means that, otherwise, the writ shall
decide the case if the court has original jurisdiction over the offense
be allowed and the person detained shall be released.
charged, or make the preliminary investigation if it is a justice of the
peace court having no original jurisdiction, and then transfer the case
The judicial authority mentioned in section 125 of the Revised Penal to the proper Court of First Instance in accordance with the provisions
Code can not be construed to include the fiscal of the City of Manila or of section 13, Rule 108.
any other city, because they cannot issue a warrant of arrest or of
commitment or temporary confinement of a person surrendered to
In the City of Manila, where complaints are not filed directly with the
legalize the detention of a person arrested without warrant. (Section 7,
municipal court or the Court of First Instance, the officer or person
Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs.
making the arrest without warrant shall surrender or take the person
Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214).
arrested to the city fiscal, and the latter shall make the investigation
The investigation which the city of fiscal of Manila makes is not the
above mentioned and file, if proper, the corresponding information
preliminary investigation proper provided for in section 11, Rule 108,
within the time prescribed by section 125 of the Revised Penal Code, so
above quoted, to which all person charged with offenses cognizable by
that the court may issue a warrant of commitment for the temporary
the Court of First Instance in provinces are entitled, but it is a mere
detention of the accused. And the city fiscal or his assistants shall make
investigation made by the city fiscal for the purpose of filing the
the investigation forthwith, unless it is materially impossible for them
corresponding information against the defendant with the proper
to do so, because the testimony of the person or officer making the
municipal court or Court of First Instance of Manila if the result of the
arrest without warrant is in such cases ready and available, and shall,
investigation so warrants, in order to obtain or secure from the court a
immediately after the investigation, either release the person arrested
warrant of arrest of the defendant. It is provided by a law as a
or file the corresponding information. If the city fiscal has any doubt as
substitute, in a certain sense, of the preliminary investigation proper to
to the probability of the defendant having committed the offense
avoid or prevent a hasty or malicious prosecution, since defendant
charged, or is not ready to file the information on the strength of the
charged with offenses triable by the courts in the City of Manila are not
testimony or evidence presented, he should release and not detain the
entitled to a proper preliminary investigation.
person arrested for a longer period than that prescribed in the Penal
Code, without prejudice to making or continuing the investigation and
The only executive officers authorized by law to make a proper filing afterwards the proper information against him with the court, in
preliminary investigation in case of temporary absence of both the order to obtain or secure a warrant of his arrest. Of course, for the
justice of the peace and the auxiliary justice of the peace from the purpose of determining the criminal liability of an officer detaining a
municipality, town or place, are the municipal mayors who are person for more than six hours prescribed by the Revised Penal Code,
CRIMINAL LAW FULL CASES
the means of communication as well as the hour of arrested and other
circumstances, such as the time of surrender and the material
possibility for the fiscal to make the investigation and file in time the
necessary information, must be taken into consideration.
To consider the city fiscal as the judicial authority referred to in article
125 of the Revised Penal Code, would be to authorize the detention of
a person arrested without warrant for a period longer than that
permitted by law without any process issued by a court of competent
jurisdiction. The city fiscal, may not, after due investigation, find
sufficient ground for filing an information or prosecuting the person
arrested and release him, after the latter had been illegally detained
for days or weeks without any process issued by a court or judge.
A peace officer has no power or authority to arrest a person without a
warrant upon complaint of the offended party or any other person,
except in those cases expressly authorized by law. What he or the
complainant may do in such case is to file a complaint with the city
fiscal of Manila, or directly with the justice of the peace courts in
municipalities and other political subdivisions. If the City Fiscal has no
authority, and he has not, to order the arrest even if he finds, after due
investigation, that there is a probability that a crime has been
committed and the accused is guilty thereof, a fortiori a police officer
has no authority to arrest and detain a person charged with an offense
upon complaint of the offended party or other persons even though,
after investigation, he becomes convinced that the accused is guilty of
the offense charged.
In view of all the foregoing, without making any pronouncement as to
the responsibility of the officers who intervened in the detention of the
petitioners, for the policeman Dumlao may have acted in good faith, in
the absence of a clear cut ruling on the matter in believing that he had
complied with the mandate of article 125 by delivering the petitioners
within six hours to the office of the city fiscal, and the latter might have
ignored the fact that the petitioners were being actually detained
when the said policeman filed a complaint against them with the city
fiscal, we hold that the petitioners are being illegally restrained of their
liberty, and their release is hereby ordered unless they are now
detained by virtue of a process issued by a competent court of justice.
So ordered.
Paras, Actg. C.J., Pablo, and Bengzon, JJ., concur.
Separate Opinions
PERFECTO, J.:, concurring:
Petitioners Melencio Sayo and Joaquin Mostero were apprehended at
11:30 in the morning of April 2, 1948, upon complaint of Bernardino
Malinao, for the crime of alleged robbery.
The fact is alleged expressly in respondent's answer supported by the
affidavit of Benjamin Dumlao (Exhibit 1), the patrolman who made the
arrest. Therein it is also alleged that petitioners were "finally" placed
under arrest at 4:30 p.m. and 5:00 p.m. respectively, on the same day,
April 2, l948.
The distinction between the two arrests, the apprehension made at
11:00 a.m. and the "final arrest at 4:30 and 5:00 p.m., is purely
academic or imaginary. There was but one arrest, effected at 11:00
a.m., April 2, 1948, and continued without interruption until the
petition had been filed with us April 5, 1948, at the hearing on the next
day. Until the moment we are writing this opinion we have not heard
that petitioners have been released at any time.
Respondents allege also that on April 3, 1948, at about 8:30 a.m., a
criminal complaint was filed with the fiscal's office of Manila, and that
by said filing their duty to deliver arrested persons, within six hours
from their arrest, to a proper judicial authority has been duly complied
with.
There is no dispute that no warrant of arrest has ever been issued for
the apprehension of petitioners.
Petitioners pray for their immediate release, alleging that, as the six-
hour period provided in article 125 of the Revised Penal Code had
expired, their continued detention is illegal.
Article 125 of the Revised Penal Code provides for the penalty
of arresto mayor or in its maximum period toreclusion temporal, or
from 4 months and 11 days to 20 years imprisonment, for the crime of
a public officer or employee who, after detaining a person, "shall fail to
deliver such person to the proper judicial authorities within the period
of six hours."
Both parties implying from the above provision that after six hours of
said failure, petitioners shall be entitled to be released, discussed the
question whether there is such failure or not.
Upon the very facts alleged by respondents and supported by
documentary evidence accompanying it, there should not be any
dispute that there is such failure.
(a) Respondents have not delivered the persons of petitioners to any
authority, and much less to any judicial authority.
(b) Their filing of a complaint with the office of the fiscal of Manila is
not a delivery of the persons of petitioners. Said persons are not a
complaint. A complaint, whether oral or written, can never be elevated
to the category of the person. No one is crazy enough to confuse or
identify a person with a complaint.
(c) Even in the false hypothesis that respondents, by filing the
complaint, intended to make a delivery of the persons of petitioners, if
not actually, constructively, the fiscal's office is not a judicial authority.
(d) Under our Constitution and laws, judicial authorities comprehend
only courts of justice, such as the Supreme Court and all other inferior
Court, and justices and judges. The authority possessed and exercised
by judicial authorities is judicial, and the Constitution(section 1, Article
VIII) vests the judicial power exclusively "in one Supreme Court and in
such inferior courts as may be established by law."
Respondents' pretension in making the fiscal of Manila a judicial
authority is absolutely groundless, upon the clear letter of the
fundamental law. Counsel for respondents himself had to admit that
said officer belongs to the administrative or executive department.
Under the tripartite system of the government established by the
Constitution, it is extreme absurdity to make an administrative or
executive officer, or any officer of the executive department or branch,
a judicial authority. Such will make of separation of powers a
madman's illusion.
That a fiscal is not a judicial authority has been unmistakably declared
in the decision in Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214. The
statement made therein that there was yet no purpose of deciding
whether a fiscal is a judicial authority or not, is just a rhetorical figure
that is a judicial authority or not, is just a rhetorical figure that should
not deceive any one. All those who can read, will that the decision has
made the declaration. It is there stated in plain language that the fiscal
is "unlike" a judicial authority.
"Unlike" means, as an elementary school student knows, not like,
dissimilar, diverse, different.
No warrant of arrest having been issued by any competent tribunal for
the apprehension of petitioners, said apprehension appears to be
illegal.
At any rate, even under the hypothesis that it was legal and continued
to be so for six hours, this time having expired seven days ago, the
continued detention and confinement of petitioners is clearly illegal,
and not only illegal but criminal, involving an offense committed by
public officers and heavily punished by the Revised Penal Code.
CRIMINAL LAW FULL CASES
Regarding the question as to legality of the arrest, counsel for
respondents has advanced the shocking theory that police officers may
arrest any person just for questioning or investigation, without any
warrant of arrest.
The theory is absolutely unconstitutional and could have been
entertained only under the "Kempei" system implanted by the brutal
Japanese army occupation. Such theory represents an ideology
incompatible with human dignity. Reason revolts against it.
Respondents are ordered, upon notice of the decision, to immediately
release the two petitioners and to report to this Court the time when
the release shall have been effected.
TUASON, J., dissenting:
I dissent on the grounds stated in my dissent in Lino vs. Fugoso et al.,
Off. Gaz., 1214.
RESOLUTION
August 27, 1948
FERIA, J.:
This is a motion for reconsideration of our decision which holds that
the phrase "judicial authority" used in the article 125 of the Revised
Penal Code, to whom a person arrested without warrant shall be
delivered by the officer making the arrest within the period of six hours
from the arrest, means a competent court or judge, and the City Fiscal
is not such a judicial authority.
We have already held, in the United States vs. Fortaleza, 12 Phil.,
472,477-479, that the provisions of the Provisional Law for the
application of the provisions of the Spanish Penal Code in the
Philippines by Royal Decree of September 4, 1884, are in force of this
Islands insofar as they have not been repealed or amended by
implication by the enactment of the body of laws put in force in these
Islands since the change from Spanish to American sovereignty.
According to the ruling of this court in said case, a person may be
arrested without warrant in the cases specified in Rules 27 and 28 of
said provisional law and section 37 of Act No. 183 (Charter of Manila).
The provisions of said Rules 27 and 28 are substantially the same of
those contained in section 6 Rule 109 of the Rules of Court which
superseded them; and the provisions of section 37 of Act No. 183
above reffered to have been incorporated in section 2463 of the
Revised Administrative Code. Both section 6 of Rule 109, and the
pertinent provisions of said section 2463 of the Revised Administrative
Code are now the laws in force on the subject.
Article 30 of said Provisional Law for the application of the Penal Law in
the Philippines also provides:
The executive authorities or the agents detaining a person shall release
the same or else turn him over to the judicial authorities within twenty
four hours after the arrest if made in the head town of the district, or
within as brief a period as the distance and transportation facilities
permit.
And the next article 31 of the same law reads as follows:
Within twenty four hours after the person arrested has been
surrendered to the competent judge of Court of First Instance, the
latter shall order the commitment or release of the prisoner by warrant
containing the grounds on which it is based (auto motivado).
If it is impossible to do so because of the complexity of the facts, the
number of defendants or any other serious cause, which must be made
of record, the time of detention may be extended to three days. Upon
the expiration of that period of time the judge shall order the
commitment or the release of the defendant. The warrant of
commitment shall be ratified after the defendant has been heard
within the period of sixty two hours from the time the defendant has
been committed to prison.
Said Rule 30 has been modified by section 17, Rule 109, which provides
that "Any person making arrest for legal ground shall, without
unnecessary delay and within the time prescribed in the Revised Peal
Code, take the person arrested to the proper court or judge for such
action as they may deem proper to take," and by article 125 of the
Revised Penal Code already quoted.
But the provisions of Rule 31 above quoted are still in force because
they may have not been repealed, either expressly or by implication, by
any law or the present Rules of Court, except the last sentence, thereof
which is no longer in force. The procedure of hearing the accused after
he has been committed to prison referred to in said last sentence, is a
sort preliminary investigation by the judge or justice of the peace
according to the present procedure. Persons arrested or accused in the
City of Manila are not entitled to such investigation. In provinces the
justice of the peace or judge shall, according to section 2 of Act No.
194, "make the preliminary investigation of the charge as speedily as
may be consistent with the right and justice, but in any event he must
make the investigation within three days of the time the accused was
brought before him, unless the accused or complainant shall ask for
delay in order that witnesses may be obtained, or for other good and
sufficient reason, in which event a continuance for a reasonable time
may be allowed." This provision of section 2 of Act No. 194 is still in
force, because no law has been enacted amending or repealing it.
(Marcos vs. Cruz [May 13, 1939] 1st Supp., 40 Off. Gaz., 174, 182.) The
Rules of Court on Criminal Procedure do not undertake to dispose of all
subjects of preliminary investigation, and repeal all laws on the subject
not incorporated therein; especially those that, like the said provisions
of section 2, Act No. 194, confer substantive rights upon defendants
which can not be diminished, increased or modified by the Rules of
Court (section 13, Article VIII, of the Constitution).
In view of the provisions of section 17, Rule 109, Rule 31 of the
Provisional Law, article 204 of the old Penal Code, from which article
125 of the Revised Penal Code was taken, and section 1 (3) Article III of
the Constitution, there can be no doubt that the judicial authority
within the meaning of article 125 of the Revised Penal Code must be a
judge who has authority to issue a written warrant of commitment or
release containing the ground on which it is based (auto motivado).
Because said section 17 of Rule 109 expressly provides that the officer
making the arrest without warrant shall, within the time prescribed in
the Revised Penal Code, take the person arrested to acourt or judge for
such action as the latter may deem proper to take; Rule 31 expressly
states that, within twenty four hours or at most three days after the
person arrested has been delivered to the judge of Court of First
Instance (and also the justice of the peace now), the latter shall order
the commitment or release of the prisoner by a warrant containing the
ground upon which the commitment or release is based (auto
motivado); article 204 of the Penal Code (not incorporated in the
Revised Penal Code), penalize the judicial authority or judge who fails
to comply with the provisions of said Rule 31; and section 1(3) Article III
of the Constitution provides that no warrant shall issue but upon
probable cause, to be determined by the judge after examination
under oath or affidavit of the complainant and witnesses he may
produce," in order to safeguard "the right of the people to be secured
in their person ... against unreasonable seizure" or detention for a
longer period than that fixed or considered by law as reasonable (six
hours according to section 125 of the Revised Penal Code).
It is obvious that the city fiscal is not a city judge, and has no power to
issue order or commitment or release by a written warrant containing
the ground on which it is based. As a matter of fact the city fiscal has
never exercised such power since that office was created. In justice to
the city fiscal, we have to state that the latter did not and does not
contend in his motion for reconsideration that it has the power to issue
such a warrant, as contended in the dissenting opinion.
CRIMINAL LAW FULL CASES
To consider a city fiscal as a judicial authority within the meaning of
article 125 of the Revised Penal Code, would be to place a person
arrested in provinces without warrant in a better position than those
arrested in the City of Manila. Because, as there is no law requiring the
city fiscal to act or file an information against such person within a
limited period of time, after the arresting officer has taken the prisoner
to the city fiscal within six hours, the prisoner may be held under
detention without any warrant for days and weeks and possibly
months until such time as the city fiscal may take action, either by
releasing the prisoner without filing any information, or filing an
information with the proper city court and obtain a warrant of
commitment. While a person arrested outside of the City of Manila has
to be delivered by the arresting person or peace officer to the
competent judge within six hours after his arrest, and the latter shall
have to investigate the charge and issue a warrant of release or
commitment of the prisoner within the period of twenty four hours or
at most three days prescribed in said article 31 of the Provisional Law.
It is obvious that the surrender or delivery to the judicial authority of a
person arrested without warrant by a peace officer, does not consist in
a physical delivery, but in making an accusation or charge or filing of an
information against the person arrested with the corresponding court
or judge, whereby the latter acquires jurisdiction to issue an order of
release or of commitment of the prisoner, because the arresting officer
can not transfer to the judge and the latter does not assume the
physical custody of the person arrested. And in the City of Manila it
does consist in delivering physically the body of the prisoner to the city
fiscal, for the latter will not assume the responsibility of being the
custodian of the prisoner; nor in making or lodging a complaint against
him with the said fiscal, because the latter has no power to order the
commitment or release of the prisoner by a warrant containing the
ground on which it is based (auto motivado). Such delivery is a legal
one and consists in making a charge or filing a complaint against the
prisoner with the proper justice of the peace or judge of Court of First
Instance in provinces, and in filing by the city fiscal of an information
with the corresponding city courts after an investigation if the evidence
against said person so warrants. Upon the filing of such information
will the prisoner be deemed deliver to a judicial authority in the City of
Manila within the meaning of article 125 of the Revised Penal Code?
The city court or judge need not make an investigation of the facts
alleged in the information, which the judge or justices of the peace in
provinces have to make before issuing the proper warrant, because the
law vest the power in the city fiscal, but said city judge shall determine
only the legal question whether said facts constitute an offense or
violation of ordinances, and issue a warrant of commitment if they do,
or of release if they do not.
As a peace officer can not deliver directly the person arrested to the
city courts, he shall deliver him to said court through the city fiscal, and
if the latter does not take the prisoner in time to the latter so that the
proper investigation may be made and information filed within six
hours, he has to release the prisoner in order to avoid criminal liabilty
for violation of article 125 of the Revised Penal Code. The city fiscal is
not an agent of the arresting officer, but as prosecuting officer, he will
be recreant to his duty if he does not do his best to make the
investigation and file the corresponding information in time against the
person arrested without warrant, in order to effect the delivery of the
prisoner to the city courts within the period of six hours prescribed by
law, and thus prevent his being released by the officer making the
arrest. If the city fiscal does not file the information within said period
of time and the arresting officer continues holding the prisoner beyond
the six-hour period, the fiscal will not be responsible for violation of
said article 125, because he is not the one who arrested and illegally
detained the person arrested, unless he has ordered or induced the
arresting officer to hold and not release the prisoner after the
expiration of said period.
Section 2640 of the Revised Administrative Code which specifies the
powers and duties of chief of police of the City of Manila, authorizes
the latter "to take good and sufficient bail for the appearance before
the city court of any person arrested for violation of any city
ordinance: Provided, however, That he shall not exercise this power in
cases of violation of any penal law except when the fiscal of the city
shall so recommend and fix the bail to be required of the person
arrested." These provisions do not authorize, either expressly or by
implication, the city fiscal to order the detention of the prisoner if bond
is not given, not only because they refer to the powers of the chief of
police of Manila and not of the city fiscal, but because the only
incidental authority granted to the latter is to recommend the granting
of the bail to be required of the person arrested for violation of any
penal law in order that the chief of police may release the latter on
bail. If no bail is given by the person arrested, neither the chief of
police, who is only authorized to release on bail, has power to detain
the person arrested for more than six hours; nor the city fiscal, who is
only empowered to fix and recommend the bail to the chief of police,
has authority to order the detention of persons arrested for violation
of a penal law.
The above-quoted provisions of section 2640 of the Revised
Administrative Code refers evidently to persons arrested without
warrant, for accused arrested by virtue of a warrant issued by the
courts may be released on bail only by order of the court or judge that
issued the warrant and has exclusive jurisdiction or control over the
person arrested. The purpose of the law in empowering the chief of
police of Manila to release the prisoner if he sets up a bail, is to relieve
the officer making the arrest from the necessity of taking the prisoner
to the city fiscal, and the latter from filing an information with the
proper courts within the period of time prescribed by law.
The dissenting opinion calls a general principle of law an excerpt of the
Corpus Juris Secundum quoted therein which says that "the officer
however need not necessarily have personal knowledge of the facts
constituting the offense in the sense of having seen or witnessed the
offense himself, but he may if there are no circumstances known to
him by which materially impeach his information, acquire his
knowledge from information imparted to him by reliable and credible
third persons or by the information together with other suspicious
circumstances" (6 C.J.S., 599, 600), and after the quotation adds: "This
is a common law rule implanted in the Philippines along with its
present form of government, a rule which has been cited and applied
by this Court in a number of cases (U. S.vs. Santos, 36 Phil., 853; U.
S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16 Phil., 516).
The above-quoted excerpt is not a general principle of law or a
common law rule implanted in the Philippines. It is a summary of the
ruling of several State courts based on statutory exceptions of the
general rule. "It is the general rule, although there are statutory
exceptions and variations, that a peace officer has no right to make an
arrest without a warrant, upon a mere information of a third person"
(5 C.J., p. 404), because "statutes sometime authorize peace officer to
make arrest upon information" (4 Am. Jur., p. 17). In none of the cases
cited in the dissenting opinion has this Court quoted and applied it. In
U.S. vs. Fortaleza, 12 Phil., 472, this Court, after quoting Rules 27 and
28 of the "Provisional Law for the Application of the Penal Law" and
section 37, Act No. 183, as the law in force in force in these Islands
providing for cases in which a person may be arrested without a
warrant, said:
These provisions quite clearly set out the powers usually conferred by
American and English law upon "peace officers" including "constables,"
in making arrests without warrants; and since similar powers are
clearly included in the powers conferred upon "agents of authority" in
the above cited articles of the "Provisional Law," there can be no doubt
that the Commission, in imposing the duty of maintaining order and
preserving and protecting life and property within their respective
barrios upon municipal councilors and their lieutenants of barrios,
conferred upon such officials authority to make arrests without
warrant not less extensive than that conferred upon peace officers in
Manila in the above-cited provisions of the Manila Charter. (United
States vs. Vallejo, No. 4367, decided by this court on September 3,
1908; also United States vs. Burgueta, 10 Phil., 188.) (Emphasis ours.)
The case of U.S. vs. Samonte, 16 Phil., 516, one of the cases cited in the
last paragraph of the dissenting opinion, does not contain anything
about the implantation in these Islands of the so-called common law
rule. In the case of U.S. vs. Battallones (not Ballesteros) 23 Phil., 46,
cited also therein, this Court, following the ruling in U.S. vs. Fortaleza,
said:
In a former case we held that officials in these Islands, who, "by direct
provisions of law or by appointment of competent authority are
charged with the maintenance of public order and the protection and
security of life and property," have authority to make arrests without
warrant substantially similar to the authority generally conferred upon
CRIMINAL LAW FULL CASES
"peace officers" in the United States, and more especially that class of
`peace officers' known to American and English law as constables; and
that "the provisions of section 37 of Act No. 183" (the Charter of
Manila) "quite clearly set forth the powers usually conferred by
American and English law upon "peace officers" including "constables"
in making arrests without warrants," and provide that they "may
pursue and arrest without warrant, any person found in suspicious
places or under suspicious circumstances, reasonably tending to show
that such person has committed or is about to commit any crime or
breach of the peace; may arrest, or cause to be arrested without
warrant, any offender, when the offense is committed in the presence
of a peace officer or within his view". (U.S. vs. Fortaleza, 12, Phil., 472,
479.)
And in the case of U.S. vs. Santos, 36 Phil., 853, this Supreme Court has
reiterated the ruling in the previous cases and held:
The powers of peace officers in the Philippines, generally stated, are
the same as those conferred upon constables under the Anglo-
American Common Law. The extent of their authority to make arrests
without warrant and the limitations thereon, as held by the Supreme
Court, are as stated in the language of the Legislature in the Charter of
the City of Manila. (U.S. vs. Fortaleza [1909], 12 Phil., 472). The
Administrative Code (section 2204, edition of 1916; section 2258,
edition of 1917) enjoins municipal policemen to "exercise vigilance in
the prevention of public offenses".
The provisions above quoted of section 37 of Act No. 183 have been
incorporated in section 2463 of the Revised Administrative Code and
those of Rules 27 and 28 were substantially incorporated in section 6,
Rule 109 of the Rules of Court. Section 2463 of the Revised
Administrative Code reads as follows:
SEC. 2463. Police and other officers — Their powers and duties. — The
mayor, the chief and assistant chief of police, the chief of the secret
service, and all officers and members of the city police and detective
force shall be peace officers. Such peace officers are authorized ... to
pursue and arrest, without warrant, any person found in suspicious
places or under suspicious circumstances reasonably tending to show
that such person has committed, or is about to commit, any crime or
breach of the peace; to arrest or cause to be arrested, without
warrant, any offender when the offense is committed in the presence
of a peace officer or within his view;
And section 6 of Rule 109 provides:
SEC. 6. Arrest without warrant — When lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When the person to be arrested has committed, is actually
committing, or is about to commit an offense in his presence;
(b) When an offense has in fact been committed, and he has
reasonable ground to believe that the person to be arrested has
committed it;
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
These are the only provisions of law in force these Islands which
enumerate the cases in which a peace officer may arrest a person
without warrant, and the so called common law relating to other cases
of arrest without warrant cited in the dissenting opinion has no
application in this jurisdiction. Therefore, all the considerations set
forth in the said opinion about the disastrous consequences which this
Court's interpretation of article 125 of the Revised Penal Code will
bring to a law enforcement, because "the entire six hours might be
consumed by the police in their investigation alone," or that "even if
the city fiscal be given the chance to start his assigned task at the
beginning of the six hours period, this time can not insure proper and
just investigation in complicated cases and in cases where the persons
arrested are numerous and witnesses are not at hand to testify," since
"the police is not authorized to round up the witnesses and take them
along with the prisoner to the city fiscal," are without any foundation.
Because they are premised on the wrong assumption that, under the
laws in force in our jurisdiction, a peace officer need not have personal
knowledge but may arrest a person without a warrant upon mere
information from other person. "The right to make arrests without a
warrant is usually regulated by express statute, and except as
authorized by such statutes, an arrest without a warrant is illegal." (5
C.J., pp. 395, 396.) And statutory construction extending the right to
make arrest without a warrant beyond the cases provided by law is
derogatory of the right of the people to personal liberty (4 Am. Jur., p.
17).
The investigation which the city fiscal has to make before filing the
corresponding information in cases of persons arrested without a
warrant, does not require so much time as that made upon a complaint
of the offended parties for the purpose of securing a warrant of arrest
of the accused. In all cases above enumerated in which the law
authorizes a peace officer to arrest without warrant, the officer making
the arrest must have personal knowledge that the person arrested has
committed, is actually committing, or is about to commit an offense in
his presence or within his view, or of the time, place or circumstances
which reasonably tend to show that such person has committed or is
about to commit any crime or breach of the peace. And the testimony
of such officer on the commission of the offense in his presence or
within his view by the person arrested, or on the facts and
circumstances that tend reasonably to show that said person has
committed or is about to commit an offense, would be sufficient
evidence or basis for the city fiscal to file an information without
prejudice to his presenting of their evidence or witness, if any, during
the trial to insure the conviction of the defendant. If the city fiscal does
not believe the testimony of the officer making the arrest or consider it
sufficient, or has any doubt as to the probability of the prisoner having
committed the offense charged, and is not ready to file an information
against him on the strength of the testimony or evidence presented,
there would be no legal reason or ground for him to wait until further
evidence may be secured before dismissing the case against the
prisoner, or detaining the person arrested without warrant without
violating the precept of article 125 of the Revised Penal Code.
After the release of the prisoner, the city fiscal may make or continue
the investigation and file afterwards the proper information against
him with the corresponding court, if the result of the investigation so
warrants, in order to secure a warrant of arrest of the same. Of course,
as we have said in our decision for the purpose of determining the
criminal liability of a peace officer detaining a person for a longer
period of time than the six hours prescribed by article 125 of the
Revised Penal Code, "the means of communication as well as the hour
of arrest and other circumstances such as the time of surrender and
the material possibility for the fiscal to make the investigation and file
in time the necessary information, must be taken into consideration."
The period originally fixed by our Penal Code was twenty four (24)
hours, and if the city fiscal believes that the period now prescribed by
article 125 of the Revised Penal Code is short, and that the law must be
amended so as to extend it, it would be proper for the interested
parties to take the case to Congress, since it can not be done by judicial
legislation.
Motion for reconsideration is denied.
Paras, Actg. C.J., Pablo, Bengzon, and Briones, JJ., concur.
PERFECTO, J.:
We agree with the above resolution except that which may be at
variance with our concurring opinion in this case and with our written
opinion in the case of Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214.
BRIONES, M., concurring:
CRIMINAL LAW FULL CASES
Estoy enteramente conforme con la resolucion. En la opinion
concurrente que dicte en el asunto de Lino contraFuguso y otros (43
off. Gaz., 1235, 1244) donde se discutio por primera vea el importante
punto legal debatido en el presente asunto, dije lo siguiente y lo
reafirmo en esta ocasion, saber:
Sin discutir la responsabilidad de la Fiscalia por la demora — si esta se
puede o no justificar administrativamente es cuestion que no nos
compete considerar ni resolver — vamos a limitarnos a comentar y
discutir la fase juridica legal. Esta en orden naturalmente el hacer la
siguiente pregunta: es correcta, es acertada la asercionde que el
"Promotor Fiscal de Manila es un funcionario judicial (judicial officer),"
que, por tanto, la entrega al mismo de la persona de undetenido
dentro del periodo de 6 horas equivale a la entrega a las autoridades
judiciales correspondentes (proper judicial authorities) de que habla el
ariticulo 125 del codigo penal revisado? Creemos que no: no por su
letra ni por su espiritu puede aplicarse por extension la fraseologia de
ese articulo al Fiscal de la Ciudad de Manila o a cualquier otro Fiscal;
ese articulo no puede referirse mas que a un tribunal, a u juzgado, se
municipal, sea de primera instancia. Asi que story de perfecto acuerdo
con la ponencia cuando positivamente sienta la doctrina de que "si
bien un arresto puede hacerse sin orden cuando hay motivos
razonalbes apra ello (regla 109, articulo 6, reglamento de los
tribunales), el detenido no puede ser recluido fuera del periodo
prescrito por la ley, a menos que una orden de arresto se obtenga
antes de un tribunal competente" (veanse las autoridades que se
citan), y que "en el presente caso el Fiscal de la Ciudad no tenia
autoridad para expedir ordenes de arresto y carecia de facultad para
convalidar tal detencion ilegal con solo presentar las querellas, o con
una orden de su propia cuenta, ora tacita, ora expresa" (veanse
asimismo las authoridades que se citan).
De lo dicho se sigue que cuando la policia entrega a la Fiscalia de la
ciudad despues del periodo de 6 horas prescrito por la ley los papeles
sobre un detenido arestado sin previa orden al efecto, no por ello se
cura la ilegalidad del arresto y detencion, sino que dicha ilegalidad
continua y persiste hasta que el Fiscal presenta la querella y obtiene
una orden de arresto del tribunal competente, o que, tratandose de
delito, mediante la prestacion de una fianza cuya cuantia se fijare y
recommendare por dicho Fiscal, la policia soltare al detenido, a tenor
de lo previsto en el articulo 2460 del codigo administrativo.
Puede ocurrir, sin embargo, que la policia entregue los papeles a la
Fiscalia de la ciudad dentro del periodo de 6 horas, pero que la Fiscalia
no solo deja pasar dicho periodo, sin que transcurren dias, hasta
semanas sin actuar sobre el caso en uno u otro sentido. La cuestion en
orden naturalmente es la siguiente: ¿es legal o ilegal la detencion del
arrestado en tal caso? En otras palabras: ¿queda suspenidod el periodo
de 6 horas durante el tiempo que el Fiscal de la Ciudad tarda en actuar
sobre el caso? La contestacion tiene queser necesariamente negativa.
La rigidez., la inflexibilidad del periodo de 6 horas reza no solo para la
policia, sinohast para cualquier otra agencia o ramo oficial, sin excluir a
la Fiscalia de la ciudad de Manila. Si por cualquier motivo la Fiscalia creo que el gobierno escatimaria el dinero para una atencion tan
dejare de actuar dentro de dicho periodo, el deber de la policia o del importante.
que tenga la custodia del detenido es soltarle, quiera o no quiera el
Fiscal, lo recomiende o no lo recomiende. De otra manera, la
Esincreible que dentro de 6 horas — si hay voluntad de trabajar y sobre
restriccion que estatuye la ley a favor de los detenidos sin previa orden
todo de hacer buena y efectiva la ley — la Fiscalia no pueda hacr su
de arresto — restriccion que implementa las garantias de la libertad
composicion de lugar en tales casos, bien para proseguir, bien para no
establecidas en la Constitucion — resultaria un mito. La filosofia de la
proseguir, de finitivamente o en el entretanto. Hay que tener en
ley es, a saber: solamente se verifica un arresto sin previa orden
cuenta que se trata de casos en que el individuo es detenido, ora
cuando hay motivos razonalbes para ello, v. gr., cuando un individuo es
porque ha sido sorprendido in fraganti cometiendo una infraccion o un
cogido in fraganti cometiendo un delito. La ley presupone, por tanto,
delito, ora poroque se le ha cogido " en lugares sospechosos o bajo
que el Estado tiene a mano todos los elementos necesarios para
cirunstancias sospechosas, que tiendan razonablemente a demostrar
decider que accion ha de tomar dentro del periodo de 6 horas, ya
que el mismo ha cometido o esta para cometer cualquier crimen o
entregando la persona del detenido a las autoridades judicales
atentado contra el orden y la paz" (E. U. contrafortaleza, 12 Jur. 486).
correspondientes mediante la querella procedente, a tenor del articulo
¿Que es lo que neceista entonces la Fiscalia en tales casos? ¿No esta
125 del Codigo Penal Revisado: ya poniendole en libertad provisional
alli el testimonio del policia, constabulario o agente del orden
bajo una fianza razonable, de acuerdo con el citado articulo 2460 del
aprehensor? De modo que la cuestion, en ultimo resultado, es que la
Codigo Administrativo; o ya poniendole compoletamente en la calle
Fiscalia tenga o no fe en la integridd y verracidad del agente de la ley.
por falta de meritos en el caso. Si ninguna de estas cosas puede hacer
Si la tiene ¿que motivo hay para no formular inmediatamente la
el Estado en 6 horas no puede ser mas que por dos motivos: o poor
querella y obtener asi del juzgado la correspondiente orden de arresto?
que se quiere cometer una arbitrariedad, o la maquinaria oficial se
Y si no la tiene ¿que razon hay para pisotear la libertad individual
halla en un deplorable estado de confusion, indeptitud of impotencia.
reteniendo la causa sin accion mas alla de las 6 horas y causando asi
una inecesaria vejacion al ciudadano?
Se arguye con enfasis que bajo esta interpretacion la prosecucion del
crimen sufriria un serio quebranto, sobre todo en la Ciudad de Manila;
La cuestion se puede simplificar mas todavia. Todo se reduce, en
que materialmente la Fiscalia no puede actuar adecuadamente sobre
ultimo termino, a que la Fiscalia pueda contar con la ayda de una
algunos casos en el plazo percentorio de 6 horas. Si esto es verdad el
policia eficiente, integra y honrada sobre todo, que persiga el crimen si
remedio no es infringer la ley como cosa inevitable, rutinaria; el
cuartel, pero que tenga el maximo respeto a los derechos del
remedio seria — o recabar de la Legislatura que se reforme la ley en la
ciudadano. Si la Fiscalia puede tener un modus vivendi con una policcia
forma que se estime conveniente, o implementar ya perfeccionar la
de semejante tipo y de tales quilates, no hay miedo de que una rigida
maquinaria de la prosecucion criminal, colocandola a la altura de las
observancia del requerimiento legal de 6 horas facilitie la inmunidad de
circunstancias. No hay nada mas anarquico, mas subversivo y fatal para
los tulisanes, bandidos, gangsters y criminales del bajo mundo, y se
el principio de la autoridad y del buen gobierno que el tener leyes que
ponga en grave peligro la eficaz prosecucion del crimen y la seguridad y
no se cumplen, leyes que se infringen hasta por los llamados a ponerlas
sosiego del pueblo. Dentro de las 6 horas hay tiempo mas que
en vigor. "To be or not to be, that is the question." O existe la ley y hay
suficiente para meter en cintura a toda la canalla ... ¡pero por Dios que
que cumplirla; o si la ley es mala o impracticable, hay que reformarla o
no se violen ni pisoteen las garantias consitucionales por miedo a
derogarla. Lo que no se debe permitir es el disolvente espectaculo de la
los gansters!
diaria inobservancia de la ley.
Desde luego que se debe dar cierto margen de viabilidad a la ley. Por
Se me ocurre ahora añadir otras observaciones en refuerzo de la arriba
ejemplo, si se verifica una detencion sin previa orden de arresto a
transcritas. Creo que ni siquiera es necesario enmendar la ley en el
medianoche, creo que la ley estaria cumplida si en las primeras horas
sentido de alargar el periodo de 6 horas provisto en el articulo 125 del
de la mañana siguiente se tomara enseguida accion, aungque ello
Codigo Penal Revisado. Creo que con un poco mas de esfuerzo y buena
rebassara un poquito el periodo de 6 horas.
voluntad la presente ley se podria cumplir en la Ciudad de Manila. La
Fiscalia de la Ciudad podria, por ejemplo, establecer turnos semanales
o mensuales, segun como se estime conveniente, destinando fiscales Se deniega la mocion de reconsideracion.
que se hagan cargo exclusivamente de los casos de individuos
detenidos sin previa orden de arresto, para los efectos de presentar la
correspondiente querella contra ellos, o de soltarlos si se viere que no
existen meritos suficientes para la prosecucion, sin perjuicio desde
luego de ulteriores procedi mientos. Si para realizar satisfactoriamente
este trabajo fuese necesario aumentar el personal de la Fiscalia, yo no TUASON, J., dissenting:
CRIMINAL LAW FULL CASES
I vote to grant the motion for reconsideration.
In my dissent from the decision of this Court I contended myself with
citing my dissenting opinion in Lino vs. Fugoso, L-1197, 43 Off. Gaz.,
1214, 1246, as grounds for my disagreement. As the present decision
has gone farther than that decision and contains new statements and
conclusions, I deem it convenient to enlarge on my dissent.
The term "judicial officers" has been defined to be, in its popular sense,
officers of a court (Hitt vs. State, Miss. 181, So. 331) and in its strict
sense, "judges and justices of all courts and all persons exercising
judicial powers by virtue of their office." (Settle vs. Van Evrea, 49 N.Y.,
280.) The city fiscal is a judicial officer in both senses. In the popular or
larger sense, he is a judicial officer because he is a part of the legal
machinery created for the administration of justice. A prosecuting
attorney, charged with the administration of justice and invested with
important discretionary power in a motion for a nolle prosequi, is a
judicial officer. (State ex rel. Freed vs. Circuit Court of Martin Country,
Ind., 14 N.E. 2d 910; State vs. Ellis, 112 N.E., 98, 100; 184 Ind., 307.)
In the strict legal sense, the city fiscal is a judicial officer when making
preliminary examination because he performs the function of a justice
of the peace — assuming, as the majority seem to assume, that the
conduct of preliminary examination is a judicial function. By express
provision of section 2465 of the Revised Administrative Code, the city
fiscal "shall cause to be investigated all charges of crimes,
misdemeanors, and violations of ordinances, and have the necessary
information or complaints prepared or made against the persons
accused." In addition, section 2, Rule 108, of the Rules of Court states
that "every justice of the peace, municipal judge or city fiscal shall have
jurisdiction to conduct preliminary investigation of all offenses alleged
to have been committed, within his municipality or city, cognizable by
the Court of First Instance."
The city fiscal is not any the less a judicial officer simply because he can
not issue warrant of arrest. The power to issue warrant of arrest is not
essential ingredient of a judicial office. This is especially so when, as in
cases like the present, the accused is already under arrest when the
city fiscal intervenes and there is no need of issuing an order of arrest.
As to power to commit a detained person to prison, if that be
necessary, the majority are not exactly right when they affirm that the
city fiscal is not clothed with it. I shall come to this later.
However that may be, the city fiscal is a "judicial authority" within the
contemplation of article 125 of the Revised Penal Code. This is the
inevitable result from the fact that in the City of Manila, the city fiscal
under the existing scheme of the government is the only officer to
whom the person arrested without warrant may be presented. The
majority opinion admits that the municipal court and the Court of First
Instance of Manila "do not make or conduct a preliminary investigation
proper," and criminal complaints are not filed with them but with the
city fiscal. Reasoning from another angle, we reach the same
conclusion. We are to presume that in using the generic term "judicial
authorities" — and in plural — instead of more specific word "justice,"
"judge," or "court", the lawmaker intended to include in the operation
of the article under consideration all officers who are named to receive
the prisoner from the arresting officer. We have to adopt this
construction if we are to give effect to the law and the rule of court I
have cited, and if we are to avoid what I might call, without meaning
offense, an absurdity.
Under no canon of statutory construction is there justification for this
Court's opinion that the police and the city fiscal have to share the six
hours fixed in article 125 of the Revised Penal Code. The language, the
nature and the object of this provision unerringly point to the theory
that the six hours mentioned in the Revised Penal Code are meant
exclusively for the police officer who made the arrest. I can discern
absolutely no indication of any intention to have the city fiscal squeeze
in his action within this brief period, a period which, in many cases, is
not even sufficient for the police. Read separately or in conjunction
with the entire criminal procedure, article 125 does not furnish the
slightest indication of legislative intent to place the city fiscal and the
police under the same category. Article 125 of the Revised Penal Code
was devised for one purpose; section 2465 of the Revised
Administrative Code and section 2, Rule 108, of the Rules of Court for
another. Article 125 is a penal provision designed to prevent and
punish police abuses for which the police are noted. The investigation
by the city fiscal is strictly and essentially procedural. It is an integral
part of the procedure for bringing the case to trial.
Little reflection will disclose the disastrous consequences which this
Court's interpretation of article 125 of the Revised Penal Code will
bring to law enforcement. It nullifies the role of the fiscal in the
administration of criminal law. For sheer lack of time, the release of the
prisoner arrested without warrant will, in a great number of cases, be
inevitable, unless the city fiscal files charges without sufficient and
adequate investigation. The alternative will be for the city fiscal to be
on a 24-hour watch lest in his sleep the time for him to act might slip
by.
But this is only a poor alternative. Regardless of any vigilance on his
part the opportunity for the city fiscal to make the required
investigation cannot always be assured. The law gives the police
absolute power to detain a prisoner for six hours without incurring
penal liability. There is no law which obliges the police to take the
prisoner to the city fiscal before the expiration of six hours from the
time of arrest. There can be cases where the entire six hours might be
consumed by the police in their investigation alone, or just in the
chasing, collection and transportation to the police station of the law
breakers. This can happen in tumultuous and other mob offenses in
which many people are involved and there is necessity of screening the
guilty ones.
Supposing then that the police should deliver the prisoner or prisoners
to the city fiscal at the last minute of the six hours through the
negligence or by force of circumstances, what time is there for this
functionary to comply with his duty? And even if the city fiscal be given
the chance to start his assigned task at the beginning of the six hour
period, can this time insure proper and just investigation in
complicated cases and in cases where the persons arrested are
numerous and witnesses are not on hand to testify? It is well to
remember that the police are not authorized to round up witnesses
and take them along with the prisoners to the city fiscal.
In the light of these consequences I can not imagine that the meaning
which this Court attaches to article 125 of the Revised Penal Code so
much as entered the thought of the legislature. No sound-minded
legislature could have intended to create such situation, which is easy
to perceive unless we assume that the legislative purpose was to tie up
the hands of the law and give lawlessness full sway; unless the
legislature wanted to coddle and pamper lawless elements to a
calamitous extreme. When the Court says that the prisoner, after being
released at the end of six hours from the time of his arrest may be
rearrested should the city fiscal find sufficient evidence and prefer
charges against him, it takes for granted that underworld characters
and hardened criminals are honorable men who would keep
themselves ready and handy for a second arrest.
The Court says:
To consider the city fiscal as the judicial authority referred to in article
125 of the Revised Penal Code, would be to authorize the detention of
a person arrested without warrant for a period longer than that
permitted by law without any process issued by a court of competent
jurisdiction. The city fiscal may not, after due investigation, find
sufficient ground for filing an information or prosecuting the person
arrested and release him, after the latter had been illegally detained
for days or weeks without any process issued by a court or judge.
What is that "proper process" referred to in the above quoted portion
of the decision? Whatever is meant by "proper process," we should
note that there is no fundamental difference between the proceeding
before a justice of the peace and the procedure followed by the city
fiscal. There is nothing important the justice of the peace may do in the
interest of the accused in the cases triable before the Court of First
Instance which the city fiscal may not do. If the city fiscal can not issue
an order of arrest, the justice of the peace himself does not do so to
give the detention the stamp of legality. At least, I am aware of no law
which tells him to take this step, and I can see no material advantage
which an accused could derive from this ceremony. All the justice of
the peace does which matters to the accused is admit him to bail, if the
crime be bailable, and proceed to an investigation.
CRIMINAL LAW FULL CASES
But the city fiscal does just that; and if the necessary to order the
commitment of the prisoner pending ascertainment of his guilt, the
city fiscal no less than the justice of the peace or judge of first instance
has the authority also, as I propose to show later. In actual practice, a
person arrested without warrant in a regular municipality frequently
suffers greater injustice and is subject to, and frequently goes through,
greater hardships than his counterpart in the City of Manila. We are
witness to the common spectacle of cases being dismissed on motion
of the provincial fiscal for want of sufficient evidence after the prisoner
had been bound by the justice of the peace over to the Court of First
Instance for trial and after he had languished in jail for months or
years. Prisoner's detention in that case is not considered illegal.
This anomaly seldom takes place in cities where the preliminary
investigation is entrusted to the city fiscal. Rarely in the City of Manila
is a case dropped for insufficiency of evidence after it has been
determined in a preliminary investigation that the prisoner should be
held for trial. On the whole, the method by which the preliminary
investigation is conducted by the prosecuting attorney is more
conducive to efficiency, minimizes or eliminates conflicts of opinion in
the existence of probable cause, and better insures prompt dispatch of
criminal cases to the lasting benefit of the prisoner. Only physical
impossibility, as I understand it, is in the way for the adoption of this
method throughout the country.
It is a mistake, in my humble judgment, to confuse a prisoner's
detention during the six-hour period fixed in article 125 of the Revised
Penal Code and his continued detention after he is turned over to the
city fiscal. As I have said, article 125 regulates the time within which a
police officer may hold the prisoner under his responsibilty, and it
applies to the police alone. It will hardly be contended that this article,
or any other law, or the constitution limits the period within which a
prisoner may be detained after he is delivered to the justice of the
peace. If that is so, and since the city fiscal acts in lieu of a justice of the
peace, there is no sound basis, legal or practical, for denying to the
former the same time and the same freedom of action that is enjoyed
by the latter.
By the same token, there is no sound reason for denying to the
proceeding by the city fiscal the same attributes which adhere to the
proceeding before the justice of the peace. After the arresting officer
produced the prisoner before the city fiscal, the law takes its course in
the same manner that it does when the examining officer is the justice
of the peace or judge of first instance. From that time the arresting
officer ceases to have any control over the prisoner save to keep him in
custody subject to the orders of the city fiscal. The police step out and
the law steps in and extends to the prisoner the mantle of protection
against inquisitory examination by the police. From that time on he
enjoys the rights granted by law to all accused persons — the right to
give bail and the right to testify freely uninfluenced by any fear of
violence or other forms of maltreatment. The danger envisioned by
article 125 of the Revised Penal Code is past.
The proceeding before the city fiscal does not lose its character of due
process of law by its being conducted by the city fiscal instead of a
judge. For one thing, preliminary investigation is not a trial. It is a
constitutional right. It is purely a matter of statutory regulation.
(Potenciana Dequito vs. Hugo O. Arellano et al., G.R. No. L-1336; 32
C.J.S., 456.) A judicial proceeding which lies within the power of the
legislature to provide or withhold without infringing the fundamental
law may be placed in the hands of any officer other than a judge.
The jurisdiction to make a preliminary examination or investigation is
not even considered judicial. Judges who perform this function do not
do so as judicial officers. Municipal executives here and in the United
States are conferred this power. "The power to examine and to commit
persons charged with crime is not judicial, but is one of the duties of
the conservators of the peace, and it may be, and usually is, vested in
persons other than courts, as, for instance, justices of the peace or
police magistrates, or persons exercising jurisdiction analogous to that
exercised by justices of the peace, or who are ex officio justices of the
peace, such as mayors, notaries public, or court commissioners. Power
to hold preliminary examinations may be exercised by the United
States commissioners, and United States district judges who, while
making the preliminary examination, exercise the powers of
commissioners only." (16 C.J., 319-320.)
There is no basis for the fear that "the city fiscal may not, after due
investigation, find sufficient ground for filing an information or
prosecuting the person arrested and release him, after the latter had
been illegally detained for days or weeks without any process issued by
a court or judge." This statement overlooks the consistent and general
practice heretofore followed with clear, express statutory sanction.
Section 2640 of the Revised Administrative Code authorizes the chief of
police of the City of Manila "to take good and sufficient bail for the
appearance before the city court of any person arrested for violation of
any city ordinance," while in cases of violation of any penal law,
according to the same article, the fiscal of the city may, and does,
recommend and fix the bail to be required of the person arrested.
Power to fix bail necessarily implies power to recommend or order the
detention of the prisoner if bond is not given. This in its working is no
more nor less than the power to commit an accused to prison pending
investigation of this case, power which the majority erroneously say is
not possessed by the city fiscal.
The constitutional and statutory provisions and rules cited by the
majority are of general application which are good only in the absence
of specific enactments. The controlling provisions in the case at bar are
sections 2460 and 2465 of the Revised Administrative Code and section
2, Rule 108, of the Rules of Court.
The decision further says:
A peace officer has no power or authority to arrest a person without a
warrant upon complaint of the offended party or any other person,
except in those cases expressly authorized by law. What he or the
complainant may do in such case is to file a complaint with the city
fiscal of Manila, or directly with the justice of the peace courts in
municipalities and other political subdivisions. If the city fiscal has no
authority, and he has not, to order the arrest of a person charged with
having committed a public offense even if he finds, after due
investigation, that there is a probability that a crime has been
committed and the accused is guilty thereof, a fortiori a police officer
has no authority to arrest and detain a person charged with an offense
upon complaint of the offended party or other persons even though,
after investigation, he becomes convinced that the accused is guilty of
the offense charged.
I do not think the foregoing paragraph is relevant to the instant case.
We are not dealing with the authority of a police officer to make arrest
without warrant. There is no question raised against the legality of the
petitioners' arrest. Our problem concerns the time in which the city
fiscal may make his investigation and the scope of his power.
Assuming the above-quoted statement to be pertinent to the issues,
the same can not, in my humble view, pass unchallenged. Under
certain, well-defined circumstances, an officer may and constantly does
make arrests without a court order, with or without complaint. An
officer in good faith may arrest without warrant when he believes that
a person is guilty of a crime, and his belief rests on such grounds as
would induce an ordinarily prudent and cautious man, under the
circumstances, to believe likewise. (6 C.J.S., 596.) This practice is not
derived from any express authority but on the necessity of catching law
violators before they disappear and hide. I have not come across any
law naming specific offenses for committing which the offenders shall
be arrested without court orders.
It is also a general principle of law that an officer need not necessarily
have personal knowledge of the facts constituting the offense himself,
in the sense of having seen or witness the offense himself, but he may,
if there are no circumstances known to him which materially impeach
his information, acquire his knowledge from information imparted to
him reliable and credible third persons, or by information together
with other suspicious circumstances. (Id., pp. 599, 600.) This principle
ought to serve as a qualification to the ruling laid down by this Court,
that "a peace officer has no power to arrest a person without a warrant
upon complaint of the offended party or any other person." Under the
rule I have quoted, a police officer certainly may arrest a person
pointed to him as having committed a crime provided that the
information or complaint comes from a reliable source and under
circumstances as to make an ordinary reasonable man to believe it to
be well-founded. When the victim of a robbery or aggression, for
example, should subsequently spot the criminal and request an officer
to arrest him, the officer would not have to seek or wait for a warrant
CRIMINAL LAW FULL CASES
of arrest before detaining the man, provided again that there was good
ground to believe the truth of the accusation.
This is a common law rule implanted in the Philippines along with its
present form of government, a rule which has been cited and applied
by this Court in a number of cases. (U.S. vs. Santos, 35 Phil., 853;
U.S. vs. Batallones, 23 Phil., 46; U.S. vs. Samonte, 16 Phil., 516.)
Padilla, J., concurs.
SUPPLEMENTARY
TUASON, J., dissenting:
When I filed my dissent from the decision of the Court on the occasion
of the denial of the motion for reconsideration, it was my
understanding that there was going to be only a minute resolution. I
make this remark not as a complaint but as my explanation for writing
my dissent in advance of the reasoned resolution. Even then I would
contend myself with resting my dissent on what I have already stated
did the resolution contain new propositions to be answered and
disclose misunderstanding of some of many statements to be cleared.
As this is in the nature and reply, topics will be treated without regard
to continuity of thought.
The resolution says that article 30 of the Provisional Law for the
Application of the Penal Code in the Philippines has been repealed by
section 17 of Rule 109, but that section 31 is still in force except the
last sentence. And so, according to the resolution, is section 2 of Act
No. 194.
Without discussing the materiality of those laws, I disagree that they
are still in effect. Like article 30, article 31 of the Provisional Law and
section 2 of Act No. 194 deal with procedure in justice of the peace
courts in general covered by the new Rules of Court. The Rules of
Court, in the words of their introductory section, concern "pleading,
practice and procedure in all courts of the Philippines, and the
admission to practice law therein." These Rules are complete revision
and a complete re-enactment of the entire field of procedure, and
there is every reason to believe that they were intended to replace,
with some exceptions, all previous laws on the subject, especially
Spanish laws which had long been out of harmony with the new mode
of pleading and practice. If the last sentence of article 31 is repealed, as
the resolution says, I see no valid ground for not holding the other
parts of that article repealed so. "Where a later act covers the whole
subject of earlier acts, embraces new provisions, and plainly shows that
it was intended, not only a substitute for the earlier acts, but to cover administration of criminal justice, as expeditious and simple as any
the whole subject then considered by the legislature, and to prescribe reform they have infused into the new Rules.
the only rules in respect thereto, it operates as a repeal of all former
statutes relating to subject matter. The rule applies not only where the
The term "proper court or judge" in section 17, Rule 109, of the Rules
former acts are inconsistent or in conflict with the new act, but also
of Court1 should be interpreted to mean, in the case of Manila, city
even where the former acts are not necessarily repugnant in express
fiscal, under the last mentioned canon of interpretation. In Manila, the
terms, or in all respects, to the new act." (59 C.J., 919-920.) "While, as a
city fiscal performs the duties devolving on justices of the peace in
general rule, implied repeal of a former statute by a later act is not
regular municipalities in the conduct of preliminary investigations, and
favored, yet `if the later act covers the whole subject of the earlier act
all criminal charges by the police and offended parties are filed with
and is clearly intended as a substitute, it will operate similarly as a
him. And it is admitted that prisoners arrested without warrant in
repeal of the earlier'." Posadas vs. National City Bank of New York, 296
Manila may be taken only to the city fiscal by the arresting officer. Let it
U.S., 497; 80 Law ed., 351.)
be noted also in this connection that section 17 of Rule 109 regulates
the taking of persons arrested to the court or judge, not the filing of
As the Rules of Court took effect on July 1, 1940, the case of Marcos vs. complaint.
Cruz, decided on May 30, 1939, and cited in the resolution, is no
authority for the opinion that no law has been enacted amending or
In view of this circumstances; in view of the fact that neither the judges
repealing section 2 of Act No. 192.
of first instance nor the municipal judges of Manila are authorized to
conduct preliminary hearings other than the purpose of determining
But this rule of implied repeal holds good only as regards laws of the amount of bail (section 2474 of the Revised Administrative Code),
general application. Another well known rule of the statutory the result of applying section 17 of Rule 109 to Manila would be
construction tells us that preliminary investigations in Manila and other virtually to eliminate preliminary investigation in this city of persons
chartered cities are to be excluded from the operation of the Rules of arrested without a warrant. The decision creates a vacuum, a situation
Court. Such investigations are provided for the special enactments which this Court on another occasion refused to countenance in the
which, because of their special nature and limited application, must be forceful language above quoted in Hashim vs. Boncan et. al. There, the
excepted from and prevail over the general provisions. "When the Court continued:
provisions of a general law, applicable to the entire state, are
repugnant to the provisions of a previously enacted special law,
To sustain the theory of repeal is to wipe out these advantages. Not
applicable in a particular locality only, the passage of such general law
only this. If neither section 11 nor section 13 of Rule 108 is applicable
does dot operate to repeal the special law, either in whole or in part,
to the preliminary investigation conducted by the City Fiscal, as we
unless such appeal is provided for by express words, or arises by
have above shown, and if existing legislation thereon is to be deemed
necessary implication. An intention to repeal local acts generally is not
repealed, then the matter would be left uncovered by rule or law.
intolerable from the fact that the general acts specifically excludes one
There would thus be a void crying for urgent reform. There would be
locality from its operation." (59 C. J. . 934.) There is no apparent
no such void if the old and tried procedure is kept in being, untouched
intention in the Rules of Court to repeal the laws under which
by the new Rules. Withal, our own knowledge of the history of this
preliminary investigations in Manila have to be conducted by the city
portion of the Rules here involved does not warrant an interpretation
fiscal. The contrary contention is evidenced by section 2 of the rule
not contemplated when we drafted and deliberated upon these Rules.
108, which provides that "Every justice of the peace, municipal judge
And while, perhaps, the language could have been clearer and the
or city fiscal shall have jurisdiction to conduct preliminary investigation
arrangement made more logical, consideration to expediency and the
of all offenses alleged to have been committed within his municipality
avowed purpose of preliminary investigation point to the already
or city, cognizable y the Court of First Instance," (Espiritu vs. De La Rosa
trodden path hereinabove indicated.
[July 31, 1947], L-1156, 45 Off. Gaz., 196; Hashim vs. Boncan [Nov. 22,
1941], 40 Off. Gaz., 13th Supp., p. 13.) In the first of these cases, Mr.
Justice Padilla, speaking for the court, categorically held that the Rules The resolution has interpreted article 125 of the Revised Penal Code
of Court had not repealed and supplanted the provisions of the Revised with meticulous adherence, at best, to its latter, and open disregarded,
Administrative Code regarding the power and authority of the City at worst, of its spirit and of the pernicious results that follow from such
Fiscal to conduct preliminary investigation." And in Hashim vs. Boncan, interpretation. The construction which the majority give to the term
the Court, through Mr. Justice Laurel, said: "judicial authority" makes it impossible for the city fiscal to perform his
assigned duties with the consequence that for lack of time, malefactors
will have to be turned loose before proper investigation in conducted,
The framers of the Rules could not have intended to brush aside these
or prosecution filed on insufficient evidence, in many cases.
lessons of experience and to tear down an institution recognized by
law and decision and sanctioned by years of settled practice. They
could not have failed to keep intact in effective machinery in the
CRIMINAL LAW FULL CASES
Nevertheless, I am not pleading, in the case, for a departure from the
letter of the law. I merely submit that the city fiscal, as was emphasized
in my dissent from the decision, is a judicial officer or judicial authority
both in the popular and the legal sense of the term, and that it is
unjust, unwarranted by any rule of interpretation, absolutely
disastrous to the administration of criminal law to identify the city
fiscal with the police, forcing him to file an information or release the
prisoner within the six hours intended for the arresting officer alone. I
do not contend that the term "judicial authority" be expanded beyond
its literal and legal meaning, although if necessary this might be done
to carry out the obvious purpose of the law, but I take exception to the
unjustified restriction and limitation placed on the meaning of "judicial
authority" which not only does violence to the letter and spirit of
article 125 of the Revised Penal Code but leads to an extremely
anomalous, not to say impossible, situation. We do not have to look
outside for the meaning of "judicial authority," as a simple reading of
article 125 of the Revised Pena Code and section 2474 of the Revised
Administrative Code yields the clear intent of the legislature. This
intent, as manifested in laws that have been amended by section 2465
and section 2474 of the Revised Administrative Code, crystalized in a
system of practice that have received "the imprint of judicial approval"
in various decisions of this Court. (U. S. vs. McGoven, 6 Phil. 261; U.
S. vs. Ocampo, 18 Phil. 122;U. S. Carlos, 21 Phil. 553; Hashimvs.
Boncan, ante; Espiritu vs. De la Rosa, ante.)
The resolution, as a solution to the quandary in which it places the city
fiscal, would have him go to Congress. But, as I trust I have shown, the
laws on the subject need no supplementation and implementation.
They have no gaps to be filled or ambiguities to be cleared. The
loopholes exist only as a direct result of this Court's new ruling. Section
2474 of the revised Administrative Code and its predecessors have
operated smoothly, without a hitch for nearly half a century. Not even
when the arresting officer had 24 hours to take arrested persons to a
judicial authority was it ever imagined, much less asserted, that the city
fiscal had to borrow his time from the police.
The resolution in laying down the rule that the city fiscal has no power
to issue warrant of arrest or "an order or commitment of release by a
written warrant containing the ground on which it is based," thinks it is
necessary to advert, "in justice to the city fiscal," that this official does
not pretend to possess such authority, since it is only in the dissenting
opinion, it says, where the claim is made.
At the outset I deny that I attributed to the city fiscal power to issue
warrant of arrest; and did not say in an unqualified manner that he has
power to issue commitment. On the first point, what I said was an
implicit aknowledgment of the opposite. Let me quote from the second
paragraph of page 2 of my dissenting opinion what I did say:
The city fiscal is not any the less a judicial officer simply because he can If the city fiscal has any doubt as to the probability of the defendant
not issue warrant of arrest. The power to issue warrant of arrest is not having committed the offense charged, or is not ready to filed the
essential ingredient of a judicial office. information on the strength of the testimony or evidence presented,
he should release and not detain the person arrested for a longer
period than that prescribed in the Penal Code.
On the power to commit prisoners, the same paragraph of my opinion
shows what I said.
The majority come back with the assertion that the provisions of
section 2460 of the Revised Penal Administrative Code2
As to the power to commit a detained person to prison, if that be
necessary, the majority are not exactly right when they affirm that the
city fiscal is not clothed with it. It shall come to this later. do not authorize, either expressly or by implication, the city fiscal to
order the detention of the prisoner if the bond is not given, not only
because they refer to the power of the chief of police of Manila and
And taking the matter up again on page 11, I said:
not of the city fiscal, but because the only incidental authority granted
to the latter is to recommend the granting of the bail by the chief of
Section 2460 of the Revised Administrative Code authorizes the chief of police may release the latter on bail.
police of the City of Manila "to take good and sufficient bail for the
appearance before the city court of any person arrested for violation of
I disagree again. I do not believe that a provision is rendered nugatory
any city ordinance," while in cases of violation of any penal law,
by the mere fact that it is foreign to the subject of the main provision
according to the same article, the fiscal of the city may, and does,
or to the title or caption of the section, if otherwise the language is
recommended and fix the bail necessarily implies power to
clear. The title or caption is important only in determining the meaning
recommend or order the detention of the prisoner if bond is not given.
of laws which are ambiguous and uncertain. The provision of section
This i its working is no more nor less than the power to commit an
2460 of the Revised Administrative Code quoted in the resolution does
accused to prison pending investigation of his case, power which the
not suffer from such infirmity.
majority erroneously say is not possessed by the city fiscal.
In truth, the proviso in section 2460 is not alien to the enacting clause.
There is nothing in this statement any outright affirmation that the city
The proviso relates to the chief of police, conferring on him power of
fiscal has power to issue commitment papers. There is, on the contrary,
the same nature as does the enacting clause, with the only difference
an implied admission that the power, as it is ordinarily exercised by a
that, in cases of violations of a municipal ordinance the chief of police
judge or court, does not exist. I merely submitted as my personal
acts independently, on his own responsibility, while in cases of
opinion and interpretation of section 2460 of the Revised
violations of a penal law, he acts with the advice of the city fiscal and
Administrative Code, regardless of what the city fiscal thinks, that it
the latter fixes the amount of bail. The intervention of the city fiscal
confers upon the latter official a power which, performed in
was only inserted, in my opinion, in view of the gravity of the latter
conjunction with the power of the chief of police, amounts in its
class of cases.
practical operation to a power to commit a man to prison. And I said
this in answer to the sweeping assertion (which apparently was made
in the decision in complete oblivion of section 2460, supra), that to give As to the other reason given in the resolution why, it says, continued
the city fiscal unlimited time might result in injustice, since, the detention of a prisoner beyond six hours is not authorized — namely,
decision says, that the authority granted to the city fiscal to recommend the granting
of bail by the chief of police and to fix the amount of bail to be required
of the person arrested, is only incidental — my comment is that,
The city fiscal may not, after due investigation, find sufficient ground
whether the power to take bail or release prisoners belongs to the city
for filing an information or prosecuting the person arrested and release
fiscal or the chief of police, is inconsequential. To my mind, the
him, after the latter had been illegal detained for days or weeks
important point is that the accused, as the resolution admits, may be
without any process issued by a court or judge.
released on bond. From this power, irrespective of who possess it, is
implied the power to keep the prisoner under detention if he does not
I intended to emphasize by citing section 2460 of the Revised file a bond.
Administrative Code, that a prisoner could secure his released, pending
investigation of his case, in the same manner and with the same
When the resolution concludes that if no bond is given by the person
facilities that he could if the complaint or information had been filed
arrested, "neither the chief of police, who is only authorized to release
with a court. In citing and stating my interpretation of section 2460 of
on bail, has power to detain the person arrested for more than six
the Revised Administrative Code, I wished to show what I considered
hours; not the city fiscal, who is empowered to fix and recommend the
an erroneous ruling that
bail to the chief of police has authority to release person arrested in
CRIMINAL LAW FULL CASES
violation of penal law," I can not follow. In a nutshell, the majority's
reasoning, as I understand it, is that the law authorizes the city fiscal to
recommend and fix the bail "in order that the chief of police may
release the latter (prisoner) on bail," but that if the prisoner does not
put up a bond to be set at large just the same. The filing of bail is not a
meaningless gesture which may be taken advantage of by an accused
at pleasure with the same effect. The privilege to put a bond extended
to an accused must be the price or condition of his temporary release.
The law does not have to say in so many words that if he does not put
a bond he would be kept in confinement in order that we may be
warranted in reaching this result.
The resolution says that "the purpose of the law in empowering the
chief of police of Manila to release the prisoner if he puts up a bail, is
to relieve the officer making the arrest the necessity of taking the
prisoner to the city fiscal, and the latter from filing an information with
the proper courts within the period of time prescribed by law."
I have reflected closely on the meaning of this statement to be sure
that I did not misunderstand it. Unless I still fail to grasp the idea, I
think the statement is self-annulling and self contradictory. The filing of
bail cannot relive the arresting officer from the necessity of taking the
prisoner to the city fiscal for the simple reason that such bail, in cases
of violations of penal laws, can be filed only on recommendation of,
and its amount can be fixed by, the city fiscal. In other words, the
prisoners necessarily has to be taken to the city fiscal before any bond
can be executed. And it would be underestimating the intelligence of
an accused to expect him to file a bond within six hours from the time
of his arrest if he is aware that, if at the end of those hours the city
fiscal had not preferred any charges against him and no order of
commitment had been issued by the proper judge, he (accused) had to
be released. In the face of the latter theory, no prisoner would, even if
he could, perfect a bond within six hours knowing that if he did not, he
would be a free man, at leased temporarily, within what remains of six
hours, while if he did, the bond would enable the city fiscal to take his
time to file case against him in court.
The gravamen of the court's argument seems to be that a commitment
by a court or judge is essential to validate the detention beyond the
time specified in the Revised Penal Code. I do not share this opinion.
Neither such commitment by a judge nor a formal complaint is
required by the constitution in order that a person may lawfully be
kept in jail pending investigation of his case. An opportunity to file a
bond in reasonable amount satisfies the constitutional demands. Nor
does the bail have to be fixed or granted by a court. Sheriffs and police
officers have been authorize by statutory enactments in other
jurisdiction to take bail. At least one court has gone so far as to uphold,
"independently of statue, a practice of long standing on the part of the
sheriff to take bail in criminal cases of prisoners committed for not
filing bail, and release them from confinement." (Dickinson vs.
Kingsbury, 2 Day [Com., 1.] Now then, under section 2460 of the
Revised Administrative Code, the chief of police of Manila, as already
shown, is allowed to take bail by himself in cases violation of a
municipal ordinance and with the intervention of the city fiscal in other
cases. Under this provision and this practice, a detention prisoner
arrested without warrant is not deprived of any privilege of benefit
guaranteed by the constitution. The lack of formal complaint does not
in the least prejudice him or deprive him of any benefit enjoined by his
counterparts in the provinces. On its legal aspect, let it be observed
that all the proceedings conducted by the city fiscal is a preliminary and
summary inquiry which is purely a matter of statutory regulation.
Preliminary investigation by the prosecuting attorney when authorized
by law is due process no less than one conducted by a judge. It may be
suppressed entirely, and if it may be suppressed, it may be entrusted
to any officer, provided only the constitutional right to give bail is
carefully safeguarded. As this Court has said in Hashim vs.
Boncan, supra, and U.S. vs. Ocampo, supra:
The prosecuting attorney of the city of Manila is presumed to be as
competent to conduct a preliminary investigation as the average
person designated by law to conduct a "preliminary examination"
under the provisions of General Orders No. 58. He is a sworn officer of
the court, and the law imposes upon him the duty of making such
investigations. For such purpose the legislature may designate whom it
pleases within the judicial department.
The resolution has taken pain to cite and explain in detail what it says
are the laws on arrests in the Philippines, and takes me to task for
quoting from 6 Corpus Juris Secundum, 599-600 and citing the
decisions of this Court. We are told the effect that the excerpts from
my dissenting opinion, quoted on page 16 of the resolution are without
any foundation because, it is said,
they are premised on the wrong assumption that, under the laws in
force in our jurisdiction, a place officer need not have personal
knowledge but may arrest a person without a warrant mere
information from other person.
The resolution assumes that those excerpts are predicated on what I
call the common law rule, on Corpus Juris Secundum, and on decisions
of the Supreme Court.
I commend a reading to my dissenting opinion. It will be seen that I did
not base on those laws, rules or decisions my statements, "The entire
six hours might be consumed by the police in their investigation alone;"
"Even if the city fiscal be given the chance to start his assigned task at
the beginning of the six hour period, this time can not insure proper
and just investigation in complicated cases and in cases where the
persons arrested are numerous and witnesses are not on hand to
testify," and "The police is not authorized to round up witnesses and
take them along with the prisoner to the city fiscal." It will be seen that
far from using as my premise those laws, rules and decisions, which I
said contain in brief outlines the powers of police officers to make
arrests, I said clearly on page 12 of my dissenting opinion:
I do not think the foregoing paragraph is relevant to the instant case.
We are not dealing with the authority of the police officer to make
arrest without warrant. There is no question raised against the legality
of the prisoner's arrest. Our problem concerns the time period within
which the city fiscal may make his investigation, and the scope of his
power.
It was the majority decision which brought the question of the
authority of the police to make arrests into the discussion. I only met
the decision on its own territory though I regarded that territory as
outside the legitimate circle of the present dispute. I cited Corpus Juris
Secundum and decisions of this Court, which I said are derived from
common law, to refute the statement,
a fortiori, a police officer has no authority to arrest and detain a person
charged with an offense upon complaint of the offended party or other
person seven though after investigation, he becomes convinced that
the accused is guilty of the offense charged.
I especially wanted to express my disagreement with the thesis in the
decision that
A peace officer has no power or authority to arrest a person without a
warrant upon complaint of the offended party or any other person,
except in those cases expressly authorized by law.
It was my humble opinion that the rules I cited and the rules on which
the decisions of this Court are predicated, were general provisions of
law applicable to varying and changed circumstances, and I wanted to
deny the insinuation that there were, or there might be, arrests
without warrant "expressly authorized by law"; so I countered that "I
have not come across any law naming specific offenses for committing
which the offenders shall be arrested without court orders." This is my
concept of express provisions authorizing arrests without a warrant.
Section 6 of Rule 109, section 2463 of the Revised Administrative code,
and the provisional Law on the subject of arrest, cited in the resolution
in an attempt to show the error of my citations, can not be a source of
comfort to the majority. Rather, I should think, they reinforce my
position, for I believe that the rules and decisions I cited the rules and
laws called to our attentions as the real thing, are in substantial
agreement. My mistake was in not citing, myself, Rule 109, section 6,
of the Rules of Court, section 2463 of the Revised Administrative Code,
and the Provisional Law. I might have found and cited them had I
thought the matter worthy of more than a passing notice.
CRIMINAL LAW FULL CASES
Now that the resolution has gone into this subject at length, I shall
devote a few more lines to it at the peril of tiring the reader on what I
believe an impertinent topic.
My citation from Corpus Juris and my comment that "this is a common
law rule implanted in the Philippines along with its present form of
government, a rule which have been cited or applied by this Court in a
number of case," has met with decision. I am informed that my
quotation is "not a general principle of law or common law rule
implanted in the Philippines"; that "it is the summary of the ruling of
several states courts based on statutory exceptions of the general
rule."
I do not think I wise wide off the mark when I said that the common
law rule has been transplanted to this country along with the present
form of government and that the rules and decisions I have quoted
spring from the common law. And the majority are not closer to the
marked when they affirmed that my quotation from Corpus Juris
Secundum, and section 2463 of the Revised Administrative Code are
purely statutory creation.
There was common law before there were statutes. Common law in
England and in the U. S. preceded statement statutes and
constitutions. Statutes and constitutions in matters of arrest came
afterwards, restating, affirming, clarifying, restricting or modifying the
common law.
The English common law has been adopted as the basis of
jurisprudence in all the states of the Union with the exception of
Louisiana "where the civil law prevails in civil matters." (11 Am. Jur.,
157.) And
in England, under the common law, sheriffs, justices of the peace,
coroners, constables and watchmen were entrusted with special
powers as conservators of the peace, with authority to arrest felons
and persons reasonably suspected of being felons. Whenever a charge
a felony was brought to their notice, supported by reasonable grounds
of suspicion, they were required to apprehend the offenders, or at the
least to raise hue and cry, under the penalty of being indicted for
neglect of duty.
See the footnote on pp. 2512-2513, Vol. 2, of Jones Blackstone and the
numerous cases therein cited. It is a footnote appended o the
statement of a common law principle which of the same tenor as that
just noted. Treatises on arrest not infrequently start with a statement
of the common law rule and speak of statute and constitutions in the
sense I have mentioned. Moran's Commentaries on the Rules of Court
mention of the common law. (Vol. 2, p. 577) in connection with the
power to make arrest without a warrant.
The doctrine taken from 5 C. J., 395-396-that "the right to make arrest contradicts the point stressed by the majority. The complete sentence
without a warrant is usually regulated by express statute, and, except in.
as authorize by such statutes, an arrest without a warrant is
illegal" — is not at war with the proposition that the authority of peace
It is a general rule, although there are exceptions and variations, that a
officers to make arrest originated at common law and that
peace officer has no right to make an arrest without a warrant, upon
constitutions and statutes merely re-stated and defined that the
mere information of a third person or mere information of
authority with greater precision, naming the officers who may make
committed, that right being limited to arrests for offenses of the grade
arrest, the grades of offenses for, and the circumstances under, which
of felony, as elsewhere shown.
arrest may be effected, etc. Arrests made by officers not designated or
under circumstances not coming within the terms of the statute or
constitution are illegal. It will be noticed that the quoted portion relates to arrest for
misdemeanor. For further proof, I invite attention to the title of the
Section on page 401, paragraph (a), which reads: "For
Even then, broad constitutional or statutory inhibition against search
Misdemeanor — aa. In General." Let it be noted that the power to
and seizure of property or persons without a warrant has exceptions,
arrest for misdemeanor is different from, and more restricted than, the
as can be inferred from the two sentences preceding the above
power to arrest for felony, as is further demonstrated by the last clause
sentence quoted in the resolution. This exceptions are cases where the
of the full sentence above quoted. This clause refers us back to section
public security has demanded the search and seizure.
30, p. 399, which says:
Well established exceptions to this rule have been long recognized in
"At common law, (here again common law mentioned), and subject to
cases of felony, and of breaches of the peace committed in the
the provisions of any applicatory statute, and subject officer may
presence of the party making the arrest. (5 C. J., 395.)
arrest, without a warrant, one whom he has reasonable or probable
grounds to suspect of having committed of felony, even though the
Arrests under such circumstances are authorized in spite of statutes person suspected is innocent, and generally, although no felony has in
and constitutions. The power to make such arrest is deeply rooted in fact been committed by any one, although, under some statutes a
the unwritten or common law, which "includes those principles, usage felony must have been actually committed, in which case an may
and rules of action applicable to the government and security of person arrest, without a warrant, any person he has reasonable cause for
and property which do not rest for their authority an any express or believing to be the person who committed it."
positive declaration of the will of the legislature." Although acting at his
peril, the powers to arrest on" probable cause of suspicion" even by a
As is elsewhere stated, section 6 of Rule 109 and section 2463 of the
private person are "principles of the common law, essential to the
Revised Administrative Code, like the authorities I have cited, do not
welfare of society, and not intended to be altered or impaired by the
limit the power of a police officer to make arrest tho those cases where
Constitution." (Wakely vs. Hart, 6 Binn. [Pa.,], 316.)
he saw with his own eyes or heard with his own ears the commission of
an offense. Section 6 of a Rule 109 and section 2463 of the Revised
I have remarked that there is no fundamental difference between my Administrative Code empowers police officers.
citations, on the other hand, and section 6 of Rule 109 and section
2463 of the Revised Administrative Code, Cited by the majority of the
to pursue and arrest, without warrant, any person found in suspicious
Court, on the other hand. There is only a difference in phraseology. The
places or under suspicious circumstances reasonably tending to show
very case of U. S. vs. Fortaleza relied upon in the resolution speaks of
that such person has committed, or is about to commit, any crime or
barrio lieutenant's power to make arrest as not inferior to that usually
breach of the peace,
conferred on peace officers known to American and English law as
constables.
and section 6 of Rule 109 authorizes a peace officer or a private person
to make arrest when
The resolution quotes this from 5 C. J., 404:
an offense has in fact been committed, and he has reasonable ground
It is a general rule, although there are statutory exceptions and
to believe that the person to be arrested has committed it
variations that a peace officer has no right to make an arrest without a
warrant upon mere information of a third person.
Rule 28 of the Provincial Law itself empowers judicial and
administrative authorities "to detain, or cause to be detained person
This is only a part of the sentence. The omitted portion is more
whom there is reasonable ground to believe guilty of some offense" or
important from my point of view and contradicts the point of view and
CRIMINAL LAW FULL CASES
"when the authority or agent has reason to believe that unlawful act,
amounting to a crime had been committed."
To make arrest on suspicion or on information is not new; it is an
everyday practice absolutely necessary in the of public security and
firmly enshrined in the jurisprudence of all civilized societies. The
power to arrest on suspicion or on reasonable ground to believe that a
crime has been committed is authority to arrest on information.
Information coming from reliable sources maybe, and it often is, the
basis reasonable ground to believe that a crime has been committed or
of reasonable ground of suspicion that a person is guilty thereof.
Suspicion reasonable ground and information are interviewed within
the same concept.
The necessary elements of the ground of suspicion are that the officer
acts upon the belief of the person's guilt, based either upon facts or
circumtances within the officers own knowledge, or information
imparted by a reliable and credible third person provided there are no
circumstances known to the officer sufficient to materially impeach the
information received, It is not every idle and unreasonable charge
which will justify an arrest. An arrest without a warrant is illegal when
it is made upon mere suspicion or belief, unsupported by facts,
circumstances, or credible information calculated to produce such
suspicion or belief.
Failure to take these principles into account has led to the belief that:
The investigation which the city fiscal has to make before filing the
corresponding information in cases of persons arrested without a
warrant, does not require so much time as that made upon a complaint
of the offended parties for the purpose of securing a warrant of arrest
of the accused. In all cases above enumerated in which the law
authorizes a peace officer to arrest without warrant, the officer making
the arrest must have personal knowledge that the person arrested has
committed, is actually committing, or is about to commit an offense in
his presence or within his view, or of the time, place or circumstances
which reasonably tend to show that such person has committed or is
about to commit any crime or breach of the peace. And the testimony
of such officer on the commission on the offense in his presence or
within his view by the person arrested, or on the facts and
circumstances that tend reasonably to show that said person has
committed or is about to commit an offense, would be sufficient
evidence or basis for the city fiscal to file an information without
prejudice to his presenting of other evidence of the defendant. (Pp. 16-
17 of the Resolution.).
Section 6 of Rule 109 of the Rules of Court and section 2463 of the
Revised Administrative Code, as well as the authorities I have quoted,
show the fallacy of the idea that the arresting officer knows, or should
know, all the facts about the offense for the perpetration, or supposed
perpetration, of which he has made the arrest. The resolution fails to
realize that in the great majority of cases an officer makes arrest on
information or suspicion; that "suspicion implies a belief or opinion as
to the guilt based upon facts or circumstances which DO NOT AMOUNT
TO PROOF," and that information and suspicion by their nature require
verification and examination of the informers and other persons and
circumstances. While an officer may not act on unsubstantial
appearances and unreasonable stories to justify an arrest without a
warrant, obviously in the interest of security, an officer who has to act
on the spot and cannot afford to lose time, has to make arrest without
satisfying himself beyond question that a crime has been committed or
that the person suspected is guilty of such crime. A police officer can
seldom make arrest with personal knowledge of the offense and of the
identity of the person arrested sufficient in itself to convict. To require
him to make an arrest only when the evidence he himself can furnish
proves beyond reasonable doubt the guilt of the accused, would
"endanger the safety of society." It would cripple the forces of the law
to the point of enabling criminals, against whom there is only moral
conviction or prima facie proof of guilt, to escape. Yet persons arrested
on necessarily innocent so that the prosecuting attorney should release
them. Further and closer investigation not infrequently confirm the
suspicion or information.
The majority of arrests are not as simple as a police officer catching a
thief slipping his hand into another's pocket or snatching someone
else's bag, or suprising a merchant selling above the ceiling price, or
seizing a person carrying concealed weapons. Cases of frequent
occurrence which confront the police and the prosecution in a
populous and crime-redden city are a great deal more complicated.
They are cases in which the needed evidence can only be supplied by
witnesses, whom the arresting officer or private persons has not the
authority or the time to round up and take to the city fiscal for
examination with in what remains, if any, of six hours.
Let me give two examples.
1. A murder with robbery is reported to the police. An alarm is
broadcasted giving a description of the murderer. Later a police officer
is told that the wanted man is in a store. He proceeds to the store and.
besides believing in good faith of his informant, detects in the man's
physical appearance some resemblance to the description given in the
alarm. All this occurs at the holy hours of night.
Should the officer refrain from making an arrest because he is not
certain beyond reasonable doubt of the identity of the suspected
murderer? Should the city fiscal order the release of the prisoner
because of insufficiency of evidence and because the six hours are
expiring, or should he prefer formal charges (if that can be done at
midnight) on the strength of evidence which, as likely as not, may be
due to a mistaken identify? Should not the prosecuting attorney be
given, as the law clearly intends, adequate time to summon those who
witnessed the crime and who can tell whether the prisoner was the
fugitive?, allowing the prisoner to give bail, if he can.
2. A police officer is attracted by screams from a house where a
robbery has been committed. The officer rushed to the place, finds a
man slain, is told that the murderers have filed. The officer runs in the
direction indicated and finds men with arms who, from appearances,
seem to be the perpetrators of the crime. The people who saw the
criminals run off are not sure those are the men they saw. The night
was dark, for criminals like to ply their trade under cover of darkness.
The officer does not, under these circumstances, have to seek an arrest
warrant or wait for one before detaining the suspected persons. To
prevent their escape he brings them to the police station. On the other
hand, would the fiscal be justified in filing an information against such
persons on the sole testimony of the police officer? It is not his duty to
wait for more proofs on their probable connection with the crime?
Should the city fiscal file an information on sufficient evidence, or
should he as the only alternative, order the release of the prisoners?
Does either course subserve the interest of justice and the interest of
the public? If the arrested persons are innocent, as they may be, is
either interest be served by hasty filing of information against them, or
would they rather have a more thorough investigation of the case?
Cases like these with varying details can be multiplied ad infinitum.
They form the bulk of underworld activities with which the forces of
law have to cope and with which the general public is vitally
concerned. The public would not be secure in their homes and in the
pursuit of their occupations if his Court, through unreasoning worship
of formalism, throws down a method, practice and procedure that
have been used here and elsewhere from time immemorial to the end
of service and in the interest of public security. The public security. The
public is not much interested in such minor offenses as pick-pocketing,
fist fights and misdemeanors or violations of municipal ordinances for
which arrests can be made by police officers only when committed in
their presence or within their hearing.
The decision of this Court leaves the city fiscal no alternative between
releasing prisoners for insufficiency of evidence due to lack of time to
secure more, and filing information against persons who may be
innocent of the crimed charge. The latter course, defeats directly the
very aims of preliminary investigation is to secure the innocent against
hasty, malicious and oppresive prosecution and to protect him from
open and public accusation of crime, and from the trouble, expense,
anxiety of a public trial, and also to protect the State from useless and
expensive prosecutions. (Hashim vs. Boncan, No. 47777, January 13,
1941; 40 Off. Gaz., 13th Supp. p. 13; U.S.vs. Mendez, 4 Phil.; 124;
U.S. vs. Grant and Kennedy, 11 Phil. 122; U. S. vs. Marfori, 35 Phil. 666;
People vs. Colon, 47 Phil. 443.) Even more deplorable would be the
acquittal of guilty accused due to lack of proofs which the prosecution,
if it had been afforded sufficient time, could have gathered.
CRIMINAL LAW FULL CASES
The foregoing goes, too, for the concurring opinion. There is only one
more point to which we wish to address ourselves briefly. The
concurring opinion contains this passage:
Dentro de las 6 horas hay tiempo mas que suficiente para meter en
cuenta atoda la canalla ... Pero; por Dios que no se violen ni pisoteen
lasgarantias constitucionales por miedo a los gangsters!
No one can disagree with this though — as an abstract proposition. The
only trouble is that the opinion does not cite any concrete
constitutional provision or guaranty that is infringed by our dissent. I
take the suggestion in the resolution — that "it would be proper for the
interested parties to take the case to Congress, since it can not be done
by judicial legislation" — to be a tacit recognition that the matter is
purely one of statute and that no constitutional impediment is in the
way of changing the law and enlarging the power of the city fiscal in
the premises. And let it be said that the objection in the concurring
opinion to this suggestion is rested, not on constitutional grounds but
on the supposition that the law is good enough to be left alone. All
which tempts us to paraphrase the famous apostrophe of that equally
famous woman in French history, and exclaim, "Oh Constitution! what
grievous mistakes are committed in thy name!"
The concurring opinion is in error when it sees shadows of fear
gangster in our dissent. Society no less than a natural person has the
right to protect itself, and the arrest and punishment of transgressors
of its laws is one of its legitimate means of self-protection and self-
preservation. As far as the insinuation of fear may reflect on those who
are duty bound to have part in such arrest and punishment, the
application of criminal laws without quarters to the end which they are
intended to serve, is not in strict logic a sign of apprehension. Such
course, rather than tolerance, leniency or indifference towards crimes
and appeasement of lawless and other elements and groups who wield
the power of physical and verbal relations, calls for exactly the
opposite quality of fright.
Padilla, J., concurs.
Footnotes
1
 Any person making arrest for legal ground shall, without unnecessary
delay and within the time prescribed in the Revised Penal Code, take
the person arrested to the proper court or judge for such action as they
may deem proper to take.
2
 There shall be a chief of police who ... may take good and sufficient
bail for the appearance before the city court of any person arrested for
violation of any city ordinance: Provided, however, That he shall not
exercise this power in cases of violations of any penal law, except when
the fiscal of the city shall so recommend and fix the bail to be required
of the person arrested; . . . .
G.R. Nos. 111771-77 November 9, 1993
ANTONIO L. SANCHEZ, petitioner, 
vs.
The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding
Judge of Regional Trial Court, NCR, Branch 70, Pasig), The Honorable
FRANKLIN DRILON (in his capacity as Secretary of Justice), JOVENCITO
R. ZUÑO, LEONARDO C. GUIYAB, CARLOS L. DE LEON, RAMONCITO C.
MISON, REYNALDO J. LUGTU, and RODRIGO P. LORENZO, the last six
respondents in their official capacities as members of the State
Prosecutor's Office), respondents.
Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner.
The Solicitor General for respondents.
CRUZ, J.:
There is probably no more notorious person in the country today than
Mayor Antonio L. Sanchez of Calauan, Laguna, who stands accused of
an unspeakable crime. On him, the verdict has already been rendered
by many outraged persons who would immediately impose on him an
angry sentence. Yet, for all the prejudgments against him, he is under
our Constitution presumed innocent as long as the contrary has not
been proved. Like any other person accused of an offense, he is
entitled to the full and vigilant protection of the Bill of Rights.
Sanchez has brought this petition to challenge the order of the
respondent judge denying his motion to quash the informations for
rape with homicide filed against him and six other persons. We shall
treat it as we would any other suit filed by any litigant hoping to obtain
a just and impartial judgment from this Court.
The pertinent facts are as follows:
On July 28, 1993, the Presidential Anti-Crime Commission requested
the filing of appropriate charges against several persons, including the
petitioner, in connection with the rape-slay of Mary Eileen Sarmenta
and the killing of Allan Gomez.
Acting on this request, the Panel of State Prosecutors of the
Department of Justice conducted a preliminary investigation on August
9, 1993. Petitioner Sanchez was not present but was represented by his
counsel, Atty. Marciano Brion, Jr.
On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to
the petitioner requesting him to appear for investigation at Camp
Vicente Lim in Canlubang, Laguna. It was served on Sanchez in the
morning of August 13,1993, and he was immediately taken to the said
camp.
At a confrontation that same day, Sanchez was positively identified by
Aurelio Centeno, and SPO III Vivencio Malabanan, who both executed
confessions implicating him as a principal in the rape-slay of Sarmenta
and the killing of Gomez. The petitioner was then placed on "arrest
status" and taken to the Department of Justice in Manila.
The respondent prosecutors immediately conducted an inquest upon
his arrival, with Atty. Salvador Panelo as his counsel.
After the hearing, a warrant of arrest was served on Sanchez. This
warrant was issued on August 13, 1993, by Judge Enrico A. Lanzanas of
the Regional Trial Court of Manila, Branch 7, in connection with
Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8,
in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken
to the CIS Detention Center, Camp Crame, where he remains confined.
On August 16, 1993, the respondent prosecutors filed with the
Regional Trial Court of Calamba, Laguna, seven informations charging
Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit,
Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and
killing of Mary Eileen Sarmenta.
On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court
issued a warrant for the arrest of all the accused, including the
petitioner, in connection with the said crime.
The respondent Secretary of Justice subsequently expressed his
apprehension that the trial of the said cases might result in a
miscarriage of justice because of the tense and partisan atmosphere in
Laguna in favor of the petitioner and the relationship of an employee,
in the trial court with one of the accused. This Court thereupon
ordered the transfer of the venue of the seven cases to Pasig, Metro
Manila, where they were raffled to respondent Judge Harriet
Demetriou.
On September 10, 1993, the seven informations were amended to
include the killing of Allan Gomez as an aggravating circumstance.
On that same date, the petitioner filed a motion to quash the
informations substantially on the grounds now raised in this petition.
CRIMINAL LAW FULL CASES
On September 13, 1993, after oral arguments, the respondent judge
denied the motion. Sanchez then filed with this Court the instant
petition for certiorari and prohibition with prayer for a temporary
restraining order/writ of injunction.
The petitioner argues that the seven informations filed against him
should be quashed because: 1) he was denied the right to present
evidence at the preliminary investigation; 2) only the Ombudsman had
the competence to conduct the investigation; 3) his warrantless arrest
is illegal and the court has therefore not acquired jurisdiction over him,
4) he is being charged with seven homicides arising from the death of
only two persons; 5) the informations are discriminatory because they
do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public
officer, he can be tried for the offense only by the Sandiganbayan.
The respondents submitted a Comment on the petition, to which we
required a Reply from the petitioner within a non-extendible period of
five days. 1 The Reply was filed five days late. 2 The Court may consider
his non-compliance an implied admission of the respondents'
arguments or a loss of interest in prosecuting his petition, which is a
ground for its dismissal. Nevertheless, we shall disregard this
procedural lapse and proceed to discuss his petition on the basis of the
arguments before us.
The Preliminary Investigation.
The records of the hearings held on August 9 and 13, 1993, belie the
petitioner's contention that he was not accorded the right to present
counter-affidavits.
During the preliminary investigation on August 9, 1993, the petitioner's
counsel, Atty. Marciano Brion, manifested that his client was waiving
the presentation of a counter-affidavit, thus:
Atty. Brion, Jr.:
[W]e manifest that after reviewing them there is nothing to rebut or
countermand all these statements as far as Mayor Sanchez is
concerned, We are not going to submit any counter-affidavit.
ACSP Zuño to Atty. Brion:
xxx xxx xxx
Q. So far, there are no other statements.
A. If there is none then, we will not submit any counter-affidavit
because we believe there is nothing to rebut or countermand with all
these statements.
Q. So, you are waiving your submission of counter-affidavit?
A. Yes, your honor, unless there are other witnesses who will come up
soon. 3
Nonetheless, the head of the Panel of Prosecutors, respondent
Jovencito Zuño, told Atty. Brion that he could still file a counter-
affidavit up to August 27, 1993. No such counter-affidavit was filed.
During the hearing on August 1'3, 1993, respondent Zuño furnished the
petitioner's counsel, this time Atty. Salvador Panelo, with copies of the
sworn statements of Centeno and Malabanan, and told him he could
submit counter-affidavits on or before August 27, 1993. The following
exchange ensued:
ACSP Zuño:
For the record, we are furnishing to you the sworn statement of
witness Aurelio Centeno y Roxas and the sworn statement of SPO3
Vivencio Malabanan y Angeles.
Do I understand from you that you are again waiving the submission of
counter-affidavit?
Atty. Panelo:
Yes.
ACSP Zuño:
So, insofar as the respondent, Mayor Antonio Sanchez is concerned,
this case is submitted for resolution. 4
On the other hand, there is no support for the petitioner's subsequent
manifestation that his counsel, Atty. Brion, was not notified of the
inquest held on August 13, 1993, and that he was not furnished with
the affidavits sworn to on that date by Vivencio Malabanan and Aurelio
Centeno, or with their supplemental affidavits dated August 15, 1993.
Moreover, the above-quoted excerpt shows that the petitioner's
counsel at the hearing held on August 13, 1993, was not Atty. Brion but
Atty. Panelo.
The petitioner was present at that hearing and he never disowned Atty.
Panelo as his counsel. During the entire proceedings, he remained
quiet and let this counsel speak and argue on his behalf. It was only in
his tardy Reply that he has suddenly bestirred himself and would now
question his representation by this lawyer as unauthorized and
inofficious.
Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if
the respondent cannot be subpoenaed or, if subpoenaed, does not
submit counter-affidavits, the investigating officer shall base his
resolution on the evidence presented by the complainant.
Just as the accused may renounce the right to be present at the
preliminary investigation 5, so may he waive the right to present
counter-affidavits or any other evidence in his defense.
At any rate, it is settled that the absence of a preliminary investigation
does not impair the validity of the information or otherwise render the
same defective and neither does it affect the jurisdiction of the court
over the case or constitute a ground for quashing the information. 6
If no preliminary investigation has been held, or if it is flawed, the trial
court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings in the criminal case in
abeyance. 7 In the case at bar, however, the respondent judge saw no
reason or need for such a step. Finding no arbitrariness in her factual
conclusions, we shall defer to her judgment.
Jurisdiction of the Ombudsman
Invoking the case of Deloso v. Domingo, 8 the petitioner submits that
the proceedings conducted by the Department of Justice are null and
void because it had no jurisdiction over the case. His claim is that it is
the Office of the Ombudsman that is vested with the power to conduct
the investigation of all cases involving public officers like him, as the
municipal mayor of Calauan, Laguna.
The Ombudsman is indeed empowered under Section 15, paragraph
(1) of R.A. 6770 to investigate and prosecute, any illegal act or omission
of any public official. However, as we held only two years ago in the
case ofAguinaldo v. Domagas, 9 this authority "is not an exclusive
authority but rather a shared or concurrent authority in. respect of the
offense charged."
Petitioners finally assert that the information and amended
information filed in this case needed the approval of the Ombudsman.
It is not disputed that the information and amended information here
did not have the approval of the Ombudsman. However, we do not
believe that such approval was necessary at all. In Deloso v.
Domingo, 191 SCRA. 545 (1990), the Court held that the Ombudsman
has authority to investigate charges of illegal or omissions on the part
of any public official, i.e., any crime imputed to a public official. It must,
CRIMINAL LAW FULL CASES
however, be pointed out that the authority of the Ombudsman to
investigate "any [illegal] act or omission of any public official" (191
SCRA at 550) isnot an exclusive authority but rather a shared or
concurrent authority in respect of the offense here charged, i.e., the
crime of sedition. Thus, the non-involvement of the office of the
Ombudsman in the present case does not have any adverse legal
consequence upon the authority the panel of prosecutors to file and
prosecute the information or amended information.
In fact, other investigatory agencies, of the government such as the
Department of Justice, in connection with the charge of sedition, 10 and
the Presidential Commission on Good Government, in ill-gotten wealth
cases, 11 may conduct the investigation,
The Arrest
Was petitioner Sanchez arrested on August 13, 1993?
"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as
the taking of a person into custody in order that he may be bound to
answer for the commission of an offense. Under Section 2 of the same
Rule, an arrest is effected by an actual restraint of the person to be
arrested or by his voluntary submission to the custody of the person
making the arrest.
Application of actual force, manual touching of the body, physical
restraint or a formal declaration of arrest is not, required. It is enough
that there be an intent on the part of one of the parties to arrest the
other and an intent onthe part of the other to submit, under the belief
and impression that submission is necessary. 12
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by
virtue of a letter-invitation issued by PNP Commander Rex Piad
requesting him to appear at the said camp for investigation.
In Babst v. National Intelligence Board 13 this Court declared:
Be that as it may, it is not idle to note that ordinarily, an invitation to
attend a hearing and answer some questions, which the person invited
may heed or refuse at his pleasure, is not illegal or constitutionally
objectionable. Under certain circumstances, however, such an
invitation can easily assume a different appearance. Thus, where the
invitation comes from a powerful group composed predominantly of
ranking military officers issued at a time when the country has just
emerged from martial rule and when the suspension of the privilege of
the writ of habeas corpus has not entirely been lifted, and the
designated interrogation site is a military camp, the same can be easily
taken,not as a strictly voluntary invitation which it purports to be,
but as an authoritative command which one can only defy at his peril. .
. . (Emphasis supplied)
In the case at bar, the invitation came from a high-ranking military
official and the investigation of Sanchez was to be made at a military
camp. Although in the guise of a request, it was obviously a command
or an order of arrest that the petitioner could hardly he expected to
defy. In fact, apparently cowed by the "invitation," he went without
protest (and in informal clothes and slippers only) with the officers who
had come to fetch him.
It may not be amiss to observe that under R.A. No. 7438, the requisites
of a "custodial investigation" are applicable even to a person not
formally arrested but merely "invited" for questioning.
It should likewise be noted that at Camp Vicente Lim, the petitioner
was placed on "arrest status" after he was pointed to by Centeno and
Malabanan as the person who first raped Mary Eileen Sarmenta.
Respondent Zuño himself acknowledged during the August 13, 1993
hearing that, on the basis of the sworn statements of the two state
witnesses, petitioner had been "arrested."
We agree with the petitioner that his arrest did not come under
Section 5, Rule 113 of the Rules of Court, providing as follows:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escapes from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
It is not denied that the arresting officers were not present when the
petitioner allegedly participated in the killing of Allan Gomez and the
rape-slay of Mary Eileen Sarmenta. Neither did they have any personal
knowledge that the petitioner was responsible therefor because the
basis of the arrest was the sworn statements of Centeno and
Malabanan. Moreover, as the rape and killing of Sarmenta allegedly
took place on June 28-June 29, 1993, or forty-six days before the date
of the arrest, it cannot be said that the offense had "in fact just been
committed" when the petitioner was arrested.
The original warrantless arrest of the petitioner was doubtless illegal.
Nevertheless, the Regional Trial Court lawfully acquired jurisdiction
over the person of the petitioner by virtue of the warrant of arrest it
issued on August 26, 1993 against him and the other accused in
connection with the rape-slay cases. It was belated, to be sure, but it
was nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that
the trial court still lawfully acquired jurisdiction over the person of the
petitioner. The rule is that if the accused objects to the jurisdiction of
the court over his person, he may move to quash the information, but
only on that ground. If, as in this case, the accused raises other grounds
in the motion to quash, he is deemed to have waived that objection
and to have submitted his person to the jurisdiction of that court. 14
The Court notes that on August 13, 1993, after the petitioner was
unlawfully arrested, Judge Lanzanas issued a warrant of arrest against
Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634
to 93-124637 for violation of R.A No. 6713. 15 Pending the issuance of
the warrant of arrest for the rape-slay cases, this first warrant served
as the initial justification for his detention.
The Court also adverts to its uniform ruling that the filing of charges,
and the issuance of the corresponding warrant of arrest, against a
person invalidly detained will cure the defect of that detention or at
least deny him the right to be released because of such
defect. * Applicable by analogy to the case at bar is Rule 102 Section 4
of the Rules of Court that:
Sec, 4. When writ is not allowed or discharge authorized. — If it
appears that the person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or
judge had jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by
reason of any informality or defect in the process, judgment, or order.
Nor shall, anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines or of
a person suffering imprisonment under lawful judgment.
In one case, 16 the petitioner, sued on habeas corpus on the ground
that she had been arrested by virtue of a John Doe warrant. In their
return, the respondents declared that a new warrant specifically
naming her had been issued, thus validating her detention. While
frowning at the tactics of the respondents, the Court said:
The, case has, indeed, become moot and academic inasmuch as the
new warrant of arrest complies with the requirements of the
Constitution and the Rules of Court regarding the particular description
of the person to be arrested. While the first warrant was
unquestionably void, being a general warrant, release of the petitioner
for that reason will be a futile act as it will be followed by her
CRIMINAL LAW FULL CASES
immediate re-arrest pursuant to the new and valid warrant, returning
her to the same prison she will just have left. This Court will not
participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court, 17 more
recently in the Umil case. 18
The Informations
The petitioner submits that the seven informations charging seven
separate homicides are absurd because the two victims in these cases
could not have died seven times.
This argument was correctly refuted by the Solicitor General in this
wise:
Thus, where there are two or more offenders who commit rape, the
homicide committed on the occasion or by reason of each rape, must
be deemed as a constituent of the special complex crime of rape with
homicide. Therefore, there will be as many crimes of rape with
homicide as there are rapes committed.
In effect, the presence of homicide qualifies the crime of rape, thereby
raising its penalty to the highest degree. Thus, homicide committed on
the occasion or by reason of rape, loses its character as an
independent offense, but assumes a new character, and functions like
a qualifying circumstance. However,by fiction of law, it merged with
rape to constitute an constituent element of a special complex crime of
rape with homicide with a specific penalty which is in the highest
degree, i.e. death (reduced to reclusion perpetua with the suspension
of the application of the death penalty by the Constitution).
It is clearly provided in Rule 110 of the Rules of Court that:
Sec. 13. Duplicity of offense. A complaint or information must charge
but one offense, except only in those cases in which existing laws
prescribe a simple punishment for various offenses.
Rape with homicide comes within the exception under R.A. 2632 and
R.A. 4111, amending the Revised Penal Code.
The petitioner and his six co-accused are not charged with only one
rape committed by him in conspiracy with the other six. Each one of
the seven accused is charged with having himself raped Sarmenta
instead of simply helping Sanchez in committing only one rape. In other
words, the allegation of the prosecution is that the girl was raped
seven times, with each of the seven accused taking turns in abusing her
with the assistance of the other six. Afterwards, their lust satisfied, all
seven of them decided to kill and thus silence Sarmenta.
Every one of the seven accused is being charged separately for actually
raping Sarmenta and later killing her instead of merely assisting the
petitioner in raping and then slaying her. The separate informations
filed against each of them allege that each of the seven successive
rapes is complexed by the subsequent slaying of Sarmenta and
aggravated by the killing of Allan Gomez by her seven attackers. The
separate rapes were committed in succession by the seven accused,
culminating in the slaying of Sarmenta.
It is of course absurd to suggest that Mary Eileen Sarmenta and Allan
Gomez were killed seven times, but the informations do not make such
a suggestion. It is the petitioner who does so and is thus hoist by his
own petard.
The Alleged Discrimination
The charge of discrimination against the petitioner because of the non-
inclusion of Teofilo Alqueza and Edgardo Lavadia in the informations
must also be dismissed.
While the prosecuting officer is required by law to charge all those who
in his opinion, appear to be guilty, he nevertheless cannot be
compelled to include in the information a person against whom he
believes no sufficient evidence of guilt exists. 19 The appreciation of the
evidence involves the use of discretion on the part of the prosecutor,
and we do not find in the case at bar a clear showing by the petitioner
of a grave abuse of such discretion. 20
The decision of the prosecutor may be reversed or modified by the
Secretary of Justice or in special cases by the President of the
Philippines. 21 But even this Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient evidence
to support at least a prima facie case. The courts try and absolve or
convict the accused but as a rule have no part in the initial decision to
prosecute him.
The possible exception is where there is an unmistakable showing of a
grave abuse of discretion that will justify judicial intrusion into the
precincts of the executive. But in such a case the proper remedy to call
for such exception is a petition for mandamus, not certiorari or
prohibition. 22 Moreover, before resorting to this relief, the party
seeking the inclusion of another person as a co-accused in the same
case must first avail itself of other adequate remedies such as the filing
of a motion for such inclusion. 23
At any rate, it is a preposterous contention that because no charges
have been filed against Alqueza and Lavadia, the charges against the
petitioner and his co-accused should also be dropped.
Jurisdiction of the Sandiganbayan
The petitioner argued earlier that since most of the accused were
incumbent public officials or employees at the time of the alleged
commission of the crimes, the cases against them should come under
the jurisdiction of the Sandiganbayan and not of the regular courts.
This contention was withdrawn in his Reply but we shall discuss it just
the same for the guidance of all those concerned.
Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861,
provides:
Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:
a) Exclusive original jurisdiction in all cases involving:
(1) 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 of the Revised Penal Code:
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is
higher than prision correccional or imprisonment for six (6) years, or a
fine of P6,000.00. . . . (Emphasis supplied)
The crime of rape with homicide with which the petitioner stands
charged obviously does not fall under paragraph (1), which deals with
graft and corruption cases. Neither is it covered by paragraph (2)
because it is not an offense committed in relation to the office of the
petitioner.
In Montilla v, Hilario, 24 this Court described the "offense committed in
relation to the office" as follows:
[T]he relation between the crime and the office contemplated by the
Constitution is, in our opinion, direct and not accidental. To fall into the
intent of the Constitution, the relation has to be such that, in the legal
sense, the offense cannot exist without the office. In other words, the
office must be a constituent element of the crime as defined in the
statute, such as, for instance, the crimes defined and punished in
Chapter Two to Six, Title Seven, of the Revised Penal Code.
Public office is not of the essence of murder. The taking of human life is
either murder or homicide whether done by a private citizen or public
servant, and the penalty is the same except when the perpetrator.
being a public functionary took advantage of his office, as alleged in
this case, in which event the penalty is increased.
CRIMINAL LAW FULL CASES
But the use or abuse of office does not adhere to the crime as an
element; and even as an aggravating circumstance, its materiality
arises not from the allegations but on the proof, not from the fact that
the criminals are public officials but from the manner of the
commission of the crime
There is no direct relation between the commission of the crime of
rape with homicide and the petitioner's office as municipal mayor
because public office is not an essential element of the crime charged.
The offense can stand independently of the office. Moreover, it is not
even alleged in the information that the commission of the crime
charged was intimately connected with the performance of the
petitioner's official functions to make it fall under the exception laid
down in People v. Montejo. 25
In that case, a city mayor and several detectives were charged with
murder for the death of a suspect as a result of a "third degree"
investigation held at a police substation. The appearance of a senator
as their counsel was questioned by the prosecution on the ground that
he was inhibited by the Constitution from representing them because
they were accused of an offense committed in relation to their office.
The Court agreed. It held that even if their position was not an
essential ingredient of the offense, there was nevertheless an intimate
connection between the office and the offense, as alleged in the
information, that brought it within the definition of an offense
"committed in relation to the public office."
As Chief Justice Concepcion said:
It is apparent from these allegations that, although public office is not
an element of the crime of murder in abstract, as committed by the
main respondents herein, according to the amended information, the
offense therein charged is intimately connected with their respective
offices and was perpetrated while they were in the performance,
though improper or irregular, of their official functions. Indeed they
had no personal motive to commit the crime and they would not have
committed it had they not held their aforesaid offices. The co-
defendants of respondent Leroy S. Brown, obeyed his instructions
because he was their superior officer, as Mayor of Basilan City.
(Emphasis supplied).
We have read the informations in the case at bar and find no allegation
therein that the crime of rape with homicide imputed to the petitioner
was connected with the discharge of his functions as municipal mayor
or that there is an "intimate connection" between the offense and his
office. It follows that the said crime, being an ordinary offense, is
triable by the regular courts and not the Sandiganbayan.
Conclusion
As above demonstrated, all of the grounds invoked by the petitioner
are not supported by the facts and the applicable law and
jurisprudence. They must, therefore, all be rejected. In consequence,
the respondent judge, who has started the trial of the criminal cases
against the petitioner and his co-accused, may proceed therewith
without further hindrance.
It remains to stress that the decision we make today is not a decision
on the merits of the criminal cases being tried below. These will have
to be decided by the respondent judge in accordance with the
evidence that is still being received. At this time, there is yet no basis
for judgment, only uninformed conjecture. The Court will caution
against such irrelevant public speculations as they can be based only on
imperfect knowledge if not officious ignorance.
WHEREFORE, the petition is DISMISSED. The respondent judge is
DIRECTED to continue with the trial of Criminal Cases Nos. 101141,
101142, 101143, 101144, 101145, 101146 and 101147 and to decide
them with deliberate dispatch.
SO ORDERED.
G.R. No. L-62992 September 28, 1984
ARLENE BABST, ODETTE ALCANTARA CERES P. DOYO, JO ANN Q.
MAGLIPON, DOMINI TORREVILLAS SUAREZ, LORNA KALAW-TIROL,
CIELO BUENAVENTURA, SYLVIA MAYUGA, SHEILA S. CORONEL, ET
AL., petitioners,  by Brig. Gen. Artemio Tadiar, Jr. on February 9, 1983 with the Office of
vs.
NATIONAL INTELLIGENCE BOARD, SPECIAL COMMITTEE NO. 2, BRIG.
GEN. WILFREDO ESTRADA (ret.), COL. RENATO ECARMA, NBI ASST.
DIRECTOR PONCIANO FERNANDO, COL. BALBINO DIEGO, COL.
GALILEO KINTANAR, COL. EUSTAQUIO PERALTA, ET AL., respondents.
RESOLUTION
PLANA, J.:
This was originally a petition for prohibition with preliminary injunction
which was superseded by the amended and supplemental petition for
prohibition with preliminary injunction filed by petitioners on March 3,
1983, seeking to prohibit the respondents (a) from issuing subpoenas
or letters of invitation to petitioners and interrogating them, and (b)
from filing libel suits on matters that have been the subject of inquiry
by respondent National Intelligence Board (NIB).
Petitioners are columnists, feature article writers and reporters of
various local publications. At different dates since July, 1980, some of
them have allegedly been summoned by military authorities who have
subjected them to sustained interrogation on various aspects of their
works, feelings, sentiments, beliefs, associations and even their private
lives. Typical of the letters received by the petitioners from respondent
NIB is that addressed to petitioner Arlene Babst, dated December
20,1982, which reads:
Madam:
Pursuant to the authority vested in me by law, you are hereby
requested to appear before this Special Committee at Philippine Army
Officer's Clubhouse, Fort Bonifacio, Metro Manila (sketch attached),
9:00 A.M., December 22, 1982, to shed light on confidential matters
being looked into by this Committee.
Your failure to appear on the specified date and place shall be
considered as a waiver on your part and this Committee will be
constrained to proceed in accordance with law.
Very truly yours,
(SGD.) WILFREDO C. ESTRADA
Brig. General, AFP (Ret.)
Chairman
Aside from the interrogations, a criminal complaint for libel was filed
the City Fiscal, Manila, against petitioners Domini Torrevillas-Suarez,
editor of the Panorama, and Ma. Ceres Doyo based on an article
written by Doyo and published in the March 28, 1982 issue of the
Panorama, on which the author had been interrogated by respondents.
The complaint included an staggering P10 million claim for damages.
(An information for libel has since been filed with the Regional Trial
Court of the National Capital Region against Suarez and Doyo.)
Petitioners maintain that the respondents have no jurisdiction over the
proceedings which are violative of the constitutional guarantee on free
CRIMINAL LAW FULL CASES
expression since they have the effect of imposing restrictive guidelines
and norms on mass media; that they are a punitive ordeal or
subsequent punishment of petitioners for lawful publications; that they
amount to a system of censorship, curtailing the "free flow of
information and petition and opinion," indispensable to the right of the
people to know matters of public concern guaranteed in Section 6 of
Article IV of the Constitution; and that they constitute intrusions into
spheres of individual liberty. Regarding the libel charge against Suarez
and Doyo, petitioners denounce the filing as instituted with intent to
intimidate and based on illegally obtained evidence, referring to the
matters inquired into by respondents in previously conducted,
allegedly illegal interrogations.
In their comment, respondents counter that no issue of jurisdiction
exists since they do not pretend to exercise jurisdiction over the
petitioners; that what respondents have sent to petitioners were
neither subpoenas nor summonses, but mere invitations to dialogues
which were completely voluntary, without any compulsion employed
on petitioners; that the dialogues themselves were designed simply to
elicit information and exchange Ideas and that the expression of
personal preferences and opinions by members of the respondent
Board is not equivalent to the imposition of norms and guidelines to be
followed by petitioners. Relative to the libel case, respondents contend
that petitioners have no cause of action against respondent Board
since respondent General Tadiar is not a member of respondent Board
and has filed the libel case in his personal capacity; and the libel case is
not pending before any of the respondents. Furthermore, respondents
aver that this case has been rendered moot and academic because the
proceedings before NIB Special Committee No. 2 (which conducted the
interrogations) have already been ordered terminated by General
Fabian C. Ver in his capacity as Director General and Chairman of the
NIB, and said proceedings have in fact been terminated.
The petition is premised upon the alleged illegality and
unconstitutionality of the issuance by respondent NIB to petitioners of
letters of invitation, their subsequent interrogation, and the filing of
the aforementioned libel suit.
Under the circumstances of the case, the petition cannot be granted.
The assailed proceedings have come to an end. The acts sought to be
prohibited (i.e., the issuance of letters of invitation petition and
subsequent interrogations) have therefore been abated, thereby
rendering the petition moot and academic as regards the aforesaid
matters.
Be that as it may, it is not Idle to note that ordinarily, an invitation to
attend a hearing and answer some questions, which the person invited
may heed or refuse at his pleasure, is not illegal or constitutionally
objectionable. Under certain circumstances, however, such an
invitation can easily assume a different appearance. Thus, where the
invitation comes from a powerful group composed predominantly of
ranking military officers issued at a time when the country has just
emerged from martial rule and when the suspension of the privilege of
the writ of habeas corpus has not entirely been lifted and the
designated interrogation site is a military camp, the same can easily be
taken, not as a strictly voluntary invitation which it purports to be, but
as an authoritative command which one can only defy at his peril,
especially where, as in the instant case, the invitation carries the
ominous seaming that "failure to appear . . . shall be considered as a
waiver . . . and this Committee will be constrained to proceed in
accordance with law." Fortunately, the NIB director general and
chairman saw the wisdom of terminating the proceedings and the
unwelcome interrogation.
Similarly, prohibition will not issue in respect of the libel charges now
pending in court against two of the petitioners and similar suits that
might be filed.
Firstly, the writ of prohibition is directed against a tribunal, board or
person acting without or in excess of jurisdiction or with grave abuse of
discretion vis-a-vis certain proceedings pending before it. The libel
cases adverted to are not pending before respondent NIB or any other
respondent.
Secondly, the issue of validity of the libel, charges by reason of their
alleged collision with freedom of expression, is a matter that should be
raised in the proper forum, i.e., before the court where the libel cases
are pending or where they may be filed. The same rule applies to the
issue of admissibility as evidence of matters that have been elicited in
the course of an inquiry or interrogation conducted by respondent NIB,
which petitioners claim to have been illegally obtained.
Finally, the right to seek redress when libeled is a personal and
individual privilege of the aggrieved party, and no one among the
respondent officials has the authority to restrain any of his
subordinates who has been libeled from vindicating his right by
instituting a libel suit. Brig. Gen. Tadiar has filed the libel case against
petitioners Suarez and Doyo in his personal capacity. Moreover, he is
not even a member of respondent NIB. And the NIB does not appear to
have anything to do with Gen. Tadiar's private right to complain of
libel.
WHEREFORE, the petition is dismissed.
SO ORDERED.
Melencio-Herrera, Escolin, Relova, Gutierrez, Jr., De la Fuente and
Cuevas, JJ., concur.
Makasiar, and Aquino, JJ., concur in the result
Concepcion, Jr. and Guerrero, JJ., are on leave.
 
Separate Opinions
 
FERNANDO, C.J., concurring:
The opinion of the Court penned by Justice Plana, written in his usual
lucid style, is entitled to commendation. It is characterized by fealty to
what has long been accepted as the task incumbent on the judiciary,
namely, to resolve disputes. There is no departure from the practice
very much in evidence in the United Kingdom and many
Commonwealth countries. As pointed out by him: "The petition is
premised upon the alleged illegality and unconstitutionality of the
issuance by respondent NIB to petitioners of letters of invitation, their
subsequent interrogation, and the filing of the aforementioned libel
suit." 1 Why it cannot be granted is made clear in these words: "The
assailed proceedings have come to an end. The acts sought to be
prohibited (i.e., the issuance of letters of invitation and subsequent
interrogations) have therefore been abated, thereby rendering the
petition moot and academic as regards the aforesaid matters."  2 As he
further stated in the latter portion of the opinion: "Fortunately, the NIB
director general and chairman saw the wisdom of terminating the
proceedings and the unwelcome interrogation." 3
After pointing out the moot and academic character of the petition,
Justice Plana, noted that "ordinarily an invitation to attend a hearing
and answer some questions, which the person invited may heed or
refuse at his pleasure" is not per se illegal or unconstitutional and
hence free from objection. Then he made the apt observation that
under the circumstances at present obtaining, it can be viewed "as an
authoritative command which one can only defy at his peril, especially
where, as in the instant case, the invitation carries the ominous
warning that 'failure to appear * * * shall be considered as a waiver * *
* and this Committee will be constrained to proceed in accordance
with law.'" 4 To this extent, there is conformity to what t also has been
traditional in this jurisdiction. This Court whenever an occasion calls for
it, has given expression to views indicative of its appraisal of how to
avoid the at times thin line separating what is juridically impeccable
from that which may give rise to well-founded doubts as to its legality
or at the very least cast a reflection on the ways of the law. What this
Court or a member thereof says then maybe be of persuasive
character.
CRIMINAL LAW FULL CASES
Why prohibition will not issue with respect to the libel charges pending
in court against petitioners and suits of a similar character that could
be filed, Justice Plana explained ill this manner: "Firstly, the writ of
prohibition is directed against a tribunal, board or person acting
without or in excess of jurisdiction or with grave abuse of discretion
vis-a-vis certain proceedings pending before it. The libel cases adverted
to are not pending before respondent NIB or any other respondent.
Secondly, the issue of validity of the libel charges by reason of their
alleged collision with freedom of expression, is a matter that should be
raised in the proper forum, i.e., before the court where the libel cases
are pending or where they may be filed. Finally, the right to seek
redress when libeled is a personal and individual privilege of the
aggrieved party, and no one among the respondent officials has the
authority to restrain any of his subordinates who has been libeled from
vindicating his right by instituting a libel suit." 5
In terms of the tried and tested concepts of strict law, it thus becomes
obvious why concurrence is unavoidable. This Tribunal, however, is
likewise a court of equity. It is reliance on that aspect that distinguishes
the separate opinions of Justices Teehankee and Abad Santos. True to
the tradition that cases on freedom of expression furnish the
opportunity for moving utterances, they stress in language both lofty
and persuasive, the exacting responsibility of the judiciary in preserving
unimpaired press freedom. They have done me the honor of citing or
referring to excerpts from my opinions as well as my other writings. I
am, of course, appreciative. Moreover, there has been no change of
heart on my part. I stand by them. I am unable, however, to go as far as
they would wish this Court to go. It is my considered opinion that it
suffices that I follow what, as ponente, I did in De la Camara v.
Enage, 6 namely to furnish guidelines for the lower courts, based on
authoritative doctrines. Thus: "While under the circumstances a ruling
on the merits of the petition for certiorari is not warranted, still, as set
forth at the opening of this opinion, the fact that this case is moot and
academic should not preclude this Tribunal from setting forth in
language clear and unmistakable, the obligation of fidelity on the part
of lower court judges to the unequivocal command of the Constitution
that excessive bail shall not be required." 7
1. Fortunately, there is a case that serves such a purpose. I refer
to Lopez v. Court of Appeals. 8 It deals with a civil action for libel, but
the principles therein enunciated apply as wen to criminal
prosecutions. As was set forth early in the opinion of the Court: "It is on
the freedom of the press that petitioners would stake their case to
demonstrate that no action for libel would he arising from the
publication of the picture of respondent Cruz Identified as responsible
for the hoax of the year, when such was not the case at all. It is easily
understandable why No liability would be incurred if it could be
demonstrated that it comes within the well-nigh all-embracing scope
of freedom of the press. Included therein is the widest latitude of
choice as to what items should see the light of day so long as they are
relevant to a matter of public interest, the insistence on the
requirement as to its truth yielding at times to unavoidable
inaccuracies attendant on newspapers and other publications being
subject to the tyranny of deadlines. If no such showing could be
plausibly made, however, it is difficult to resist the conclusion that
there was in fact the commission of such quasi-delict." 9
2. Further on the question of the decisive character of press freedom in
the adjudication of libel suits, the Lopez opinion had this to say: "There
is an impressive recognition in our decisions of the curtailment to
which press freedom would be subjected if an action for libel were not
rigorously scrutinized to remove doubts as to its being utilized to
penalize the exercise of that constitutional right. Thus, in the first
leading case, United States v. Bustos, Justice Malcolm could correctly
stress: 'The interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty
to comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the absences of
officialdom. Men in public life may suffer under a hostile and an unjust
accusation: the wound can be assuaged with the balm of a clear
conscience. A public officer must not to be too thin skinned with
reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted. Of course, criticism
does not authorize defamation. Nevertheless, as an individual is less
than the State, so must expected criticism be born for the common
good.' On this aspect of the question which, as answered by him,
would require that a criminal suit for libel should not be utilized as a
means for stifling press freedom, he categorically declared: 'Public
policy, the welfare of society, and the orderly administration of
government have demanded protection for public opinion. The
inevitable and incontestable result has been the development and
adoption of the doctrine of privilege.'" 10
3. So it is in the United States except for the fact that it was not until
1964, 36 years after Bustos, that its Supreme Court had occasion to
rule likewise. To quote anew from the Lopez opinion: "In the leading
case of New York Times Co. v. Sullivan, the nature of the question
presented was set forth by Justice Brennan for the Court in the opening
paragraph of his opinion: 'We are required in this case to determine for
the first time the extent to which the constitutional protections for
speech and press a State's power to award damages in a libel action
brought by a public official against critics of his official conduct.' This is
the Court's approach to such an issue: 'In deciding the question now,
we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of
state law. * * * Like insurrection, contempt, advocacy of unlawful acts,
breach of the peace, obscenity, solicitation of legal business, and the
various other formulas for the repression of expression that have been
challenged in this Court, libel can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that
satisfy the First Amendment.' Continuing the Elaine trend, the opinion
stressed further: 'Thus we consider this case against the background of
a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it may
well include vehement caustic, and sometimes unpleasantly sharp
attacks on government and public officials. * * * The present
advertisement, as an expression of grievance and protest on one of the
major public issues of our time, would seem clearly to qualify for the
constitutional protection.'" 11
4. The test to be followed, according to the language of the New York
Times decision, as reinforced by Curtis Publishing Co. v. Butts, was set
forth thus in the Lopez opinion: "For liability to arise then without
offending press freedom, there is this test to meet: 'The constitutional
guarantees require, we think, a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with
"actual malice" — that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.' The United States
Supreme Court went further in Curtis Publishing Co. v. Butts, where
such immunity was held as covering statements concerning public
figures regardless of whether or not they are government officials. Why
there should be such an extension is understandable in the light of the
broad scope enjoyed by press freedom which certainly allows a full and
free discussion of public issues. What can be more logical and
appropriate, then, than such an expansion of the principle. As noted by
a commentator: 'Since discussion of public issues cannot be meaningful
without reference to the men involved on both sides of such issues,
and since such men will not necessarily be public officials, one cannot
but agree that the Court was right in Curtis to extend the Times rule to
all public figures.'" 12
5. Accordingly, the Lopez opinion could rightfully stress: "The
significance of the foregoing line of decisions impressive for their
consistency is quite obvious. No inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise could
be characterized as libel whether in the form of printed words or a
defamatory imputation resulting from the publication of respondent's
picture with the offensive caption as in the case here complained of.
This is not to deny that the party responsible invites the institution
either of a criminal prosecution or a civil suit. It must be admitted that
what was done did invite such a dire consequence, considering the
value the law justly places on a man's reputation. This is merely to
underscore the primacy that freedom of the press enjoys. It ranks
rather high in the hierarchy of legal values. If the cases mean anything
at an then, to emphasize what has so clearly emerged, they call for the
utmost care on the part of the judiciary to assure that in safeguarding
the interest of the party allegedly offended, a realistic account of the
obligation of a news media to disseminate information of a public
character and to comment thereon as well as the conditions attendant
on the business of publishing cannot be ignored." 13
6. There is no ambiguity in the above authoritative doctrines. Press
freedom is a preferred right. 14 It is entitled to the fullest protection
that the law affords. A person who deems himself aggrieved by
defamatory statements is of course entitled to seek redress in the
CRIMINAL LAW FULL CASES
courts Nonetheless, in the felicitous language of the New York Times
decisions "libel can claim no talismatic immunity from constitutional
limitations. " While there is an undeniable public interest in assuring
that a man's reputation be safeguarded from calumny and unjust
accusation, on matters of public concern, he cannot be shielded from
the scrutiny of the press and the expression thereafter of whatever
failings it might uncover on matters of public concern. Care is to be
taken, however, that in its publication there is avoidance of affirming
what is not true or disregarding in a manner deemed reckless to take
the necessary steps of ascertaining its truth or falsity. That is as it
should be. Justice Holmes, in his classic dissent in Abrams, after
stressing that the ultimate good desired is better reached by a free
trade of Ideas, and that there should be the competition in the open
market, was insistent that truth is the only ground upon which man's
wishes can be safely carried out. 15 Professor Emerson, at present the
foremost scholar in the held, emphasized the value of freedom of
expression as "an essential process for advancing knowledge and
discovering truth." 16
7. There is no more exacting duty on the part of the judiciary,
therefore, than to heed the clear and unmistakable mandate of the
Constitution in passing upon the conflicting claims of the parties in libel
cases. To repeat, the law cannot ignore a man's inherent right to have
his reputation remain free from unjustified and unwarranted
imputations of wrongdoing. Nonetheless, because of the primacy
enjoyed by the free speech and free press guarantees of the
Constitution, even on the assumption that there has been injury to
man's reputation, the damages to be assessed, if at all warranted,
should not be lacking in the quality of realism. The same sense of
realism should likewise be displayed by the plaintiff in a libel suit in
estimating the amount due him for the injury inflicted on his good
name. The times are difficult, even perilous. It is of the essence,
therefore, that there be on the part of public officials and journalists
alike an attitude of trust and confidence in the good faith that
motivates them in the discharge of their responsibilities. Such an
attitude may lessen the atmosphere of confrontation and dissipate the
fear that press freedom has become a casualty under the
circumstances. It is for the judiciary to be ever on the alert that such be
not the case.
TEEHANKEE, J., dissenting:
I am constrained to dissent on the grounds, as hereinafter stated, that
rather than dismiss as moot and petition at bar due to termination of
respondent committee's interrogation proceedings, the Court should
rule squarely or at least lay down the authoritative and controlling
doctrines on the vital issues of profound public importance and
interest that involve the upholding of the preferred freedoms of
speech and press that are so vital for the survival of our democratic
heritage and the prescribing of the questioned acts of harassing and
intimidating journalists who expose and report on complaints of
military abuses.
Petitioners, all in mass media as editors, columnists, reporters or
feature article writers, filed on January 25, 1983 the verified petition
for prohibition against respondent National Intelligence Board, Special
Committee No. 2, and its Chairman and members, all composed of
ranking military officers, save respondent NBI Assistant Director
Ponciano Fernando. They complain that "some of them have received
summonses, subpoenas or directives from military authorities who
have subjected them to sustained interrogation, touching the most
delicate aspects of their work, feelings, sentiments, beliefs,
associations and even aspects of their private lives. From August to
December of 1982, several such subpoenas were received by some of
the petitioners, most of which came in the wake of the mass arrest,
indictment and prosecution of the editor and staff of the publication
'We Forum', which could be read as a threat that petitioners might also
be subjected to similar treatment and that those "who have been
subjected to the aforesaid sustained interrogation found it an ordeal
creating a 'chilling effect' on their work."
Invoking the preferred freedom of the press which constitutionally
protects them from prior restraint or censorship or subsequent
punishment or liability unless there be a clear and present danger of
substantive evil that may be rightfully prevented by law, and
disregarding emphatic admonitions by their interrogators to keep silent
concerning the interrogation and the risk of possible personal reprisal,
they have petitioned of this Court for the writ of prohibition with
injunction. Petitioners ask the Court to put a stop to such summonses'
directives and interrogations by respondents and to declare them
"unconstitutional and unlawful Petitioners further ask the Court to
likewise put a stop to "further harassment in the form of scurrilous
libel suits to be filed by military commanders against the editor, some
staff members and contributors of Philippine Panorama (Sunday
magazine of Bulletin Today), as per official announcement of Camp
Aguinaldo reported on January 30, 1983. 1 By Amended and
Supplemental Petition of March 3, 1983, petitioners pinpoint the
criminal libel complaint "with a staggering P10-million claim for
damages" (as against the modest P250.00 fee received by the writer)
filed on February 9, 1983 with the City Fiscal of Manila by Brig. Gen.
Artemio A. Tadiar, Jr. (as Commanding General of the Third Philippine
Marine Brigade, AFP) against petitioners Domini Torrevillas Suarez and
Ma. Ceres P. Doyo, editor and writer, respectively, for the alleged
libelous article "Forty Years After the Fall Bataan is Again under Seige"
which was published a year before in the Philippine Panorama issue of
March 28, 1982. 2The criminal information for libel, Crime Case No. 83-
16213 was filed with the Regional Trial Court of Manila on March 24,
1983 and sought P l0-million "by way of actual, moral, exemplary and
other damages" for the complainant Brig. Gen. Tadiar for having been
"expos[ed] . . . to public hatred, contempt, discredit, dishonor and
ridicule.") 3
At the hearing on February 1, 1983, the Solicitor General on behalf of
respondents submitted the memorandum dated January 19, 1983 of
respondent General Fabian C. Ver as Director General and Chairman of
the National Intelligence Board terminating the proceedings of
respondent Committee No. 2 and stating that after reviewing the
report of said Committee on "the series of dialogues [you] have
conducted with selected members of the media the Board "expressed
satisfaction in the results of the dialogues and noted better mutual
understanding of the respective roles of media and government. "
The Court's majority resolution dismisses the petition as having
become moot and academic with the termination of respondent
Committee's proceedings and interrogations.
Petitioners on the other hand, invoke the imperatives of public interest
in their petition and plead for a definite ruling thereon from the Court
so that the violations of their constitutional rights of free press and
speech and privacy may not be repeated.
Petitioners are entitled to such a definite ruling. In the words of the
late Chief Justice Fred Ruiz Castro in Aquino, Jr. v. Enrile, 4 "the fact that
a final determination of a question involved in an action is needed will
be useful as a guide for the conduct of public officers or tribunals is a
sufficient reason for retaining an action which would or should
otherwise be dismissed. Likewise appeals may be retained if the
questions involved are likely to arise frequently in the future unless
they are settled by a court of last resort.
This was also my submittal in my dissents in the recent habeas corpus
cases of Renato Cañete  5 and Aristedes Sarmiento.  6 In these cases, the
military authorities had refused to release the detainees despite their
acquittal by the trial courts on the ground that "only the President of
the Philippines can order (their) release since (they are) being detained
pursuant to a PCO." The charges against them were found to be bereft
of basis and evidence. In Cañete's case, the trial court granted his
motion to dismiss the case of illegal possession of subversive
documents for insufficiency of the prosecution's evidence.
In Sarmiento's case, the trial court dismiss the subversion charges for
"utter worthlessness of evidence," so much so that Mr. Justice Felix V.
Makasiar suggested that "(T)he military establishment should inquire
into whether the President was deceived into issuing the PCO and who
initiated the arrest of the couple without supporting evidence." The
detainees were released by the military only when the PCO's were
lifted after the lapse of several months since their acquittal and the
Court's majority ordered the dismissal of the cases as having become
moot. I maintained in line with a host of precedents that the basic issue
of whether a judgment of acquittal prevails over the PCO should be
squarely resolved rather than emasculated with the dismissal of the
cases in order to avoid countless other Cañetes and Sarmientos.
In De la Camara vs. Enage 7 (where petitioner-accused had escaped
from jail, apparently in desperation due to the excessive and exorbitant
bail fixed by respondent judge of almost P2.5-million rejected by the
now Chief Justice therein as a sanctimonious avowal of respect for a
CRIMINAL LAW FULL CASES
mandate of the Constitution . . . on a purely verbal level when the
Department of Justice had recommended P40,000 bail for the two
offenses the Court held that "the fact that this case is moot and
academic should not preclude this Tribunal from setting forth in
language clear and unmistakable . . . for the guidance of lower court
judges, the controlling and authoritative doctrines that should be
observed in according full respect to constitutional rights. While we
dismissed the case as moot with petitioner's escape, the Court
nevertheless squarely ruled that the constitutional right to bail should
not be rendered nugatory with the imposition of excessive bail and
declared the challenged order as having "reduced the right to bail to a
barren form of words . . . absolutely bereft of support in law."
I hold then with Mr. Justice Vicente Abad Santos, and as intimated by
the majority resolution when it noted that "fortunately, the NIB
director general and chairman saw the wisdom of terminating the
proceedings and the unwelcome interrogations" 8 that the "invitations"
and interrogations were violative of the freedoms of speech, press and
privacy and proper objects of the petition at bar for prohibition with
injunction. The Court should so rule, setting forth as in De la
Camara for the guidance of lower court judges the controlling and
authoritative doctrines that safeguard the preferred freedoms of press
and speech and making of record the Solicitor General's assurance and
"commitment" at the hearing that no further interrogations of
journalists would take place and that "there will be no other
committees that will be created for the same purpose."
The Chief Justice (then Associate Justice) had in the 1969 case
of Gonzales vs. Comelec 9 collated precedents and jurisprudence and
restated such controlling principles, as follows:
... There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there
be a clear and present danger of substantive evil that Congress has a
right to prevent.
The vital need in a constitutional democracy for freedom of expression
is undeniable whether as a means of assuring individual self-fulfillment,
of attaining the truth, of securing participation by the people in social
including political decision-making, and of maintaining the balance
between stability and change. The trend as reflected in Philippine and
American decisions is to recognize the broadest scope and assure the
widest latitude to this constitutional guaranty. It represents a profound
commitment to the principle that debate of public issues should be
uninhibited, robust, and wide-open. It is not going too far, according to
another American decision, to view the function of free speech as
inviting dispute. "It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger."
Freedom of speech and the press thus means something more than the
right to approve existing political beliefs or economic arrangements, to
lend support to official measures, to take refuge in the existing climate
of opinion on any matter of public consequence. So atrophied, the right
becomes meaningless. The right belongs as well, if not more, for those
who question, who do not conform, who differ. To paraphrase Justice
Holmes, it is freedom for the thought that we hate, no less than for the
thought that agrees with us.
The special appeal made by revered Law Professor Gerardo Florendo at
last year's hearing of February lst is herein likewise reproduced for the
record:
... With your indulgence, most Honorable Supreme Court Justices, I am
appearing here for the first time in view of the importance of the
question here to be ventilated before the great and august Body, of the
Supreme Court, for unless the petition is upheld by the Supreme Court,
neither the freedom of the Supreme Court Justices nor of the
defendant-attorneys can be protected, much less my freedom as a
civilian and mere citizen of this great Republic of the Philippines. So, as
I'm here, Your Honor, to add to my weak voice, at the advanced age of
87 years, so that before I pass out of this world into the great beyond,
no one can say a voice no matter how big (sic). For indeed, reading the
petition, the questions asked by the military are in themselves
punishment far beyond the ken of prison walls. But harassing the
individual concerned out of the rooms, in the privacy of their
habitations, we wish the whole country could stand to say that what
you, the Military, which is sworn to protect the freedom and liberty of
the citizens of this country, could really exercise that to the benefit of
each and every citizen, because when a citizen's freedom is
jeopardized, endangered, that also affects you personally and your
children, and your grandchildren. So that, Your Honor, I wish now to
intervene here and say, Military, please change your proceedings, your
actuations and exercise your duties as you are sworn to defend the
freedom and liberty of your country and of the citizens of the land.
Thank you. 10
As to the prohibition suit against the criminal libel suit initiated by
respondent Brig. Gen. Tadiar with a claim of P10 million damages, the
majority resolution dismisses the petition on the grounds that (1) the
libel case is not pending before respondent NIB; (2) the lack of cause of
action or non- existence of a criminal offense should be raised in the
proper forum, i.e. the court where the libel case is pending; and (3)
respondent Brig. Gen. Tadiar has filed the libel case "in his personal
capacity" in the exercise of "a personal and individual privilege of the
aggrieved party."
The Resolution has thus adopted the conventional approach of
requiring that the invalidity of the libel case be raised in the Regional
Trial Court (which has not been impleaded, as the information had not
yet been filed at the time of the filing of the Amended and
Supplemental Petition) and first passed upon by said court.
But this Court has set aside procedural niceties in the past and cut the
gordian knot and directly gave its final determination particularly when
necessary as a guide for the conduct of public officers and tribunals and
to forestall needless congestion of the court's dockets with the
likelihood of numerous future similar cases being filed.
And this direct approach is required now. The Chief Justice himself in a
lecture at the National Press Club last July, observed that about
thirteen years ago (before martial law) fiscals automatically dismissed
libel complaints against newsmen by merely invoking the preferred
freedom of the press but that nowadays the prosecutors tend to file
such libel cases against newsmen. It may be added that the
prosecutors have cooperated in aggravating the pressure and
intimidation by the new gimmick of including in the criminal
information the complainant's claim for astronomical damages in tens
and hundreds of millions of pesos, which the newsman could not
possibly even begin to aspire to earn, even if he lived a hundred
lifetimes. It is of common knowledge and practice that such claims for
damages were never before set out in specific amounts in the
information nor have the courts been known to have ever granted
before awards for damages in such punitive and fantastic amounts,
"the usual practice being more likely to reduce damages for libel than
to increase them. 11
Lawyer-columnist Apolonio Batalia comments that "(M)ost of the
stories appearing in the periodicals are about government and many of
them tend to offend government officials. If a newsman is fearful of
being indicted for libel, he writes less freely and doctors the facts to
make them inoffensive to certain government officials even if he thinks
that it is not correct to do so. But he is afraid of risking exposure to a
criminal case." He adds that "(I)f fiscals become fearful of dismissing
complaints on valid grounds, the fear might spread to include not only
newsmen but the lower courts as well. There cannot be that desirable
amount of freedom guaranteed by the Constitution if reliance is placed
only on what the Supreme Court will rule in particular cases," and
cautions that "(P)ress freedom is the concern of judges, fiscals, other
government officials, writers, and the rest of society, including the
possible complainants in libel suits. In the absence of the will on the
part of such people to preserve press freedom, the Supreme Court will
be of little utility." He cites the case of Isidoro Chammag, a Bulletin
correspondent in the north: "After he wrote a story about Abra folk
fleeing their homes on account of a military raid on suspected
insurgents, he was sued for libel. He did not have the resources to post
bail." 12 His colleagues started a fund campaign to raise bail for him.
In a recent editorial, the Times-Journal decries that "libel suits are
being used to harass journalists." It recalls that "(D)uring the severest
period of martial law the Philippine press was kept under tight watch.
CRIMINAL LAW FULL CASES
Not a few editors and reporters have experienced the quiet terror of
an irate phone call from some ranking public official or a less-than
friendly summons from the military. And Filipino journalists are not so
dense as to misread such feedback as anything less than the
intimidation it was meant to cause," and points out that "(W)hile the
formal lifting of martial law has eased somewhat the daily pressure on
media to rigidly tow the official line, memories of those less-than-
shining moments of Philippine journalism are still vivid in the collective
mind of media. Many editors and reporters, especially those of the
mainstream press, still find themselves automatically censoring
themselves, sacrificing full disclosure at the altar of compromise The
editorial concludes "(T)hat nuisance suits continue to be used in their
place should be cause for serious worry not only among journalists but
also for the public and policy-makers. The lessons of the recent past
only show that corruption and abuse of authority thrives best when the
press is timid."13
The late Justice Hugo Black of the U.S. Supreme Court in the Pentagon
Vietnam Paper's cases (which turned down the U.S. Government's plea
for injunction against the publication of the papers in the name of
national security) had stressed that "(T)he press was to serve the
governed, not the governors. The Government's power to censor the
press was abolished so that the press would remain forever free to
censure the Government. The press was protected so that it could bare
the secrets of government and inform the people. Only a free and
unrestrained press can effectively expose deception in
government. ... ." 14
As already indicated, the Court should now set forth once again the
controlling and authoritative doctrines that the Court, even ahead of
the U.S. Supreme Court, had first enunciated in the 1918 landmark
case of U.S. vs. Bustos15 on the protected right of fair comment on the
official acts of public officers thus: "The interest of society and the
maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom Men in public life may suffer
under a hostile and an unjust accusation: the wound can be assuaged
with the balm of a clear conscience. A public officer must not to be too
thin-skinned with reference to comment upon his official acts. Only
thus can the intelligence and dignity of the individual be exalted. Of
course, criticism does not authorize defamation. Nevertheless, as an
individual is less than the State, so must expected criticism be born for
the common good."
Given this approach, the first ground above cited of the majority
resolution for not ruling now on the Tadiar libel suit may be easily
remedied with the Court's considering as formally impleaded as party
respondents the Regional Trial Court where the case is pending as well
as the People (who is after all represented by the Solicitor General)
which is the party plaintiff in all criminal cases.
The third above-cited ground that respondent Gen. Tadiar has filed the
libel case "in his personal capacity" is not borne out by the record. The
information filed recites that the libel was committed against "the
character, honesty, integrity, virtue and reputation of Brigadier General
Artemio A. Tadiar, Jr., Commanding General of the 3rd Philippine
Marine Brigades, Armed Forces of the Philippines, both as a man and
as an officer in the Armed Forces of the Philippines," and that the
article's "false, defamatory and libelous statements (which) impute to
the officers and men of the 4th Marine Battalion a unit of the Third
Philippine Marine Brigade under the command of Brig. Gen. Artemio A.
Tadiar, Jr., the commission of the crimes of murder, homicide, arbitrary
detention, illegal arrests and searches, maltreatment and other acts of
oppression, terrorism, abuse of authority and acts of misconduct
unbecoming of military officers and members of the Armed Forces of
the Philippines," although it claimed P lO-Million damages on Brig. Gen.
Tadiar's behalf.
There is no question then that respondent Gen. Tadiar felt libelled
because the article's narration of misdeeds reportedly committed by
officers and men under his command in Bataan (false and defamatory
statements, according to his complaint) reflected upon him as the
commanding general. Petitioners complain then that if respondents
AFP Chief of Staff and NIB had "expressed satisfaction in the results of
the dialogues and noted better mutual understanding of the respective
roles of media and government," respondent Tadiar could not take a
stance opposite that of his superiors and that "conflict of interests arise
and national policy considerations would thereby be ignored by
General Tadiar's action. The assurance of the Solicitor General that
petitioners would not be subjected to further interrogations would be
meaningless. If that were snowed, it would appear that the Armed
Forces of the Philippines, thru its Chief of Staff, terminated the
interrogations of newspaperwomen with its left hand only to hit them
with libel suits with its right hand. What one cannot do directly, he
cannot do indirectly." 16Petitioner Doyo's offending article is attached to
the record and appears to bear out their contention that a principal
element of libel is here absent: that of Identification or Identifiability.
Thus, petitioners submit that "(A)n examination of the allegedly
libelous article would disclose that respondent General Tadiar is not
mentioned at all even inferentially, indirectly, parenthetically,
tangentially, or peripherally in the allegedly libelous article; nor is it
even suggested that he was in command of the troops."  17
The Court has long adopted the criterion set forth in the U.S.
benchmark case of New York Times Co. vs. Sullivan18 that "libel can
claim no talismanic immunity from constitutional limitations" that
protect the preferred freedoms of speech and press. Sullivan laid down
the test of actual malice, viz. "(T)he constitutional guaranty of freedom
of speech and press prohibits a public official from recovering damages
for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with 'actual malice that is, with
knowledge that it was false or with reckless disregard of whether it was
false or not." Particularly applicable to respondent Tadiar's complaint is
the declaration that there is no legal alchemy by which a State may
create a cause of action for libel "by transmitting criticism of
government, however impersonal it may seem on its face, into
personal criticism and hence, potential libel, of the officials of whom
the government is composed ... We hold that such a proposition may
not constitutionally be utilized to establish that an otherwise
impersonal attack on governmental operations was a libel of an official
responsible for those operations."
Ultimately, the core issue is whether or not the article on Bataan is
constitutionally protected as fair comment on matters of public
interest involving military conduct and operations and therefore not
actionable as libel, criminally or civilly. As former Chief Justice Ricardo
Paras pointed out in Quisumbing vs. Lopez, 19 so long as there is no
personal ill will, self-seeking motive or actual malice or abuse of press
freedom, "the newspapers should be given such leeway and tolerance
as to enable them to courageously and effectively perform their
important role in our democracy. " The ground rules and limits of the
Constitution are there and should be applied and respected by all
concerned in all cases, and not on a case by case basis if the
fundamental rights of free speech and press are to be upheld and
enhanced and the courts not rendered "of little utility."
The ringing words of the late Justice Jose Abad Santos, hero and martyr
of the Japanese invasion of the Philippines in World War II, in his
dissenting opinion in People vs. Rubio 20 against the majority decision
that to his mind "set at naught constitutional principles" against the
issuance of general search warrants give us, mutatis mutandis, a fitting
admonition:
The internal revenue agents concerned in this case have shown
commendable zeal in their efforts to protect the revenues of the
Government; but this same zeal, if allowed to override constitutional
stations would become "obnoxious to fundamental principles of
liberty." And if we are to be saved from the sad experiences of some
countries which have constitutions only in name, we must insist that
governmental authority be exercised within constitutional limits; for,
after all what matters is not so much what the people write in their
constitutions as the spirit in which they observe their provisions.
ABAD SANTOS, J., dissenting.
Persecution for the expression of opinions seems to me perfectly
logical. If you have no doubt of your premises or your power and want
a certain result with all your heart you naturally express your wishes in
law and sweep away all opposition. To allow opposition by speech
seems to indicate that you think the speech impotent, as when a man
says that he has squared the circle, or that you do not care
wholeheartedly for the result, or that you doubt either your power or
your premises. But when men have realized that time has upset many
fighting faiths, they may come to believe even more than they believe
CRIMINAL LAW FULL CASES
the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in Ideas that the best test of
truth is the. power of the thought to get itself accepted in the
competition of the market; and that truth is the only ground upon
which their wishes safely can be carried out. That, at any rate, is the
theory of our Constitution. It is an experiment as an life is an
experiment. Every year, if not every day, we have to wager our
salvation upon some prophecy based upon imperfect knowledge.
While that experiment is part of our system I think that we should be
eternally vigilant against attempts to check the expression of opinions
that we loathe and believe to be fraught with death, unless they so
imminently threaten immediate interference with the lawful and
pressing purposes of the law that an immediate check is required to
save the country. (Justice Holmes in Abrams vs. United States, 250 U.S.
616, 630; 63 US. S.C. Lawyers' Ed. 1173, 1180 [1919].)
The above quotation has relevance to this case which is a petition for
prohibition.
When the petition was filed on January 25, 1983, the petitioners were
in the mass print media. Some were editors (e.g. Domini Torrevillas-
Suarez of PANORAMA magazine some were columnists (e.g. Arlene
Babst of BULLETIN TODAY), some were feature writers (e.g. Jo-Ann Q.
Maglipon), and some were reporters (e.g. Maritess Danguilan-Vitug).
As this is written some of the petitioners have ceased to write regularly
such as Ms. Babst and Letty Jimenez-Magsanoc.
The respondents are the members of Special Committee No. 2 of the
National Intelligence Board composed of retired Brigadier General
Wilfredo C. Estrada, Brigadier General Renato Ecarma, National Bureau
of Investigation Assistant Director Ponciano Fernando, Colonel Balbino
Diego, Colonel Galileo Kintanar, Colonel Eustaquio Peralta, Colonel
Constantino Tigas, and Major Eleonor Bernardino.
Special Committee No. 2 of the National Intelligence Board summoned
and interrogated on various dates the following petitioners:
1. Domini Torrevillas-Suarez
2. Lorna Kalaw-Tirol
3. Ma. Ceres P. Doyo
4. Jo-Ann Q. Maglipon
5. Arlene Babst
6. Ninez Cacho-Olivares
Some of the other petitioners were summoned but had not yet been
interrogated when the petition was filed.
Typical of the summonses was the confidential letter sent to petitioner
Babst which reads as follows:
Republic of the Philippines
NATIONAL INTELLIGENCE BOARD
Special Committee No. 2
December 20, 1982
Ms. Arlene BABST  4. The "interrogation" or interview termed by the Panel as a "dialogue"
Recoletos St., cor Muralia St.
Intramuros, Metro Manila
Madam:
Pursuant to the authority vested in me by law, you are hereby
requested to appear before this Special Committee at Philippine Army
Officer's Clubhouse, Fort Bonifacio, Metro Manila, (sketch attached),
9:00 A.M., December 22, 1982, to shed light on confidential matters
being looked into by this Committee.
Your failure to appear on the specified date and place shall be
considered as a waiver on your part and this Committee will be
constrained to proceed in accordance with law.
Very truly yours,
(SGD) WILFREDO C. ESTRADA
Brig. General, AFP (Ret.)
Chairman
(Annex A, Petition.)
In an affidavit which Ms. Babst executed on January 15, 1983, she said:
1. I presently work for the Bulletin Publishing Corporation as of the
Bulletin Today; as Editorial Page columnist of the Bulletin Today;
2. In connection with my columns in said publication, I was served on
December 20, 1982 a written invitation marked "Confidential" from
Brig. Gen. Wilfredo C. Estrada to appear before the National
Intelligence Board, Special Committee #2, on December 22, 1982, for
the stated purpose: 'to shed light on confidential matters' with the
warning that my failure to appear 'shall be considered as a waiver on
your part and the Committee will be constrained to proceed in
accordance with law;
3. On December 22, 1982, 1 appeared before the Special Committee #2
of the National Intelligence Board composed of all military personnel
who were, namely: Brig. Gen. Wilfredo Estrada, AFP (RET.); Col. Balbino
Diego, legal officer of the Presidential Security Command (PSC); Col.
Juanito Fernando of the National Bureau of Investigation (NBI), Col.
Galileo Kintanar of the 15th MIG, ISAFP; Col. Peralta of the CIS; Col.
Ecarma, Col. Constantino Tigas of the Ministry of Information; Maj.
Eleonor Bernardino, and a number of other persons, including staff and
personnel;
lasted from 9:40 A. M. till about 1:15 P. M. or for a duration of more
than three (3) hours;
5. Through out the proceedings the perceptible objective of the Panel
was to intimidate and instill fear in me (as well as all writers of the
press) to the point that we will suppress the truth and not freely write
or express my views on matters of public concern;
6. The proceedings that transpired are stated in a five page
'Information Sheet' which I personally executed and is hereby attached
and incorporated as an integral part of this affidavit and bears my
authenticating signature on each and every page thereof;
7. I am executing this affidavit for all legal purposes it may serve.
(Annex C, Petition.)
On the interrogation, she wrote as follows:
INFORMATION ON THE INTERROGATION:
1) The invitation was received on Monday evening at the Bulletin
Today, Dec. 20, 1982. I later learned that two military men had gone to
my parents' old house in Quezon City, looking for me, and causing
much distress in my bewildered household. Copy of invitation with
Atty. Joker P. Arroyo, who subsequently accompanied me to the
interrogation.
The invitation was for: WEDNESDAY, DEC. 22, 1982, at 9 a.m., Fort
Bonifacio
2) The investigation panel was composed of the following:
a. Brig. Gen. Wilfredo C. Estrada, AFP (Ret.) Chairman of the National
Intelligence Board, Special Committee
CRIMINAL LAW FULL CASES
b. Col. Balbino Diego, Chief, Intelligence and Legal Office, Presidential
Security Com.
c. Col. Fernando, National Bureau of Investigation
d. Col. Galilee Kintanar, 15th MIG ISAFP, Bago Bantay
e. Col. Peralta, CIS
f. Col. Ecarma
g. Col. Tigas, Ministry of Information
h. Major Babette Bernardino
3) The investigation lasted from 9:40 a.m. till about 1:15 p,m. with a 10
minute coffee break at around 11:20: From 9 to 9:40, we talked
informally. Col. Fernando read me Sec. 9 of Article 4 of the Bill of
Rights, the section saying that no law shall be passed to abridge
freedom of speech, of the press, or of peaceful assembly BUT, Col.
Fernando told me emphatically, this section was subordinate to that
one (which he also showed me saying that police power could overrule
the first section when 'matters of national security' so decree.
QUESTIONS ASKED BY THE INTERROGATORS:
1. May we call you Arlene?
2. What is your marital status
3. Would you care to tell us more about yourself? (I said no.)
4. Tell us about your trips abroad, who financed them, for what
purpose, when, which countries have you visited or not visited, were
these for journalistic purposes, who did you travel with?
5. What are the things you consider important to you? (I said, Zen,
writing, friendships.)
6. Ten us about your educational background.
7. When did you start with the Bulletin aid how did you get your post?
8. Tell us about your previous media positions.
9. They asked specifically about columns on:
— Edgar Jopson Wed., Sept. 29,1982 20. What were you doing in February, 1970, because we have on our
files (and they showed me their thick dossier) a report that you
disappeared for a month then and probably joined the underground.
— What exactly is press freedom?, Fri. Sept. 17, 1982
21. Did We Forum ask you to write for them?
— Fear eats away at the soul, Jan. 10, 1982
22. Are speaking engagements part of your duties as a journalist? Do
and several others in passing
you consider them hazardous? (I replied that these were a hazard of
the trade, part of being a public figure.)
They questioned mostly my attitude, style tone, point of view' in regard
to these columns.
23. Would you care to write about the military? Would you like to visit
Samar, Leyte, the PMA?
10. Don't you think that you should consider the effect of your columns
on the mind and passions of your readers? Col. Diego asked: Why do
24. Did you know that Edgar Jopson was a radical? Why did he become
you write to agitate the mind and arouse the passions?
a radical? (You tell me, I told them.
Col. Kintanar was the one most concerned with 'the effect of your
25. Are you ever censored or edited?
writings on the minds and passions of your readers.'
26. Are you familiar with the problem of brain washing?
11. After my lawyer,Mr.Arroyo, pointed out that out of some 450
columns, only a few seemed to be questioned by the board, Gen.
Estrada said that even so, a plane cannot fly unless it is 100% in flying 27. Don't you think that you are being unwittingly used by those who
condition. I couldn't make out what he meant by that. try to subvert the government?
12. What subjects do you write about? (I listed a dozen various topics 28. Would you are to join the Office of Media Affairs?
from feminism to art to philosophy to film to religion, etc.). Why do
you choose them?
29. Do you have children?
13. Who reads your columns at the Bulletin before they are published
30. On that column "Diary of a political detainee", did you check
or not published
whether the detainees were really fasting?
14. What kind of mail/feedback do you get
31. Are you hiding behind your literary devices? Are you evading my
question? (this by Maj. Bernardino)
15. Do you mind if we ask about your brother's case? (This in
connection with my columns criticizing anomalies in government and
32. Don't you think your writings make heroes of the very people
business.)
people the military have such a hard time with?
16. Were you really a nun When? Where? Why? Why did you leave?
33. Don't you feel that many groups would like to influence you? (I
said, Of course and listed hotel PR groups, the military, etc.)
17. Tell us about your Zen, what is it, how do you practice it, where,
etc.
34. Who are the writers who have influenced you?
18. Why did you leave the Catholic religion
35. What is the name of your novel? What does it mean? How is it
selling? Who published it?
19. Why do you women writers make Fr. Agatep look like a hero? (I
told them I've never even written about him.)
36. Did you know that Fr. Agatep was a womanizer? (Who among
Filipino men isn't, I replied, words to that effect.)
CRIMINAL LAW FULL CASES
37. Tell us more about Buddhism and Zen and meditation. Is it true you
face the wall two hours a day, sitting absolutely still?
38. When did you start writing? Why How?
39. Your cousin Carmen Sabater said you disappeared in 1970. Why?
40. We have a report that you applied for a job at ISAFP in 1973. (They
showed me an application form I was supposed to have filled out and
signed; I did not recognize it at all What is ISAFP, I asked them, I don't
even know what that is- they explained it was the Intelligence Service
of the Armed Forces of the Philippines. Why in God's name would I
want to work for them, I said.
41. What is your definition of national security?
42. What is your definition of press freedom?
43. What are the guidelines for responsible journalism? Do you realize
that some of your writings are only a hairline away from subversive
writing?
44. What is subversive writing? (You tell me, I said again.)
45. Did you mind coming here today? (yes, very much) Thank you for
coming. (I didn't thank them so Mr. Arroyo had to mind my manners
for me
46. Would you like to come to Baguio or Samar or Leyte, they
repeated, and offered me a job again with the OMA Have you ever
written anything favorable about the military? I pointed out the
column 'The Human Side of the Military', written Jan. 30, 1981.
The interrogation was recorded by stenographers seated at the sides
and, I suspect, by hidden recorders, why not indeed? Am I being too
cynical? Sorry.
Col. Kintanar repeated about half a dozen times that I should be
concemed about the effect my writing has on my readers and that I
was "on the borderline" between legitimate journalism and writing
things that arouse the people. Arouse them to what, I asked? To think,
I hope, I said.
My response to the invitation and the interrogation: I am helpless
about being insulted but I do not have to smile at the insults. I was
indignant that I was "invited" (with a threat) at all. By what legal
authority was I brought there? If they really wanted a dialogue, they
should have invited us as a group to lunch and served decent white
wine. (I told them this.) They ruined my Christmas shopping which was
a far more interesting activity for that morning, I firmly believe. They
wished me a happy birthday and I told them I would indeed remember
this charming gift the military of my country gave me practically on the
eve of my birthday and Christmas, 1982. (Annex C-1, Petition.)
The original petition asks that the interrogations be declared
unconstitutional and unlawful and that the respondents be prohibited
permanently from engaging in such practices and similar acts.
An amended and supplemental petition was filed on March 3, 1984,
naming Generals Fabian Ver and Artemio Tadiar, Jr. as additional
respondents. Another prayer was added that the respondents be
prohibited from filing libel suits on matters that been inquired into by
the National Intelligence Board.
The additional prayer was made because the petitioners were
apprehensive that aside from the interrogations they would be
subjected to other forms of harassment. The BULLETIN TODAY carried
the following item in its issue of January 30, 1983:
OFFICERS TO FILE LIBEL CHARGES
Camp Aguinaldo announced yesterday that charges of scurrilous libel
will be filed by military officers against the editor and some staff
members and contributors of Philippine Panorama, the Sunday
magazine of Bulletin Today.
AFP spokesman Col. Reynaldo Wycoco said the charge stemmed from
what the complainants considered as malicious writings of some staff
members and contributors of Panorama on sensitive issues, that
maligned them personally or cast aspersions on their integrity and
dignity as military commanders.
Among the complainants are Brign Gen. Victorino Asada of the First
Constabulary regional command Brig. Gen. Bienvenido Felix of Third PC
regional command Brig. Gen. Salvador Mison of the eastern command
Brig. Gen. Pedrito de Guzman, while commander of the Eleventh PC
regional command in Davao, and other officers.
Solicitor General Estelito P. Mendoza, and other government
prosecutors in charge of national security cases have been consulted
on the legal actions to be taken against writers of other newspapers
and magazines who have allegedly committed the same offense.
The spokesman said those to be charged are Domini Torrevillas-Suarez,
Panorama editor, Jo Ann Maglipon, writer contributor; Lorna Kalaw-
Tirol, staff writer, Maria Ceres Doyo, writer-contributor, and Sheilah
Coronel, staff-writer.
General De Guzman said Maglipon's article entitled 'Where the Men
with Guns Tread Nothing is Left But Charred Remains and the Skeleton
of a Village' which appeared July 4, 1982, in Philippine Panorama,
gravely discredited the soldiers in his command with obvious malicious
intent.
The article allegedly contained numerous imputations that government
troopers intimidated, tortured, and massacred innocent civilians
belonging to the Atas minority, whom they are sworn to protect, and
that they rampaged through their villages in Davao del Norte, during
1978-1981.
Tirol wrote an article entitled "In this Catholic Country, Is it Being
Subversive to Live Out Christ's Gospel?" published last Nov. 21. The
article blamed the military for acts of atrocities on the Church in the
Samar provinces, the complainants said.
In Northern Samar, 'the people had been terrorized by two months of
military operations, and that the head of one dead man was displayed
in the poblacion, 35 ears attached to it, dead people were brought to
the centers tied to a pole and then dumped into a pit,' the article was
quoted as saying.
Mrs. Tirol, in complete contempt of the military authorities led by
General Mison, said that the military "dumps into the waste basket the
letter complaints about military abuses," the complainants said.
Maria Ceres P. Doyo wrote an article entitled "40 Years After the "Fall",
Bataan is Again Under Siege," which appeared in the March 28 issue.
General Felix said this article is libelous because it casts aspersion on
the marines and the PC and discredits his capability and integrity as a
military commander.
He quoted the following from the article:
"In September 1981, military operations in Bataan were stepped up.
For many this was the start of a nightmarish experience. Raid, tortures,
arrests, killings. The PC and the marines were trying to flush out so-
called subversive elements."
General Azada, commanding general of Recom I charged that Doyo's
article on Fr. Zacarias Agatep glamorized an acknowledged enemy of
the government and put the military authorities in a bad light by
casting aspersions and apprehensions on the circumstances
surrounding the encounter between the PC and NPA where Agatep
was killed.
Coronel, author of the article "Who Killed Bobby de la Paz?" in the
Panorama last Dec. 12, questioned the Eascom pronouncement that
CRIMINAL LAW FULL CASES
the New People's Army (NPA) was responsible for the murder of de la
Paz.
The article said the Eascom 'never conducted any thorough
investigation of the case' and that there were 'circumstantial evidence
that point to the military's involvement in the slaying.'
General Mison charged that Coronal simply quoted from a leftish group
publication, without verifying from the local military and police
authorities on the progress of the actual investigation. (Annex F,
Amended Petition.)
In fact respondent Tadiar executed a complaint affidavit dated
February 9, 1983, which he filed with the City Fiscal of Manila. He
accused petitioners Domini Torrevillas-Suarez and Ma. Ceres Doyo of
libel because of the publication in PANORAMA of an article entitled "40
YEARS AFTER THE 'FALL', BATAAN IS AGAIN UNDER SIEGE He claimed
damages (other than exemplary damages) in the amount of ten million
(P10,000,000.00) pesos which Justice Plana has described as
staggering. Annex G-1, Amended Petition.)
It should be stated also that petitioner Letty Jimenez-Magsanoc once
wrote a highly critical article published in PANORAMA for which she
was threatened with libel suits by several highly placed government
officials. Mrs. Jimenez Magsanoc is not with PANORAMA anymore.
Recently a committee of the print media issued a
STATEMENT OF CONCERN
We view with concern recent developments which threaten the
freedom of journalists to report and comment on issues of public
importance.
We are alarmed by the increasing number of libel suits filed against
journalists by public officials and the military. This form of harassment
through legal action threatens the citizens' constitutional right to be
informed.
This month alone, two libel suits were filed against the Bulletin
Publishing Corp., Panorama editor Domini Torrevillas Suarez,
contributor Mauro Avena, and lawyer Lupino Lazaro for the publication
of Lazaro's views on the Aquino assassination and the conduct of the
Agrava Board Investigation.
Since the May 14 elections, Mr. & Mrs. received two notices of libel in
connection with articles on alleged election anomalies in Cebu and
Leyte.
In 1982, the editor-publisher of We Forum was charged with libel for and government. In view thereof, such proceedings of Committee No. 2
running a series of articles that questioned the authenticity of are hereby ordered terminated. (Rollo, p. 64.)
President Marcos' war decorations.
In the light of the memorandum the Solicitor General said that there
In 1983, five women journalists were threatened with libel suits for was no need for further proceedings on the matter. Mr. Joker Arroyo,
exposes on military abuses inPanorama magazine. One case, against one of the counsels for the petitioners, admitted that the plea for
freelance writer Ceres Doyo and editor Torrevillas-Suarez, has actually preliminary injunction was no longer viable. He nonetheless contended
been filed. that the matter is such importance that the petitioners hope for a
definite ruling on the principal question raised.
In the same year, Bulletin correspondent Isidro Chammag was charged
with libel for his report on military abuses in Abra. The ponencia of Justice Plana declares the petition moot and academic
in respect of the interrogations because they have been abated. He
adds a short and mild note of concern I agree with Justice Teehankee
The provincial press and the foreign press in the Philippines are no less
that the Court should rule squarely on the matter.
vulnerable to "legalized" harassments. They have had their share of
libel suits, many of which are still pending in the courts.
The Constitution states that "No law shall be passed abridging the
freedom of speech, or of the press, " (Art. IV, Sec. 9.) In the instant case
Suing for libel has traditionally been the defense of aggrieved citizens.
the persons who compose Special Committee No. 2 of the National
Today, however, libel suits have become a convenient instrument of
Intelligence Board have abridged the freedom to speak and the
the state to cow and intimidate journalists through court action. A sad
freedom to publish by intimidation and veiled threats addressed to
consequence of this is the blacklisting of journalists by publications
some members of the press who by their writings have been critical of
wary of libel suits.
the government. Their actions are the more odious and had chilling
effects because they were cloaked by a mantle of pseudo legality.
We view with alarm the ominous implication of President Marcos'
statement in his July 23rd State-of-the-Nation address which now
The letter of respondent Estrada to Ms. Babst uses the word "law"
classifies libel with violence and subversion: "Violence, subversion and
twice — a law which vests authority in him and which also authorizes
libel are not acceptable weapons of dissent in a democratic society."
his committee to proceed if Ms. Babst should fail to appear. I have
Side by side with this is the grave threat posed by P.D. 1834 which
asked and searched but I have yet to discover the law respondent
makes "unlawful use of publications" punishable by death or life
Estrada had in mind.
imprisonment.
The letter uses the word "requested" but in context the request was a
We strongly protest these continuing assaults on press freedom. We
thinly veiled command to appear before the Special Committee for
appeal to the authorities concerned to help restore the people's right
failure to do so is to be considered as a waiver (of what?) and the
to a free press. We affirm our commitment to fair and responsible
committee will have to proceed in accordance with law (again what
journalism and our solidarity with our harassed colleagues.
law?).
In the comment submitted for the respondents on the original petition
The interrogations were not only offensive to the guarantees of free
it is argued that the petition is totally devoid of merit. It contains a
speech and free press, they also violated the right to privacy the right
prayer for dismissal.
to withhold information which are nobody's business. Note, for
example, that Ms. Babst was asked if she was really a nun, if she
When the case was heard on February 1, 1983, on the issuance of a practised Zen, why she left the Catholic religion, etc.
preliminary injunction, the Solicitor General submitted a copy of the
memorandum of General Fabian C. Ver, Director General and Chairman
In the case of Ms. Babst it could be asked why she honored the
of the National Intelligence Board, addressed to respondent Estrada,
"request" and discussed even impertinent and personally intrusive
dated January 19, 1983, which reads as follows:
questions when she had the legal services of Atty. Joker Arroyo. It
should be recalled that the interrogation took place on December 22,
The Board reviewed the Report of Special Committee No. 2 regarding 1982, and on that date the WE FORUM case was just a few days old
the series of dialogues you have conducted with selected members of and it should be noted that not only were the staffers of that
the media. It expressed satisfaction in the results of the dialogue and publication arrested on Presidential Commitment Orders but the
noted better mutual understanding of the respective roles of media
CRIMINAL LAW FULL CASES
equipment and other properties of the paper were also sequestered.
Fear indeed can have a paralyzing effect.
For freedom to speak and to publish to be meaningful, "Not much
reflection is needed to show that these freedoms would be nullified if a
person were allowed to express his views only on the pain of being
held accountable. That would be to stifle the expression of opinions
which are repugnant or contrary to the current political, economic, or
moral views. The right to dissent becomes non-existent. To expose the
party availing himself of freedom of speech or of the press to run the
risk of punishment is to make a mockery of our commitment to the
free mind." (Fernando, The Bill of Rights, p. 131 [1972].)
I also want to put on record what Professor Archibald Cox of Harvard
Law School (formerly Solicitor General of the United States and as
Watergate Special Prosecutor one of the victims of the Saturday night
"massacre") said when he pleaded for forbearance to those who were
disrupting a teach-in on Vietnam in March of 1971:
My name is Archibald Cox. I beseech you to let me say a few words in
the name of the President and Fellows of this University on behalf of
freedom of speech. For if this meeting is disrupted-hateful as some of
us may find it then liberty will have died a little and those guilty of the
disruption will have done inestimable damage to the causes of
humanity and peace.
Men and women whose views aroused strong emotions-loved by some
and hated by others have always been allowed to speak at Harvard-
Fidel Castro, the late Malcolm X, George Wallace, William Kuntsler and
others. Last year, in this very building, speeches were made for physical
obstruction of University activities. Harvard gave a platform to all these
speakers, even those calling for her destruction. No one in the
community tried to silence them, despite intense opposition.
The reason is plain, and it applies here tonight. Freedom of speech is
indivisible. You cannot deny it to one man and save it for others. Over
and over again the test of our dedication to liberty is our willingness to
allow the expression of Ideas we hate. (33 Harvard Law School Bulletin,
No. 1.)
It is now well-settled that prohibition can be issued in the sound
discretion of the court in order to prevent oppressive enforcement of
the criminal law. (Dimayuga and Fajardo vs. Fernandez, 43 Phil. 304
[1922].) Upon the other hand, the reasons advanced by Justice Plana
why prohibition should not be issued are based on technical and ignore
equitable grounds. He forgets that prohibition is a prerogative and an
equitable writ.
In the light of the foregoing, I place on record my condemnation of the
interrogations. They were violative of the freedoms of speech, press
and privacy. They were the proper objects of prohibition or injunction.
Similarly, any libel suit, whether civil or criminal, on matters inquired
into in the interrogation can also be prohibited.
I close with this statement. The Armed Forces of the Philippines is an
honorable and distinguished institution. Mt. Samat, Corregidor and
the Libingan Ng Mga Bayani are monuments to the uncommon valor
of its gallant, brave and patriotic members. Let not the shining image of
the Armed Forces of the Philippines be tarnished by some of its
members who by their excessive zeal subordinate the rights they are
sworn to protect to the imagined demands of national security, to
borrow a phrase from Senator Emmanuel Pelaez.
 
Separate Opinions
FERNANDO, C.J., concurring:
The opinion of the Court penned by Justice Plana, written in his usual
lucid style, is entitled to commendation. It is characterized by fealty to
what has long been accepted as the task incumbent on the judiciary,
namely, to resolve disputes. There is no departure from the practice
very much in evidence in the United Kingdom and many
Commonwealth countries. As pointed out by him: "The petition is
premised upon the alleged illegality and unconstitutionality of the
issuance by respondent NIB to petitioners of letters of invitation, their
subsequent interrogation, and the filing of the aforementioned libel
suit." 1 Why it cannot be granted is made clear in these words: "The
assailed proceedings have come to an end. The acts sought to be
prohibited (i.e., the issuance of letters of invitation and subsequent
interrogations) have therefore been abated, thereby rendering the
petition moot and academic as regards the aforesaid matters."  2 As he
further stated in the latter portion of the opinion: "Fortunately, the NIB
director general and chairman saw the wisdom of terminating the
proceedings and the unwelcome interrogation." 3
After pointing out the moot and academic character of the petition,
Justice Plana, noted that "ordinarily an invitation to attend a hearing
and answer some questions, which the person invited may heed or
refuse at his pleasure" is not per se illegal or unconstitutional and
hence free from objection. Then he made the apt observation that
under the circumstances at present obtaining, it can be viewed "as an
authoritative command which one can only defy at his peril, especially
where, as in the instant case, the invitation carries the ominous
warning that 'failure to appear * * * shall be considered as a waiver * *
* and this Committee will be constrained to proceed in accordance
with law.'" 4 To this extent, there is conformity to what t also has been
traditional in this jurisdiction. This Court whenever an occasion calls for
it, has given expression to views indicative of its appraisal of how to
avoid the at times thin line separating what is juridically impeccable
from that which may give rise to well-founded doubts as to its legality
or at the very least cast a reflection on the ways of the law. What this
Court or a member thereof says then maybe be of persuasive
character.
Why prohibition will not issue with respect to the libel charges pending
in court against petitioners and suits of a similar character that could
be filed, Justice Plana explained ill this manner: "Firstly, the writ of
prohibition is directed against a tribunal, board or person acting
without or in excess of jurisdiction or with grave abuse of discretion
vis-a-vis certain proceedings pending before it. The libel cases adverted
to are not pending before respondent NIB or any other respondent.
Secondly, the issue of validity of the libel charges by reason of their
alleged collision with freedom of expression, is a matter that should be
raised in the proper forum, i.e., before the court where the libel cases
are pending or where they may be filed. Finally, the right to seek
redress when libeled is a personal and individual privilege of the
aggrieved party, and no one among the respondent officials has the
authority to restrain any of his subordinates who has been libeled from
vindicating his right by instituting a libel suit." 5
In terms of the tried and tested concepts of strict law, it thus becomes
obvious why concurrence is unavoidable. This Tribunal, however, is
likewise a court of equity. It is reliance on that aspect that distinguishes
the separate opinions of Justices Teehankee and Abad Santos. True to
the tradition that cases on freedom of expression furnish the
opportunity for moving utterances, they stress in language both lofty
and persuasive, the exacting responsibility of the judiciary in preserving
unimpaired press freedom. They have done me the honor of citing or
referring to excerpts from my opinions as well as my other writings. I
am, of course, appreciative. Moreover, there has been no change of
heart on my part. I stand by them. I am unable, however, to go as far as
they would wish this Court to go. It is my considered opinion that it
suffices that I follow what, as ponente, I did in De la Camara v.
Enage, 6 namely to furnish guidelines for the lower courts, based on
authoritative doctrines. Thus: "While under the circumstances a ruling
on the merits of the petition for certiorari is not warranted, still, as set
forth at the opening of this opinion, the fact that this case is moot and
academic should not preclude this Tribunal from setting forth in
language clear and unmistakable, the obligation of fidelity on the part
of lower court judges to the unequivocal command of the Constitution
that excessive bail shall not be required." 7
1. Fortunately, there is a case that serves such a purpose. I refer
to Lopez v. Court of Appeals. 8 It deals with a civil action for libel, but
the principles therein enunciated apply as wen to criminal
prosecutions. As was set forth early in the opinion of the Court: "It is on
the freedom of the press that petitioners would stake their case to
demonstrate that no action for libel would he arising from the
CRIMINAL LAW FULL CASES
publication of the picture of respondent Cruz Identified as responsible
for the hoax of the year, when such was not the case at all. It is easily
understandable why No liability would be incurred if it could be
demonstrated that it comes within the well-nigh all-embracing scope
of freedom of the press. Included therein is the widest latitude of
choice as to what items should see the light of day so long as they are
relevant to a matter of public interest, the insistence on the
requirement as to its truth yielding at times to unavoidable
inaccuracies attendant on newspapers and other publications being
subject to the tyranny of deadlines. If no such showing could be
plausibly made, however, it is difficult to resist the conclusion that
there was in fact the commission of such quasi-delict." 9
2. Further on the question of the decisive character of press freedom in
the adjudication of libel suits, the Lopez opinion had this to say: "There
is an impressive recognition in our decisions of the curtailment to
which press freedom would be subjected if an action for libel were not
rigorously scrutinized to remove doubts as to its being utilized to
penalize the exercise of that constitutional right. Thus, in the first
leading case, United States v. Bustos, Justice Malcolm could correctly
stress: 'The interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty
to comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the absences of
officialdom. Men in public life may suffer under a hostile and an unjust
accusation: the wound can be assuaged with the balm of a clear
conscience. A public officer must not to be too thin skinned with
reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted. Of course, criticism
does not authorize defamation. Nevertheless, as an individual is less
than the State, so must expected criticism be born for the common
good.' On this aspect of the question which, as answered by him,
would require that a criminal suit for libel should not be utilized as a
means for stifling press freedom, he categorically declared: 'Public
policy, the welfare of society, and the orderly administration of
government have demanded protection for public opinion. The
inevitable and incontestable result has been the development and
adoption of the doctrine of privilege.'" 10
3. So it is in the United States except for the fact that it was not until
1964, 36 years after Bustos, that its Supreme Court had occasion to
rule likewise. To quote anew from the Lopez opinion: "In the leading
case of New York Times Co. v. Sullivan, the nature of the question
presented was set forth by Justice Brennan for the Court in the opening
paragraph of his opinion: 'We are required in this case to determine for
the first time the extent to which the constitutional protections for
speech and press a State's power to award damages in a libel action
brought by a public official against critics of his official conduct.' This is
the Court's approach to such an issue: 'In deciding the question now,
we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of
state law. * * * Like insurrection, contempt, advocacy of unlawful acts,
breach of the peace, obscenity, solicitation of legal business, and the
various other formulas for the repression of expression that have been
challenged in this Court, libel can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that
satisfy the First Amendment.' Continuing the Elaine trend, the opinion
stressed further: 'Thus we consider this case against the background of
a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it may
well include vehement caustic, and sometimes unpleasantly sharp
attacks on government and public officials. * * * The present
advertisement, as an expression of grievance and protest on one of the
major public issues of our time, would seem clearly to qualify for the
constitutional protection.'" 11
4. The test to be followed, according to the language of the New York
Times decision, as reinforced by Curtis Publishing Co. v. Butts, was set
forth thus in the Lopez opinion: "For liability to arise then without
offending press freedom, there is this test to meet: 'The constitutional
guarantees require, we think, a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with
"actual malice" — that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.' The United States
Supreme Court went further in Curtis Publishing Co. v. Butts, where
such immunity was held as covering statements concerning public
figures regardless of whether or not they are government officials. Why
there should be such an extension is understandable in the light of the
broad scope enjoyed by press freedom which certainly allows a full and
free discussion of public issues. What can be more logical and
appropriate, then, than such an expansion of the principle. As noted by
a commentator: 'Since discussion of public issues cannot be meaningful
without reference to the men involved on both sides of such issues,
and since such men will not necessarily be public officials, one cannot
but agree that the Court was right in Curtis to extend the Times rule to
all public figures.'" 12
5. Accordingly, the Lopez opinion could rightfully stress: "The
significance of the foregoing line of decisions impressive for their
consistency is quite obvious. No inroads on press freedom should be
allowed in the guise of punitive action visited on what otherwise could
be characterized as libel whether in the form of printed words or a
defamatory imputation resulting from the publication of respondent's
picture with the offensive caption as in the case here complained of.
This is not to deny that the party responsible invites the institution
either of a criminal prosecution or a civil suit. It must be admitted that
what was done did invite such a dire consequence, considering the
value the law justly places on a man's reputation. This is merely to
underscore the primacy that freedom of the press enjoys. It ranks
rather high in the hierarchy of legal values. If the cases mean anything
at an then, to emphasize what has so clearly emerged, they call for the
utmost care on the part of the judiciary to assure that in safeguarding
the interest of the party allegedly offended, a realistic account of the
obligation of a news media to disseminate information of a public
character and to comment thereon as well as the conditions attendant
on the business of publishing cannot be ignored." 13
6. There is no ambiguity in the above authoritative doctrines. Press
freedom is a preferred right. 14 It is entitled to the fullest protection
that the law affords. A person who deems himself aggrieved by
defamatory statements is of course entitled to seek redress in the
courts Nonetheless, in the felicitous language of the New York Times
decisions "libel can claim no talismatic immunity from constitutional
limitations. " While there is an undeniable public interest in assuring
that a man's reputation be safeguarded from calumny and unjust
accusation, on matters of public concern, he cannot be shielded from
the scrutiny of the press and the expression thereafter of whatever
failings it might uncover on matters of public concern. Care is to be
taken, however, that in its publication there is avoidance of affirming
what is not true or disregarding in a manner deemed reckless to take
the necessary steps of ascertaining its truth or falsity. That is as it
should be. Justice Holmes, in his classic dissent in Abrams, after
stressing that the ultimate good desired is better reached by a free
trade of Ideas, and that there should be the competition in the open
market, was insistent that truth is the only ground upon which man's
wishes can be safely carried out. 15 Professor Emerson, at present the
foremost scholar in the held, emphasized the value of freedom of
expression as "an essential process for advancing knowledge and
discovering truth." 16
7. There is no more exacting duty on the part of the judiciary,
therefore, than to heed the clear and unmistakable mandate of the
Constitution in passing upon the conflicting claims of the parties in libel
cases. To repeat, the law cannot ignore a man's inherent right to have
his reputation remain free from unjustified and unwarranted
imputations of wrongdoing. Nonetheless, because of the primacy
enjoyed by the free speech and free press guarantees of the
Constitution, even on the assumption that there has been injury to
man's reputation, the damages to be assessed, if at all warranted,
should not be lacking in the quality of realism. The same sense of
realism should likewise be displayed by the plaintiff in a libel suit in
estimating the amount due him for the injury inflicted on his good
name. The times are difficult, even perilous. It is of the essence,
therefore, that there be on the part of public officials and journalists
alike an attitude of trust and confidence in the good faith that
motivates them in the discharge of their responsibilities. Such an
attitude may lessen the atmosphere of confrontation and dissipate the
fear that press freedom has become a casualty under the
circumstances. It is for the judiciary to be ever on the alert that such be
not the case.
TEEHANKEE, J., dissenting:
CRIMINAL LAW FULL CASES
I am constrained to dissent on the grounds, as hereinafter stated, that
rather than dismiss as moot and petition at bar due to termination of
respondent committee's interrogation proceedings, the Court should
rule squarely or at least lay down the authoritative and controlling
doctrines on the vital issues of profound public importance and
interest that involve the upholding of the preferred freedoms of
speech and press that are so vital for the survival of our democratic
heritage and the prescribing of the questioned acts of harassing and
intimidating journalists who expose and report on complaints of
military abuses.
Petitioners, all in mass media as editors, columnists, reporters or
feature article writers, filed on January 25, 1983 the verified petition
for prohibition against respondent National Intelligence Board, Special
Committee No. 2, and its Chairman and members, all composed of
ranking military officers, save respondent NBI Assistant Director
Ponciano Fernando. They complain that "some of them have received
summonses, subpoenas or directives from military authorities who
have subjected them to sustained interrogation, touching the most
delicate aspects of their work, feelings, sentiments, beliefs,
associations and even aspects of their private lives. From August to
December of 1982, several such subpoenas were received by some of
the petitioners, most of which came in the wake of the mass arrest,
indictment and prosecution of the editor and staff of the publication
'We Forum', which could be read as a threat that petitioners might also
be subjected to similar treatment and that those "who have been
subjected to the aforesaid sustained interrogation found it an ordeal
creating a 'chilling effect' on their work."
Invoking the preferred freedom of the press which constitutionally
protects them from prior restraint or censorship or subsequent
punishment or liability unless there be a clear and present danger of
substantive evil that may be rightfully prevented by law, and
disregarding emphatic admonitions by their interrogators to keep silent
concerning the interrogation and the risk of possible personal reprisal,
they have petitioned of this Court for the writ of prohibition with
injunction. Petitioners ask the Court to put a stop to such summonses'
directives and interrogations by respondents and to declare them
"unconstitutional and unlawful Petitioners further ask the Court to
likewise put a stop to "further harassment in the form of scurrilous
libel suits to be filed by military commanders against the editor, some
staff members and contributors of Philippine Panorama (Sunday
magazine of Bulletin Today), as per official announcement of Camp
Aguinaldo reported on January 30, 1983. 1 By Amended and
Supplemental Petition of March 3, 1983, petitioners pinpoint the
criminal libel complaint "with a staggering P10-million claim for
damages" (as against the modest P250.00 fee received by the writer)
filed on February 9, 1983 with the City Fiscal of Manila by Brig. Gen.
Artemio A. Tadiar, Jr. (as Commanding General of the Third Philippine
Marine Brigade, AFP) against petitioners Domini Torrevillas Suarez and
Ma. Ceres P. Doyo, editor and writer, respectively, for the alleged
libelous article "Forty Years After the Fall Bataan is Again under Seige"
which was published a year before in the Philippine Panorama issue of
March 28, 1982. 2The criminal information for libel, Crime Case No. 83-
16213 was filed with the Regional Trial Court of Manila on March 24,
1983 and sought P l0-million "by way of actual, moral, exemplary and
other damages" for the complainant Brig. Gen. Tadiar for having been
"expos[ed] . . . to public hatred, contempt, discredit, dishonor and
ridicule.") 3
At the hearing on February 1, 1983, the Solicitor General on behalf of
respondents submitted the memorandum dated January 19, 1983 of
respondent General Fabian C. Ver as Director General and Chairman of
the National Intelligence Board terminating the proceedings of
respondent Committee No. 2 and stating that after reviewing the
report of said Committee on "the series of dialogues [you] have
conducted with selected members of the media the Board "expressed
satisfaction in the results of the dialogues and noted better mutual
understanding of the respective roles of media and government. "
The Court's majority resolution dismisses the petition as having
become moot and academic with the termination of respondent
Committee's proceedings and interrogations.
Petitioners on the other hand, invoke the imperatives of public interest
in their petition and plead for a definite ruling thereon from the Court
so that the violations of their constitutional rights of free press and
speech and privacy may not be repeated.
Petitioners are entitled to such a definite ruling. In the words of the
late Chief Justice Fred Ruiz Castro in Aquino, Jr. v. Enrile, 4 "the fact that
a final determination of a question involved in an action is needed will
be useful as a guide for the conduct of public officers or tribunals is a
sufficient reason for retaining an action which would or should
otherwise be dismissed. Likewise appeals may be retained if the
questions involved are likely to arise frequently in the future unless
they are settled by a court of last resort.
This was also my submittal in my dissents in the recent habeas corpus
cases of Renato Cañete  5 and Aristedes Sarmiento.  6 In these cases, the
military authorities had refused to release the detainees despite their
acquittal by the trial courts on the ground that "only the President of
the Philippines can order (their) release since (they are) being detained
pursuant to a PCO." The charges against them were found to be bereft
of basis and evidence. In Cañete's case, the trial court granted his
motion to dismiss the case of illegal possession of subversive
documents for insufficiency of the prosecution's evidence.
In Sarmiento's case, the trial court dismiss the subversion charges for
"utter worthlessness of evidence," so much so that Mr. Justice Felix V.
Makasiar suggested that "(T)he military establishment should inquire
into whether the President was deceived into issuing the PCO and who
initiated the arrest of the couple without supporting evidence." The
detainees were released by the military only when the PCO's were
lifted after the lapse of several months since their acquittal and the
Court's majority ordered the dismissal of the cases as having become
moot. I maintained in line with a host of precedents that the basic issue
of whether a judgment of acquittal prevails over the PCO should be
squarely resolved rather than emasculated with the dismissal of the
cases in order to avoid countless other Cañetes and Sarmientos.
In De la Camara vs. Enage 7 (where petitioner-accused had escaped
from jail, apparently in desperation due to the excessive and exorbitant
bail fixed by respondent judge of almost P2.5-million rejected by the
now Chief Justice therein as a sanctimonious avowal of respect for a
mandate of the Constitution . . . on a purely verbal level when the
Department of Justice had recommended P40,000 bail for the two
offenses the Court held that "the fact that this case is moot and
academic should not preclude this Tribunal from setting forth in
language clear and unmistakable . . . for the guidance of lower court
judges, the controlling and authoritative doctrines that should be
observed in according full respect to constitutional rights. While we
dismissed the case as moot with petitioner's escape, the Court
nevertheless squarely ruled that the constitutional right to bail should
not be rendered nugatory with the imposition of excessive bail and
declared the challenged order as having "reduced the right to bail to a
barren form of words . . . absolutely bereft of support in law."
I hold then with Mr. Justice Vicente Abad Santos, and as intimated by
the majority resolution when it noted that "fortunately, the NIB
director general and chairman saw the wisdom of terminating the
proceedings and the unwelcome interrogations" 8 that the "invitations"
and interrogations were violative of the freedoms of speech, press and
privacy and proper objects of the petition at bar for prohibition with
injunction. The Court should so rule, setting forth as in De la
Camara for the guidance of lower court judges the controlling and
authoritative doctrines that safeguard the preferred freedoms of press
and speech and making of record the Solicitor General's assurance and
"commitment" at the hearing that no further interrogations of
journalists would take place and that "there will be no other
committees that will be created for the same purpose."
The Chief Justice (then Associate Justice) had in the 1969 case
of Gonzales vs. Comelec 9 collated precedents and jurisprudence and
restated such controlling principles, as follows:
... There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there
be a clear and present danger of substantive evil that Congress has a
right to prevent.
The vital need in a constitutional democracy for freedom of expression
is undeniable whether as a means of assuring individual self-fulfillment,
of attaining the truth, of securing participation by the people in social
CRIMINAL LAW FULL CASES
including political decision-making, and of maintaining the balance
between stability and change. The trend as reflected in Philippine and
American decisions is to recognize the broadest scope and assure the
widest latitude to this constitutional guaranty. It represents a profound
commitment to the principle that debate of public issues should be
uninhibited, robust, and wide-open. It is not going too far, according to
another American decision, to view the function of free speech as
inviting dispute. "It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger."
Freedom of speech and the press thus means something more than the
right to approve existing political beliefs or economic arrangements, to
lend support to official measures, to take refuge in the existing climate
of opinion on any matter of public consequence. So atrophied, the right
becomes meaningless. The right belongs as well, if not more, for those
who question, who do not conform, who differ. To paraphrase Justice
Holmes, it is freedom for the thought that we hate, no less than for the
thought that agrees with us.
The special appeal made by revered Law Professor Gerardo Florendo at
last year's hearing of February lst is herein likewise reproduced for the
record:
... With your indulgence, most Honorable Supreme Court Justices, I am
appearing here for the first time in view of the importance of the
question here to be ventilated before the great and august Body, of the
Supreme Court, for unless the petition is upheld by the Supreme Court,
neither the freedom of the Supreme Court Justices nor of the
defendant-attorneys can be protected, much less my freedom as a
civilian and mere citizen of this great Republic of the Philippines. So, as
I'm here, Your Honor, to add to my weak voice, at the advanced age of
87 years, so that before I pass out of this world into the great beyond,
no one can say a voice no matter how big (sic). For indeed, reading the
petition, the questions asked by the military are in themselves
punishment far beyond the ken of prison walls. But harassing the
individual concerned out of the rooms, in the privacy of their
habitations, we wish the whole country could stand to say that what
you, the Military, which is sworn to protect the freedom and liberty of
the citizens of this country, could really exercise that to the benefit of
each and every citizen, because when a citizen's freedom is
jeopardized, endangered, that also affects you personally and your
children, and your grandchildren. So that, Your Honor, I wish now to
intervene here and say, Military, please change your proceedings, your
actuations and exercise your duties as you are sworn to defend the
freedom and liberty of your country and of the citizens of the land.
Thank you. 10
As to the prohibition suit against the criminal libel suit initiated by
respondent Brig. Gen. Tadiar with a claim of P10 million damages, the
majority resolution dismisses the petition on the grounds that (1) the
libel case is not pending before respondent NIB; (2) the lack of cause of
action or non- existence of a criminal offense should be raised in the
proper forum, i.e. the court where the libel case is pending; and (3)
respondent Brig. Gen. Tadiar has filed the libel case "in his personal
capacity" in the exercise of "a personal and individual privilege of the
aggrieved party."
The Resolution has thus adopted the conventional approach of
requiring that the invalidity of the libel case be raised in the Regional
Trial Court (which has not been impleaded, as the information had not
yet been filed at the time of the filing of the Amended and
Supplemental Petition) and first passed upon by said court.
But this Court has set aside procedural niceties in the past and cut the
gordian knot and directly gave its final determination particularly when
necessary as a guide for the conduct of public officers and tribunals and
to forestall needless congestion of the court's dockets with the
likelihood of numerous future similar cases being filed.
And this direct approach is required now. The Chief Justice himself in a
lecture at the National Press Club last July, observed that about
thirteen years ago (before martial law) fiscals automatically dismissed
libel complaints against newsmen by merely invoking the preferred
freedom of the press but that nowadays the prosecutors tend to file
such libel cases against newsmen. It may be added that the
prosecutors have cooperated in aggravating the pressure and
intimidation by the new gimmick of including in the criminal
information the complainant's claim for astronomical damages in tens
and hundreds of millions of pesos, which the newsman could not
possibly even begin to aspire to earn, even if he lived a hundred
lifetimes. It is of common knowledge and practice that such claims for
damages were never before set out in specific amounts in the
information nor have the courts been known to have ever granted
before awards for damages in such punitive and fantastic amounts,
"the usual practice being more likely to reduce damages for libel than
to increase them. 11
Lawyer-columnist Apolonio Batalia comments that "(M)ost of the
stories appearing in the periodicals are about government and many of
them tend to offend government officials. If a newsman is fearful of
being indicted for libel, he writes less freely and doctors the facts to
make them inoffensive to certain government officials even if he thinks
that it is not correct to do so. But he is afraid of risking exposure to a
criminal case." He adds that "(I)f fiscals become fearful of dismissing
complaints on valid grounds, the fear might spread to include not only
newsmen but the lower courts as well. There cannot be that desirable
amount of freedom guaranteed by the Constitution if reliance is placed
only on what the Supreme Court will rule in particular cases," and
cautions that "(P)ress freedom is the concern of judges, fiscals, other
government officials, writers, and the rest of society, including the
possible complainants in libel suits. In the absence of the will on the
part of such people to preserve press freedom, the Supreme Court will
be of little utility." He cites the case of Isidoro Chammag, a Bulletin
correspondent in the north: "After he wrote a story about Abra folk
fleeing their homes on account of a military raid on suspected
insurgents, he was sued for libel. He did not have the resources to post
bail." 12 His colleagues started a fund campaign to raise bail for him.
In a recent editorial, the Times-Journal decries that "libel suits are
being used to harass journalists." It recalls that "(D)uring the severest
period of martial law the Philippine press was kept under tight watch.
Not a few editors and reporters have experienced the quiet terror of
an irate phone call from some ranking public official or a less-than
friendly summons from the military. And Filipino journalists are not so
dense as to misread such feedback as anything less than the
intimidation it was meant to cause," and points out that "(W)hile the
formal lifting of martial law has eased somewhat the daily pressure on
media to rigidly tow the official line, memories of those less-than-
shining moments of Philippine journalism are still vivid in the collective
mind of media. Many editors and reporters, especially those of the
mainstream press, still find themselves automatically censoring
themselves, sacrificing full disclosure at the altar of compromise The
editorial concludes "(T)hat nuisance suits continue to be used in their
place should be cause for serious worry not only among journalists but
also for the public and policy-makers. The lessons of the recent past
only show that corruption and abuse of authority thrives best when the
press is timid."13
The late Justice Hugo Black of the U.S. Supreme Court in the Pentagon
Vietnam Paper's cases (which turned down the U.S. Government's plea
for injunction against the publication of the papers in the name of
national security) had stressed that "(T)he press was to serve the
governed, not the governors. The Government's power to censor the
press was abolished so that the press would remain forever free to
censure the Government. The press was protected so that it could bare
the secrets of government and inform the people. Only a free and
unrestrained press can effectively expose deception in
government. ... ." 14
As already indicated, the Court should now set forth once again the
controlling and authoritative doctrines that the Court, even ahead of
the U.S. Supreme Court, had first enunciated in the 1918 landmark
case of U.S. vs. Bustos15 on the protected right of fair comment on the
official acts of public officers thus: "The interest of society and the
maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom Men in public life may suffer
under a hostile and an unjust accusation: the wound can be assuaged
with the balm of a clear conscience. A public officer must not to be too
thin-skinned with reference to comment upon his official acts. Only
thus can the intelligence and dignity of the individual be exalted. Of
course, criticism does not authorize defamation. Nevertheless, as an
CRIMINAL LAW FULL CASES
individual is less than the State, so must expected criticism be born for
the common good."
Given this approach, the first ground above cited of the majority
resolution for not ruling now on the Tadiar libel suit may be easily
remedied with the Court's considering as formally impleaded as party
respondents the Regional Trial Court where the case is pending as well
as the People (who is after all represented by the Solicitor General)
which is the party plaintiff in all criminal cases.
The third above-cited ground that respondent Gen. Tadiar has filed the
libel case "in his personal capacity" is not borne out by the record. The
information filed recites that the libel was committed against "the
character, honesty, integrity, virtue and reputation of Brigadier General
Artemio A. Tadiar, Jr., Commanding General of the 3rd Philippine
Marine Brigades, Armed Forces of the Philippines, both as a man and
as an officer in the Armed Forces of the Philippines," and that the
article's "false, defamatory and libelous statements (which) impute to
the officers and men of the 4th Marine Battalion a unit of the Third
Philippine Marine Brigade under the command of Brig. Gen. Artemio A.
Tadiar, Jr., the commission of the crimes of murder, homicide, arbitrary
detention, illegal arrests and searches, maltreatment and other acts of
oppression, terrorism, abuse of authority and acts of misconduct
unbecoming of military officers and members of the Armed Forces of
the Philippines," although it claimed P lO-Million damages on Brig. Gen.
Tadiar's behalf.
There is no question then that respondent Gen. Tadiar felt libelled
because the article's narration of misdeeds reportedly committed by
officers and men under his command in Bataan (false and defamatory
statements, according to his complaint) reflected upon him as the
commanding general. Petitioners complain then that if respondents
AFP Chief of Staff and NIB had "expressed satisfaction in the results of
the dialogues and noted better mutual understanding of the respective
roles of media and government," respondent Tadiar could not take a
stance opposite that of his superiors and that "conflict of interests arise
and national policy considerations would thereby be ignored by
General Tadiar's action. The assurance of the Solicitor General that
petitioners would not be subjected to further interrogations would be
meaningless. If that were snowed, it would appear that the Armed
Forces of the Philippines, thru its Chief of Staff, terminated the
interrogations of newspaperwomen with its left hand only to hit them
with libel suits with its right hand. What one cannot do directly, he
cannot do indirectly." 16Petitioner Doyo's offending article is attached to
the record and appears to bear out their contention that a principal
element of libel is here absent: that of Identification or Identifiability.
Thus, petitioners submit that "(A)n examination of the allegedly
libelous article would disclose that respondent General Tadiar is not
mentioned at all even inferentially, indirectly, parenthetically,
tangentially, or peripherally in the allegedly libelous article; nor is it
even suggested that he was in command of the troops."  17
The Court has long adopted the criterion set forth in the U.S.
benchmark case of New York Times Co. vs. Sullivan18 that "libel can
claim no talismanic immunity from constitutional limitations" that
protect the preferred freedoms of speech and press. Sullivan laid down
the test of actual malice, viz. "(T)he constitutional guaranty of freedom
of speech and press prohibits a public official from recovering damages
for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with 'actual malice that is, with
knowledge that it was false or with reckless disregard of whether it was
false or not." Particularly applicable to respondent Tadiar's complaint is
the declaration that there is no legal alchemy by which a State may
create a cause of action for libel "by transmitting criticism of
government, however impersonal it may seem on its face, into
personal criticism and hence, potential libel, of the officials of whom
the government is composed ... We hold that such a proposition may
not constitutionally be utilized to establish that an otherwise
impersonal attack on governmental operations was a libel of an official
responsible for those operations."
Ultimately, the core issue is whether or not the article on Bataan is
constitutionally protected as fair comment on matters of public
interest involving military conduct and operations and therefore not
actionable as libel, criminally or civilly. As former Chief Justice Ricardo
Paras pointed out in Quisumbing vs. Lopez, 19 so long as there is no
personal ill will, self-seeking motive or actual malice or abuse of press
freedom, "the newspapers should be given such leeway and tolerance
as to enable them to courageously and effectively perform their
important role in our democracy. " The ground rules and limits of the
Constitution are there and should be applied and respected by all
concerned in all cases, and not on a case by case basis if the
fundamental rights of free speech and press are to be upheld and
enhanced and the courts not rendered "of little utility."
The ringing words of the late Justice Jose Abad Santos, hero and martyr
of the Japanese invasion of the Philippines in World War II, in his
dissenting opinion in People vs. Rubio 20 against the majority decision
that to his mind "set at naught constitutional principles" against the
issuance of general search warrants give us, mutatis mutandis, a fitting
admonition:
The internal revenue agents concerned in this case have shown
commendable zeal in their efforts to protect the revenues of the
Government; but this same zeal, if allowed to override constitutional
stations would become "obnoxious to fundamental principles of
liberty." And if we are to be saved from the sad experiences of some
countries which have constitutions only in name, we must insist that
governmental authority be exercised within constitutional limits; for,
after all what matters is not so much what the people write in their
constitutions as the spirit in which they observe their provisions.
ABAD SANTOS, J., dissenting.
Persecution for the expression of opinions seems to me perfectly
logical. If you have no doubt of your premises or your power and want
a certain result with all your heart you naturally express your wishes in
law and sweep away all opposition. To allow opposition by speech
seems to indicate that you think the speech impotent, as when a man
says that he has squared the circle, or that you do not care
wholeheartedly for the result, or that you doubt either your power or
your premises. But when men have realized that time has upset many
fighting faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in Ideas that the best test of
truth is the. power of the thought to get itself accepted in the
competition of the market; and that truth is the only ground upon
which their wishes safely can be carried out. That, at any rate, is the
theory of our Constitution. It is an experiment as an life is an
experiment. Every year, if not every day, we have to wager our
salvation upon some prophecy based upon imperfect knowledge.
While that experiment is part of our system I think that we should be
eternally vigilant against attempts to check the expression of opinions
that we loathe and believe to be fraught with death, unless they so
imminently threaten immediate interference with the lawful and
pressing purposes of the law that an immediate check is required to
save the country. (Justice Holmes in Abrams vs. United States, 250 U.S.
616, 630; 63 US. S.C. Lawyers' Ed. 1173, 1180 [1919].)
The above quotation has relevance to this case which is a petition for
prohibition.
When the petition was filed on January 25, 1983, the petitioners were
in the mass print media. Some were editors (e.g. Domini Torrevillas-
Suarez of PANORAMA magazine some were columnists (e.g. Arlene
Babst of BULLETIN TODAY), some were feature writers (e.g. Jo-Ann Q.
Maglipon), and some were reporters (e.g. Maritess Danguilan-Vitug).
As this is written some of the petitioners have ceased to write regularly
such as Ms. Babst and Letty Jimenez-Magsanoc.
The respondents are the members of Special Committee No. 2 of the
National Intelligence Board composed of retired Brigadier General
Wilfredo C. Estrada, Brigadier General Renato Ecarma, National Bureau
of Investigation Assistant Director Ponciano Fernando, Colonel Balbino
Diego, Colonel Galileo Kintanar, Colonel Eustaquio Peralta, Colonel
Constantino Tigas, and Major Eleonor Bernardino.
Special Committee No. 2 of the National Intelligence Board summoned
and interrogated on various dates the following petitioners:
1. Domini Torrevillas-Suarez
2. Lorna Kalaw-Tirol
CRIMINAL LAW FULL CASES

3. Ma. Ceres P. Doyo 1. I presently work for the Bulletin Publishing Corporation as of the The invitation was for: WEDNESDAY, DEC. 22, 1982, at 9 a.m., Fort
Bulletin Today; as Editorial Page columnist of the Bulletin Today; Bonifacio
4. Jo-Ann Q. Maglipon
2. In connection with my columns in said publication, I was served on 2) The investigation panel was composed of the following:
December 20, 1982 a written invitation marked "Confidential" from
5. Arlene Babst
Brig. Gen. Wilfredo C. Estrada to appear before the National
a. Brig. Gen. Wilfredo C. Estrada, AFP (Ret.) Chairman of the National
Intelligence Board, Special Committee #2, on December 22, 1982, for
Intelligence Board, Special Committee
6. Ninez Cacho-Olivares the stated purpose: "to shed light on confidential matters" with the
warning that my failure to appear 'shall be considered as a waiver on
your part and the Committee will be constrained to proceed in b. Col. Balbino Diego, Chief, Intelligence and Legal Office, Presidential
Some of the other petitioners were summoned but had not yet been
accordance with law; Security Com.
interrogated when the petition was filed.

3. On December 22, 1982, 1 appeared before the Special Committee #2 c. Col. Fernando, National Bureau of Investigation
Typical of the summonses was the confidential letter sent to petitioner
Babst which reads as follows: of the National Intelligence Board composed of all military personnel
who were, namely: Brig. Gen. Wilfredo Estrada, AFP (RET.); Col. Balbino d. Col. Galilee Kintanar, 15th MIG ISAFP, Bago Bantay
Diego, legal officer of the Presidential Security Command (PSC); Col.
Republic of the Philippines Juanito Fernando of the National Bureau of Investigation (NBI), Col.
NATIONAL INTELLIGENCE BOARD Galileo Kintanar of the 15th MIG, ISAFP; Col. Peralta of the CIS; Col. e. Col. Peralta, CIS
Special Committee No. 2 Ecarma, Col. Constantino Tigas of the Ministry of Information; Maj.
Eleonor Bernardino, and a number of other persons, including staff and f. Col. Ecarma
December 20, 1982 personnel;
g. Col. Tigas, Ministry of Information
Ms. Arlene BABST  4. The "interrogation" or interview termed by the Panel as a "dialogue"
Recoletos St., cor Muralia St. lasted from 9:40 A. M. till about 1:15 P. M. or for a duration of more
than three (3) hours; h. Major Babette Bernardino
Intramuros, Metro Manila

Madam:
Pursuant to the authority vested in me by law, you are hereby
requested to appear before this Special Committee at Philippine Army
Officer's Clubhouse, Fort Bonifacio, Metro Manila, (sketch attached),
9:00 A.M., December 22, 1982, to shed light on confidential matters
being looked into by this Committee.
Your failure to appear on the specified date and place shall be
considered as a waiver on your part and this Committee will be
constrained to proceed in accordance with law.
5. Through out the proceedings the perceptible objective of the Panel
was to intimidate and instill fear in me (as well as all writers of the
press) to the point that we will suppress the truth and not freely write
or express my views on matters of public concern;
6. The proceedings that transpired are stated in a five page
"Information Sheet" which I personally executed and is hereby
attached and incorporated as an integral part of this affidavit and bears
my authenticating signature on each and every page thereof;
7. I am executing this affidavit for all legal purposes it may serve.
(Annex C, Petition.)
3) The investigation lasted from 9:40 a.m. till about 1:15 p,m. with a 10
minute coffee break at around 11:20: From 9 to 9:40, we talked
informally. Col. Fernando read me Sec. 9 of Article 4 of the Bill of
Rights, the section saying that no law shall be passed to abridge
freedom of speech, of the press, or of peaceful assembly BUT, Col.
Fernando told me emphatically, this section was subordinate to that
one (which he also showed me saying that police power could overrule
the first section when 'matters of national security' so decree.
QUESTIONS ASKED BY THE INTERROGATORS:
1. May we call you Arlene?

Very truly yours,

On the interrogation, she wrote as follows: 2. What is your marital status

(SGD) WILFREDO C. ESTRADA

INFORMATION ON THE INTERROGATION:
Brig. General, AFP (Ret.)
Chairman
1) The invitation was received on Monday evening at the Bulletin
Today, Dec. 20, 1982. I later learned that two military men had gone to
(Annex A, Petition.)
my parents' old house in Quezon City, looking for me, and causing
much distress in my bewildered household. Copy of invitation with
In an affidavit which Ms. Babst executed on January 15, 1983, she said: Atty. Joker P. Arroyo, who subsequently accompanied me to the
interrogation.
3. Would you care to tell us more about yourself? (I said no.)
4. Tell us about your trips abroad, who financed them, for what
purpose, when, which countries have you visited or not visited, were
these for journalistic purposes, who did you travel with?
5. What are the things you consider important to you? (I said, Zen,
writing, friendships.)
CRIMINAL LAW FULL CASES
6. Ten us about your educational background.
7. When did you start with the Bulletin aid how did you get your post?
8. Tell us about your previous media positions.
9. They asked specifically about columns on:
— Edgar Jopson Wed., Sept. 29,1982
— What exactly is press freedom? Fri. Sept. 17, 1982
— Fear eats away at the soul, Jan. 10, 1982
and several others in passing
They questioned mostly my attitude, style tone, point of view' in regard
to these columns.
10. Don't you think that you should consider the effect of your columns
on the mind and passions of your readers? Col. Diego asked: Why do
you write to agitate the mind and arouse the passions?
Col. Kintanar was the one most concerned with "the effect of your
writings on the minds and passions of your readers."
11. After my lawyer,Mr.Arroyo, pointed out that out of some 450
columns, only a few seemed to be questioned by the board, Gen.
Estrada said that even so, a plane cannot fly unless it is 100% in flying
condition. I couldn't make out what he meant by that.
12. What subjects do you write about? (I listed a dozen various topics
from feminism to art to philosophy to film to religion, etc.). Why do
you choose them?
13. Who reads your columns at the Bulletin before they are published
or not published
14. What kind of mail/feedback do you get
15. Do you mind if we ask about your brother's case? (This in
connection with my columns criticizing anomalies in government and
business.)
16. Were you really a nun? When? Where? Why? Why did you leave?
17. Tell us about your Zen, what is it, how do you practice it, where,
etc.
18. Why did you leave the Catholic religion
19. Why do you women writers make Fr. Agatep look like a hero? (I
told them I've never even written about him.)
20. What were you doing in February, 1970, because we have on our
files (and they showed me their thick dossier) a report that you
disappeared for a month then and probably joined the underground.
21. Did We Forum ask you to write for them
22. Are speaking engagements part of your duties as a journalist? Do
you consider them hazardous? (I replied that these were a hazard of
the trade, part of being a public figure.)
23. Would you care to write about the military? Would you like to visit
Samar, Leyte, the PMA?
24. Did you know that Edgar Jopson was a radical? Why did he become
a radical? (You tell me, I told them.
25. Are you ever censored or edited?
26. Are you familiar with the problem of brain washing?
27. Don't you think that you are being unwittingly used by those who
try to subvert the government?
28. Would you are to join the Office of Media Affairs?
29. Do you have children?
30. On that column "Diary of a political detainee", did you check
whether the detainees were really fasting?
31. Are you hiding behind your literary devices? Are you evading my
question? (this by Maj. Bernardino)
32. Don't you think your writings make heroes of the very people
people the military have such a hard time with?
33. Don't you feel that many groups would like to influence you? (I
said, Of course and listed hotel PR groups, the military, etc.)
34. Who are the writers who have influenced you?
35. What is the name of your novel? What does it mean? How is it
selling? Who published it?
36. Did you know that Fr. Agatep was a womanizer? (Who among
Filipino men isn't, I replied, words to that effect.)
37. Tell us more about Buddhism and Zen and meditation. Is it true you
face the wall two hours a day, sitting absolutely still?
38. When did you start writing? Why? How?
39. Your cousin Carmen Sabater said you disappeared in 1970. Why?
40. We have a report that you applied for a job at ISAFP in 1973. (They
showed me an application form I was supposed to have filled out and
signed; I did not recognize it at all What is ISAFP, I asked them, I don't
even know what that is- they explained it was the Intelligence Service
of the Armed Forces of the Philippines. Why in God's name would I
want to work for them, I said.
41. What is your definition of national security?
42. What is your definition of press freedom?
43. What are the guidelines for responsible journalism? Do you realize
that some of your writings are only a hairline away from subversive
writing?
44. What is subversive writing? (You tell me, I said again.)
45. Did you mind coming here today? (yes, very much) Thank you for
coming. (I didn't thank them so Mr. Arroyo had to mind my manners
for me
46. Would you like to come to Baguio or Samar or Leyte, they
repeated, and offered me a job again with the OMA Have you ever
written anything favorable about the military? I pointed out the
column 'The Human Side of the Military', written Jan. 30, 1981.
The interrogation was recorded by stenographers seated at the sides
and, I suspect, by hidden recorders, why not indeed? Am I being too
cynical? Sorry.
Col. Kintanar repeated about half a dozen times that I should be
concemed about the effect my writing has on my readers and that I
CRIMINAL LAW FULL CASES
was "on the borderline" between legitimate journalism and writing
things that arouse the people. Arouse them to what, I asked? To think,
I hope, I said.
My response to the invitation and the interrogation: I am helpless
about being insulted but I do not have to smile at the insults. I was
indignant that I was "invited" (with a threat) at all. By what legal
authority was I brought there? If they really wanted a dialogue, they
should have invited us as a group to lunch and served decent white
wine. (I told them this.) They ruined my Christmas shopping which was
a far more interesting activity for that morning, I firmly believe. They
wished me a happy birthday and I told them I would indeed remember
this charming gift the military of my country gave me practically on the
eve of my birthday and Christmas, 1982. (Annex C-1, Petition.)
The original petition asks that the interrogations be declared
unconstitutional and unlawful and that the respondents be prohibited
permanently from engaging in such practices and similar acts.
An amended and supplemental petition was filed on March 3, 1984,
naming Generals Fabian Ver and Artemio Tadiar, Jr. as additional
respondents. Another prayer was added that the respondents be
prohibited from filing libel suits on matters that been inquired into by
the National Intelligence Board.
The additional prayer was made because the petitioners were
apprehensive that aside from the interrogations they would be
subjected to other forms of harassment. The BULLETIN TODAY carried
the following item in its issue of January 30, 1983:
OFFICERS TO FILE LIBEL CHARGES
Camp Aguinaldo announced yesterday that charges of scurrilous libel
will be filed by military officers against the editor and some staff
members and contributors of Philippine Panorama, the Sunday
magazine of Bulletin Today.
AFP spokesman Col. Reynaldo Wycoco said the charge stemmed from
what the complainants considered as malicious writings of some staff
members and contributors of Panorama on sensitive issues, that
maligned them personally or cast aspersions on their integrity and
dignity as military commanders.
Among the complainants are Brig. Gen. Victorino Asada of the First
Constabulary regional command Brig. Gen. Bienvenido Felix of Third PC
regional command Brig. Gen. Salvador Mison of the eastern command
Brig. Gen. Pedrito de Guzman, while commander of the Eleventh PC
regional command in Davao, and other officers.
Solicitor General Estelito P. Mendoza, and other government
prosecutors in charge of national security cases have been consulted
on the legal actions to be taken against writers of other newspapers
and magazines who have allegedly committed the same offense.
The spokesman said those to be charged are Domini Torrevillas-Suarez,
Panorama editor, Jo Ann Maglipon, writer contributor; Lorna Kalaw-
Tirol, staff writer, Maria Ceres Doyo, writer-contributor, and Sheilah
Coronel, staff-writer.
General De Guzman said Maglipon's article entitled "Where the Men
with Guns Tread Nothing is Left But Charred Remains and the Skeleton
of a Village" which appeared July 4, 1982, in Philippine Panorama,
gravely discredited the soldiers in his command with obvious malicious
intent.
The article allegedly contained numerous imputations that government
troopers intimidated, tortured, and massacred innocent civilians
belonging to the Atas minority, whom they are sworn to protect, and
that they rampaged through their villages in Davao del Norte, during
1978-1981.
Tirol wrote an article entitled "In this Catholic Country, Is it Being
Subversive to Live Out Christ's Gospel?" published last Nov. 21. The
article blamed the military for acts of atrocities on the Church in the
Samar provinces, the complainants said.
In Northern Samar, "the people had been terrorized by two months of
military operations, and that the head of one dead man was displayed
in the poblacion, 35 ears attached to it, dead people were brought to
the centers tied to a pole and then dumped into a pit," the article was
quoted as saying.
Mrs. Tirol, in complete contempt of the military authorities led by
General Mison, said that the military "dumps into the waste basket the
letter complaints about military abuses," the complainants said.
Maria Ceres P. Doyo wrote an article entitled "40 Years After the "Fall",
Bataan is Again Under Siege," which appeared in the March 28 issue.
General Felix said this article is libelous because it casts aspersion on
the marines and the PC and discredits his capability and integrity as a
military commander.
He quoted the following from the article:
"In September 1981, military operations in Bataan were stepped up.
For many this was the start of a nightmarish experience. Raid, tortures,
arrests, killings. The PC and the marines were trying to flush out so-
called subversive elements."
General Azada, commanding general of Recom I charged that Doyo's
article on Fr. Zacarias Agatep glamorized an acknowledged enemy of
the government and put the military authorities in a bad light by
casting aspersions and apprehensions on the circumstances
surrounding the encounter between the PC and NPA where Agatep
was killed.
Coronel, author of the article "Who Killed Bobby de la Paz?" in the
Panorama last Dec. 12, questioned the Eascom pronouncement that
the New People's Army (NPA) was responsible for the murder of de la
Paz.
The article said the Eascom "never conducted any thorough
investigation of the case" and that there were "circumstantial evidence
that point to the military's involvement in the slaying."
General Mison charged that Coronal simply quoted from a leftish group
publication, without verifying from the local military and police
authorities on the progress of the actual investigation. (Annex F,
Amended Petition.)
In fact respondent Tadiar executed a complaint affidavit dated
February 9, 1983, which he filed with the City Fiscal of Manila. He
accused petitioners Domini Torrevillas-Suarez and Ma. Ceres Doyo of
libel because of the publication in PANORAMA of an article entitled "40
YEARS AFTER THE 'FALL', BATAAN IS AGAIN UNDER SIEGE He claimed
damages (other than exemplary damages) in the amount of ten million
(P10,000,000.00) pesos which Justice Plana has described as
staggering. Annex G-1, Amended Petition.)
It should be stated also that petitioner Letty Jimenez-Magsanoc once
wrote a highly critical article published in PANORAMA for which she
was threatened with libel suits by several highly placed government
officials. Mrs. Jimenez Magsanoc is not with PANORAMA anymore.
Recently a committee of the print media issued a
STATEMENT OF CONCERN
We view with concern recent developments which threaten the
freedom of journalists to report and comment on issues of public
importance.
We are alarmed by the increasing number of libel suits filed against
journalists by public officials and the military. This form of harassment
through legal action threatens the citizens' constitutional right to be
informed.
CRIMINAL LAW FULL CASES
This month alone, two libel suits were filed against the Bulletin
Publishing Corp., Panorama editor Domini Torrevillas Suarez,
contributor Mauro Avena, and lawyer Lupino Lazaro for the publication
of Lazaro's views on the Aquino assassination and the conduct of the
Agrava Board Investigation.
Since the May 14 elections, Mr. & Mrs. received two notices of libel in
connection with articles on alleged election anomalies in Cebu and
Leyte.
In 1982, the editor-publisher of We Forum was charged with libel for
running a series of articles that questioned the authenticity of
President Marcos' war decorations.
In 1983, five women journalists were threatened with libel suits for
exposes on military abuses inPanorama magazine. One case, against
freelance writer Ceres Doyo and editor Torrevillas-Suarez, has actually
been filed.
In the same year, Bulletin correspondent Isidro Chammag was charged
with libel for his report on military abuses in Abra.
The provincial press and the foreign press in the Philippines are no less
vulnerable to "legalized" harassments. They have had their share of
libel suits, many of which are still pending in the courts.
Suing for libel has traditionally been the defense of aggrieved citizens.
Today, however, libel suits have become a convenient instrument of
the state to cow and intimidate journalists through court action. A sad
consequence of this is the blacklisting of journalists by publications
wary of libel suits.
We view with alarm the ominous implication of President Marcos'
statement in his July 23rd State-of-the-Nation address which now
classifies libel with violence and subversion: "Violence, subversion and
libel are not acceptable weapons of dissent in a democratic society."
Side by side with this is the grave threat posed by P.D. 1834 which
makes "unlawful use of publications" punishable by death or life
imprisonment.
We strongly protest these continuing assaults on press freedom. We
appeal to the authorities concerned to help restore the people's right
to a free press. We affirm our commitment to fair and responsible
journalism and our solidarity with our harassed colleagues.
In the comment submitted for the respondents on the original petition
it is argued that the petition is totally devoid of merit. It contains a
prayer for dismissal.
When the case was heard on February 1, 1983, on the issuance of a
preliminary injunction, the Solicitor General submitted a copy of the
memorandum of General Fabian C. Ver, Director General and Chairman
of the National Intelligence Board, addressed to respondent Estrada,
dated January 19, 1983, which reads as follows:
The Board reviewed the Report of Special Committee No. 2 regarding
the series of dialogues you have conducted with selected members of
the media. It expressed satisfaction in the results of the dialogue and
noted better mutual understanding of the respective roles of media
and government. In view thereof, such proceedings of Committee No.
2 are hereby ordered terminated. (Rollo, p. 64.)
In the light of the memorandum the Solicitor General said that there
was no need for further proceedings on the matter. Mr. Joker Arroyo,
one of the counsels for the petitioners, admitted that the plea for
preliminary injunction was no longer viable. He nonetheless contended
that the matter is such importance that the petitioners hope for a
definite ruling on the principal question raised.
The ponencia of Justice Plana declares the petition moot and academic
in respect of the interrogations because they have been abated. He
adds a short and mild note of concern I agree with Justice Teehankee
that the Court should rule squarely on the matter.
The Constitution states that "No law shall be passed abridging the
freedom of speech, or of the press, " (Art. IV, Sec. 9.) In the instant case
the persons who compose Special Committee No. 2 of the National
Intelligence Board have abridged the freedom to speak and the
freedom to publish by intimidation and veiled threats addressed to
some members of the press who by their writings have been critical of
the government. Their actions are the more odious and had chilling
effects because they were cloaked by a mantle of pseudo legality.
The letter of respondent Estrada to Ms. Babst uses the word "law"
twice — a law which vests authority in him and which also authorizes
his committee to proceed if Ms. Babst should fail to appear. I have
asked and searched but I have yet to discover the law respondent
Estrada had in mind.
The letter uses the word "requested" but in context the request was a
thinly veiled command to appear before the Special Committee for
failure to do so is to be considered as a waiver (of what?) and the
committee will have to proceed in accordance with law (again what
law?).
The interrogations were not only offensive to the guarantees of free
speech and free press, they also violated the right to privacy the right
to withhold information which are nobody's business. Note, for
example, that Ms. Babst was asked if she was really a nun, if she
practised Zen, why she left the Catholic religion, etc.
In the case of Ms. Babst it could be asked why she honored the
"request" and discussed even impertinent and personally intrusive
questions when she had the legal services of Atty. Joker Arroyo. It
should be recalled that the interrogation took place on December 22,
1982, and on that date the WE FORUM case was just a few days old
and it should be noted that not only were the staffers of that
publication arrested on Presidential Commitment Orders but the
equipment and other properties of the paper were also sequestered.
Fear indeed can have a paralyzing effect.
For freedom to speak and to publish to be meaningful, "Not much
reflection is needed to show that these freedoms would be nullified if a
person were allowed to express his views only on the pain of being
held accountable. That would be to stifle the expression of opinions
which are repugnant or contrary to the current political, economic, or
moral views. The right to dissent becomes non-existent. To expose the
party availing himself of freedom of speech or of the press to run the
risk of punishment is to make a mockery of our commitment to the
free mind." (Fernando, The Bill of Rights, p. 131 [1972].)
I also want to put on record what Professor Archibald Cox of Harvard
Law School (formerly Solicitor General of the United States and as
Watergate Special Prosecutor one of the victims of the Saturday night
"massacre") said when he pleaded for forbearance to those who were
disrupting a teach-in on Vietnam in March of 1971:
My name is Archibald Cox. I beseech you to let me say a few words in
the name of the President and Fellows of this University on behalf of
freedom of speech. For if this meeting is disrupted-hateful as some of
us may find it then liberty will have died a little and those guilty of the
disruption will have done inestimable damage to the causes of
humanity and peace.
Men and women whose views aroused strong emotions-loved by some
and hated by others have always been allowed to speak at Harvard-
Fidel Castro, the late Malcolm X, George Wallace, William Kuntsler and
others. Last year, in this very building, speeches were made for physical
obstruction of University activities. Harvard gave a platform to all these
speakers, even those calling for her destruction. No one in the
community tried to silence them, despite intense opposition.
The reason is plain, and it applies here tonight. Freedom of speech is
indivisible. You cannot deny it to one man and save it for others. Over
and over again the test of our dedication to liberty is our willingness to
allow the expression of Ideas we hate. (33 Harvard Law School Bulletin,
No. 1.)
CRIMINAL LAW FULL CASES
It is now well-settled that prohibition can be issued in the sound
discretion of the court in order to prevent oppressive enforcement of
the criminal law. (Dimayuga and Fajardo vs. Fernandez, 43 Phil. 304
[1922].) Upon the other hand, the reasons advanced by Justice Plana
why prohibition should not be issued are based on technical and ignore
equitable grounds. He forgets that prohibition is a prerogative and an
equitable writ.
In the light of the foregoing, I place on record my condemnation of the
interrogations. They were violative of the freedoms of speech, press
and privacy. They were the proper objects of prohibition or injunction.
Similarly, any libel suit, whether civil or criminal, on matters inquired
into in the interrogation can also be prohibited.
I close with this statement. The Armed Forces of the Philippines is an
honorable and distinguished institution. Mt. Samat, Corregidor and
the Libingan Ng Mga Bayani are monuments to the uncommon valor
of its gallant, brave and patriotic members. Let not the shining image of
the Armed Forces of the Philippines be tarnished by some of its
members who by their excessive zeal subordinate the rights they are
sworn to protect to the imagined demands of national security, to
borrow a phrase from Senator Emmanuel Pelaez.
[G.R. No. 117321.  February 11, 1998]
THE  PEOPLE  OF  THE PHILIPPINES, plaintiff-appellee, vs. HERSON
TAN y VERZO, accused-appellant.
DECISION
ROMERO, J.:
May the confession of an accused, given before a police investigator
upon invitation and without the benefit of counsel, be admissible in
evidence against him?
Accused-appellant Herson Tan, along with Lito Amido, were charged
with the crime of highway robbery with murder before the Regional
Trial Court, Branch 62, of Gumaca, Quezon Province, under an
information[1] dated February 8, 1989, which reads as follows:
“That on or about the 5th day of December 1988, along the Maharlika
Highway at Barangay Tinandog, Municipality of Atimonan, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating
together and mutually helping each other, armed with bladed and
pointed weapons, with intent to gain, by means of force, violence,
threats and intimidation, did then and there wilfully, unlawfully and
feloniously take, steal and carry away from one Freddie Saavedra, a
Honda TMX motorcycle with a sidecar bearing Plate No. DW 9961
valued at THIRTY THOUSAND PESOS (P30,000.00) Philippine currency,
belonging to the said Freddie Saavedra, to the damage and prejudice of
the latter in the aforesaid amount; and that on the occasion of said
robbery and by reason thereof, the said accused,  with intent to kill,
with evident premeditation and treachery, and taking advantage of
their superior strength and in pursuance of their conspiracy, did then
and there wilfully, unlawfully and feloniously attack, assault and stab
with the said weapon said Freddie Saavedra, thereby inflicting upon
the latter multiple stab wounds on the different parts of his body,
which directly caused his death.
Contrary to law.”
On arraignment, the accused pleaded not guilty to the charge.
The relevant facts established by the prosecution are as follows:
On December 5, 1988, at about 7:00 o’clock p.m., tricycle driver
Freddie Saavedra went to see his wife, Delfa, at Our Lady of Angels
Academy in Atimonan, Quezon, where the latter is a third year high
school student, to inform her that he will drive both accused to
Barangay Maligaya.  It was the last time, however, that Freddie was
seen alive.  When the latter failed to return that evening, Delfa, as early
as 4:30 o’clock a.m. of December 6, 1988 inquired on his whereabouts
from relatives and friends.  In the course of such inquiry, a certain
Arnel Villarama revealed that the lifeless body of her husband was
discovered on the diversion road at Barangay Malinao in
Atimonan.  Forthwith, they proceeded to the said place and found him
sprawled on the ground with fourteen stab wounds in different parts of
his body.
Meanwhile, relying on the information that an abandoned sidecar of a
tricycle was sighted at Barangay Malinao, Lucena Philippine National
Police (PNP) led by Lt. Carlos Santos proceeded to the scene of the
crime and recovered a blue sidecar which they brought back with them
to their headquarters.  Subsequently, Lt. Santos, Cpl. Numeriano
Aguilar and Pat. Rolando Alandy invited appellant in connection with
the instant case and with respect to two other robbery cases reported
in Lucena City.  During their conversation, appellant allegedly gave an
explicit account of what actually transpired in the case at bar.  He
narrated that he and co-accused Amido were responsible for the loss
of the motorcycle and the consequent death of Saavedra.  Moreover,
he averred that they sold the motorcycle to a certain Danny Teves of
Barrio Summit, Muntinlupa for a sum of P4,000.00.  With the help of
appellant as a guide, the Lucena PNP immediately dispatched a team to
retrieve the same. 
After admitting that it was purchased from both the accused and upon
failure to present any document evidencing the purported sale, Teves
voluntarily surrendered it to the police who turned it over, together
with the sidecar, to the Atimonan Police Station for safekeeping.
Lt. Carlos, on cross-examination, testified that when he invited
appellant to their headquarters, he had no warrant for his arrest.  In
the course thereof, he informed the latter that he was a suspect, not
only in the instant case, but also in two other robbery cases allegedly
committed in Lucena City.  In the belief that they were merely
conversing inside the police station, he admitted that he did not inform
appellant of his constitutional rights to remain silent and to the
assistance of counsel; nor did he reduce the supposed confession to
writing.[2]
Appellant, on the other hand, alleged that he had no participation in
the offense charged and contended that his only involvement in the
matter was the referral of accused Amido to Teves.  He recounted that
sometime in December 1988, Amido sought him at his house and told
him that the motorcycle he was riding on was being offered for
sale.  Upon proof shown that it was indeed registered under Amido’s
name, he accompanied the latter to Manila on board the said
motorcycle and they approached Antonio Carandang.  The latter,
thereafter, brought them to a certain Perlita Aguilar and Danilo Teves
with whom the sale was finally consummated.  He allegedly
received P150.00 as his commission.
Amido presented alibi as his defense.  He alleged that although a
tricycle driver by occupation, he was at Barangay Malusak, Atimonan
on the day in question, some seven kilometers from the town, busy
assisting in the renovation of his mother’s house.  He narrated that the
victim was his friend and, therefore, he could not have participated in
the gruesome death of the latter.
In a decision dated April 21, 1994, the trial court convicted appellant,
the dispositive portion of which reads:
“WHEREFORE, premised in the foregoing considerations, this Court
finds Herson Tan GUILTY beyond reasonable doubt of the crime of
Highway Robbery with Murder and hereby sentences him to suffer an
imprisonment of RECLUSION PERPETUA.  He is further ordered to
indemnify the family of the deceased in the amount of Thirty Thousand
Pesos (P30,000.00).
CRIMINAL LAW FULL CASES
Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of
the charges against him and the Provincial Warden of Quezon,
Provincial Jail, Lucena City, is hereby ordered to release from custody
the person of said Lito Amido, unless he is being detained thereat for
some other lawful cause.
SO ORDERED.”[3]
Appellant assails the finding of conviction despite failure of the
prosecution to positively identify him as the culprit of the crime and to
present clear and convincing circumstantial evidence that would
overcome his innocence.
In light of the above facts and circumstances, the appealed decision is
set aside and appellant acquitted on the ground that his constitutional
rights were violated.
It is well-settled that the Constitution abhors an uncounselled
confession or admission and whatever information is derived
therefrom shall be regarded as inadmissible in evidence against the
confessant.  Article III, Section 12, paragraphs (1) and (3) of the
Constitution provides:
“x x x                                           x x x                                     x x x
Sec. 12. (1)  Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent
and to have competent and independent counsel preferably of his own
choice.  If the person cannot afford the services of counsel, he must be
provided with one.  These rights cannot be waived except in writing
and in the presence of counsel.
x x x                                             x x x                                     x x x
(3)  Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible against him.”
Republic Act No. 7438 (R.A. No. 7438),[4] approved on May 15, 1992,
reenforced the constitutional mandate protecting the rights of persons
under custodial investigation, a pertinent provision[5] of which reads:
“As used in this Act, ‘custodial investigation’ shall include the practice
of issuing an ‘invitation’ to a person who is investigated in connection
with an offense he is suspected to have committed, without prejudice
to the liability of the ‘inviting’ officer for any violation of law.”
Custodial investigation involves 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.  The rules on custodial investigation begin to operate as soon
as the investigation ceases to be a general inquiry into an unsolved
crime and begins to focus a  particular suspect, the suspect is taken
into custody, and the police carries out a process of interrogations that
tends itself to eliciting incriminating statements that the rule begins to
operate.[6]
Furthermore, not only does the fundamental law impose, as a requisite
function of the investigating officer, the duty to explain those rights to
the accused but also that there must correspondingly be a meaningful
communication to and understanding thereof by the accused.  A mere
perfunctory reading by the constable of such rights to the accused
would thus not suffice.[7]
Under the Constitution and existing law and jurisprudence, a
confession to be admissible must satisfy the following requirements:
(1) it must be voluntary; (2) it must be made with the assistance of
competent and independent counsel; (3) it must be express; and (4) it
must be in writing.[8]
While the Constitution sanctions the waiver of the right to counsel, it
must, however, be “voluntary, knowing and intelligent, and must be
made in the presence and with the assistance of counsel.”[9] To
reiterate, in People v. Javar,[10] it was ruled therein that any statement
obtained in violation of the constitution, whether exculpatory or
inculpatory, in whole or in part, shall be inadmissible in evidence.  Even
if the confession contains a grain of truth, if it was made without the
assistance of counsel, it becomes inadmissible in evidence, regardless
of the absence of coercion or even if it had been voluntarily given.
The records of this case do not indicate that appellant was assisted by
counsel when he made such waiver, a finding evident from the
testimony of Lt. Santos on cross-examination, thus:
“Q    Now, when you brought Herson Tan to the Headquarters, did you
tell him that he is one of the suspects in the robbery slain (sic) that
took place in Atimonan on December 5, 1988?
A     Yes, sir, and he was also suspect to the robbery case which was
investigated at Lucena Police Station.  There were two (2) cases which
were investigated on Herson Tan.
Q     Now, so in addition to the Atimonan case, you also took Herson
Tan to your custody in connection with another case that happened in
Lucena?
A     Yes, sir.
Q     And you happened to have Herson Tan in your list as suspect in
both cases because Herson was previously incarcerated at Lucena City
Jail in connection with a certain case, is it not?
A     Yes, sir.
Q     Just for curiosity sake, you invited him in your headquarters, is that
what happened in this case?
A     Yes, sir.
Q     And it just happened that without applying third degree to him he
gave you that information?
A     Yes, sir.
Q     Did you notify him of his constitutional right to counsel before you
propounded questions to him?
A     No, sir, because we are asking question only to him.
Q     Before propounding question or information you sought to elicit
from him, did you inform him of his constitutional right not to testify
against himself because he is a suspect in these two (2) cases?
A     No, sir, because we were just conversing.[11] (Underscoring
supplied)
The evidence for the prosecution shows that when appellant was
invited for questioning at the police headquarters, he allegedly
admitted his participation in the crime.  This will not suffice to convict
him, however, of said crime. The constitutional rights of appellant,
particularly the right to remain silent and to counsel, are impregnable
from the moment he is investigated in connection with an offense he is
suspected to have committed, even if the same be initiated by mere
invitation.  “This Court values liberty  and will always insist on the
observance of basic constitutional rights as a condition sine qua
non against the awesome investigative and prosecutory powers of
government.”[12]
What remains of the evidence for the prosecution is inadequate to
warrant a conviction.  Considering the circumstances attendant in the
conduct of appellant’s investigation which fell short of compliance with
constitutional safeguards, we are constrained to acquit the appellant.
WHEREFORE, in view of the foregoing, the decision of the Regional
Trial Court of Gumaca, Quezon (Branch 62) is REVERSED and SET
ASIDE.  Appellant HERSON TAN y VERZO is hereby ACQUITTED of the
CRIMINAL LAW FULL CASES
crime charged and his immediate release from confinement is hereby
ordered, unless there is any other lawful cause for continued
detention.  Costs de oficio.
SO ORDERED.
G.R. No. 108494 September 20, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  guard of "Linda's Ihaw-Ihaw," which the latter answered in the
vs.
SAMUEL MARRA y ZARATE, ALLAN TAN, alias "Allan Yao,"  Samuel Marra, that his tour of duty was from 7:00 P.M. of a preceding
PETER DOE, PAUL DOE and TOM DOE, accused.
SAMUEL MARRA y ZARATE, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
 
REGALADO, J.:
In an information filed before the Regional Trial Court, Branch 43, security guard's uniform, shoot Tandoc with a revolver. There was a
Dagupan City, Samuel Marra y Zarate, John Doe, Peter Doe, Paul Doe fluorescent bulb installed at the front of the hotel which enabled Din to
and Tom Doe were charged with the crime of murder for the fatal identify the assailant. Tandoc was shot in the middle of the chest and
shooting of one Nelson Tandoc on March 7, 1992. 1 On June 4, 1992, an he fell down. Then, Din saw four to five men scamper away from the
amended information was filed wherein Allan Tan, alias "Allan Yao," scene. 9
was indicated as an accused instead of John Doe. 2 A warrant of arrest
was thereafter issued against Allan Tan 3 but the same was returned
Aware of his injury, Tandoc told Din, "Tol, I was shot." The latter tried
unserved, 4 hence trial proceeded with regard to herein accused-
to chase appellant and his companions but he failed to catch up with
appellant Samuel Marra alone.
them. Din and his wife then brought Tandoc to the Villaflor Hospital.
The victim was taken to the emergency room but he expired an hour
Duly assisted by counsel, appellant pleaded not guilty upon later. 10
arraignment on May 15, 1992. 5 After trial on the merits, judgment was
rendered by the court below on October 8, 1992 finding appellant
At about 3:45 A.M. of March 7, 1992, SPO3 Reynaldo de Vera of the
guilty beyond reasonable doubt of the crime charged, attended by the
Dagupan City Police Station received a report about a shooting incident
aggravating circumstance of nighttime, and sentencing him to suffer
at the annex building of the Lucky Hotel. He proceeded to the crime
the penalty ofreclusion perpetua. He was further ordered to pay the
scene along with SPO4 Orlando Garcia, SPO3 Mauricio Flores and SPO3
heirs of Nelson Tandoc the sums of P50,000.00 as death indemnity,
Noli de Castro. Upon their arrival about five minutes later, they were
P50,000.00 as actual damages, P100,000.00 as moral damages, and the
informed by the wife of Jimmy Din that the victim had been brought to
costs. 6
the Villaflor Hospital. They proceeded to the hospital where Din
informed them that he could recognize the man who killed Tandoc and
The prosecution's eyewitness, Jimmy Din, positively identified that the killer was, at that time, wearing the polo shirt of a security
appellant as the triggerman in the killing of Nelson Tandoc. Din guard's uniform. 11
recounted that at around 2:00 A.M. on March 7, 1992, he and his
friend, Nelson Tandoc, were conversing with each other in front of
They decided to proceed to an eatery called "Linda's Ihaw-Ihaw."
Lucky Hotel located at M.H. del Pilar Street, Dagupan City, which was
Seeing the security guard of a nearby bus company, they inquired from
owned by the witness' father and of which he was the administrator.
him if he knew of any unusual incident that happened in the vicinity.
He noticed a man pass by on the opposite side of the street. The man
The guard said that he saw the guard of "Linda's Ihaw-Ihaw," together
made a dirty sign with his finger and Din informed Tandoc thereof. The
with some companions, chasing two persons running towards M. H. del
man repeated his offensive act and called them by waving his hands.
Pilar Street. He further added that the man was wearing a polo shirt of
Infuriated, they followed the man until the latter stopped in front of
a security guard's uniform. Asked where that particular guard might be,
the Dunkin' Donuts store at the corner of Arellano and Fernandez
he pointed to a man eating inside the eatery nearby. The man eating
streets. They demanded an explanation from the man but they were
was not in a security guard's uniform. 12
not given any. 7
They approached the man and inquired whether he was the security
At that instant, two men arrived and one of them inquired what was
going on. Tandoc informed him that they were just demanding an
affirmative. After a series of questions, they learned that he was
explanation from the man. Din was surprised when Tandoc
unexpectedly slapped one of the two men. A brawl ensued, with
day to 6:00 A.M. the following day, that he was still on duty at around
Tandoc clashing with the two men while Din exchanged blows with the
2:30 in the morning of March 7, 1992, and that the firearm issued to
man who made the dirty finger sign. After the fisticuffs, their three
him was in his house. Upon their request to see the firearm, they
opponents ran away in a westward direction. 8
proceeded to Marra's residence at Interior Nueva Street. 13
Tandoc and Din then decided to walk back to the hotel. When they
When they arrived, Marra took a .38 caliber revolver from inside an
were about to enter the place, they noticed that the men with whom
aparador and handed it to De Vera. De Vera also found five live bullets
they just had a fight were running towards them. Sensing danger, they
and one spent shell. Smelling gunpowder from the barrel of the gun,
ran inside the annex building of the hotel and immediately secured the
De Vera asked Marra when he last fired the gun but the latter denied
lock of the sliding outer door. They entered a room and waited until
ever having done so. Abruptly, De Vera asked him point-blank why he
they felt that the situation had normalized. After ten to fifteen
shot Tandoc. Marra at first denied the accusation but when informed
minutes, thinking that the men were no longer in the vicinity, they left
that someone saw him do it, he said that he did so in self-defense,
the room. Having decided to go home, Tandoc opened the sliding door.
firing at the victim only once. Tandoc allegedly had a samurai sword
All of a sudden, Din saw Appellant, who at that time was wearing a
with him at the time of the incident. However, persistent efforts on the
CRIMINAL LAW FULL CASES
part of the policemen to thereafter locate said bladed weapon proved
futile. Marra also admitted that prior to the incident, he chased the
victim and Din. The officers then took Marra to the police station
where he was detained. 14
Meanwhile, De Vera went to Villaflor Hospital from where he fetched
Din and brought him to the police station. There, Din definitely
identified Marra as the assailant. During the investigation, De Vera also
found out that Marra had not firearm license. 15
Dr. Tomas G. Cornel, Assistant City Health Officer of Dagupan City,
testified that he conducted an autopsy on a certain Nelson Tandoc. He
found a gunshot wound on the victim with the point of entry of the left
side of the anterior chest wall and the point of exit at the lower left
portion of the right shoulder. 16
Prosecutor Gregorio Gaerlan, stepfather of the victim, testified on the
funeral, burial and other expenses incurred by the family. He declared
that they paid Funeraria Quiogue P25,000.00 for its services; Villaflor
Hospital, P2,875.00 for the confinement of Tandoc; St. John Memorial
Cathedral, P350.00; Eternal Garden, P3,000.00 for the interment fee
and P150.00 for the rent of the tent during the burial; and that they
spent P2,300.00 for the video tape expenses and P11,800.00 for food
and drinks during the wake. 17
Understandably, appellant gave a different version of the incident.
Marra declared in court that he used to work as a security guard at
"Linda's Ihaw-Ihaw" from seven o'clock in the evening to six o'clock in
the morning of the following day. On March 6, 1992, he reported for
duty at seven o'clock that evening as was his usual practice. At around
four o'clock down of the following day, he went home to change his
clothes. He proceeded to the Five Star Bus Terminal which was
adjacent to "Linda's Ihaw-Ihaw." He saw Neneng, the cashier of said
eatery, and together they ordered arroz caldo. Later, at about 5:00
A.M., he was approached by four policemen who inquired if he was a
security guard. He answered in the affirmative. He was also asked
about his sidearm. When he answered that it was at his residence, they
all went to his house to look for it. After he handed over the firearm to
the policemen, he was brought to the city hall where he was
detained. 18
Under cross-examination, he insisted that when he handed the gun to
the policeman, there were five live bullets, and not four live bullets and
one empty shell as claimed by the prosecution. Prior to the incident, he
had never met Jimmy Din nor does he know of any cause why Din
would harbor any ill feelings against him. 19
After a careful scrutiny of the records and an objective evaluation of
the evidence, the Court is not disposed to reverse the judgment of the
lower court, the decision of the latter being amply supported by the
established facts and fully sustained by the applicable law.
In assailing the decision of the court below, the defense argues that
"Jimmy Din . . . was not able to identify the assailant in a definite and
believable manner." It goes on to state further that " Jimmy Din was
inside the hotel when Nelson Tandoc was shot and his vision was
o(b)structed by the door. Jimmy Din was also not familiar with the
accused. Under the circumstances by which he allegedly witnessed the
shooting, how could be identify clearly an assailant at the distance of
45 meters?" 20
Appellant's counsel is only partly correct, having conveniently failed to
mention other vital parts of Din's testimony. An impartial review of said
testimony readily reveals that Din was indeed in a position to know the
identity of the assailant. Firstly, Din knew for a fact that the persons he
and Tandoc fought with near the Dunkin' Donuts store were the same
men who chased them while they were on their way back to the hotel
because he was able to take a good look at them. During the chase, he
naturally turned around to look at the men who were running after
them and who were at that time in front of the Balingit Trading store
which was well-lighted. 21 It logically follows that they were the same
persons who were waiting for them when they later came out of the
hotel, and he was familiar with their identities because of their
previous encounter.
Secondly, we do not agree with appellant that the door blocked the
view of Din. Said door, partly made of plywood, had a spring hinge
which makes it possible for the door to close by itself. However, at that
time the spring hinge had been weakened by long and constant use
such that it would take some time for it to close the door, thereby
allowing Din sufficient opportunity to have an unobstructed view of the
scene outside. 22
Thirdly, Din was quite near the victim and appellant, which proximity,
enabled him to clearly see what really happened. He thus readily
perceived the actual shooting at the time when Tandoc pushed the
door open. At that precise moment, Din was at the left side of Tandoc
and about four to five meters away from the assailant. 23
Lastly, the place was brightly illuminated by a 20-watt fluorescent bulb
installed on the outside wall in front of the hotel. Marra was only about
three meters away therefrom. Such physical conditions would
undeniably afford a clear view from inside the hotel of the immediate
area outside and in front of the same where the incident took place.
The prosecution presented another vital witness in the person of Sgt.
Reynaldo de Vera, whose testimony we shall repeat here for easy
reference. In capsulized form, De Vera narrated the sequence of events
that happened after he and his companions went to the crime scene to
conduct an investigation. Having received information that a man in a
security guard's uniform was involved in the incident, they sought
information from a security guard of a nearby bus terminal. Said
security guard pointed them to Marra, who at that time was eating in
acarinderia nearby. Informed by Marra that his gun was at his
residence, they all went to Marra's residence to get the same. After
receiving said firearm, De Vera asked appellant why he killed Tandoc
but Marra initially denied any participation in the killing. Nevertheless,
when confronted with the fact that somebody saw him do it, Marra
admitted the act although he alleged it was done in self-defense. This
testimony of De Vera as to the confession of Marra is of significant
weight, but the admissibility thereof shall also be passed upon.
Section 12(1), Article III of the 1987 Constitution provides that "(a)ny
person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own
choice. . . . ." The critical inquiry then is whether or not Marra was
under custodial investigation when he admitted the killing but invoked
self-defense. We believe that he was not so situated.
Custodial investigation involves any questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way. It is
only after the investigation ceases to be a general inquiry into an
unsolved crime and begins to focus on a particular suspect,the suspect
is taken into custody, and the police carries out a process of
interrogations that lends itself to eliciting incriminating statements that
the rule begins to operate. 24
In the case at bar, appellant was not under custodial investigation
when he made the admission. There was no coercion whatsoever to
compel him to make such a statement. Indeed, he could have refused
to answer questions from the very start when the policemen requested
that they all go to his residence. The police inquiry had not yet reached
a level wherein they considered him as a particular suspect. They were
just probing into a number of possibilities, having been merely
informed that the suspect was wearing what could be a security
guard's uniform. As we held in People vs. Dy:  25 "What was told by the
accused to Pat. Padilla was a spontaneous statement not elicited
through questioning, but given in an ordinary manner. No written
confession was sought to be presented in evidence as a result of formal
custodial investigation. 26 The trial Court, therefore, cannot be held to
have erred in holding that compliance with the constitutional
procedure on custodial investigation is not applicable in the instant
case, . . . ."
Accordingly, the testimony of Sgt. de Vera assumes a dominant
dimension because it totally destroys the defense of denial cum alibi
subsequently raised by appellant. In his answers to Sgt. De Vera,
appellant expressly admitted that he shot Tandoc, albeit with an
exculpatory explanation. This admission of Marra is in complete
contrast to the statements he later made in open court.
CRIMINAL LAW FULL CASES

In addition, the law provides that the declaration of an accused
acknowledging his guilt of the offense charged, or of any offense
necessarily included therein may be given in evidence against him and,
in certain circumstances, this admission may be considered as part of
the res gestae. In a similar situation involved in the aforecited case
ofPeople vs. Dy, this Court held:
. . . the oral confession made by the accused to Pat. Padilla that "he
had shot a tourist" and that the gun he had used in shooting the victim
was in his bar which he wanted surrendered to the Chief of Police
(t.s.n., October 17, 1984, pp. 6-9) is competent evidence against him.
The declaration of an accused acknowledging his guilt of the offense
charged may be given in evidence against him (Sec. 29 [now Sec. 33],
Rule 130). It may in a sense be also regarded as part of the res gestae.
The rule is that, any person, otherwise competent as a witness, who
heard the confession, is competent to testify as to the substance of
what he heard if he heard and understood all of it. An oral confession
need not be repeated verbatim, but in such a case it must be given in
substance. (23 C.J.S. 196, cited in People vs. Tawat, G.R. No. 62871,
May 25, 1985, 129 SCRA 431). (Italics supplied.)
SO ORDERED. other hand, recalled that at around 9:00 P.M. of June 23, 1992,
appellant, who was a brother-in-law of Teodorico Laroya, Jr.,
purchased some candies at her store which is located inside the
village. 4
Both Balocating and Pangan had previously executed sworn statements
just three days after the incident, the assertions in which were of the
same import as their respective testimonies in court. 5 On June 27,
1992, the police authorities apprehended appellant at the house of his
brother in Fort Bonifacio. SPO1 Carlos R. Atanacio, Jr., a member of the
Cainta Police Station in Cainta, Rizal interrogated appellant regarding
the crimes on the same day that he was arrested.
This police officer declared in the trial court that before he questioned
G.R. Nos. 118866-68 September 17, 1997 appellant as to his participation in said crimes, all steps were
undertaken to completely inform the latter of his rights and this he did
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  in the presence of appellant's supposed counsel, one Atty. Lorenza
vs. Bernardino-Villanueva. Appellant then signed, likewise in the presence
RODOLFO DE LA CRUZ, alias RODOLFO DOMINGO or of said counsel, an extrajudicial confession wherein he narrated in
"OMPONG," accused-appellant. detail how he allegedly snuffed out the lives of the victims. 6

In any event, even without his admission, the case against appellant
  When presented as the lone witness for himself, appellant was
has been duly established by the other evidence of the prosecution, as
observed by the trial court to be afflicted with a problem in expressing
earlier discussed. However, persistently arguing for an acquittal, the
himself and an impediment in his speech (ngo-ngo). By appellant's own
defense points out that when the police officers saw Marra, he was not REGALADO, J.: account, he only reached the fourth grade of elementary schooling
in a blue uniform whereas Din testified that the person who shot
and, although conversant with Tagalog, he is unable to read and write,
Tandoc was wearing the polo shirt of a security guard's uniform. This is
In this appeal from three sentences of reclusion perpetua, accused- although he can sign his name. He bluntly repudiated the version of
a puerile argument since appellant himself removed any lingering
appellant Rodolfo de la Cruz, aliasRodolfo Domingo or "Ompong," SPO1 Atanacio, Jr. and insisted that he was never assisted by any
doubts on this point. He said that on ending his tour of duty at 4:00
consistent with his negative pleas when arraigned on November 5, counsel of his choice, much less met said Atty. Lorenza Bernardino-
A.M. of March 7, 1992, he decided to go home to change clothes, after
1992 and January 11, 1993, 1 impugns his conviction for multiple Villanueva, when he was interrogated at the police headquarters in
which he went to "Linda's Ihaw-Ihaw" to eat. This explains why, at the
murder in Criminal Cases Nos. 92-8029, 92-8030 and 92-8031 by the Cainta, Rizal and signed his supposed extrajudicial confession.
time the police officers saw him, he was already in civilian clothes. The
Regional Trial Court, Branch 74, 2 of Antipolo, Rizal. He anchors his Parenthetically, his answers to the questions appearing therein are in
shooting had taken place earlier at around 2:00 A.M. At that time,
entreaty for the reversal thereof mainly on the ground that he was not surprisingly fluent, flawless and expressive Tagalog, 7which could not
Marra was still in his security guard's uniform, being then on duty.
fully and appropriately apprised of or allowed to exercise his have been done by him because of his defect in speech and
constitutional rights prior to and while undergoing custodial articulation.
However, while we agree that the crime committed by appellant was investigation.
murder qualified by treachery, we reject the finding that the same was
He further claims that he was instead tortured by the police authorities
aggravated by nighttime. No evidence was presented by the
In the early evening of June 23, 1992, the lifeless bodies of Teodorico into signing the same, and not that he did so voluntarily. While he
prosecution to show that nocturnity was specially sought by appellant
M. Laroya, Jr. and his children, 12-year old Karen Verona D. Laroya and admits having been at the residence of the victims on the night that
or taken advantage of by him to facilitate the commission of the crime
10-year old John Lester D. Laroya, were discovered in their residence at they were murdered, he flatly denied having killed them as he left the
or to ensure his immunity from capture. 27 At any rate, whether or not
13 Emerald Street, Greenpark Village, Cainta, Rizal by their horrified trio well and alive that same night when he proceeded to his brother's
such aggravating circumstance should be appreciated, the penalty to
neighbors. The star-crossed trio were all bloodied consequent to place in Fort Bonifacio. 8
be imposed on appellant would not be affected considering the
numerous stab wounds, and each of them had a knife still embedded in
proscription against the imposition of the death penalty at the time
and protruding from their bodies when found. Karen Verona also bore 1. In unambiguous and explicit terms, Section 12, paragraph 1, of
when the offense in the instant case was committed.
external signs of sexual assault. 3 Article III of the Constitution requires that "[a]ny person under
investigation for the commission of an offense shall have the right to
WHEREFORE, the judgment of the court a quo finding accused-
None of their neighbors, however, witnessed the gruesome murders. be informed of his right to remain silent and to have independent
appellant Samuel Marra y Zarate guilty of the crime of murder and
Two of them later testified in court, namely, Harold Jim F. Balocating counsel preferably of his own choice. If the person cannot afford the
imposing upon him the penalty and civil liabilities therein stated is
and Anita F. Pangan. The former merely recounted how, while playing services of counsel, he must be provided with one. These rights cannot
hereby AFFIRMED.
table tennis in front of the Laroya residence, he and his friends be waived except in writing and in the presence of counsel." Corollary
stumbled upon the dead bodies of the victims. Anita Pangan, on the thereto, paragraph 3 thereof declares that any confession or admission
CRIMINAL LAW FULL CASES
obtained in violation of the same shall be inadmissible in evidence
against the confessant.
An accused person must be informed of the rights set out in said
paragraph of Section 12 upon being held as a suspect and made to
undergo custodial investigation by the police authorities. 9 As explained
by this Court in People vs. Marra, 10 custodial investigation involves 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. And, the rule begins to operate at once as soon
as the investigation ceases to be a general inquiry into an unsolved
crime and direction is then aimed upon a particular suspect who has
been taken into custody and to whom the police would then direct
interrogatory question which tend to elicit incriminating statements.
Furthermore, not only does the fundamental law impose, as a requisite
function of the investigating officer, the duty to explain those rights to
the accused but also that there must correspondingly be a meaningful
communication to and understanding thereof by the accused. A mere
perfunctory reading by the constable of such rights to the accused
would thus not suffice.
The defendant in the dock must be made to understand
comprehensively, in the language or dialect that he knows, the full
extent of the same. A confession made in an atmosphere characterized
by deficiencies in informing the accused of all the rights to which he is
entitled would be rendered valueless and inadmissible, perforated, as
it is by non-compliance with the procedural and substantive safeguards
to which an accused is entitled under the Bill of Rights and as now
further implemented and ramified by statutory law. 11
2. In the present case, SPO1 Atanacio, Jr., admitted in his testimony
before the lower court that the investigation of appellant in connection
with the murders actually commenced at around 9:00 A.M. on June 27,
1992 at the police headquarters in Cainta, Rizal, at the time when
appellant was still without counsel. 12 The sworn statement containing
appellant's extrajudicial confession itself shows that it was taken at
around 11:00 A.M. 13 Further, while SPO1 Atanacio, Jr. informed
appellant in Tagalog of his right to remain silent, that any statement he
made could be used for or against him in any court, and that he could
have counsel preferably of his own choice, he nonetheless failed to tell
appellant that if the latter could not afford the services of counsel, he
could be provided with one. 14
The foregoing lapses on the part of the police authorities are all fatal to
the admissibility of the extrajudicial confession supposedly executed by
appellant before SPO1 Atanacio, Jr. Jurisprudence along these lines
have all been too consistent — an accused under custodial
interrogation must continuously have a counsel assisting him from the
very start thereof. Indeed, Section 12, Article III of the Constitution,
could not be any clearer.
To reiterate, prior to the commencement of the investigation, the
accused must perforce be informed, on top of all his other rights
enumerated therein, that where he lacks a counsel of his choice
because of indigence or other incapacitating cause, he shall be
provided with one. Without this further safeguard, the cautionary right
to counsel would merely impress upon the accused, more so upon an
impecunious person like appellant who is hardly educated, that his
right thereto would mean simply that he can consult a lawyer if he has
one or has the financial capacity to obtain legal services, and nothing
more.
Curiously, the record is completely bereft of any indication as to how
appellant was able to engage the services of Atty. Lorenza Bernardino-
Villanueva, the counsel who was allegedly present when appellant
executed his confession and who was not even subpoenaed to testify
thereon. This significant circumstance lends credence to the latter's
denial that he ever met in person, much less executed the confession
in the presence of, said counsel. What emerges from a perusal of the
record is that this counsel was merely picked out and provided by the
law enforcers themselves, thus putting into serious doubt her
independence and competence in assisting appellant during the
investigation 15 as to affect its admissibility.
Moreover, had she been equal to her responsibility in the face of such
serious charge involved in the cases, the failure of SPO1 Atanacio, Jr. to
fully apprise appellant of all his rights, particularly the requirement that
if he could not afford the services of a lawyer he shall be provided with
one would have been rectified by said counsel at that very stage of the
investigation. Indeed, from our earliest jurisprudence, the law
vouchsafes to the accused the right to an effective counsel, one who
can be made to act in protection of his rights, 16 and not by merely
going through the motions of providing him with anyone who
possesses a law degree.
Again, about the only matter that bears out the presence of such
counsel at that stage of custodial interrogation are the signatures
which she affixed on the affidavit. Withal, a cursory reading of the
confession itself and SPO1 Atanacio's version of the manner in which
he conducted the interrogation, yields no evidence or indication
pointing to her having explained to the appellant his rights under the
Constitution.
In People vs. Ayson, etc., et al., 17 this Court aptly emphasized these
constitutional safeguards in this wise:
In Miranda, Chief Justice Warren summarized the procedural
safeguards laid down for a person in police custody, "in-custody
interrogation" being regarded as the commencement of an adversary
proceeding against the suspect.
He must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a court
of law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise those rights must
be afforded to him throughout the interrogation. After such warnings
have been given, such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer or
make a statement. But unless and until such warnings and waivers are
demonstrated by the prosecution at the trial, no evidence obtained as
a result of interrogation can be used against him.
The objective is to prohibit "incommunicado" interrogation of
individuals in a police-dominated atmosphere, resulting in self-
incriminating statements without full warnings of constitutional rights.
The rights above specified, to repeat, exist only in "custodial
interrogations," or "in-custody interrogation of accused persons." And,
as this Court has already stated, by custodial interrogation is meant
"questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action
in any significant way." The situation contemplated has also been more
precisely described by this Court.
. . . After a person is arrested and his custodial investigation begins, a
confrontation arises which at best may be termed unequal. The
detainee is brought to an army camp or police headquarters and there
questioned and "cross-examined" not only by one but as many
investigators as may be necessary to break down his morale. He finds
himself in strange and unfamiliar surroundings, and every person he
meets, he considers hostile to him. The investigators are well-trained
and seasoned in their work. They employ all the methods and means
that experience and study have taught them to extract the truth, or
what may pass for it, out of the detainee. Most detainees are
unlettered and are not aware of their constitutional rights. And even if
they were, the intimidating and coercive presence of the officers of the
law in such an atmosphere overwhelms them into silence. Section 20
of the Bill of Rights seeks to remedy this imbalance.
3. Necessarily, even while there is evidence of the corpus delicti in this
case, appellant's conviction must be set aside for his extrajudicial
confession is obviously inadmissible in evidence against him. The rule is
that an extrajudicial confession, where admissible must be
corroborated by evidence of the corpus delicti in order to sustain a
finding of guilt. 18 Both must co-exist. The insistence of the Office of the
Solicitor General that appellant's confession could nonetheless be
treated as an "admission" which could therefore be admitted in
evidence is misplaced, for the Bill of Rights treats of both "confessions"
and "admissions" in the same light. 19 In addition, it should be stressed
that in appellant's case, no eyewitnesses to the actual killings were
ever presented to testify in court, and the prosecution relied primarily
CRIMINAL LAW FULL CASES
on circumstantial evidence to inculpate appellant in crimes wherein he
was meted three penalties of reclusion perpetua.
It is significant that, with the exception of appellant's putative
extrajudicial confession, no other evidence of his alleged guilt has been
presented by the People. The proposition that the medical findings jibe
with the narration of appellant as to how he allegedly committed the
crimes falls into the fatal error of figuratively putting the horse before
the cart. Precisely, the validity and admissibility of the supposed
extrajudicial confession are in question and the contents thereof are
denied and of serious dubiety, hence the same cannot be used as the
basis for such a finding. Otherwise, it would assume that which has still
to be proved, a situation of petitio principii or circulo en probando.
Evidently, herein appellant cannot be made to suffer the extreme penal
consequences of the crimes on account of the shaky and decrepit
circumstantial evidence proffered by the prosecution. While the
defense of alibi advanced by appellant is by nature a weak one by
itself, it assumes commensurate significance and strength where the
evidence for the prosecution itself is frail and effete. For, needless to
state, the prosecution must not rely on the weakness of the evidence
of the defense but upon the vigor of its own. 20 In sum, the
presumption of innocence enjoyed by appellant has remained intact
and impervious to the prosecution's assault thereon.
ACCORDINGLY, on the foregoing premises, the judgments of the
Regional Trial Court, Branch 74, of Antipolo, Rizal in Criminal Cases Nos.
92-8029, 92-8030 and 92-8031 are REVERSED and SET ASIDE and
accused-appellant Rodolfo de la Cruz, alias Rodolfo Domingo or
"Ompong," is hereby ACQUITTED. His immediate release is accordingly
ordered unless there be any other lawful cause for his continued
incarceration.
SO ORDERED.
March 25, 1919
G.R. No. 14639
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable
as the one which this application for habeas corpus submits for
decision. While hardly to be expected to be met with in this modern
epoch of triumphant democracy, yet, after all, the cause presents no
great difficulty if there is kept in the forefront of our minds the basic
principles of popular government, and if we give expression to the
paramount purpose for which the courts, as an independent power of
such a government, were constituted. The primary question is - Shall
the judiciary permit a government of the men instead of a government
of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate
vice, ordered the segregated district for women of ill repute, which had
been permitted for a number of years in the city of Manila, closed.
Between October 16 and October 25, 1918, the women were kept
confined to their houses in the district by the police. Presumably,
during this period, the city authorities quietly perfected arrangements
with the Bureau of Labor for sending the women to Davao, Mindanao,
as laborers; with some government office for the use of the coastguard
cutters Corregidor and Negros, and with the Constabulary for a guard
of soldiers. At any rate, about midnight of October 25, the police,
acting pursuant to orders from the chief of police, Anton Hohmann and
the Mayor of the city of Manila, Justo Lukban, descended upon the
houses, hustled some 170 inmates into patrol wagons, and placed
them aboard the steamers that awaited their arrival. The women were
given no opportunity to collect their belongings, and apparently were
under the impression that they were being taken to a police station for
an investigation. They had no knowledge that they were destined for a
life in Mindanao. They had not been asked if they wished to depart
from that region and had neither directly nor indirectly given their
consent to the deportation. The involuntary guests were received on
board the steamers by a representative of the Bureau of Labor and a
detachment of Constabulary soldiers. The two steamers with their
unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The
women were landed and receipted for as laborers by Francisco Sales,
provincial governor of Davao, and by Feliciano Yñigo and Rafael
Castillo. The governor and the hacendero Yñigo, who appear as parties
in the case, had no previous notification that the women were
prostitutes who had been expelled from the city of Manila. The further
happenings to these women and the serious charges growing out of
alleged ill-treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some of the
women married, others assumed more or less clandestine relations
with men, others went to work in different capacities, others assumed
a life unknown and disappeared, and a goodly portion found means to
return to Manila.
To turn back in our narrative, just about the time the Corregidor and
the Negros were putting in to Davao, the attorney for the relatives and
friends of a considerable number of the deportees presented an
application for habeas corpus to a member of the Supreme Court.
Subsequently, the application, through stipulation of the parties, was
made to include all of the women who were sent away from Manila to
Davao and, as the same questions concerned them all, the application
will be considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the women
were illegally restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila,
and by certain unknown parties. The writ was made returnable before
the full court. The city fiscal appeared for the respondents, Lukban and
Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted because
the petitioners were not proper parties, because the action should
have been begun in the Court of First Instance for Davao, Department
of Mindanao and Sulu, because the respondents did not have any of
the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good salaries, on the
haciendas of Yñigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these
women had been sent out of Manila without their consent. The court
awarded the writ, in an order of November 4, that directed Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of
the city of Manila, Francisco Sales, governor of the province of Davao,
and Feliciano Yñigo, an hacendero of Davao, to bring before the court
the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.
Before the date mentioned, seven of the women had returned to
Manila at their own expense. On motion of counsel for petitioners,
their testimony was taken before the clerk of the Supreme Court sitting
as commissioners. On the day named in the order, December 2nd,
1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of
those who had been able to come back to Manila through their own
efforts, were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when pleading to
the original petition copied a telegram from the Mayor of the city of
Manila to the provincial governor of Davao and the answer thereto,
and telegrams that had passed between the Director of Labor and the
attorney for that Bureau then in Davao, and offered certain affidavits
showing that the women were contained with their life in Mindanao
and did not wish to return to Manila. Respondents Sales answered
alleging that it was not possible to fulfill the order of the Supreme
Court because the women had never been under his control, because
they were at liberty in the Province of Davao, and because they had
married or signed contracts as laborers. Respondent Yñigo answered
alleging that he did not have any of the women under his control and
that therefore it was impossible for him to obey the mandate. The
court, after due deliberation, on December 10, 1918, promulgated a
CRIMINAL LAW FULL CASES
second order, which related that the respondents had not complied
with the original order to the satisfaction of the court nor explained
their failure to do so, and therefore directed that those of the women
not in Manila be brought before the court by respondents Lukban,
Hohmann, Sales, and Yñigo on January 13, 1919, unless the women
should, in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right, or
unless the respondents should demonstrate some other legal motives
that made compliance impossible. It was further stated that the
question of whether the respondents were in contempt of court would
later be decided and the reasons for the order announced in the final
decision.
Before January 13, 1919, further testimony including that of a number
of the women, of certain detectives and policemen, and of the
provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of
First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the
women who had returned to the city through their own efforts and
eight others who had been brought to Manila by the respondents.
Attorneys for the respondents, by their returns, once again recounted
the facts and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that the
respondents, through their representatives and agents, had succeeded
in bringing from Davao with their consent eight women; that eighty-
one women were found in Davao who, on notice that if they desired
they could return to Manila, transportation fee, renounced the right
through sworn statements; that fifty-nine had already returned to
Manila by other means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for petitioners and the
city fiscal were permitted to submit memoranda. The first formally
asked the court to find Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez
and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney
for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila,
in contempt of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents' memorandum)
dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will now
proceed to do so.
One fact, and one fact only, need be recalled - these one hundred and
seventy women were isolated from society, and then at night, without
their consent and without any opportunity to consult with friends or to
defend their rights, were forcibly hustled on board steamers for
transportation to regions unknown. Despite the feeble attempt to
prove that the women left voluntarily and gladly, that such was not the
case is shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of the law
chose the shades of night to cloak their secret and stealthy acts.
Indeed, this is a fact impossible to refute and practically admitted by
the respondents.
With this situation, a court would next expect to resolve the question -
By authority of what law did the Mayor and the Chief of Police
presume to act in deporting by duress these persons from Manila to
another distant locality within the Philippine Islands? We turn to the
statutes and we find -
Alien prostitutes can be expelled from the Philippine Islands in
conformity with an Act of congress. The Governor-General can order
the eviction of undesirable aliens after a hearing from the Islands. Act
No. 519 of the Philippine Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the conviction and
punishment by a court of justice of any person who is a common
prostitute. Act No. 899 authorizes the return of any citizen of the
United States, who may have been convicted of vagrancy, to the
homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being
common prostitutes. Always a law! Even when the health authorities
compel vaccination, or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some law or
order. But one can search in vain for any law, order, or regulation,
which even hints at the right of the Mayor of the city of Manila or the
chief of police of that city to force citizens of the Philippine Islands -
and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same
constitutional guaranties as are other citizens - to change their domicile
from Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly
authorized by law or regulation, compels any person to change his
residence.
In other countries, as in Spain and Japan, the privilege of domicile is
deemed so important as to be found in the Bill of Rights of the
Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine
Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at their
mere behest or even for the most praiseworthy of motives, render the
liberty of the citizen so insecure, then the presidents and chiefs of
police of one thousand other municipalities of the Philippines have the
same privilege. If these officials can take to themselves such power,
then any other official can do the same. And if any official can exercise
the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law
from one locality to another within the country, then officialdom can
hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that - "No
freeman shall be taken, or imprisoned, or be disseized of his freehold,
or liberties, or free customs, or be outlawed, or exiled, or any other
wise destroyed; nor will we pass upon him nor condemn him, but by
lawful judgment of his peers or by the law of the land. We will sell to
no man, we will not deny or defer to any man either justice or right."
(Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No
official, no matter how high, is above the law. The courts are the forum
which functionate to safeguard individual liberty and to punish official
transgressors. "The law," said Justice Miller, delivering the opinion of
the Supreme Court of the United States, "is the only supreme power in
our system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to submit
to that supremacy, and to observe the limitations which it imposes
upon the exercise of the authority which it gives." (U.S. vs. Lee [1882],
106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same
high tribunal in another case, "that one man may be compelled to hold
his life, or the means of living, or any material right essential to the
enjoyment of life, at the mere will of another, seems to be intolerable
in any country where freedom prevails, as being the essence of slavery
itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains
the motive in issuing the writ of habeas corpus, and makes clear why
we said in the very beginning that the primary question was whether
the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression?
The remedies of the citizen are three: (1) Civil action; (2) criminal
action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved
party may recoup money damages. It may still rest with the parties in
interest to pursue such an action, but it was never intended effectively
and promptly to meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in
these Islands provides:
Any public officer not thereunto authorized by law or by regulations of
a general character in force in the Philippines who shall banish any
person to a place more than two hundred kilometers distant from his
domicile, except it be by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred and twenty-five and
not more than three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by
regulation of a general character in force in the Philippines who shall
CRIMINAL LAW FULL CASES
compel any person to change his domicile or residence shall suffer the
penalty of destierro and a fine of not less than six hundred and twenty-
five and not more than six thousand two hundred and fifty pesetas.
(Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper
prosecuting officers find that any public officer has violated this
provision of law, these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended the same official
in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of Judge Cooley in a case
which will later be referred to - "It would be a monstrous anomaly in
the law if to an application by one unlawfully confined, ta be restored
to his liberty, it could be a sufficient answer that the confinement was
a crime, and therefore might be continued indefinitely until the guilty
party was tried and punished therefor by the slow process of criminal
procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The
writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and
only sufficient defense of personal freedom. Any further rights of the
parties are left untouched by decision on the writ, whose principal
purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have
raised three specific objections to its issuance in this instance. The
fiscal has argued (l) that there is a defect in parties petitioners, (2) that
the Supreme Court should not a assume jurisdiction, and (3) that the
person in question are not restrained of their liberty by respondents. It
was finally suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and that
perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The
petitioners were relatives and friends of the deportees. The way the
expulsion was conducted by the city officials made it impossible for the
women to sign a petition for habeas corpus. It was consequently
proper for the writ to be submitted by persons in their behalf. (Code of
Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law,
in its zealous regard for personal liberty, even makes it the duty of a
court or judge to grant a writ of habeas corpus if there is evidence that
within the court's jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in
the Court of First Instance of Davao or should have been made
returnable before that court. It is a general rule of good practice that,
to avoid unnecessary expense and inconvenience, petitions for habeas
corpus should be presented to the nearest judge of the court of first
instance. But this is not a hard and fast rule. The writ of habeas corpus
may be granted by the Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands. (Code of Criminal Procedure, sec.
79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made
returnable before the Supreme Court or before an inferior court rests
in the discretion of the Supreme Court and is dependent on the
particular circumstances. In this instance it was not shown that the
Court of First Instance of Davao was in session, or that the women had
any means by which to advance their plea before that court. On the
other hand, it was shown that the petitioners with their attorneys, and
the two original respondents with their attorney, were in Manila; it was
shown that the case involved parties situated in different parts of the
Islands; it was shown that the women might still be imprisoned or
restrained of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court to
consider the application and then to grant the writ would have
amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to
meet. When the writ was prayed for, says counsel, the parties in whose
behalf it was asked were under no restraint; the women, it is claimed,
were free in Davao, and the jurisdiction of the mayor and the chief of
police did not extend beyond the city limits. At first blush, this is a
tenable position. On closer examination, acceptance of such dictum is
found to be perversive of the first principles of the writ of habeas
corpus.
A prime specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ of
habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action
is sufficient. The forcible taking of these women from Manila by
officials of that city, who handed them over to other parties, who
deposited them in a distant region, deprived these women of freedom
of locomotion just as effectively as if they had been imprisoned. Placed
in Davao without either money or personal belongings, they were
prevented from exercising the liberty of going when and where they
pleased. The restraint of liberty which began in Manila continued until
the aggrieved parties were returned to Manila and released or until
they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would
mean. The chief executive of any municipality in the Philippines could
forcibly and illegally take a private citizen and place him beyond the
boundaries of the municipality, and then, when called upon to defend
his official action, could calmly fold his hands and claim that the person
was under no restraint and that he, the official, had no jurisdiction over
this other municipality. We believe the true principle should be that, if
the respondent is within the jurisdiction of the court and has it in his
power to obey the order of the court and thus to undo the wrong that
he has inflicted, he should be compelled to do so. Even if the party to
whom the writ is addressed has illegally parted with the custody of a
person before the application for the writ is no reason why the writ
should not issue. If the mayor and the chief of police, acting under no
authority of law, could deport these women from the city of Manila to
Davao, the same officials must necessarily have the same means to
return them from Davao to Manila. The respondents, within the reach
of process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with
impunity in the courts, while the person who has lost her birthright of
liberty has no effective recourse. The great writ of liberty may not thus
be easily evaded.
It must be that some such question has heretofore been presented to
the courts for decision. Nevertheless, strange as it may seem, a close
examination of the authorities fails to reveal any analogous case.
Certain decisions of respectable courts are however very persuasive in
nature.
A question came before the Supreme Court of the State of Michigan at
an early date as to whether or not a writ of habeas corpus would issue
from the Supreme Court to a person within the jurisdiction of the State
to bring into the State a minor child under guardianship in the State,
who has been and continues to be detained in another State. The
membership of the Michigan Supreme Court at this time was notable.
It was composed of Martin, chief justice, and Cooley, Campbell, and
Christiancy, justices. On the question presented the court was equally
divided. Campbell, J., with whom concurred Martin, C. J., held that the
writ should be quashed. Cooley, J., one of the most distinguished
American judges and law-writers, with whom concurred Christiancy, J.,
held that the writ should issue. Since the opinion of Justice Campbell
was predicated to a large extent on his conception of the English
decisions, and since, as will hereafter appear, the English courts have
taken a contrary view, only the following eloquent passages from the
opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to
issue the present writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six
centuries and a half have been expended upon the Magna Charta, and
rivers of blood shed for its establishment; after its many confirmations,
until Coke could declare in his speech on the petition of right that
"Magna Charta was such a fellow that he will have no sovereign," and
after the extension of its benefits and securities by the petition of right,
bill of rights and habeas corpus acts, it should now be discovered that
evasion of that great clause for the protection of personal liberty,
which is the life and soul of the whole instrument, is so easy as is
claimed here. If it is so, it is important that it be determined without
delay, that the legislature may apply the proper remedy, as I can not
doubt they would, on the subject being brought to their notice. . . .
CRIMINAL LAW FULL CASES
The second proposition - that the statutory provisions are confined to
the case of imprisonment within the state - seems to me to be based
upon a misconception as to the source of our jurisdiction. It was never
the case in England that the court of king's bench derived its
jurisdiction to issue and enforce this writ from the statute. Statutes
were not passed to give the right, but to compel the observance of
rights which existed. . . .
The important fact to be observed in regard to the mode of procedure
upon this writ is, that it is directed to and served upon, not the person
confined, but his jailor. It does not reach the former except through the
latter. The officer or person who serves it does not unbar the prison
doors, and set the prisoner free, but the court relieves him by
compelling the oppressor to release his constraint. The whole force of
the writ is spent upon the respondent, and if he fails to obey it, the
means to be resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if any
other means are resorted to, they are only auxiliary to those which are
usual. The place of confinement is, therefore, not important to the
relief, if the guilty party is within reach of process, so that by the power
of the court he can be compelled to release his grasp. The difficulty of
affording redress is not increased by the confinement being beyond the
limits of the state, except as greater distance may affect it. The
important question is, where the power of control exercised? And I am
aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)
The opinion of Judge Cooley has since been accepted as authoritative
by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs.
People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50
Fed., 526.)
The English courts have given careful consideration to the subject.
Thus, a child had been taken out of English by the respondent. A writ of
habeas corpus was issued by the Queen's Bench Division upon the
application of the mother and her husband directing the defendant to
produce the child. The judge at chambers gave defendant until a
certain date to produce the child, but he did not do so. His return
stated that the child before the issuance of the writ had been handed
over by him to another; that it was no longer in his custody or control,
and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R.,
said:
A writ of habeas corpus was ordered to issue, and was issued on
January 22. That writ commanded the defendant to have the body of
the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child
before the judge and must be obeyed, unless some lawful reason can
be shown to excuse the nonproduction of the child. If it could be
shown that by reason of his having lawfully parted with the possession
of the child before the issuing of the writ, the defendant had no longer
power to produce the child, that might be an answer; but in the
absence of any lawful reason he is bound to produce the child, and, if
he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to
shift the question of contempt to some anterior period for the purpose
of showing that what was done at some time prior to the writ cannot
be a contempt. But the question is not as to what was done before the
issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B.
D., 305. See also to the same effect the Irish case of In re Matthews, 12
Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas
corpus was directed to the defendant to have before the circuit court
of the District of Columbia three colored persons, with the cause of
their detention. Davis, in his return to the writ, stated on oath that he
had purchased the negroes as slaves in the city of Washington; that, as
he believed, they were removed beyond the District of Columbia
before the service of the writ of habeas corpus, and that they were
then beyond his control and out of his custody. The evidence tended to
show that Davis had removed the negroes because he suspected they
would apply for a writ of habeas corpus. The court held the return to
be evasive and insufficient, and that Davis was bound to produce the
negroes, and Davis being present in court, and refusing to produce
them, ordered that he be committed to the custody of the marshall
until he should produce the negroes, or be otherwise discharged in due
course of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the negroes had
run away and been lodged in jail in Maryland. Davis produced the two
negroes on the last day of the term. (United States vs. Davis [1839], 5
Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly
[1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the
defense offered by the respondents constituted a legitimate bar to the
granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied
with the two orders of the Supreme Court awarding the writ of habeas
corpus, and if it be found that they did not, whether the contempt
should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton
Hohmann, Francisco Sales, and Feliciano Yñigo to present the persons
named in the writ before the court on December 2, 1918. The order
was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the
record discloses, the Mayor of the city of Manila waited until the 21st
of November before sending a telegram to the provincial governor of
Davao. According to the response of the attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women
who desired to return to Manila, but who should not be permitted to
do so because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought
before the court on the day named.
For the respondents to have fulfilled the court's order, three optional
courses were open: (1) They could have produced the bodies of the
persons according to the command of the writ; or (2) they could have
shown by affidavit that on account of sickness or infirmity those
persons could not safely be brought before the court; or (3) they could
have presented affidavits to show that the parties in question or their
attorney waived the right to be present. (Code of Criminal Procedure,
sec. 87.) They did not produce the bodies of the persons in whose
behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right
to be present by those interested. Instead a few stereotyped affidavits
purporting to show that the women were contended with their life in
Davao, some of which have since been repudiated by the signers, were
appended to the return. That through ordinary diligence a considerable
number of the women, at least sixty, could have been brought back to
Manila is demonstrated to be found in the municipality of Davao, and
that about this number either returned at their own expense or were
produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would
have been warranted summarily in finding the respondents guilty of
contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far
from sufficient. The, authorities cited herein pertaining to somewhat
similar facts all tend to indicate with what exactitude a habeas corpus
writ must be fulfilled. For example, in Gossage's case, supra, the
Magistrate in referring to an earlier decision of the Court, said: "We
thought that, having brought about that state of things by his own
illegal act, he must take the consequences; and we said that he was
bound to use every effort to get the child back; that he must do much
more than write letters for the purpose; that he must advertise in
America, and even if necessary himself go after the child, and do
everything that mortal man could do in the matter; and that the court
would only accept clear proof of an absolute impossibility by way of
excuse." In other words, the return did not show that every possible
effort to produce the women was made by the respondents. That the
court forebore at this time to take drastic action was because it did not
wish to see presented to the public gaze the spectacle of a clash
between executive officials and the judiciary, and because it desired to
give the respondents another chance to demonstrate their good faith
and to mitigate their wrong.
CRIMINAL LAW FULL CASES
In response to the second order of the court, the respondents appear
to have become more zealous and to have shown a better spirit.
Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the
record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our sincere desire
to see this unhappy incident finally closed. If any wrong is now being
perpetrated in Davao, it should receive an executive investigation. If
any particular individual is still restrained of her liberty, it can be made
the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial
compliance with it, nothing further in this connection remains to be
done.
The attorney for the petitioners asks that we find in contempt of court
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Jose Rodriguez, and Fernando Ordax,
members of the police force of the city of Manila, Modesto Joaquin,
the attorney for the Bureau of Labor, Feliciano Yñigo, an hacendero of
Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the
preservative and not on the vindictive principle. Only occasionally
should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail.
Nevertheless when one is commanded to produce a certain person and
does not do so, and does not offer a valid excuse, a court must, to
vindicate its authority, adjudge the respondent to be guilty of
contempt, and must order him either imprisoned or fined. An officer's
failure to produce the body of a person in obedience to a writ of
habeas corpus when he has power to do so, is a contempt committed
in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re
Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard
for human imperfections, we cannot say that any of the respondents,
with the possible exception of the first named, has flatly disobeyed the
court by acting in opposition to its authority. Respondents Hohmann,
Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs,
and while, under the law of public officers, this does not exonerate
them entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yñigo appears to have been drawn into the case
through a misconstruction by counsel of telegraphic communications.
The city fiscal, Anacleto Diaz, would seem to have done no more than
to fulfill his duty as the legal representative of the city government.
Finding him innocent of any disrespect to the court, his counter-motion
to strike from the record the memorandum of attorney for the
petitioners, which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record discloses, the
official who was primarily responsible for the unlawful deportation,
who ordered the police to accomplish the same, who made
arrangements for the steamers and the constabulary, who conducted
the negotiations with the Bureau of Labor, and who later, as the head
of the city government, had it within his power to facilitate the return
of the unfortunate women to Manila, was Justo Lukban, the Mayor of
the city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ of
habeas corpus issued by the court was only tardily and reluctantly
acknowledged.
It would be possible to turn to the provisions of section 546 of
the Code of Civil Procedure, which relates to the penalty for disobeying
the writ, and in pursuance thereof to require respondent Lukban to
forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him as
for a contempt. Some members of the court are inclined to this stern
view. It would also be possible to find that since respondent Lukban did
comply substantially with the second order of the court, he has purged
his contempt of the first order. Some members of the court are
inclined to this merciful view. Between the two extremes appears to lie
the correct finding. The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once
command such respect without being unduly oppressive - such an
amount is P100.
In resume - as before stated, no further action on the writ of habeas
corpus is necessary. The respondents Hohmann, Rodriguez, Ordax,
Joaquin, Yñigo, and Diaz are found not to be in contempt of court.
Respondent Lukban is found in contempt of court and shall pay into
the office of the clerk of the Supreme Court within five days the sum of
one hundred pesos (P100). The motion of the fiscal of the city of
Manila to strike from the record the Replica al Memorandum de los
Recurridos of January 25, 1919, is granted. Costs shall be taxed against
respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be
permitted to express the hope that this decision may serve to bulwark
the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.
Arellano, C.J., Avanceña and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority
in the decision of the habeas corpus proceeding against Justo Lukban,
the mayor of this city.
There is nothing in the record that shows the motive which impelled
Mayor Lukban to oblige a great number of women of various ages,
inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly
prohibits the opening of public houses of prostitution, as those in the
said Gardenia Street, Sampaloc. For this reason, when more than one
hundred and fifty women were assembled and placed aboard a
steamer and transported to Davao, considering that the existence of
the said houses of prostitution has been tolerated for so long a time, it
is undeniable that the mayor of the city, in proceeding in the manner
shown, acted without authority of any legal provision which constitutes
an exception to the laws guaranteeing the liberty and the individual
rights of the residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by
the police in complying with the order of the mayor of the city; neither
do we believe in the necessity of taking them to the distant district of
Davao. The said governmental authority, in carrying out his intention to
suppress the segregated district or the community formed by those
women in Gardenia Street, could have obliged the said women to
return to their former residences in this city or in the provinces,
without the necessity of transporting them to Mindanao; hence the
said official is obliged to bring back the women who are still in Davao
so that they may return to the places in which they lived prior to their
becoming inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of
this court, we do not find any apparent disobedience and marked
absence of respect in the steps taken by the mayor of the city and his
subordinates, if we take into account the difficulties encountered in
bringing the said women who were free at Davao and presenting them
before this court within the time fixed, inasmuch as it does not appear
that the said women were living together in a given place. It was not
because they were really detained, but because on the first days there
were no houses in which they could live with a relative independent
from one another, and as a proof that they were free a number of
them returned to Manila and the others succeeded in living separate
from their companions who continued living together.
To determine whether or not the mayor acted with a good purpose
and legal object and whether he has acted in good or bad faith in
proceeding to dissolve the said community of prostitutes and to oblige
them to change their domicile, it is necessary to consider not only the
CRIMINAL LAW FULL CASES
rights and interests of the said women and especially of the patrons
who have been directing and conducting such a reproachable
enterprise and shameful business in one of the suburbs of this city, but
also the rights and interests of the very numerous people of Manila
where relatively a few transients accidentally and for some days reside,
the inhabitants thereof being more than three hundred thousand
(300,000) who can not, with indifference and without repugnance, live
in the same place with so many unfortunate women dedicated to
prostitution.
If the material and moral interests of the community as well as the
demands of social morality are to be taken into account, it is not
possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population,
for, although there were no positive laws prohibiting the existence of
such houses within a district of Manila, the dictates of common sense
and dictates of conscience of its inhabitants are sufficient to warrant
the public administration, acting correctly, in exercising the inevitable
duty of ordering the closing and abandonment of a house of
prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true owner
who invokes in his behalf the protection of the constitutional law
guaranteeing his liberty, his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known
contagious disease cannot invoke in his favor the constitutional law
which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or
concentration in a certain island or distant point in order to free from
contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or stand
good with respect to the unfortunate women dedicated to
prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their
knowledge and even against their will, whereas the unfortunate
prostitutes voluntarily adopted such manner of living and
spontaneously accepted all its consequences, knowing positively that
their constant intercourse with men of all classes, notwithstanding the
cleanliness and precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as syphilis, a
venereal disease, which, although it constitutes a secret disease among
men and women, is still prejudicial to the human species in the same
degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest,
typhoid, and other contagious diseases which produce great mortality
and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works
suitable to her sex, which can give her sufficient remuneration for her
subsistence, prefers to put herself under the will of another woman
who is usually older than she is and who is the manager or owner of a
house of prostitution, or spontaneously dedicates herself to this
shameful profession, it is undeniable that she voluntarily and with her
own knowledge renounces her liberty and individual rights guaranteed
by the Constitution, because it is evident that she can not join the
society of decent women nor can she expect to get the same respect
that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by
every citizen. Considering her dishonorable conduct and life, she
should therefore be comprised within that class which is always subject
to the police and sanitary regulations conducive to the maintenance of
public decency and morality and to the conservation of public health,
and for this reason it should not permitted that the unfortunate
women dedicated to prostitution evade the just orders and resolutions
adopted by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said
poor women, but those who have been worrying so much about the
prejudice resulting from a governmental measure, which being a very
drastic remedy may be considered arbitrary, have failed to consider
with due reflection the interests of the inhabitants of this city in
general and particularly the duties and responsibilities weighing upon
the authorities which administer and govern it; they have forgotten
that many of those who criticize and censure the mayor are fathers of
families and are in duty bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the
petitioners, because of the abnormal life they assumed, were obliged
to change their residence not by a private citizen but by the mayor of
the city who is directly responsible for the conservation of public health
and social morality, the latter could take the step he had taken, availing
himself of the services of the police in good faith and only with the
purpose of protecting the immense majority of the population from
the social evils and diseases which the houses of prostitution situated
in Gardenia Street have been producing, which houses have been
constituting for years a true center for the propagation of general
diseases and other evils derived therefrom. Hence, in ordering the
dissolution and abandonment of the said houses of prostitution and
the change of the domicile of the inmates thereof, the mayor did not in
bad faith violate the constitutional laws which guarantees the liberty
and the individual rights of every Filipino, inasmuch as the women
petitioners do not absolutely enjoy the said liberty and rights, the
exercise of which they have voluntarily renounced in exchange for the
free practice of their shameful profession.
In very highly advanced and civilized countries, there have been
adopted by the administrative authorities similar measures, more or
less rigorous, respecting prostitutes, considering them prejudicial to
the people, although it is true that in the execution of such measures
more humane and less drastic procedures, fortiter in re et suaviter in
forma, have been adopted, but such procedures have always had in
view the ultimate object of the Government for the sake of the
community, that is, putting an end to the living together in a certain
place of women dedicated to prostitution and changing their domicile,
with the problematical hope that they adopt another manner of living
which is better and more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold,
that Mayor Justo Lukban is obliged to take back and restore the said
women who are at present found in Davao, and who desire to return to
their former respective residences, not in Gardenia Street, Sampaloc
District, with the exception of the prostitutes who should expressly
make known to the clerk of court their preference to reside in Davao,
which manifestation must be made under oath. This resolution must be
transmitted to the mayor within the shortest time possible for its due
compliance. The costs shall be charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the
decision rendered in these proceedings, with respect to the finding as
to the importance of the contempt committed, according to the same
decision, by Justo Lukban, Mayor of the city of Manila, and the
consequent imposition upon him of a nominal fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton
Hohmann, Francisco Sales, and Feliciano Yñigo to present the persons
named in the writ before the court on December 2, 1918. The order
was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the
record disclosed, the mayor of the city of Manila waited until the 21st
of November before sending a telegram to the provincial governor of
Davao. According to the response of the Attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women
who desired to return to Manila, but who should not be permitted to
do so because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought
before the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the
same decision, the respondents, for the purpose of complying with the
order of the court, could have, (1) produced the bodies of the persons
according to the command of the writ; (2) shown by affidavits that on
account of sickness or infirmity the said women could not safely be
brought before this court; and (3) presented affidavits to show that the
parties in question or their lawyers waived their right to be present.
According to the same decision, the said respondents ". . . did not
produce the bodies of the persons in whose behalf the writ was
granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those
interested. Instead, a few stereotyped affidavits purporting to show
that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the
CRIMINAL LAW FULL CASES
return. That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila is
demonstrated by the fact that during this time they were easily to be
found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing
by the respondents."
The majority opinion also recognized that, "That court, at the time the
return to its first order was made, would have been warranted
summarily in finding the respondent guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the
non production of the persons were far from sufficient." To
corroborate this, the majority decision cites the case of the Queen vs.
Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the
return did not show that every possible effort to produce the women
was made by the respondents."
When the said return by the respondents was made to this court in
banc and the case discussed, my opinion was that Mayor Lukban
should have been immediately punished for contempt. Nevertheless, a
second order referred to in the decision was issued on December 10,
1918, requiring the respondents to produce before the court, on
January 13, 1919, the women who were not in Manila, unless they
could show that it was impossible to comply with the said order on the
two grounds previously mentioned. With respect to this second order,
the same decision has the following to say:
In response to the second order of the court, the respondents appear
to have become more zealous and to have shown a better spirit.
Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was
provided. While charges and countercharges in such a bitterly
contested case are to be expected, and while a critical reading of the
record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days
elapse from the date of the issuance of the first order on November
4th till the 21st of the same month before taking the first step for
compliance with the mandate of the said order; he waited till the 21st
of November, as the decision says, before he sent a telegram to the
provincial governor o f Davao and naturally this half-hearted effort, as
is so qualified in the decision, resulted in that none of the women
appeared before this court on December 2nd. Thus, the said order was
not complied with, and in addition to this noncompliance there was the
circumstances that seven of the said women having returned to Manila
at their own expense before the said second day of December and
being in the antechamber of the court room, which fact was known to
Chief of Police Hohmann, who was then present at the trial and to the
attorney for the respondents, were not produced before the court by
the respondents nor did the latter show any effort to present them, in
spite of the fact that their attention was called to this particular by the
undersigned.
The result of the said second order was, as is said in the same decision,
that the respondents, on January 13th, the day fixed for the protection
of the women before this court, presented technically the seven (7)
women above-mentioned who had returned to the city at their own
expense and the other eight (8) women whom the respondents
themselves brought to Manila, alleging moreover that their agents and
subordinates succeeded in bringing them from Davao with their
consent; that in Davao they found eighty-one (81) women who, when
asked if they desired to return to Manila with free transportation,
renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59)
women have already returned to Manila, but notwithstanding the
efforts made to find them it was not possible to locate the
whereabouts of twenty-six (26) of them. Thus, in short, out of the one
hundred and eighty-one (181) women who, as has been previously
said, have been illegally detained by Mayor Lukban and Chief of Police
Hohmann and transported to Davao against their will, only eight (8)
have been brought to Manila and presented before this court by the
respondents in compliance with the said two orders. Fifty-nine (59) of
them have returned to Manila through other means not furnished by
the respondents, twenty-six of whom were brought by the attorney for
the petitioners, Mendoza, on his return from Davao. The said attorney
paid out of his own pocket the transportation of the said twenty-six
women. Adding to these numbers the other seven (7) women who
returned to this city at their own expense before January 13 we have a
total of sixty-six (66), which evidently proves, on the one hand, the
falsity of the allegation by the respondents in their first answer at the
trial of December 2, 1918, giving as one of the reasons for their
inability to present any of the said women that the latter were content
with their life in Mindanao and did not desire to return to Manila; and,
on the other hand, that the respondents, especially the first named,
that is Mayor Justo Lukban, who acted as chief and principal in all that
refers to the compliance with the orders issued by this court, could
bring before December 2nd, the date of the first hearing of the case, as
well as before January 13th, the date fixed for the compliance with the
second order, if not the seventy-four (74) women already indicated, at
least a great number of them, or at least sixty (60) of them, as is said in
the majority decision, inasmuch as the said respondent could count
upon the aid of the Constabulary forces and the municipal police, and
had transportation facilities for the purpose. But the said respondent
mayor brought only eight (8) of the women before this court on
January 13th. This fact can not, in my judgment, with due respect to
the majority opinion, justify the conclusion that the said respondent
has substantially complied with the second order of this court, but on
the other hand demonstrates that he had not complied with the
mandate of this court in its first and second orders; that neither of the
said orders has been complied with by the respondent Justo Lukban,
Mayor of the city of Manila, who is, according to the majority decision,
principally responsible for the contempt, to which conclusion I agree.
The conduct of the said respondent with respect to the second order
confirms the contempt committed by non-compliance with the first
order and constitutes a new contempt because of non-compliance with
the second, because of the production of only eight (8) of the one
hundred and eighty-one (181) women who have been illegally detained
by virtue of his order and transported to Davao against their will,
committing the twenty-six (26) women who could not be found in
Davao, demonstrates in my opinion that, notwithstanding the nature of
the case which deals with the remedy of habeas corpus, presented by
the petitioners and involving the question whether they should or not
be granted their liberty, the respondent has not given due attention to
the same nor has he made any effort to comply with the second order.
In other words, he has disobeyed the said two orders; has despised the
authority of this court; has failed to give the respect due to justice; and
lastly, he has created and placed obstacles to the administration of
justice in the said habeas corpus proceeding, thus preventing, because
of his notorious disobedience, the resolution of the said proceeding
with the promptness which the nature of the same required.
Contempt of court has been defined as a despising of the authority,
justice, or dignity of the court; and he is guilty of contempt whose
conduct is such as tends to bring the authority and administration of
the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p.
488.)
It is a general principle that a disobedience of any valid order of the
court constitutes contempt, unless the defendant is unable to comply
therewith. (Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to evade the judgment of the
court, or to obstruct or attempt to obstruct the service of legal process.
If a person hinders or prevents the service of process by deceiving the
officer or circumventing him by any means, the result is the same as
though he had obstructed by some direct means. (Ruling Case Law, vol.
6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often
do, of enforcing respect for the law and for the means it has provided
in civilized communities for establishing justice, since true respect
never comes in that way, it is apparent nevertheless that the power to
enforce decorum in the courts and obedience to their orders and just
measures is so essentially a part of the life of the courts that it would
be difficult to conceive of their usefulness or efficiency as existing
without it. Therefore it may be said generally that where due respect
for the courts as ministers of the law is wanting, a necessity arises for
the use of compulsion, not, however, so much to excite individual
respect as to compel obedience or to remove an unlawful or
unwarranted interference with the administration of justice. (Ruling
Case Law, vol. 6, p. 487.)
CRIMINAL LAW FULL CASES
The power to punish for contempt is as old as the law itself, and has
been exercised from the earliest times. In England it has been exerted
when the contempt consisted of scandalizing the sovereign or his
ministers, the law-making power, or the courts. In the American states
the power to punish for contempt, so far as the executive department
and the ministers of state are concerned, and in some degree so far as
the legislative department is concerned, is obsolete, but it has been
almost universally preserved so far as regards the judicial department.
The power which the courts have of vindicating their own authority is a
necessary incident to every court of justice, whether of record or not;
and the authority for issuing attachments in a proper case for
contempts out of court, it has been declared, stands upon the same
immemorial usage as supports the whole fabric of the common law. . . .
(Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been
disobeyed; the loss of the prestige of the authority of the court which
issued the said orders, which loss might have been caused by
noncompliance with the same orders on the part of the respondent
Justo Lukban; the damages which might have been suffered by some of
the women illegally detained, in view of the fact that they were not
brought to Manila by the respondents to be presented before the
court and of the further fact that some of them were obliged to come
to this city at their own expense while still others were brought to
Manila by the attorney for the petitioners, who paid out of his own
pocket the transportation of the said women; and the delay which was
necessarily incurred in the resolution of the petition interposed by the
said petitioners and which was due to the fact that the said orders
were not opportunately and duly obeyed and complied with, are
circumstances which should be taken into account in imposing upon
the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236
of the Code of Civil Procedure, should consist of a fine not exceeding
P1,000 or imprisonment not exceeding months, or both such fine and
imprisonment. In the imposition of the penalty, there should also be
taken into consideration the special circumstance that the contempt
was committed by a public authority, the mayor of the city of Manila,
the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect
for the laws and the valid and just orders of the duly constituted
authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that justice
may be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos
(P100), there should be imposed upon the respondent Justo Lukban a
fine of five hundred pesos (P500), and all the costs should be charged
against him. Lastly, I believe it to be my duty to state here that the
records of this proceeding should be transmitted to the Attorney-
General in order that, after a study of the same and deduction from the
testimony which he may deem necessary, and the proper transmittal of
the same to the fiscal of the city of Manila and to the provincial fiscal of
Davao, both the latter shall present the corresponding informations for
the prosecution and punishment of the crimes which have been
committed on the occasion when the illegal detention of the women
was carried into effect by Mayor Justo Lukban of the city of Manila and
Chief of Police Anton Hohmann, and also of those crimes committed by
reason of the same detention and while the women were in Davao.
This will be one of the means whereby the just hope expressed in the
majority decision will be realized, that is, that in the Philippine Islands
there should exist a government of laws and not a government of men
and that this decision may serve to bulwark the fortifications of an
orderly Government of laws and to protect individual liberty from
illegal encroachments.
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners, 
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary
of National Defense and Chief of Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While
ostensibly only legal issues are involved, the Court's decision in this
case would undeniably have a profound effect on the political,
economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed
from the presidency via the non-violent "people power" revolution and
forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her
ascension to and consilidation of power have not been unchallenged.
The failed Manila Hotel coup in 1986 led by political leaders of Mr.
Marcos, the takeover of television station Channel 7 by rebel troops
led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from
Hawii with mercenaries aboard an aircraft chartered by a Lebanese
arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to
the capacity of the Marcoses to stir trouble even from afar and to the
fanaticism and blind loyalty of their followers in the country. The
ratification of the 1987 Constitution enshrined the victory of "people
power" and also clearly reinforced the constitutional moorings of Mrs.
Aquino's presidency. This did not, however, stop bloody challenges to
the government. On August 28, 1987, Col. Gregorio Honasan, one of
the major players in the February Revolution, led a failed coup that left
scores of people, both combatants and civilians, dead. There were
several other armed sorties of lesser significance, but the message they
conveyed was the same — a split in the ranks of the military
establishment that thraetened civilian supremacy over military and
brought to the fore the realization that civilian government could be at
the mercy of a fractious military.
But the armed threats to the Government were not only found in
misguided elements and among rabid followers of Mr. Marcos. There
are also the communist insurgency and the seccessionist movement in
Mindanao which gained ground during the rule of Mr. Marcos, to the
extent that the communists have set up a parallel government of their
own on the areas they effectively control while the separatist are
virtually free to move about in armed bands. There has been no let up
on this groups' determination to wrest power from the govermnent.
Not only through resort to arms but also to through the use of
propaganda have they been successful in dreating chaos and
destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated
foreign debt and the plunder of the nation attributed to Mr. Marcos
and his cronies left the economy devastated. The efforts at economic
recovery, three years after Mrs. Aquino assumed office, have yet to
show concrete results in alleviating the poverty of the masses, while
the recovery of the ill-gotten wealth of the Marcoses has remained
elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to
the Philipppines to die. But Mrs. Aquino, considering the dire
consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is
just beginning to rise and move forward, has stood firmly on the
decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years of
political, economic and social havoc in the country and who within the
short space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order
the respondents to issue travel documents to Mr. Marcos and the
immediate members of his family and to enjoin the implementation of
the President's decision to bar their return to the Philippines.
The Issue
CRIMINAL LAW FULL CASES
Th issue is basically one of power: whether or not, in the exercise of
the powers granted by the Constitution, the President may prohibit the
Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend
on the resolution of the following issues:
1. Does the President have the power to bar the return of former
President Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest
of "national security, public safety or public health
a. Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger
to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in
making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based,
been made known to petitioners so that they may controvert the
same?
c. Is the President's determination that the return of former President
Marcos and his family to the Philippines is a clear and present danger
to national security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of
former President Marcos and his family is a clear and present danger to
national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President's
decision to bar the return of former President Marcos and his family,
acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act
which would effectively bar the return of former President Marcos and
his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of
the Marcoses to return to the Philippines is guaranteed under the
following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.
The petitioners contend that the President is without power to impair
the liberty of abode of the Marcoses because only a court may do so
"within the limits prescribed by law." Nor may the President impair
their right to travel because no law has authorized her to do so. They
advance the view that before the right to travel may be impaired by
any authority or agency of the government, there must be legislation
to that effect.
The petitioners further assert that under international law, the right of
Mr. Marcos and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and
to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which
had been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose
his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (order public), public health or morals or
the rights and freedoms of others, and are consistent with the other
rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents' principal argument is that the
issue in this case involves a political question which is non-justiciable.
According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not
petitioners Ferdinand E. Marcos and his family have the right to travel
and liberty of abode. Petitioners invoke these constitutional rights in
vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether
or not petitioners Ferdinand E. Marcos and family have the right to
return to the Philippines and reside here at this time in the face of the
determination by the President that such return and residence will
endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is
not a political question as it involves merely a determination of what
the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family
impinge on or collide with the more primordial and transcendental
right of the State to security and safety of its nationals, the question
becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return
to the Philippines and reestablish their residence here? This is clearly a
justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to
return to the Philippines and reestablish their residence here even if
their return and residence here will endanger national security and
public safety? this is still a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which
this Honorable Court can not decide for it falls within the exclusive
CRIMINAL LAW FULL CASES
authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national
security over individual rights. In support thereof, they cite Article II of
the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
Respondents also point out that the decision to ban Mr. Marcos and
family from returning to the Philippines for reasons of national security
and public safety has international precedents. Rafael Trujillo of the
Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of
Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt,
Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez
Jimenez of Venezuela were among the deposed dictators whose return
to their homelands was prevented by their governments. [See
Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in
Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the
scope of presidential power and its limits. We, however, view this issue
in a different light. Although we give due weight to the parties'
formulation of the issues, we are not bound by its narrow confines in
arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case
within the confines of the right to travel and the import of the
decisions of the U.S. Supreme Court in the leading cases of Kent v.
Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v.
Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the
right to travel and recognized exceptions to the exercise thereof,
respectively.
It must be emphasized that the individual right involved is not the right
to travel from the Philippines to other countries or within the
Philippines. These are what the right to travel would normally connote.
Essentially, the right involved is the right to return to one's country, a
totally distinct right under international law, independent from
although related to the right to travel. Thus, the Universal Declaration
of Humans Rights and the International Covenant on Civil and Political
Rights treat the right to freedom of movement and abode within the
territory of a state, the right to leave a country, and the right to enter
one's country as separate and distinct rights. The Declaration speaks of
the "right to freedom of movement and residence within the borders
of each state" [Art. 13(l)] separately from the "right to leave any
country, including his own, and to return to his country." [Art. 13(2).]
On the other hand, the Covenant guarantees the "right to liberty of
movement and freedom to choose his residence" [Art. 12(l)] and the
right to "be free to leave any country, including his own." [Art. 12(2)]
which rights may be restricted by such laws as "are necessary to
protect national security, public order, public health or morals or enter
qqqs own country" of which one cannot be "arbitrarily deprived." [Art.
12(4).] It would therefore be inappropriate to construe the limitations
to the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of
abode and the right to travel, but it is our well-considered view that
the right to return may be considered, as a generally accepted principle
of international law and, under our Constitution, is part of the law of
the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different protection
under the International Covenant of Civil and Political Rights, i.e.,
against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance
of passports for the purpose of effectively exercising the right to travel
are not determinative of this case and are only tangentially material
insofar as they relate to a conflict between executive action and the
exercise of a protected right. The issue before the Court is novel and
without precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of
whether or not there can be limitations on the right to travel in the
absence of legislation to that effect is rendered unnecessary. An
appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to
explain the methodology for its resolution. Our resolution of the issue
will involve a two-tiered approach. We shall first resolve whether or
not the President has the power under the Constitution, to bar the
Marcoses from returning to the Philippines. Then, we shall determine,
pursuant to the express power of the Court under the Constitution in
Article VIII, Section 1, whether or not the President acted arbitrarily or
with grave abuse of discretion amounting to lack or excess of
jurisdiction when she determined that the return of the Marcose's to
the Philippines poses a serious threat to national interest and welfare
and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of
the three great branches of government. To recall the words of Justice
Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the
Constitution has blocked but with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987
Constitution explicitly provides that "[the legislative power shall be
vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he
executive power shall bevested in the President of the Philippines"
[Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law" [Art. VIII,
Sec. 1.] These provisions not only establish a separation of powers by
actual division [Angara v. Electoral Commission, supra] but also confer
plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court
in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the
legislative power means a grant of all legislative power; and a grant of
the judicial power means a grant of all the judicial power which may be
exercised under the government." [At 631-632.1 If this can be said of
the legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of the
judicial power which is vested in a hierarchy of courts, it can equally be
said of the executive power which is vested in one official the
President.
As stated above, the Constitution provides that "[t]he executive power
shall be vested in the President of the Philippines." [Art. VII, Sec. 1].
However, it does not define what is meant by executive power"
although in the same article it touches on the exercise of certain
powers by the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the
appointing power, the powers under the commander-in-chief clause,
the power to grant reprieves, commutations and pardons, the power
to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of
the President did the framers of the Constitution intend that the
President shall exercise those specific powers and no other? Are these
se enumerated powers the breadth and scope of "executive power"?
Petitioners advance the view that the President's powers are limited to
those specifically enumerated in the 1987 Constitution. Thus, they
assert: "The President has enumerated powers, and what is not
enumerated is impliedly denied to her. Inclusion unius est exclusio
alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This
argument brings to mind the institution of the U.S. Presidency after
which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United
States grappled with the same problem. He said:
CRIMINAL LAW FULL CASES
Article II is the most loosely drawn chapter of the Constitution. To
those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those who
think that constitution makers ought to leave considerable leeway for
the future play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words:
"The executive power shall be vested in a President of the United
States of America." . . .. [The President: Office and Powers, 17871957,
pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the
different persons who held the office from Washington to the early
1900's, and the swing from the presidency by commission to Lincoln's
dictatorship, he concluded that "what the presidency is at any
particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial
Presidency:
For the American Presidency was a peculiarly personal institution. it
remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than
most agencies of government, it changed shape, intensity and ethos
according to the man in charge. Each President's distinctive
temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive
branch, said Clark Clifford, was a chameleon, taking its color from the
character and personality of the President. The thrust of the office, its
impact on the constitutional order, therefore altered from President to
President. Above all, the way each President understood it as his
personal obligation to inform and involve the Congress, to earn and
hold the confidence of the electorate and to render an accounting to
the nation and posterity determined whether he strengthened or
weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or
what she does but, rather, that the consideration of tradition and the
development of presidential power under the different constitutions
are essential for a complete understanding of the extent of and
limitations to the President's powers under the 1987 Constitution. The
1935 Constitution created a strong President with explicitly broader
powers than the U.S. President. The 1973 Constitution attempted to
modify the system of government into the parliamentary type, with the
President as a mere figurehead, but through numerous amendments,
the President became even more powerful, to the point that he was
also the de facto Legislature. The 1987 Constitution, however, brought
back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with
provision for checks and balances.
It would not be accurate, however, to state that "executive power" is
the power to enforce the laws, for the President is head of state as well
as head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any
provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise ofspecific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government
that is neither legislative nor judicial has to be executive. Thus, in the
landmark decision of Springer v. Government of the Philippine Islands,
277 U.S. 189 (1928), on the issue of who between the Governor-
General of the Philippines and the Legislature may vote the shares of
stock held by the Government to elect directors in the National Coal
Company and the Philippine National Bank, the U.S. Supreme Court, in
upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the
"board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of anything
which is in aid of performance of any such functions by the legislature.
Putting aside for the moment the question whether the duties
devolved upon these members are vested by the Organic Act in the
Governor-General, it is clear that they are not legislative in character,
and still more clear that they are not judicial. The fact that they do not
fall within the authority of either of these two constitutes logical
ground for concluding that they do fall within that of the remaining one
among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his
enduring words of dissent we find reinforcement for the view that it
would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the
Constitution:
The great ordinances of the Constitution do not establish and divide
fields of black and white. Even the more specific of them are found to
terminate in a penumbra shading gradually from one extreme to the
other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were
it ever so desirable to do so, which I am far from believing that it is, or
that the Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he
prime duty of theGovernment is to serve and protect the people" and
that "[t]he maintenance of peace and order,the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of
peace and order, the protection of life, liberty and property, and the
promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty
words. Thus, in the exercise of presidential functions, in drawing a plan
of government, and in directing implementing action for these plans, or
from another point of view, in making any decision as President of the
Republic, the President has to consider these principles, among other
things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving
at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from
being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising
the powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
"[s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons
who seek to return to the country are the deposed dictator and his
family at whose door the travails of the country are laid and from
whom billions of dollars believed to be ill-gotten wealth are sought to
CRIMINAL LAW FULL CASES
be recovered. The constitutional guarantees they invoke are neither
absolute nor inflexible. For the exercise of even the preferred
freedoms of speech and ofexpression, although couched in absolute
terms, admits of limits and must be adjusted to the requirements of
equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare
and the common good against the exercise of rights of certain
individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of
the President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws that the
needs of the nation demand [See Corwin, supra, at 153]. It is a power
borne by the President's duty to preserve and defend the Constitution.
It also may be viewed as a power implicit in the President's duty to take
care that the laws are faithfully executed [see Hyman, The American
President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best
lodged in the President].
More particularly, this case calls for the exercise of the President's
powers as protector of the peace. Rossiter The American
Presidency].The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats
to its existence. The President is not only clothed with extraordinary
powers in times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and ensuring
domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by
the relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the
President's exercising as Commander-in- Chief powers short of the
calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace,
and maintain public order and security.
That the President has the power under the Constitution to bar the
Marcose's from returning has been recognized by memembers of the
Legislature, and is manifested by the Resolution proposed in the House
of Representatives and signed by 103 of its members urging the
President to allow Mr. Marcos to return to the Philippines "as a
genuine unselfish gesture for true national reconciliation and as
irrevocable proof of our collective adherence to uncompromising
respect for human rights under the Constitution and our laws." [House
Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question
the President's power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President's sense of compassion to
allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the
Marcoses to be allowed to return to the Philippines cannot be
considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations
even remotely similar to the present one. It must be treated as a
matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to the
exercise of a broader discretion on the part of the President to
determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine
whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." [Art. VIII, Sec. 1] Given this
wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the
Court to decide.
The present Constitution limits resort to the political question doctrine
and broadens the scope of judicial inquiry into areas which the Court,
under previous constitutions, would have normally left to the political
departments to decide. But nonetheless there remain issues beyond
the Court's jurisdiction the determination of which is exclusively for the
President, for Congress or for the people themselves through a
plebiscite or referendum. We cannot, for example, question the
President's recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set
aside a presidential pardon though it may appear to us that the
beneficiary is totally undeserving of the grant. Nor can we amend the
Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.
There is nothing in the case before us that precludes our determination
thereof on the political question doctrine. The deliberations of the
Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend
courts of justice to settle all actual controversies before them. When
political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of the
official concerned and decide a matter which by its nature or by law is
for the latter alone to decide. In this light, it would appear clear that
the second paragraph of Article VIII, Section 1 of the Constitution,
defining "judicial power," which specifically empowers the courts to
determine whether or not there has been a grave abuse of discretion
on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling inLansang v.
Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within
his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and
when he acts within the sphere alloted to him by the Basic Law, and
the authority to determine whether or not he has so acted is vested in
the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. In the exercise of such authority, the function
of the Court is merely to check — not to supplant the Executive, or to
ascertain merely whether he has gone beyond the constitutional limits
of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not
there exist factual bases for the President to conclude that it was in the
national interest to bar the return of the Marcoses to the Philippines. If
such postulates do exist, it cannot be said that she has acted, or acts,
arbitrarily or that she has gravely abused her discretion in deciding to
bar their return.
We find that from the pleadings filed by the parties, from their oral
arguments, and the facts revealed during the briefing in chambers by
the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were
represented, there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that
the country is not besieged from within by a well-organized communist
insurgency, a separatist movement in Mindanao, rightist conspiracies
to grab power, urban terrorism, the murder with impunity of military
men, police officers and civilian officials, to mention only a few. The
documented history of the efforts of the Marcose's and their followers
to destabilize the country, as earlier narrated in this ponencia bolsters
the conclusion that the return of the Marcoses at this time would only
exacerbate and intensify the violence directed against the State and
instigate more chaos.
As divergent and discordant forces, the enemies of the State may be
contained. The military establishment has given assurances that it
CRIMINAL LAW FULL CASES
could handle the threats posed by particular groups. But it is
the catalytic effect of the return of the Marcoses that may prove to be
the proverbial final straw that would break the camel's back. With
these before her, the President cannot be said to have acted arbitrarily
and capriciously and whimsically in determining that the return of the
Marcoses poses a serious threat to the national interest and welfare
and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the
Philippines will cause the escalation of violence against the State, that
would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre- emptive action against
threats to its existence if, though still nascent they are perceived as apt
to become serious and direct. Protection of the people is the essence
of the duty of government. The preservation of the State the fruition of
the people's sovereignty is an obligation in the highest order. The
President, sworn to preserve and defend the Constitution and to see
the faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now
beginning to recover from the hardships brought about by the plunder
of the economy attributed to the Marcoses and their close associates
and relatives, many of whom are still here in the Philippines in a
position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the
enormous wealth stashed away by the Marcoses in foreign
jurisdictions. Then, We cannot ignore the continually increasing burden
imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one
of the root causes of widespread poverty and all its attendant ills. The
resulting precarious state of our economy is of common knowledge
and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the
return of the Marcoses would wipe away the gains achieved during the
past few years and lead to total economic collapse. Given what is
within our individual and common knowledge of the state of the
economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the
President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family
at the present time and under present circumstances poses a serious
threat to national interest and welfare and in prohibiting their return
to the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.
 
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the
mounting Communist insurgency, a simmering separatist movement, a
restive studentry, widespread labor disputes, militant farmer groups. . .
. Each of these threats is an explosive ingredient in a steaming cauldron
which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in
the Court, Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently
the basis of my full concurrence to the exhaustive and well-
written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They
are not derived solely from a particular constitutional clause or article
or from an express statutory grant. Their limits are likely to depend on
the imperatives of events and contemporary imponderables rather
than on abstract theories of law. History and time-honored principles
of constitutional law have conceded to the Executive Branch certain
powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: "residual," "inherent," 44
moral," "implied," "aggregate," "emergency." whatever they may be
called, the fact is that these powers exist, as they must if the
governance function of the Executive Branch is to be carried out
effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines
should be viewed. By reason of its impact on national peace and order
in these admittedly critical times, said question cannot be withdrawn
from the competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children
cannot but pose a clear and present danger to public order and safety.
One needs only to recall the series of destabilizing actions attempted
by the so-called Marcos loyalists as well as the ultra-rightist groups
during the EDSA Revolution's aftermath to realize this. The most
publicized of these offensives is the Manila Hotel incident which
occurred barely five (5) months after the People's Power Revolution.
Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led
by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan
converged at the Manila Hotel to witness the oath-taking of Arturo
Tolentino as acting president of the Philippines. The public disorder
and peril to life and limb of the citizens engendered by this event
subsided only upon the eventual surrender of the loyalist soldiers to
the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and
Camp Aguinaldo incidents. Military rebels waged simultaneous
offensives in different parts of Metro Manila and Sangley Point in
Cavite. A hundred rebel soldiers took over Channel 7 and its radio
station DZBB. About 74 soldier rebels attacked Villamor Air Base, while
another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board
several vehicles attempted to enter Gate I of Camp Aguinaldo even as
another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted
personnel who forced their way through Gate 1 of Fort Bonifacio. They
stormed into the army stockade but having failed to convince their
incarcerated members to unite in their cause, had to give up nine (9)
hours later.
And who can forget the August 28, 1987 coup attempt which almost
toppled the Aquino Government? Launched not by Marcos loyalists,
but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious
attempt to wrest control of the government resulted in the death of
many civilians.
Members of the so-called Black Forest Commando were able to cart
away high-powered firearms and ammunition from the Camp Crame
Armory during a raid conducted in June 1988. Most of the group
members were, however, captured in Antipolo, Rizal. The same group
was involved in an unsuccessful plot known as Oplan Balik Saya which
sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt
of a group named CEDECOR to mobilize civilians from nearby provinces
to act as blockading forces at different Metro Manila areas for the
projected link-up of Marcos military loyalist troops with the group of
Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where
the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the
Marcoses, their occurrence militates heavily against the wisdom of
allowing the Marcoses' return. Not only will the Marcoses' presence
embolden their followers toward similar actions, but any such action
would be seized upon as an opportunity by other enemies of the State,
such as the Communist Party of the Philippines and the NPA'S, the
Muslim secessionists and extreme rightists of the RAM, to wage an
offensive against the government. Certainly, the state through its
executive branch has the power, nay, the responsibility and obligation,
to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the
Marcoses to return to the Philippines is one factor, which albeit, at first
CRIMINAL LAW FULL CASES
blush appears to be extra legal, constitutes a valid justification for
disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines
came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people
braved military tanks and firepower, kept vigil, prayed, and in countless
manner and ways contributed time, effort and money to put an end to
an evidently untenable claim to power of a dictator. The removal of the
Marcoses from the Philippines was a moral victory for the Filipino
people; and the installation of the present administration, a realization
of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return,
appeal is being made to sympathy, compassion and even Filipino
tradition. The political and economic gains we have achieved during
the past three years are however too valuable and precious to gamble
away on purely compassionate considerations. Neither could public
peace, order and safety be sacrificed for an individual's wish to die in
his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been
gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at
all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than
that any of its provisions can be suspended during any of the great
exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281
[1866])
Since our days as law students, we have proclaimed the stirring words
of Ex Parte Milligan as self-evident truth. But faced with a hard and
delicate case, we now hesitate to qive substance to their meaning. The
Court has permitted a basic freedom enshrined in the Bill of Rights to
be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty
and the same guarantee of freedom for both unloved and despised
persons on one hand and the rest who are not so stigmatized on the
other.
I am, therefore, disturbed by the majority ruling which declares that it
should not be a precedent. We are interpreting the Constitution for
only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person
as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the
issue before us is one of rights and not of power. Mr. Marcos is
insensate and would not live if separated from the machines which
have taken over the functions of his kidneys and other organs. To treat
him at this point as one with full panoply of power against whom the
forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have
the power to deny him his right to come home and die among familiar
surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual
invocation of national security and public safety which is hauntingly
familiar because it was pleaded so often by petitioner Ferdinand E.
Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to
impair and the occasions for its exercise. And except for citing breaches
of law and order, the more serious of which were totally unrelated to
Mr. Marcos and which the military was able to readily quell, the
respondents have not pointed to any grave exigency which permits the
use of untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a
political question beyond our jurisdiction to consider. They contend
that the decision to ban former President Marcos, and his family on
grounds of national security and public safety is vested by the
Constitution in the President alone. The determination should not be
questioned before this Court. The President's finding of danger to the
nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with
such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to
define the phrase political question, nor to determine what matters fall
within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or
executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051,
1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what
it means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by
Justice William J. Brennan Jr., who penned the decision of the United
States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed.
2d. 663 [1962]). The ingredients of a political question as formulated
in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political
question, which identifies it as essentially a function of the separation
of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
For a political question to exist, there must be in the Constitution a
power vested exclusively in the President or Congress, the exercise of
which the court should not examine or prohibit. A claim of plenary or
inherent power against a civil right which claim is not found in a
specific provision is dangerous. Neither should we validate a roving
commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire
Government is bound by the rule of law.
CRIMINAL LAW FULL CASES
The respondents have not pointed to any provision of the Constitution
which commits or vests the determination of the question raised to us
solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not
exist because no law has been enacted specifying the circumstances
when the right may be impaired in the interest of national security or
public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment
of power may be found in the commander-in-chief clause which allows
the President to call out the armed forces in case of lawless violence,
invasion or rebellion and to suspend the privilege of the writ of habeas
corpus or proclaim martial law in the event of invasion or rebellion,
when the public safety requires it.
There is, however, no showing, not even a claim that the followers of
former President Marcos are engaging in rebellion or that he is in a
position to lead them. Neither is it claimed that there is a need to
suspend the privilege of the writ of habeas corpus or proclaim martial
law because of the arrival of Mr. Marcos and his family. To be sure,
there may be disturbances but not of a magnitude as would compel
this Court to resort to a doctrine of non- justiceability and to ignore a
plea for the enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what
constitutes a Marcos "loyalist." The constant insinuations that the
"loyalist" group is heavily funded by Mr. Marcos and his cronies and
that the "loyalists" engaging in rallies and demonstrations have to be
paid individual allowances to do so constitute the strongest indication
that the hard core "loyalists" who would follow Marcos right or wrong
are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be
tagged a "loyalist." It is in the best of Filipino customs and traditions to
allow a dying person to return to his home and breath his last in his
native surroundings. Out of the 103 Congressmen who passed the
House resolution urging permission for his return, there are those who
dislike Mr. Marcos intensely or who suffered under his regime. There
are also many Filipinos who believe that in the spirit of national unity
and reconciliation Mr. Marcos and his family should be permitted to
return to the Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies and
demonstrations.
The Court, however, should view the return of Mr. Marcos and his
family solely in the light of the constitutional guarantee of liberty of
abode and the citizen's right to travel as against the respondents'
contention that national security and public safety would be
endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the
issue exclusively to the President, there is likewise no dearth of
decisional data, no unmanageable standards which stand in the way of
a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of
abode and of changing the same within the limits prescribed by law
may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides
that the right to travel, and this obviously includes the right to
travelout of or back into the Philippines, cannot be impaired except in
the interest of national security, public safety, or public health, as may
be provided by law.
There is no law setting the limits on a citizen's right to move from one
part of the country to another or from the Philippines to a foreign
country or from a foreign country to the Philippines. The laws cited by
the Solicitor General immigration, health, quarantine, passports, motor
vehicle, destierro probation, and parole are all inapplicable insofar as
the return of Mr. Marcos and family is concerned. There is absolutely
no showing how any of these statutes and regulations could serve as a
basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant
the petition. We would simply be applying the Constitution, in the
preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate.
Significantly, the President herself has stated that the Court has the
last word when it comes to constitutional liberties and that she would
abide by our decision.
As early as 1983, it was noted that this Court has not been very
receptive to the invocation of the political question doctrine by
government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538
[1983]).
Many of those now occupying the highest positions in the executive
departments, Congress, and the judiciary criticized this Court for using
what they felt was a doctrine of convenience, expediency, utility
or subservience. Every major challenge to the acts of petitioner
Ferdinand E. Marcos under his authoritarian regime the proclamation
of martial law, the ratification of a new constitution, the arrest and
detention of "enemies of the State" without charges being filed against
them, the dissolution of Congress and the exercise by the President of
legislative powers, the trial of civilians for civil offenses by military
tribunals, the seizure of some of the country's biggest corporations, the
taking over or closure of newspaper offices, radio and television
stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political
question doctrine so often invoked by then President Marcos to justify
his acts is now being used against him and his family. Unfortunately,
the Court should not and is not allowed to indulge in such a persiflage.
We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present
Constitution was drafted, a broad definition of judicial power was
added to the vesting in the Supreme Court and statutory courts of said
power.
The second paragraph of Section 1, Article VIII of the Constitution
provides:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the
political question doctrine as a means to avoid having to make
decisions simply because they are too controversial, displeasing to the
President or Congress, inordinately unpopular, or which may be
ignored and not enforced.
The framers of the Constitution believed that the free use of the
political question doctrine allowed the Court during the Marcos years
to fall back on prudence, institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and
strike down an exercise of authoritarian power. Parenthetically, at least
two of the respondents and their counsel were among the most
vigorous critics of Mr. Marcos (the main petitioner) and his use of the
political question doctrine. The Constitution was accordingly amended.
We are now precluded by its mandate from refusing to invalidate a
political use of power through a convenient resort to the question
doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental
charters.
This is not to state that there can be no more political questions which
we may refuse to resolve. There are still some political questions which
only the President, Congress, or a plebiscite may decide. Definitely, the
issue before us is not one of them.
The Constitution requires the Court "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction."
How do we determine a grave abuse of discretion?
CRIMINAL LAW FULL CASES
The tested procedure is to require the parties to present evidence.
Unfortunately, considerations of national security do not readily lend
themselves to the presentation of proof before a court of justice. The
vital information essential to an objective determination is usually
highly classified and it cannot be rebutted by those who seek to
overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a
rhetorical question. If after investigating conditions in the Archipelago
or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the
judicial department investigate the same facts and declare that no such
conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the
second paragraph of Section 1, Article VIII of the Constitution, the court
granted the Solicitor General's offer that the military give us a closed
door factual briefing with a lawyer for the petitioners and a lawyer for
the respondents present.
The results of the briefing call to mind the concurrence of Justice
Vicente Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592
[19831):
How can this Court determine the factual basis in order that it can
ascertain whether or not the president acted arbitrarily in suspending
the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch]
to ascertain or evaluate the conditions prevailing in the Archipelago?
(At p. 887). The answer is obvious. It must rely on the Executive Branch
which has the appropriate civil and military machinery for the facts.
This was the method which had to be used in Lansang. This Court relied
heavily on classified information supplied by the military. Accordingly,
an incongruous situation obtained. For this Court, relied on the very
branch of the government whose act was in question to obtain the
facts. And as should be expected the Executive Branch supplied
information to support its position and this Court was in no situation to
disprove them. It was a case of the defendant judging the suit. After all
is said and done, the attempt by its Court to determine whether or not
the President acted arbitrarily in suspending the writ was a useless and
futile exercise.
There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the
Executive Branch. For it is possible that the suspension of the writ lacks
popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot
do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task
which it is not equipped to handle; it lends its prestige and credibility
to an unpopular act.
The other method is to avail of judicial notice. In this particular case,
judicial notice would be the only basis for determining the clear and
present danger to national security and public safety. The majority of
the Court has taken judicial notice of the Communist rebellion, the
separatist movement, the rightist conspiracies, and urban terrorism.
But is it fair to blame the present day Marcos for these incidents? All
these problems are totally unrelated to the Marcos of today and, in
fact, are led by people who have always opposed him. If we use the
problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These
problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban
Marcos policy in order to ascertain whether or not the respondents
acted with grave abuse of discretion. Nor are we forced to fall back
upon judicial notice of the implications of a Marcos return to his home
to buttress a conclusion.
In the first place, there has never been a pronouncement by the
President that a clear and present danger to national security and
public safety will arise if Mr. Marcos and his family are allowed to
return to the Philippines. It was only after the present petition was filed
that the alleged danger to national security and public safety
conveniently surfaced in the respondents' pleadings. Secondly,
President Aquino herself limits the reason for the ban Marcos policy to
— (1) national welfare and interest and (2) the continuing need to
preserve the gains achieved in terms of recovery and stability. (See
page 7, respondents' Comment at page 73 of Rollo). Neither ground
satisfies the criteria of national security and public safety. The
President has been quoted as stating that the vast majority of Filipinos
support her position. (The Journal, front page, January 24,1989) We
cannot validate their stance simply because it is a popular one.
Supreme Court decisions do not have to be popular as long as they
follow the Constitution and the law. The President's original position
"that it is not in the interest of the nation that Marcos be allowed to
return at this time" has not changed. (Manila Times, front page,
February 7, 1989). On February 11, 1989, the President is reported to
have stated that "considerations of the highest national good dictate
that we preserve the substantial economic and political gains of the
past three years" in justifying her firm refusal to allow the return of Mr.
Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving
economic and political gains," cannot be equated with national security
or public order. They are too generic and sweeping to serve as grounds
for the denial of a constitutional right. The Bill of Rights commands that
the right to travel may not be impaired except on the stated grounds
of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New
Peoples' Army. Feeding as it does on injustice, ignorance, poverty, and
other aspects at under-development, the Communist rebellion is the
clearest and most present danger to national security and
constitutional freedoms. Nobody has suggested that one way to quell it
would be to catch and exile its leaders, Mr. Marcos himself was forced
to flee the country because of "peoples' power." Yet, there is no move
to arrest and exile the leaders of student groups, teachers'
organizations, pea ant and labor federations, transport workers, and
government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to
see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the
Honasan ex-soldiers, the hard core loyalists, and other dissatisfied
elements would suddenly unite to overthrow the Republic should a
dying Marcos come home is too speculative and unsubstantial a ground
for denying a constitutional right. It is not shown how extremists from
the right and the left who loathe each other could find a rallying point
in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority
calls "catalytic effect," which alone sustains the claim of danger to
national security is fraught with perilous implications. Any difficult
problem or any troublesome person can be substituted for the Marcos
threat as the catalysing factor. The alleged confluence of NPAs,
secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of
rebel forces and proceed to ride roughshod over civil liberties in the
name of national security. Today, a passport is denied. Tomorrow, a
newspaper may be closed. Public assemblies may be prohibited.
Human rights may be violated. Yesterday, the right to travel of
Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it
is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I
deeply regret that the Court's decision to use the political question
doctrine in a situation where it does not apply raises all kinds of
disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the
Armed Forces, has personally assured the Court that a rebellion of the
above combined groups will not succeed and that the military is on top
of the situation. Where then is the clear danger to national security?
The Court has taken judicial notice of something which even the
military denies. There would be severe strains on military capabilities
according to General de Villa. There would be set-backs in the expected
eradication of the Communist threat. There would be other serious
problems but all can be successfully contained by the military. I must
stress that no reference was made to a clear and present danger to
national security as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a
statute defining the parameters of the right to travel and to freely
CRIMINAL LAW FULL CASES
choose one's abode has constrained the President to fill in the vacuum,
is too reminiscent of Amendment No. 6 of the martial law Constitution
to warrant serious consideration. Amendment No. 6 allowed Marcos to
issue decrees whenever the Batasang Pambansa failed or was unable
to act adequately on any matter for any reason that in his judgment
required immediate action. When the Bill of Rights provides that a right
may not be impaired except in the interest of national security, public
safety, or public health and further requires that a law must provide
when such specifically defined interests are prejudiced or require
protection, the inaction of Congress does not give reason for the
respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal
courts does not obstruct us from ruling against an unconstitutional
assertion of power by Philippine officials. Let the United States apply its
laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific
flight. The agony of traveling while hooked up to machines which have
taken over the functions of his heart, lungs, and kidneys may hasten his
death. The physical condition of Mr. Marcos does not justify our
ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable
to stay where he is. But he invokes a constitutional right. We have no
power to deny it to him.
The issuance of a passport may be discretionary but it should not be
withheld if to do so would run counter to a constitutional guarantee.
Besides, the petitioners are not asking for passports and nothing else.
Any travel documents or any formal lifting of the Marcos ban as would
allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum
on the right to travel. I do not think we should differentiate the right to
return home from the right to go abroad or to move around in the
Philippines. If at all, the right to come home must be more
preferred than any other aspect of the right to travel. It was precisely
the banning by Mr. Marcos of the right to travel by Senators Benigno
Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and
"threats to national security" during that unfortunate period which led
the framers of our present Constitution not only to re-enact but to
strengthen the declaration of this right. Media often asks, "what else is
new?" I submit that we now have a freedom loving and humane
regime. I regret that the Court's decision in this case sets back the gains
that our country has achieved in terms of human rights, especially
human rights for those whom we do not like or those who are against
us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has
disclosed a list of former dictators who were barred by their successors
from returning to their respective countries. There is no showing that
the countries involved have constitutions which guarantee the liberty
of abode and the freedom to travel and that despite such
constitutional protections, the courts have validated the "ban a return"
policy. Neither is it shown that the successors of the listed dictators are
as deeply committed to democratic principles and as observant of
constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are
conducting a campaign to sow discord and to divide the nation.
Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was
asked is the Government helpless to defend itself against a threat to
national security? Does the President have to suspend the privilege of
the writ of habeas corpus or proclaim martial law? Can she not take
less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested
and tried in court. The Government has more than ample powers
under eixisting law to deal with a person who transgresses the peace
and imperils public safety. But the denial of travel papers is not one of
those powers because the Bill of Rights says so. There is no law
prescribing exile in a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is
entitled to return to and live — and die — in his own country. I say this
with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be
beneath contempt and undeserving of the very liberties he flounted
when he was the absolute ruler of this land.
The right of the United States government to detain him is not the
question before us, nor can we resolve it. The question we must
answer is whether or not, assuming that Marcos is permitted to leave
Hawaii (which may depend on the action we take today), the
respondents have acted with grave abuse of discretion in barring him
from his own country.
My reluctant conclusion is that they have, absent the proof they said
they were prepared to offer, but could not, that the petitioner's return
would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked
the Solicitor General if the government was prepared to prove the
justification for opposing the herein petition, i.e. that it had not acted
arbitrarily. He said it was. Accordingly, the Court, appreciating the
classified nature of the information expected, scheduled a closed-door
hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents,
together with former Senator Arturo M. Tolentino, representing the
petitioners.
In about two hours of briefing, the government failed dismally to show
that the return of Marcos dead or alive would pose a threat to the
national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and
economic destabilization without any single piece of concrete evidence
to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that
there exist "factual bases for the President's decision" to bar Marcos's
return. That is not my recollection of the impressions of the Court after
that hearing.
In holding that the President of the Philippines has residual powers in
addition to the specific powers granted by the Constitution, the Court
is taking a great leap backward and reinstating the discredited doctrine
announced in Planas v. Gil (67 Phil. 62). This does not square with the
announced policy of the Constitutional Commission, which was
precisely to limit rather than expand presidential powers, as a reaction
to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure
Case (343 U.S. 579) that if it was true that the President had been
granted the totality of executive power, "it is difficult to see why our
forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in
bulk of all conceivable executive power but regard it as an allocation to
the presidential office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of
praise, considering that Marcos is perhaps the most detested man in
the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what
Justice Cardozo called the "hooting throng" that may make us see
things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings
aside.
The issue before us must be resolved with total objectivity, on the basis
only of the established facts and the applicable law and not of wounds
that still fester and scars that have not healed. And not even of fear,
for fear is a phantom. That phantom did not rise when the people
stood fast at EDSA against the threat of total massacre in defense at
last of their freedom.
CRIMINAL LAW FULL CASES
I cannot turn back on the lessons of liberty that I taught for more than
three decades as a professor of Constitutional Law. These principles
have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the
Philippines against the prohibitions of the government then, Marcos is
entitled to the same right to travel and the liberty of abode that his
adversary invoked. These rights are guaranteed by the Constitution to
all individuals, including the patriot and the homesick and the prodigal
son returning, and tyrants and charlatans and scoundrels of every
stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without
discipline. Are we ready to be also called a society without
compassion?
The issue as to whether or not former President Ferdinand E. Marcos
should be allowed to return to the Philippines may be resolved by
answering two simple questions: Does he have the right to return to his
own country and should national safety and security deny him this
right?
There is no dispute that the former President is still a Filipino citizen
and both under the Universal Declaration of Human Rights and the
1987 Constitution of the Philippines, he has the right to return to his
own country exceptonly if prevented by the demands of national safety
and national security.
Our Armed Forces have failed to prove this danger. They are bereft of
hard evidence, and all they can rely on is sheer speculation. True, there
is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had
been ousted from this country by popular will, can arouse an entire
country to rise in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary
notwithstanding, that the former President should be allowed to return
to our country under the conditions that he and the members of his
family be under house arrest in his hometown in Ilocos Norte, and
should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should
be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for
fundamental human rights, for national discipline, and for human
compassion.
 
PADILLA, J., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail
in the conflict between the right of a Filipino, Ferdinand E. Marcos, to
return to the Philippines, and the right of the Philippine Government to
bar such return in the interest of national security and public safety. In
this context, the issue is clearly justiciable involving, as it does, colliding
assertions of individual right and governmental power. Issues of this
nature more than explain why the 1986 Constitutional Commission, led
by the illustrious former Chief Justice Roberto Concepcion,
incorporated in the 1987 Constitution, the new provision on the power
of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. Article VIII,
Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional
right of every Filipino to travel which, in the language of the
Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law"
(Art. III, Sec. 6). That the right to travel comprises the right to travel
within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises
in the interpretation of the qualifications attached by the Constitution
to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the
right to travel is absolute. I do not agree. It is my view that, with or
without restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on the
right to travel, and that the clause "as may be provided by law"
contained in Article III, Section 6 of the 1987 Constitution merely
declares a constitutional leave or permission for Congress to enact laws
that may restrict the right to travel in the interest of national security,
public safety or public health. I do not, therefore, accept the
petitioners' submission that, in the absence of enabling legislation, the
Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public
health, The power of the State, in particular cases, to restrict travel of
its citizens finds abundant support in the police power of the state wich
may be exercised to preserve and maintain government as well as
promote the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in
authority at any given time, to restrict travel, even if founded on police
power, cannot be absolute and unlimited under all circumstances,
much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a
specific constitutional right, i.e., the right to return to the
country. 1 Have the respondents presented sufficient evidence to offset
or override the exercise of this right invoked by Mr. Marcos? Stated
differently, have the respondents shown to the Court sufficient factual
bases and data which would justify their reliance on national security
and public safety in negating the right to return invoked by Mr.
Marcos?
I have given these questions a searching examination. I have carefully
weighed and assessed the "briefing" given the Court by the highest
military authorities of the land last 28 July 1989. 1 have searched, but
in vain, for convincing evidence that would defeat and overcome the
right of Mr. Marcos as a Filipino to return to this country. It appears to
me that the apprehensions entertained and expressed by the
respondents, including those conveyed through the military, do not,
with all due respect, escalate to proportions of national security or
public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated
into realities, would be "under control," as admitted to the Court by
said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation
brought about by a political recognition of Mr. Marcos' right to return,
and his actual return, to this country. The Court, in short, should not
accept respondents' general apprehensions, concerns and perceptions
at face value, in the light of a countervailing and even irresistible,
specific, clear, demandable, and enforceable right asserted by
a Filipino.
Deteriorating political, social, economic or exceptional conditions, if
any, are not to be used as a pretext to justify derogation of human
rights. 2
As a member of the United Nations, the Philippines has obligations
under its charter. By adopting the generally accepted principles of
international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to
Art. 13, par. 2 of the Universal Declaration of Human Rights which
provides that everyone has the right to leave any country, including his
own, and to return to his country. This guarantee is reiterated in Art.
XII, par. 2 of the International Covenant on Civil and Political Rights
which states that "no one shall be arbitrarily deprived of the right to
CRIMINAL LAW FULL CASES
enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily"
was specifically chosen by the drafters of the Covenant 3 hoping to
protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or
a particular sense of justice which falls short of international law or
standards. 4
The Solicitor General maintains that because the respondents, as alter
egos of the President, have raised the argument of "national security"
and "public safety," it is the duty of this Court to unquestioningly yield
thereto, thus casting the controversy to the realm of a political
question. I do not agree. I believe that it is one case where the human
and constitutional light invoked by one party is so specific, substantial
and clear that it cannot be overshadowed, much less, nullified by
simplistic generalities; worse, the Court neglects its duty under the
Constitution when it allows the theory of political question to serve as
a convenient, and yet, lame excuse for evading what, to me, is its
clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General
how one could validly defend the right of former Senator Benigno S.
Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the
same time,credibly deny the right of Mr. Marcos, also a Filipino, to
return to the Philippines in 1989. I still have not found a satisfactory
answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference
that the actors are in opposite roles, which really makes one hope, in
the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely
nothing, personal, political or otherwise, the following are the cogent
and decisive propositions in this case —
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be
buried in this country;
2. respondents have not shown any "hard evidence" or convincing
proof why his right as a Filipino to return should be denied him. All we
have are general conclusions of "national security" and "public safety"
in avoidance of a specific demandable and enforceable constitutional
and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than
any issue today, requires of all members of the Court, in what appears
to be an extended political contest, the "cold neutrality of an impartial
judge." It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution
and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the
exercise of the powers granted by the Constitution, the President may
prohibit the Marcoses from returning to the Philippines." 1 I therefore
take exception to allusions 2 anent "the capacity of the Marcoses to stir
trouble even from afar." 3 I have legitimate reason to fear that my
brethren, in passing judgment on the Marcoses (insofar as their
"capacity to stir trouble" is concerned), have overstepped the bounds
of judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real
issues" facing the Court: "The right to return to one's country," pitted
against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under
international law in truth and in fact exist. There is only one right
involved here, whether under municipal or international law: the light
of travel, whether within one's own country, or to another, and the
right to return thereto. The Constitution itself makes no distinctions;
let then, no one make a distinction. Ubi lex non distinguish nec nos
distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does
the Executive have the power to deny a citizen his right to travel (back
to the country or to another)? It is a question that, in essence, involves
the application, and no more, of the provisions of the 1987
Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law. 4
The majority says, with ample help from American precedents, that the
President is possessed of the power, thus:
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving
at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from
being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising
the powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
"sovereignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare
and the common good against the exercise of rights of certain
individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of
the President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws that the
needs of the nation demanded [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view
that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in
the Charter, but has them by constitutional implication* the latter must
yield to the paramountcy of the Bill of Rights. According to Fernando:
"A regime of constitutionalism is thus unthinkable without an
assurance of the primacy of a big of rights. Precisely a constitution
exists to assure that in the discharge of the governmental functions,
the dignity that is the birthright of every human being is duly
safeguarded. To be true to its primordial aim a constitution must lay
down the boundaries beyond which he's forbidden territory for state
action" 8
CRIMINAL LAW FULL CASES
My brethren have not demonstrated, to my satisfaction, how the
President may override the direct mandate of the fundamental law. It
will not suffice, so I submit, to say that the President's plenitude of
powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly,"
so I borrow J.B.L. Reyes, in his own right, a titan in the field of public
law, "this argument ... rests ... not upon the text of the (Constitution] ...
but upon a mere inference therefrom." 9 For if it were, indeed, the
intent of the Charter to create an exception, that is, by Presidential
action, to the right of travel or liberty of abode and of changing the
same other than what it explicitly says already ("limits prescribed by
law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in
question are: (1) decree of statute, or (2) lawful judicial mandate. Had
the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the
Constitution, as far as limits to the said right are concerned, come full
circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning
the Marcoses from the country; neither is there any court decree
banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is
worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of
national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court
order, or (2) "when necessary in the interest of national security, public
safety, or public health. 13 Arguably, the provision enabled the Chief
Executive (Marcos) to moderate movement of citizens, which, Bernas
says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the
Executive's implied power. And, as it so appears, the right may be
impaired only "within the limits provided by law . 15 The President is out
of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters
affecting national security 16 and foreign affairs; 17the Bill of Rights
precisely, a form of check against excesses of officialdom is, in this
case, a formidable barrier against Presidential action. (Even on matters
of State security, this Constitution prescribes limits to Executive's
powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the
question that emerges is: Has it been proved that Marcos, or his
return, will, in fact, interpose a threat to the national security , public
safety, or public health?" What appears in the records are vehement
insistences that Marcos does pose a threat to the national good and
yet, at the same time, we have persistent claims, made by the military
top brass during the lengthy closed-door hearing on July 25, 1989, that
"this Government will not fall" should the former first family in exile
step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination
solely to the Chief Executive. The Court itself must be content that the
threat is not only clear, but more so, present. 18
That the President "has the obligation under the Constitution to
protect the people ... " 19 is an obligation open to no doubt. But the
question, and so I ask again and again, is: From whom? If we say "from
Marcos," we unravel chinks in our political armor. It also flies in the
face of claims, so confidently asserted, that "this Government will not
fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the
henchmen trusted allies, implementors of martial law, and pathetic
parasites of the ex-first couple are, in fact, in the Government, in the
comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued
banishment of Marcos. Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the
exercise of individual liberties. 20 As I indicated, not one shred of
evidence, let alone solid evidence, other than surmises of possibilities,
has been shown to justify the 'balancing act" referred to. Worse, these
conjectures contradict contentions that as far as Philippine society is
concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the
exercise of the President's power as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to
justify the authoritarian rule. It also means that we are no better than
he has.
That "[t]he power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats
to its existence" 22 is a bigger fantasy: It not only summons the martial
law decisions of pre-"EDSA" (especially with respect to the detestable
Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to
say the least, for Marcos. Because of Marcos, the writer of it's dissent
lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He
would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade
of Camp Crame. In his last week in detention, he was, grudgingly,
hospitalized (prison hospital) and confined for chronic asthma. The
deplorable conditions of his imprisonment exacerbated his delicate
health beyond cure. He died, on November 11, 1977, a martyr on the
altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos'
ruthless apparatchiki. On August 14, 1979, he was, along with former
President Diosdado Macapagal, and Congressmen Rogaciano Mercado
and Manuel Concordia, charged, "ASSOed"and placed under house
arrest, for "inciting to sedition" and "rumor mongering " 24in the midst
of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the
Philippines), a book extremely critical of martial rule, published by him
and former Congressman Concordia, authored by President Macapagal
and translated into Tagalog by Congressman Rogaciano Mercado. In
addition, they were also all accused of libel in more than two dozens of
criminal complaints filed by the several military officers named in the
"condemned" book as having violated the human rights of dissenters,
and for other crimes, in the office of the Provincial Fiscal of Rizal. It had
to take the events at "EDSA" to set them free from house arrest and
these political offenses. I am for Marcos' return not because I have a
score to settle with him. Ditto's death or my arrest are scores that can
not be settled.
I feel the ex-President's death abroad (presented in the dailies as
'imminent") would leave him 'unpunished for his crimes to country and
countrymen. If punishment is due, let this leadership inflict it. But let
him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human
right of travel and movement and the liberty of abode. 25 We would
have betrayed our own Ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal
hatred, fear, founded or unfounded, and by speculations of the "man's
"capacity" "to stir trouble" Now that the shoe is on the other foot, let
no more of human rights violations be repeated against any one, friend
or foe. In a democratic framework, there is no this as getting even.
CRIMINAL LAW FULL CASES
The majority started this inquiry on the question of power. I hold that
the President, under the present Constitution and existing laws, does
not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and
Regalado, JJ., concur.
Feliciano, J., is on leave.
 
 
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the
mounting Communist insurgency, a simmering separatist movement, a
restive studentry, widespread labor disputes, militant farmer groups. . .
. Each of these threats is an explosive ingredient in a steaming cauldron
which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in
the Court, Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently
the basis of my full concurrence to the exhaustive and well-
written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They
are not derived solely from a particular constitutional clause or article
or from an express statutory grant. Their limits are likely to depend on
the imperatives of events and contemporary imponderables rather
than on abstract theories of law. History and time-honored principles
of constitutional law have conceded to the Executive Branch certain
powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: "residual," "inherent," 44
moral," "implied," "aggregate," 'emergency." whatever they may be
called, the fact is that these powers exist, as they must if the
governance function of the Executive Branch is to be carried out
effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines
should be viewed. By reason of its impact on national peace and order
in these admittedly critical times, said question cannot be withdrawn
from the competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children
cannot but pose a clear and present danger to public order and safety.
One needs only to recall the series of destabilizing actions attempted
by the so-called Marcos loyalists as well as the ultra-rightist groups
during the EDSA Revolution's aftermath to realize this. The most
publicized of these offensives is the Manila Hotel incident which
occurred barely five (5) months after the People's Power Revolution.
Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led
by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan
converged at the Manila Hotel to witness the oath-taking of Arturo
Tolentino as acting president of the Philippines. The public disorder
and peril to life and limb of the citizens engendered by this event
subsided only upon the eventual surrender of the loyalist soldiers to
the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and
Camp Aguinaldo incidents. Military rebels waged simultaneous
offensives in different parts of Metro Manila and Sangley Point in
Cavite. A hundred rebel soldiers took over Channel 7 and its radio
station DZBB. About 74 soldier rebels attacked Villamor Air Base, while
another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board
several vehicles attempted to enter Gate I of Camp Aguinaldo even as
another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted
personnel who forced their way through Gate 1 of Fort Bonifacio. They
stormed into the army stockade but having failed to convince their
incarcerated members to unite in their cause, had to give up nine (9)
hours later.
And who can forget the August 28, 1987 coup attempt which almost
toppled the Aquino Government? Launched not by Marcos loyalists,
but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious
attempt to wrest control of the government resulted in the death of
many civilians.
Members of the so-called Black Forest Commando were able to cart
away high-powered firearms and ammunition from the Camp Crame
Armory during a raid conducted in June 1988. Most of the group
members were, however, captured in Antipolo, Rizal. The same group
was involved in an unsuccessful plot known as Oplan Balik Saya which
sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt
of a group named CEDECOR to mobilize civilians from nearby provinces
to act as blockading forces at different Metro Manila areas for the
projected link-up of Marcos military loyalist troops with the group of
Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where
the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the
Marcoses, their occurrence militates heavily against the wisdom of
allowing the Marcoses' return. Not only will the Marcoses' presence
embolden their followers toward similar actions, but any such action
would be seized upon as an opportunity by other enemies of the State,
such as the Communist Party of the Philippines and the NPA'S, the
Muslim secessionists and extreme rightists of the RAM, to wage an
offensive against the government. Certainly, the state through its
executive branch has the power, nay, the responsibility and obligation,
to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the
Marcoses to return to the Philippines is one factor, which albeit, at first
blush appears to be extra legal, constitutes a valid justification for
disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines
came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people
braved military tanks and firepower, kept vigil, prayed, and in countless
manner and ways contributed time, effort and money to put an end to
an evidently untenable claim to power of a dictator. The removal of the
Marcoses from the Philippines was a moral victory for the Filipino
people; and the installation of the present administration, a realization
of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return,
appeal is being made to sympathy, compassion and even Filipino
tradition. The political and economic gains we have achieved during
the past three years are however too valuable and precious to gamble
away on purely compassionate considerations. Neither could public
peace, order and safety be sacrificed for an individual's wish to die in
his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been
gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at
all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than
that any of its provisions can be suspended during any of the great
exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281
[1866])
Since our days as law students, we have proclaimed the stirring words
of Ex Parte Milligan as self-evident truth. But faced with a hard and
delicate case, we now hesitate to qive substance to their meaning. The
Court has permitted a basic freedom enshrined in the Bill of Rights to
be taken away by Government.
CRIMINAL LAW FULL CASES
There is only one Bill of Rights with the same interpretation of liberty
and the same guarantee of freedom for both unloved and despised
persons on one hand and the rest who are not so stigmatized on the
other.
I am, therefore, disturbed by the majority ruling which declares that it
should not be a precedent. We are interpreting the Constitution for
only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person
as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the
issue before us is one of rights and not of power. Mr. Marcos is
insensate and would not live if separated from the machines which
have taken over the functions of his kidneys and other organs. To treat
him at this point as one with full panoply of power against whom the
forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have
the power to deny him his right to come home and die among familiar
surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual
invocation of national security and public safety which is hauntingly
familiar because it was pleaded so often by petitioner Ferdinand E.
Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to
impair and the occasions for its exercise. And except for citing breaches
of law and order, the more serious of which were totally unrelated to
Mr. Marcos and which the military was able to readily quell, the
respondents have not pointed to any grave exigency which permits the
use of untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a
political question beyond our jurisdiction to consider. They contend
that the decision to ban former President Marcos, and his family on
grounds of national security and public safety is vested by the
Constitution in the President alone. The determination should not be
questioned before this Court. The President's finding of danger to the
nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with
such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to
define the phrase political question, nor to determine what matters fall
within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or
executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051,
1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what
it means in ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by
Justice Wilham J. Brennan Jr., who penned the decision of the United
States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed.
2d. 663 [1962]). The ingredients of a political question as formulated
in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political
question, which Identifies it as essentially a function of the separation
of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
For a political question to exist, there must be in the Constitution a
power vested exclusively in the President or Congress, the exercise of
which the court should not examine or prohibit. A claim of plenary or
inherent power against a civil right which claim is not found in a
specific provision is dangerous. Neither should we validate a roving
commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire Govern
ment is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution
which commits or vests the determination of the question raised to us
solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not
exist because no law has been enacted specifying the circumstances
when the right may be impaired in the interest of national security or
public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment
of power may be found in the commander-in-chief clause which allows
the President to call out the armed forces in case of lawless violence,
invasion or rebellion and to suspend the privilege of the writ of habeas
corpus or proclaim martial law in the event of invasion or rebellion,
when the public safety requires it.
There is, however, no showing, not even a claim that the followers of
former President Marcos are engaging in rebellion or that he is in a
position to lead them. Neither is it claimed that there is a need to
suspend the privilege of the writ of habeas corpus or proclaim martial
law because of the arrival of Mr. Marcos and his family. To be sure,
there may be disturbances but not of a magnitude as would compel
this Court to resort to a doctrine of non- justiceability and to ignore a
plea for the enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what
constitutes a Marcos "loyalist." The constant insinuations that the
"loyalist" group is heavily funded by Mr. Marcos and his cronies and
that the "loyalists" engaging in rallies and demonstrations have to be
paid individual allowances to do so constitute the strongest indication
that the hard core "loyalists" who would follow Marcos right or wrong
are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be
tagged a "loyalist." It is in the best of Filipino customs and traditions to
allow a dying person to return to his home and breath his last in his
native surroundings. Out of the 103 Congressmen who passed the
House resolution urging permission for his return, there are those who
dislike Mr. Marcos intensely or who suffered under his regime. There
are also many Filipinos who believe that in the spirit of national unity
and reconciliation Mr. Marcos and his family should be permitted to
CRIMINAL LAW FULL CASES
return to the Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies and
demonstrations.
The Court, however, should view the return of Mr. Marcos and his
family solely in the light of the constitutional guarantee of liberty of
abode and the citizen's right to travel as against the respondents'
contention that national security and public safety would be
endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the
issue exclusively to the President, there is likewise no dearth of
decisional data, no unmanageable standards which stand in the way of
a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of
abode and of changing the same within the limits prescribed by law
may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides
that the right to travel, and this obviously includes the right to
travelout of or back into the Philippines, cannot be impaired except in
the interest of national security, public safety, or public health, as may
be provided by law.
There is no law setting the limits on a citizen's right to move from one
part of the country to another or from the Philippines to a foreign
country or from a foreign country to the Philippines. The laws cited by
the Solicitor General immigration, health, quarantine, passports, motor
vehicle, destierro probation, and parole are all inapplicable insofar as
the return of Mr. Marcos and family is concerned. There is absolutely
no showing how any of these statutes and regulations could serve as a
basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant
the petition. We would simply be applying the Constitution, in the
preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate.
Significantly, the President herself has stated that the Court has the
last word when it comes to constitutional liberties and that she would
abide by our decision.
As early as 1983, it was noted that this Court has not been very
receptive to the invocation of the political question doctrine by
government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538
[1983]).
Many of those now occupying the highest positions in the executive
departments, Congress, and the judiciary criticized this Court for using
what they felt was a doctrine of convenience, expediency, utility
or subservience. Every major challenge to the acts of petitioner
Ferdinand E. Marcos under his authoritarian regime the proclamation This is not to state that there can be no more political questions which
of martial law, the ratification of a new constitution, the arrest and we may refuse to resolve. There are still some political questions which
detention of "enemies of the State" without charges being filed against only the President, Congress, or a plebiscite may decide. Definitely, the
them, the dissolution of Congress and the exercise by the President of issue before us is not one of them.
legislative powers, the trial of civilians for civil offenses by military
tribunals, the seizure of some of the country's biggest corporations, the
The Constitution requires the Court "to determine whether or not
taking over or closure of newspaper offices, radio and television
there has been a grave abuse of discretion amounting to lack or excess
stations and other forms of media, the proposals to amend the
of jurisdiction."
Constitution, etc. was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political
question doctrine so often invoked by then President Marcos to justify How do we determine a grave abuse of discretion?
his acts is now being used against him and his family. Unfortunately,
the Court should not and is not allowed to indulge in such a persiflage. The tested procedure is to require the parties to present evidence.
We are bound by the Constitution. Unfortunately, considerations of national security do not readily lend
themselves to the presentation of proof before a court of justice. The
The dim view of the doctrine's use was such that when the present vital information essential to an objective determination is usually
Constitution was drafted, a broad definition of judicial power was highly classified and it cannot be rebutted by those who seek to
added to the vesting in the Supreme Court and statutory courts of said overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
power. [19051), the Court was faced with a similar situation. It posed a
rhetorical question. If after investigating conditions in the Archipelago
or any part thereof, the President finds that public safety requires the
The second paragraph of Section 1, Article VIII of the Constitution
suspension of the privilege of the writ of habeas corpus, can the
provides:
judicial department investigate the same facts and declare that no such
conditions exist?
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
In the effort to follow the "grave abuse of discretion" formula in the
enforceable, and to determine whether or not there has been a grave
second paragraph of Section 1, Article VIII of the Constitution, the court
abuse of discretion amounting to lack or excess of jurisdiction on the
granted the Solicitor General's offer that the military give us a closed
part of any branch or instrumentality of the Government.
door factual briefing with a lawyer for the petitioners and a lawyer for
the respondents present.
This new provision was enacted to preclude this Court from using the
political question doctrine as a means to avoid having to make
The results of the briefing call to mind the concurrence of Justice
decisions simply because they are too controversial, displeasing to the
Vicente Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592
President or Congress, inordinately unpopular, or which may be
[19831):
ignored and not enforced.
How can this Court determine the factual basis in order that it can
The framers of the Constitution believed that the free use of the
ascertain whether or not the president acted arbitrarily in suspending
political question doctrine allowed the Court during the Marcos years
the writ when, in the truth words of Montenegro, with its very limited
to fall back on prudence, institutional difficulties, complexity of issues,
machinery fit] cannot be in better position [than the Executive Branch]
momentousness of consequences or a fear that it was extravagantly
to ascertain or evaluate the conditions prevailing in the Archipelago?
extending judicial power in the cases where it refused to examine and
(At p. 887). The answer is obvious. It must rely on the Executive Branch
strike down an exercise of authoritarian power. Parenthetically, at least
which has the appropriate civil and military machinery for the facts.
two of the respondents and their counsel were among the most
This was the method which had to be used in Lansang. This Court relied
vigorous critics of Mr. Marcos (the main petitioner) and his use of the
heavily on classified information supplied by the military. Accordingly,
political question doctrine. The Constitution was accordingly amended.
an incongruous situation obtained. For this Court, relied on the very
We are now precluded by its mandate from refusing to invalidate a
branch of the government whose act was in question to obtain the
political use of power through a convenient resort to the question
facts. And as should be expected the Executive Branch supplied
doctrine. We are compelled to decide what would have been non-
information to support its position and this Court was in no situation to
justiceable under our decisions interpreting earlier fundamental
disprove them. It was a case of the defendant judging the suit. After all
charters.
is said and done, the attempt by its Court to determine whether or not
the President acted arbitrarily in suspending the writ was a useless and
futile exercise.
CRIMINAL LAW FULL CASES
There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the
Executive Branch. For it is possible that the suspension of the writ lacks
popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot
do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task
which it is not equipped to handle; it lends its prestige and credibility
to an unpopular act.
The other method is to avail of judicial notice. In this particular case,
judicial notice would be the only basis for determining the clear and
present danger to national security and public safety. The majority of
the Court has taken judicial notice of the Communist rebellion, the
separatist movement, the rightist conspiracies, and urban terrorism.
But is it fair to blame the present day Marcos for these incidents? All
these problems are totally unrelated to the Marcos of today and, in
fact, are led by people who have always opposed him. If we use the
problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These
problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban
Marcos policy in order to ascertain whether or not the respondents
acted with grave abuse of discretion. Nor are we forced to fall back
upon judicial notice of the implications of a Marcos return to his home
to buttress a conclusion.
In the first place, there has never been a pronouncement by the
President that a clear and present danger to national security and
public safety will arise if Mr. Marcos and his family are allowed to
return to the Philippines. It was only after the present petition was filed
that the alleged danger to national security and public safety
conveniently surfaced in the respondents' pleadings. Secondly,
President Aquino herself limits the reason for the ban Marcos policy to-
41) national welfare and interest and (2) the continuing need to
preserve the gains achieved in terms of recovery and stability. (See
page 7, respondents' Comment at page 73 of Rollo). Neither ground
satisfies the criteria of national security and public safety. The
President has been quoted as stating that the vast majority of Filipinos
support her position. (The Journal, front page, January 24,1989) We
cannot validate their stance simply because it is a popular one.
Supreme Court decisions do not have to be popular as long as they
follow the Constitution and the law. The President's original position
"that it is not in the interest of the nation that Marcos be allowed to
return at this time" has not changed. (Manila Times, front page,
February 7, 1989). On February 11, 1989, the President is reported to
have stated that "considerations of the highest national good dictate
that we preserve the substantial economic and political gains of the
past three years" in justifying her firm refusal to allow the return of Mr.
Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving
economic and political gains," cannot be equated with national security
or public order. They are too generic and sweeping to serve as grounds
for the denial of a constitutional right. The Bill of Rights commands that
the right to travel may not be impaired except on the stated grounds
of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New
Peoples' Army. Feeding as it does on injustice, ignorance, poverty, and
other aspects at under-development, the Communist rebellion is the
clearest and most present danger to national security and
constitutional freedoms. Nobody has suggested that one way to quell it
would be to catch and exile its leaders, Mr. Marcos himself was forced
to flee the country because of "peoples' power." Yet, there is no move
to arrest and exile the leaders of student groups, teachers'
organizations, pea ant and labor federations, transport workers, and
government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to
see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the
Honasan ex-soldiers, the hard core loyalists, and other dissatisfied
elements would suddenly unite to overthrow the Republic should a
dying Marcos come home is too speculative and unsubstantial a
ground for denying a constitutional right. It is not shown how
extremists from the right and the left who loathe each other could find
a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority
calls "catalytic effect," which alone sustains the claim of danger to
national security is fraught with perilous implications. Any difficult
problem or any troublesome person can be substituted for the Marcos
threat as the catalysing factor. The alleged confluence of NPAS,
secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of
rebel forces and proceed to ride roughshod over civil liberties in the
name of national security. Today, a passport is denied. Tomorrow, a
newspaper may be closed. Public assemblies may be prohibited.
Human rights may be violated. Yesterday, the right to travel of
Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it
is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I
deeply regret that the Court's decision to use the political question
doctrine in a situation where it does not apply raises all kinds of
disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the
Armed Forces, has personally assured the Court that a rebellion of the
above combined groups will not succeed and that the military is on top
of the situation. Where then is the clear danger to national security?
The Court has taken judicial notice of something which even the
military denies. There would be severe strains on military capabilities
according to General de Villa. There would be set-backs in the expected
eradication of the Communist threat. There would be other serious
problems but all can be successfully contained by the military. I must
stress that no reference was made to a clear and present danger to
national security as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a
statute defining the parameters of the right to travel and to freely
choose one's abode has constrained the President to fill in the vacuum,
is too reminiscent of Amendment No. 6 of the martial law Constitution
to warrant serious consideration. Amendment No. 6 allowed Marcos to
issue decrees whenever the Batasang Pambansa failed or was unable
to act adequately on any matter for any reason that in his judgment
required immediate action. When the Bill of Rights provides that a right
may not be impaired except in the interest of national security, public
safety, or public health and further requires that a law must provide
when such specifically defined interests are prejudiced or require
protection, the inaction of Congress does not give reason for the
respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal
courts does not obstruct us from ruling against an unconstitutional
assertion of power by Philippine officials. Let the United States apply its
laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific
flight. The agony of traveling while hooked up to machines which have
taken over the functions of his heart, lungs, and kidneys may hasten his
death. The physical condition of Mr. Marcos does not justify our
ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable
to stay where he is. But he invokes a constitutional right. We have no
power to deny it to him.
The issuance of a passport may be discretionary but it should not be
withheld if to do so would run counter to a constitutional guarantee.
Besides, the petitioners are not asking for passports and nothing else.
Any travel documents or any formal lifting of the Marcos ban as would
allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum
on the right to travel. I do not think we should differentiate the right to
return home from the right to go abroad or to move around in the
Philippines. If at all, the right to come home must be more
preferred than any other aspect of the right to travel. It was precisely
the banning by Mr. Marcos of the right to travel by Senators Benigno
Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and
"threats to national security" during that unfortunate period which led
the framers of our present Constitution not only to re-enact but to
CRIMINAL LAW FULL CASES
strengthen the declaration of this right. Media often asks, "what else is
new?" I submit that we now have a freedom loving and humane
regime. I regret that the Court's decision in this case sets back the gains
that our country has achieved in terms of human rights, especially
human rights for those whom we do not like or those who are against
us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has
disclosed a list of former dictators who were barred by their successors
from returning to their respective countries. There is no showing that
the countries involved have constitutions which guarantee the liberty
of abode and the freedom to travel and that despite such
constitutional protections, the courts have validated the "ban a return"
policy. Neither is it shown that the successors of the listed dictators are
as deeply committed to democratic principles and as observant of
constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are
conducting a campaign to sow discord and to divide the nation.
Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was
asked is the Government helpless to defend itself against a threat to
national security? Does the President have to suspend the privilege of
the writ of habeas corpus or proclaim martial law? Can she not take
less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested
and tried in court. The Government has more than ample powers
under eixisting law to deal with a person who transgresses the peace
and imperils public safety. But the denial of travel papers is not one of
those powers because the Bill of Rights says so. There is no law
prescribing exile in a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is
entitled to return to and live-and die-in his own country. I say this with
a heavy heart but say it nonetheless. That conviction is not diminished
one whit simply because many believe Marcos to be beneath contempt
and undeserving of the very liberties he flounted when he was the
absolute ruler of this land.
The right of the United States government to detain him is not the
question before us, nor can we resolve it. The question we must
answer is whether or not, assuming that Marcos is permitted to leave
Hawaii (which may depend on the action we take today), the
respondents have acted with grave abuse of discretion in barring him
from his own country.
My reluctant conclusion is that they have, absent the proof they said
they were prepared to offer, but could not, that the petitioner's return
would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked
the Solicitor General if the government was prepared to prove the
justification for opposing the herein petition, i. that it had not acted
arbitrarily. He said it was. Accordingly, the Court, appreciating the
classified nature of the information expected, scheduled a closed-door
hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents,
together with former Senator Arturo M. Tolentino, representing the
petitioners.
In about two hours of briefing, the government failed dismally to show
that the return of Marcos dead or alive would pose a threat to the
national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and
economic destabilization without any single piece of concrete evidence
to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that
there exist "factual bases for the President's decision" to bar Marcos's
return. That is not my recollection of the impressions of the Court after
that hearing.
In holding that the President of the Philippines has residual powers in
addition to the specific powers granted by the Constitution, the Court
is taking a great leap backward and reinstating the discredited doctrine
announced in Planas v. Gil (67 Phil. 62). This does not square with the
announced policy of the Constitutional Commission, which was
precisely to limit rather than expand presidential powers, as a reaction
to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure
Case (343 U.S. 579) that if it was true that the President had been
granted the totality of executive power, "it is difficult to see why our
forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in
bulk of all conceivable executive power but regard it as an allocation to
the presidential office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of
praise, considering that Marcos is perhaps the most detested man in
the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what
Justice Cardozo called the "hooting throng" that may make us see
things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings
aside.
The issue before us must be resolved with total objectivity, on the basis
only of the established facts and the applicable law and not of wounds
that still fester and scars that have not healed. And not even of fear,
for fear is a phantom. That phantom did not rise when the people
stood fast at EDSA against the threat of total massacre in defense at
last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than
three decades as a professor of Constitutional Law. These principles
have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the
Philippines against the prohibitions of the government then, Marcos is
entitled to the same right to travel and the liberty of abode that his
adversary invoked. These rights are guaranteed by the Constitution to
all individuals, including the patriot and the homesick and the prodigal
son returning, and tyrants and charlatans and scoundrels of every
stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without
discipline. Are we ready to be also called a society without
compassion?
The issue as to whether or not former President Ferdinand E. Marcos
should be allowed to return to the Philippines may be resolved by
answering two simple questions: Does he have the right to return to his
own country and should national safety and security deny him this
right?
There is no dispute that the former President is still a Filipino citizen
and both under the Universal Declaration of Human Rights and the
1987 Constitution of the Philippines, he has the right to return to his
own country exceptonly if prevented by the demands of national safety
and national security.
Our Armed Forces have failed to prove this danger. They are bereft of
hard evidence, and all they can rely on is sheer speculation. True, there
is some danger but there is no showing as to the extent.
CRIMINAL LAW FULL CASES
It is incredible that one man alone together with his family, who had
been ousted from this country by popular will, can arouse an entire
country to rise in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary
notwithstanding, that the former President should be allowed to return
to our country under the conditions that he and the members of his
family be under house arrest in his hometown in Ilocos Norte, and
should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should
be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for
fundamental human rights, for national discipline, and for human
compassion.
PADILLA, J., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail
in the conflict between the right of a Filipino, Ferdinand E. Marcos, to
return to the Philippines, and the right of the Philippine Government to
bar such return in the interest of national security and public safety. In
this context, the issue is clearly justiciable involving, as it does, colliding
assertions of individual right and governmental power. Issues of this
nature more than explain why the 1986 Constitutional Commission, led
by the illustrious former Chief Justice Roberto Concepcion,
incorporated in the 1987 Constitution, the new provision on the power
of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. Article VIII,
Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional
right of every Filipino to travel which, in the language of the
Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law"
(Art. III, Sec. 6). That the right to travel comprises the right to travel
within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises
in the interpretation of the qualifications attached by the Constitution
to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the
right to travel is absolute. I do not agree. It is my view that, with or
without restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on the
right to travel, and that the clause "as may be provided by law"
contained in Article III, Section 6 of the 1987 Constitution merely
declares a constitutional leave or permission for Congress to enact laws
that may restrict the right to travel in the interest of national security,
public safety or public health. I do not, therefore, accept the
petitioners' submission that, in the absence of enabling legislation, the
Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public
health, The power of the State, in particular cases, to restrict travel of
its citizens finds abundant support in the police power of the state wich
may be exercised to preserve and maintain government as well as
promote the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in
authority at any given time, to restrict travel, even if founded on police
power, cannot be absolute and unlimited under all circumstances,
much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a
specific constitutional right, i.e., the right to return to the
country. 1 Have the respondents presented sufficient evidence to offset
or override the exercise of this right invoked by Mr. Marcos? Stated
differently, have the respondents shown to the Court sufficient factual
bases and data which would justify their reliance on national security
and public safety in negating the right to return invoked by Mr.
Marcos?
I have given these questions a searching examination. I have carefully
weighed and assessed the "briefing" given the Court by the highest
military authorities of the land last 28 July 1989. 1 have searched, but
in vain, for convincing evidence that would defeat and overcome the
right of Mr. Marcos as a Filipino to return to this country. It appears to
me that the apprehensions entertained and expressed by the
respondents, including those conveyed through the military, do not,
with all due respect, escalate to proportions of national security or
public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated
into realities, would be "under control," as admitted to the Court by
said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation
brought about by a political recognition of Mr. Marcos' right to return,
and his actual return, to this country. The Court, in short, should not
accept respondents' general apprehensions, concerns and perceptions
at face value, in the light of a countervailing and even irresistible,
specific, clear, demandable, and enforceable right asserted by
a Filipino.
Deteriorating political, social, economic or exceptional conditions, if
any, are not to be used as a pretext to justify derogation of human
rights. 2
As a member of the United Nations, the Philippines has obligations
under its charter. By adopting the generally accepted principles of
international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to
Art. 13, par. 2 of the Universal Declaration of Human Rights which
provides that everyone has the right to leave any country, including his
own, and to return to his country. This guarantee is reiterated in Art.
XII, par. 2 of the International Covenant on Civil and Political Rights
which states that "no one shall be arbitrarily deprived of the right to
enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily"
was specifically chosen by the drafters of the Covenant 3 hoping to
protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or
a particular sense of justice which falls short of international law or
standards. 4
The Solicitor General maintains that because the respondents, as alter
egos of the President, have raised the argument of "national security"
and "public safety," it is the duty of this Court to unquestioningly yield
thereto, thus casting the controversy to the realm of a political
question. I do not agree. I believe that it is one case where the human
and constitutional light invoked by one party is so specific, substantial
and clear that it cannot be overshadowed, much less, nullified by
simplistic generalities; worse, the Court neglects its duty under the
Constitution when it allows the theory of political question to serve as
a convenient, and yet, lame excuse for evading what, to me, is its
clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General
how one could validly defend the right of former Senator Benigno S.
Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the
same time,credibly deny the right of Mr. Marcos, also a Filipino, to
return to the Philippines in 1989. I still have not found a satisfactory
answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference
that the actors are in opposite roles, which really makes one hope, in
the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely
nothing, personal, political or otherwise, the following are the cogent
and decisive propositions in this case-
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be
buried in this country;
CRIMINAL LAW FULL CASES
2. respondents have not shown any "hard evidence" or con- vincing
proof why his right as a Filipinoto return should be denied him. All we
have are general conclusions of "national security" and "public safety"
in avoidance of a specific demandable and enforceable constitutional
and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than
any issue today, requires of all members of the Court, in what appears
to be an extended political contest, the "cold neutrality of an impartial
judge." It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution
and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the
exercise of the powers granted by the Constitution, the President may
prohibit the Marcoses from returning to the Philippines." 1 I therefore
take exception to allusions 2 anent "the capacity of the Marcoses to stir
trouble even from afar." 3 I have legitimate reason to fear that my
brethren, in passing judgment on the Marcoses (insofar as their
"capacity to stir trouble" is concerned), have overstepped the bounds
of judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real
issues" facing the Court: "The right to return to one's country," pitted
against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under
international law in truth and in fact exist. There is only one right
involved here, whether under municipal or international law: the light
of travel, whether within one's own country, or to another, and the
right to return thereto. The Constitution itself makes no distinctions;
let then, no one make a distinction. Ubi lex non distinguish nec nos
distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does
the Executive have the power to deny a citizen his right to travel (back
to the country or to another)? It is a question that, in essence, involves
the application, and no more, of the provisions of the 1987
Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law. 4
The majority says, with ample help from American precedents, that the
President is possessed of the power, thus:
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving
at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from
being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising
the powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
"sovereignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare
and the common good against the exercise of rights of certain
individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of
the President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws that the
needs of the nation demanded [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view
that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in
the Charter, but has them by constitutional implication* the latter must
yield to the paramountcy of the Bill of Rights. According to Fernando:
"A regime of constitutionalism is thus unthinkable without an
assurance of the primacy of a big of rights. Precisely a constitution
exists to assure that in the discharge of the governmental functions,
the dignity that is the birthright of every human being is duly
safeguarded. To be true to its primordial aim a constitution must lay
down the boundaries beyond which he's forbidden territory for state
action" 8
My brethren have not demonstrated, to my satisfaction, how the
President may override the direct mandate of the fundamental law. It
will not suffice, so I submit, to say that the President's plenitude of
powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly,"
so I borrow J.B.L. Reyes, in Ms own right, a titan in the field of public
law, "this argument ... rests ... not upon the text of the (Constitution] ...
but upon a mere inference therefrom." 9 For if it were, indeed, the
intent of the Charter to create an exception, that is, by Presidential
action, to the right of travel or liberty of abode and of changing the
same other than what it explicitly says already ("limits prescribed by
law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in
question are: (1) decree of statute, or (2) lawful judicial mandate. Had
the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the
Constitution, as far as limits to the said right are concerned, come full
circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning
the Marcoses from the country; neither is there any court decree
banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is
worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of
national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court
order, or (2) "when necessary in the interest of national security, public
safety, or public health. 13 Arguably, the provision enabled the Chief
Executive (Marcos) to moderate movement of citizens, which, Bernas
says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the
Executive's implied power. And, as it so appears, the right may be
CRIMINAL LAW FULL CASES
impaired only "within the limits provided by law . 15 The President is out
of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters
affecting national security 16 and foreign affairs; 17the Bill of Rights
precisely, a form of check against excesses of officialdom is, in this
case, a formidable barrier against Presidential action. (Even on matters
of State security, this Constitution prescribes limits to Executive's
powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the
question that emerges is: Has it been proved that Marcos, or his
return, will, in fact, interpose a threat to the national security , public
safety, or public health?" What appears in the records are vehement
insistences that Marcos does pose a threat to the national good and
yet, at the same time, we have persistent claims, made by the military
top brass during the lengthy closed-door hearing on July 25, 1989, that
"this Government will not fall" should the former first family in exile
step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination
solely to the Chief Executive. The Court itself must be content that the
threat is not only clear, but more so, present. 18
That the President "has the obligation under the Constitution to
protect the people ... " 19 is an obligation open to no doubt. But the
question, and so I ask again and again, is: From whom? If we say "from
Marcos," we unravel chinks in our political armor. It also flies in the
face of claims, so confidently asserted, that "this Government will not
fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the
henchmen trusted allies, implementors of martial law, and pathetic
parasites of the ex-first couple are, in fact, in the Government, in the
comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued
banishment of Marcos. Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the
exercise of individual liberties. 20 As I indicated, not one shred of
evidence, let alone solid evidence, other than surmises of possibilities,
has been shown to justify the 'balancing act" referred to. Worse, these
conjectures contradict contentions that as far as Philippine society is
concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the
exercise of the President's power as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to
justify the authoritarian rule. It also means that we are no better than
he has.
That "[t]he power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats
to its existence" 22 is a bigger fantasy: It not only summons the martial
law decisions of pre-"EDSA" (especially with respect to the detestable
Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to
say the least, for Marcos. Because of Marcos, the writer of it's dissent
lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He
would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade
of Camp Crame. In his last week in detention, he was, grudgingly,
hospitalized (prison hospital) and confined for chronic asthma. The
deplorable conditions of his imprisonment exacerbated his delicate
health beyond cure. He died, on November 11, 1977, a martyr on the
altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos'
ruthless apparatchiki. On August 14, 1979, he was, along with former
President Diosdado Macapagal, and Congressmen Rogaciano Mercado
and Manuel Concordia, charged, "ASSOed"and placed under house
arrest, for "inciting to sedition" and "rumor mongering " 24in the midst
of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the
Philippines), a book extremely critical of martial rule, published by him
and former Congressman Concordia, authored by President Macapagal
and translated into Tagalog by Congressman Rogaciano Mercado. In
addition, they were also all accused of libel in more than two dozens of
criminal complaints filed by the several military officers named in the
"condemned" book as having violated the human rights of dissenters,
and for other crimes, in the office of the Provincial Fiscal of Rizal. It had
to take the events at "EDSA" to set them free from house arrest and
these political offenses. I am for Marcos' return not because I have a
score to settle with him. Ditto's death or my arrest are scores that can
not be settled.
I feel the ex-President's death abroad (presented in the dailies as
'imminent") would leave him 'unpunished for Ms crimes to country and
countrymen. If punishment is due, let this leadership inflict it. But let
him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human
right of travel and movement and the liberty of abode. 25 We would
have betrayed our own Ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal
hatred, fear, founded or unfounded, and by speculations of the "man's
"capacity" "to stir trouble" Now that the shoe is on the other foot, let
no more of human rights violations be repeated against any one, friend
or foe. In a democratic framwork, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that
the President, under the present Constitution and existing laws, does
not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and
Regalado, JJ., concur.
[G.R. No. 125299.  January 22, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA
y BOLADO, and VIOLETA GADDAO y CATAMA @ "NENETH," accused-
appellants.
DECISION
PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and
Violeta Gaddao y Catama @ "Neneth" were charged with violation of
Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972.
[1]
 The information reads:
"That on or about the 5th day of December, 1995 in the City of
Mandaluyong, Philippines, a place within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating
and mutually helping and aiding one another and without having been
authorized by law, did, then and there willfully, unlawfully and
feloniously sell, administer, deliver and give away to another eleven
(11) plastic bags of suspected marijuana fruiting tops weighing
7,641.08 grams in violation of the above-cited law.
CONTRARY TO LAW."[2]
The prosecution contends the offense was committed as follows: In
November 1995, members of the North Metropolitan District,
Philippine National Police (PNP) Narcotics Command (Narcom),
received information from two (2)  civilian informants (CI) that one
"Jun" was engaged in illegal drug activities in Mandaluyong City. The
Narcom agents decided to entrap and arrest "Jun" in a buy-bust
operation. As arranged by one of the CI's, a meeting between the
CRIMINAL LAW FULL CASES
Narcom agents and "Jun" was scheduled on December 5, 1995 at E.
Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP
Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-
bust operation. The Narcom agents formed Team Alpha composed of
P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1
Edmund Badua and four (4) other policemen as members. P/Insp.
Cortes designated PO3 Manlangit as the poseur-buyer and SPO1 Badua
as his back-up, and the rest of the team as perimeter security.
Superintendent Pedro Alcantara, Chief of the North Metropolitan
District PNP Narcom, gave the team P2,000.00 to cover operational
expenses. From this sum, PO3 Manlangit set aside P1,600.00-- a one
thousand peso bill and six (6) one hundred peso bills[3]-- as money for
the buy-bust operation. The market price of one kilo of marijuana was
then P1,600.00. PO3 Manlangit marked the bills with his initials and
listed their serial numbers in the police blotter.[4]  The team rode in two
cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced
PO3 Manlangit as interested in buying one (1) kilo of marijuana. PO3
Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun"
instructed PO3 Manlangit to wait for him at the corner of Shaw
Boulevard and Jacinto Street while he got the marijuana from his
associate.[5]  An hour later, "Jun" appeared at the agreed place where
PO3 Manlangit, the CI and the rest of the team were waiting. "Jun"
took out from his bag an object wrapped in plastic and gave it to PO3
Manlangit. PO3 Manlangit forthwith arrested "Jun" as SPO1 Badua
rushed to help in the arrest. They frisked "Jun" but did not find the
marked bills on him. Upon inquiry, "Jun" revealed that he left the
money at the house of his associate named "Neneth."[6] "Jun" led the
police team to "Neneth's" house nearby at Daang Bakal.
The team found the door of "Neneth's" house open and a woman
inside. "Jun" identified the woman as his associate.[7] SPO1 Badua
asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over
"Neneth's" house. Standing by the door, PO3 Manlangit noticed a
carton box under the dining table. He saw that one of the box's flaps
was open and inside the box was something wrapped in plastic. The
plastic wrapper and its contents appeared similar to the  marijuana
earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit
entered "Neneth's" house and took hold of the box. He peeked inside
the box and found that it contained ten (10) bricks of what appeared to
be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the
marked bills from "Neneth."[8] The policemen arrested "Neneth." They
took "Neneth" and "Jun," together with the box, its contents and the
marked bills and turned them over to the investigator at headquarters.
It was only then that the police learned that "Jun" is Florencio Doria y
Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of
dried marijuana leaves recovered from "Jun" plus the ten (10) bricks
recovered from "Neneth's" house were examined at the PNP Crime
Laboratory.[9]  The bricks, eleven (11) in all, were found to be dried
marijuana fruiting tops of various weights totalling 7,641.08 grams. [10]
The prosecution story was denied by accused-appellants Florencio
Doria and Violeta Gaddao.  Florencio Doria, a 33-year old carpenter,
testified that on December 5, 1995, at 7:00 in the morning, he was at
the gate of his house reading a tabloid newspaper.  Two men appeared
and asked him if he knew a certain "Totoy."  There were many "Totoys"
in their area and as the men questioning him were strangers, accused-
appellant denied knowing any "Totoy."  The men took accused-
appellant inside his house and accused him of being a pusher in their
community.  When accused-appellant denied the charge, the men led
him to their car outside and ordered him to point out the house of
"Totoy."  For five (5) minutes, accused-appellant stayed in the
car.  Thereafter, he gave in and took them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house but no one
answered.  One of the men, later identified as PO3 Manlangit, pushed
open the door and he and his companions entered and looked around
the house for about three minutes.  Accused-appellant Doria was left
standing at the door. The policemen came out of the house and they
saw Violeta Gaddao carrying water from the well. He asked Violeta
where "Totoy" was but she replied he was not there.  Curious
onlookers and kibitzers were, by that time, surrounding them.  When
Violeta entered her house, three men were already inside. Accused-
appellant Doria, then still at the door, overheard one of the men say
that they found a carton box.  Turning towards them, Doria saw a box
on top of the table. The box was open and had something inside. PO3
Manlangit ordered him and Violeta to go outside the house and board
the car. They were brought to police headquarters where they were
investigated.
Accused-appellant Doria further declared that his co-accused, Violeta
Gaddao, is the wife of his acquaintance, Totoy Gaddao.  He said that he
and Totoy Gaddao sometimes drank together at the neighborhood
store.  This closeness, however, did not extend to Violeta, Totoy's wife.
[11]
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed
that on December 5, 1995, she was at her house at Daang Bakal,
Mandaluyong City where she lived with her husband and five (5)
children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and
Raynan, aged 5, and Jason, aged 3.  That day, accused-appellant woke
up at 5:30 in the morning and bought pan de sal for her children's
breakfast.  Her husband, Totoy, a housepainter, had left for Pangasinan
five days earlier.  She woke her children and bathed them.  Her eldest
son, Arvy, left for school at 6:45 A.M.  Ten minutes later, she carried
her youngest son, Jayson, and accompanied Arjay to school.  She left
the twins at home leaving the door open.  After seeing Arjay off, she
and Jayson remained standing in front of the school soaking in the sun
for about thirty minutes.  Then they headed for home.  Along the way,
they passed the artesian well to fetch water.  She was pumping water
when a man clad in short pants and denim jacket suddenly appeared
and grabbed her left wrist.  The man pulled her and took her to her
house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other
persons.  They asked her about a box on top of the table.  This was the
first time she saw the box. The box was closed and tied with a piece of
green straw.  The men opened the box and showed her its
contents.  She said she did not know anything about the box and its
contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused
Florencio Doria was a friend of her husband, and that her husband
never returned to their house after he left for Pangasinan.  She denied
the charge against her and Doria and the allegation that marked bills
were found in her person.[12]
After trial, the Regional Trial Court, Branch 156, Pasig City convicted
the accused-appellants. The trial court found the existence of an
"organized/syndicated crime group" and sentenced both accused-
appellants to death and pay a fine of P500,000.00 each. The dispositive
portion of the decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @
"Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been
established beyond reasonable doubt, they are both CONVICTED of the
present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No.
7659 which cover violations of Sec. 4 of Republic Act No. 6425 and
which was exhaustively discussed in People v. Simon, 234 SCRA 555,
the penalty imposable in this case is reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos.
Taking into consideration, however, the provisions of Sec. 23, also of
Republic Act No. 7659 which explicitly state that:
'The maximum penalty shall be imposed if the offense was committed
by any person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another
for purposes of gain in the commission of any crime.'
the Court is hereby constrained to sentence (hereby sentences) said
FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred
CRIMINAL LAW FULL CASES
Thousand Pesos (P500,000.00) each without subsidiary imprisonment
in case of insolvency and to pay the costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over
to the Dangerous Drugs Board, NBI for destruction in accordance with
law.
Let a Commitment Order be issued for the transfer of accused DORIA
from the Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa
City and also for accused GADDAO for her transfer to the Correctional
Institute for Women, Mandaluyong City.
Let the entire records of this case be forwarded immediately to the
Supreme Court for mandatory review.
SO ORDERED."[13]
Before this Court, accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE
TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR
TESTIMONIES WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES
AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN
FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-
BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE
MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE
WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT
COME WITHIN THE PLAIN VIEW DOCTRINE."[14]
Accused-appellant Violeta Gaddao contends:
"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE
INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED
BUY-BUST AS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY
CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO
REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND
SENTENCING HER TO DEATH DESPITE THE MANIFESTLY
IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE
AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS
RECOVERED FROM HER, WHICH IN CONSEQUENCE RESULTS IN THE
EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT
BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE
WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA
ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT." [15]
The assigned errors involve two principal issues: (1) the validity of the
buy-bust operation in the apprehension of accused-appellant Doria;
and (2) the validity of the warrantless arrest of accused-appellant
Gaddao, the search of her person and house, and the admissibility of
the pieces of evidence obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation.
A buy-bust operation is a form of entrapment employed by peace
officers as an effective way of apprehending a criminal in the act of the
commission of an offense.[16] Entrapment has received judicial sanction
when undertaken with due regard to constitutional and legal
safeguards.[17]
Entrapment was unknown in common law. It is a judicially created
twentieth-century American doctrine that evolved from the increasing
use of informers and undercover agents in the detection of crimes,
particularly liquor and narcotics offenses.[18] Entrapment sprouted from
the doctrine of estoppel and the public interest in the formulation and
application of decent standards in the enforcement of criminal law.
[19]
 It also took off from a spontaneous moral revulsion against using the
powers of government to beguile innocent but ductile persons into
lapses that they might otherwise resist.[20]
In the American jurisdiction, the term "entrapment" has a generally
negative meaning because it is understood as the inducement of one
to commit a crime not contemplated by him, for the mere purpose of
instituting a criminal prosecution against him.[21] The classic definition
of entrapment is that articulated by Justice Roberts in Sorrells v. United
States,[22] the first Supreme Court decision to acknowledge the concept:
"Entrapment is the conception and planning of an offense by an officer,
and his procurement of its commission by one who would not have
perpetrated it except for the trickery, persuasion or fraud of the
officer."[23] It consists of two (2) elements: (a) acts of persuasion,
trickery, or fraud carried out by law enforcement officers or the agents
to induce a defendant to commit a crime; and (b) the origin of the
criminal design in the minds of the government officials rather than
that of the innocent defendant, such that the crime is the product of
the creative activity of the law enforcement officer. [24]
It is recognized that in every arrest, there is a certain amount of
entrapment used to outwit the persons  violating or about to violate
the law. Not every deception is forbidden. The type of entrapment the
law forbids is the inducing of another to violate the law, the
"seduction" of an otherwise innocent person into a criminal career.
[25]
 Where the criminal intent originates in the mind of the entrapping
person and the accused is lured into the commission of the offense
charged in order to prosecute him, there is entrapment and no
conviction may be had.[26] Where, however, the criminal intent
originates in the mind of the accused and the criminal offense is
completed, the fact that a person acting as a decoy for the state, or
public officials furnished the accused an opportunity for commission of
the offense, or that the accused is aided in the commission of the crime
in order to secure the evidence necessary to prosecute him, there is no
entrapment and the accused must be convicted.[27] The law tolerates
the use of decoys and other artifices to catch a criminal.
Entrapment is recognized as a valid defense [28] that can be raised by an
accused and partakes of the nature of a confession and avoidance.[29] It
is a positive defense. Initially, an accused has the burden of providing
sufficient evidence that the government induced him to commit the
offense. Once established, the burden shifts to the government to
show otherwise.[30] When entrapment is raised as a defense, American
federal courts and a majority of state courts use the "subjective" or
"origin of intent" test laid down in Sorrells v. United States[31] to
determine whether entrapment actually occurred. The focus of the
inquiry is on the accused's predisposition to commit the offense
charged, his state of mind and inclination before his initial exposure to
government agents.[32] All relevant facts such as the accused's mental
and character traits, his past offenses, activities, his eagerness in
committing the crime, his reputation, etc., are considered to assess his
state of mind before the crime.[33] The predisposition test emphasizes
the accused's propensity to commit the offense rather than the
officer's misconduct[34] and reflects an attempt to draw a line between
a "trap for the unwary innocent and the trap for the unwary
criminal."[35] If the accused was found to have been ready and willing to
commit the offense at any favorable opportunity, the entrapment
defense will fail even if a police agent used an unduly persuasive
inducement.[36] Some states, however, have adopted the "objective"
test.[37] This test was first authoritatively laid down in the case
of Grossman v. State[38] rendered by the Supreme Court of
Alaska.  Several other states have subsequently adopted the test by
judicial pronouncement or legislation.  Here, the court considers the
CRIMINAL LAW FULL CASES
nature of the police activity involved and the propriety of police
conduct.[39] The inquiry is focused on the inducements used by
government agents, on police conduct, not on the accused and his
predisposition to commit the crime.  For the goal of the defense is to
deter unlawful police conduct.[40]The test of entrapment is whether the
conduct of the law enforcement agent was likely to induce a normally
law-abiding person, other than one who is ready and willing, to commit
the offense;[41] for purposes of this test, it is presumed that a law-
abiding person would normally resist the temptation to commit a crime
that is presented by the simple opportunity to act unlawfully. [42] Official
conduct that merely offers such an opportunity is permissible, but
overbearing conduct, such as badgering, cajoling or importuning,[43] or
appeals to sentiments such as pity, sympathy, friendship or pleas of
desperate illness, are not.[44] Proponents of this test believe that courts
must refuse to convict an entrapped accused not because his conduct
falls outside the legal norm but rather because, even if his guilt has
been established, the methods employed on behalf of the government
to bring about the crime "cannot be countenanced."  To some extent,
this reflects the notion that the courts should not become tainted by
condoning law enforcement improprieties.[45] Hence, the transactions
leading up to the offense, the interaction between the accused and law
enforcement officer and the accused's response to the officer's
inducements, the gravity of the crime, and the difficulty of detecting
instances of its commission are considered in judging what the effect of
the officer's conduct would be on a normal person.[46]
Both the "subjective" and "objective" approaches have been criticized
and objected to.  It is claimed that the "subjective" test creates an
"anything goes" rule, i.e., if the court determines that an accused was
predisposed to commit the crime charged, no level of police deceit,
badgering or other unsavory practices will be deemed impermissible.
[47]
 Delving into the accused's character and predisposition obscures the
more important task of judging police behavior and prejudices the
accused more generally.  It ignores the possibility that no matter what
his past crimes and general disposition were, the accused might not
have committed the particular crime unless confronted with inordinate
inducements.[48] On the other extreme, the purely "objective" test
eliminates entirely the need for considering a particular accused's
predisposition.  His predisposition, at least if known by the police, may
have an important bearing upon the question of whether the conduct
of the police and their agents was proper.[49] The undisputed fact that
the accused was a dangerous and chronic offender or that he was a
shrewd and active member of a criminal syndicate at the time of his
arrest is relegated to irrelevancy.[50]
Objections to the two tests gave birth to hybrid approaches to
entrapment.  Some states in the United States now combine both the
"subjective" and "objective" tests.[51] In Cruz v. State,[52] the Florida
Supreme Court declared that the permissibility of police conduct must
first be determined. If this objective test is satisfied, then the analysis
turns to whether the accused was predisposed to commit the crime.
[53]
 In Baca v. State,[54] the New Mexico Supreme Court modified the
state's entrapment analysis by holding that "a criminal defendant may
successfully assert a defense of entrapment, either by showing lack of
predisposition to commit the crime for which he is charged, or, that the
police exceeded the standards of proper investigation.[55] The hybrid
approaches combine and apply the "objective" and "subjective" tests
alternatively or concurrently.   no defense to the latter in a prosecution for larceny, provided the
As early as 1910, this Court has examined the conduct of law enforcers
while apprehending the accused caught in flagrante delicto.  In United
States v. Phelps,[56] we acquitted the accused from the offense of
smoking opium after finding that the government employee, a BIR
personnel, actually induced him to commit the crime in order to
prosecute him.  Smith, the BIR agent, testified that Phelps'
apprehension came after he overheard Phelps in a saloon say that he
liked smoking opium on some occasions.  Smith's testimony was
disregarded.  We accorded significance to the fact that it was Smith
who went to the accused three times to convince him to look for an
opium den where both of them could smoke this drug.[57] The conduct
of the BIR agent was condemned as "most reprehensible." [58] In People
v. Abella,[59] we acquitted the accused of the crime of selling explosives
after examining the testimony of the apprehending police officer who
pretended to be a merchant.  The police officer offered "a tempting
price, xxx a very high one" causing the accused to sell the
explosives.  We found that there was inducement, "direct, persistent
and effective" by the police officer and that outside of his testimony,
there was no evidence sufficient to convict the accused.[60] In People v.
Lua Chu and Uy Se Tieng,[61] we convicted the accused after finding that
there was no inducement on the part of the law enforcement officer.
We stated that the Customs secret serviceman smoothed the way for
the introduction of opium from Hongkong to Cebu after the accused
had already planned its importation and ordered said drug.  We ruled
that the apprehending officer did not induce the accused to import
opium but merely entrapped him by pretending to have an
understanding with the Collector of Customs of Cebu to better assure
the seizure of the prohibited drug and the arrest of the surreptitious
importers.[62]
It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we
first laid down the distinction between entrapment vis-a-vis instigation
or inducement.  Quoting 16 Corpus Juris,[64] we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said that the
practice of entrapping persons into crime for the purpose of instituting
criminal prosecutions is to be deplored, and while instigation, as
distinguished from mere entrapment, has often been condemned and
has sometimes been held to prevent the act from being criminal or
punishable, the general rule is that it is no defense to the perpetrator
of a crime that facilities for its commission were purposely placed in his
way, or that the criminal act was done at the 'decoy solicitation' of
persons seeking to expose the criminal, or that detectives feigning
complicity in the act were present and apparently assisting in its
commission. Especially is this true in that class of cases where the
offense is one of a kind habitually committed, and the solicitation
merely furnishes evidence of a course of conduct. Mere deception by
the detective will not shield defendant, if the offense was committed
by him, free from the influence or instigation of the detective.  The fact
that an agent of an owner acts as a supposed confederate of a thief is
original design was formed independently of such agent; and where a
person approached by the thief as his confederate notifies the owner
or the public authorities, and, being authorised by them to do so,
assists the thief in carrying out the plan, the larceny is nevertheless
committed.  It is generally held that it is no defense to a prosecution for
an illegal sale of liquor that the purchase was made by a 'spotter,'
detective, or hired informer; but there are cases holding the
contrary."[65]
The distinction above-quoted was reiterated in two (2) decisions of the
Court of Appeals. In People v. Galicia,[66] the appellate court declared
that "there is a wide difference between entrapment and instigation."
The instigator practically induces the would-be accused into the
commission of the offense and himself becomes a co-principal.  In
entrapment, ways and means are resorted to by the peace officer for
the purpose of trapping and capturing the lawbreaker in the execution
of his criminal plan.[67] In People v. Tan Tiong,[68] the Court of Appeals
further declared that "entrapment is no bar to the prosecution and
conviction of the lawbreaker."[69]
The pronouncement of the Court of Appeals in People v. Galicia was
affirmed by this Court in People v. Tiu Ua.[70] Entrapment, we further
held, is not contrary to public policy.  It is instigation that is deemed
contrary to public policy and illegal.[71]
It can thus be seen that the concept of entrapment in the American
jurisdiction is similar to instigation or inducement in Philippine
jurisprudence.  Entrapment in the Philippines is not a defense available
to the accused.  It is instigation that is a defense and is considered an
absolutory cause.[72] To determine whether there is entrapment or
instigation, our courts have mainly examined the conduct of the
apprehending officers, not the predisposition of the accused to commit
the crime.  The "objective" test first applied in United States v.
Phelps has been followed in a series of similar cases.[73] Nevertheless,
adopting the "objective" approach has not precluded us from likewise
applying the "subjective" test.  In People v. Boholst,[74] we applied both
tests by examining the conduct of the police officers in a buy-bust
operation and  admitting evidence of the accused's membership with
the notorious and dreaded Sigue-Sigue Sputnik Gang.  We also
considered accused's previous convictions of other crimes[75] and held
that his opprobrious past and membership with the dreaded gang
strengthened the state's evidence against him.  Conversely, the
evidence that the accused did not sell or smoke marijuana and did not
have any criminal record was likewise admitted in People v.
Yutuc[76] thereby sustaining his defense that led to his acquittal.
CRIMINAL LAW FULL CASES
The distinction between entrapment and instigation has proven to be
very material in anti-narcotics operations.  In recent years, it has
become common practice for law enforcement officers and agents to
engage in buy-bust operations and other entrapment procedures in
apprehending drug offenders.  Anti-narcotics laws, like anti-gambling
laws are regulatory statutes.[77] They are rules of convenience designed
to secure a more orderly regulation of the affairs of society, and their
violation gives rise to crimes mala prohibita.[78] They are not the
traditional type of criminal law such as the law of murder, rape, theft,
arson, etc. that deal with crimes mala in se or those inherently
wrongful and immoral.[79] Laws defining crimes mala
prohibita condemn behavior directed, not against particular
individuals, but against public order.[80] Violation is deemed a wrong
against society as a whole and is generally unattended with any
particular harm to a definite person.[81] These offenses are carried on in
secret and the violators resort to many devices and subterfuges to
avoid detection.  It is rare for any member of the public, no matter how
furiously he condemns acts mala prohibita, to be willing to assist in the
enforcement of the law.  It is necessary, therefore, that government in
detecting and punishing violations of these laws, rely, not upon the
voluntary action of aggrieved individuals, but upon the diligence of its
own officials. This means that the police must be present at the time
the offenses are committed either in an undercover capacity or
through informants, spies or stool pigeons.[82]
Though considered essential by the police in enforcing vice legislation,
the confidential informant system breeds abominable
abuse.  Frequently, a person who accepts payment from the police in
the apprehension of drug peddlers and gamblers also accept payment
from these persons who deceive the police.  The informant himself
may be a drug addict, pickpocket, pimp, or other petty criminal.  For
whatever noble purpose it serves, the spectacle that government is
secretly mated with the underworld and uses underworld characters to
help maintain law and order is not an inspiring one.[83] Equally odious is
the bitter reality of dealing with unscrupulous, corrupt and exploitative
law enforcers.  Like the informant, unscrupulous law enforcers'
motivations are legion-- harassment, extortion, vengeance, blackmail,
or a desire to report an accomplishment to their superiors.  This Court
has taken judicial notice of this ugly reality in a number of
cases[84] where we observed that it is a common modus operandi of
corrupt law enforcers to prey on weak and hapless persons,
particularly unsuspecting provincial hicks.[85] The use of shady
underworld characters as informants, the relative ease with which
illegal drugs may be planted in the hands or property of trusting and
ignorant persons, and the imposed secrecy that inevitably shrouds all
drug deals have compelled this Court to be extra-vigilant in deciding
drug cases.[86]Criminal activity is such that stealth and strategy,
although necessary weapons in the arsenal of the police officer,
become as objectionable police methods as the coerced confession
and the unlawful search. As well put by the Supreme Court of California
in People v. Barraza,[87]
"[E]ntrapment is a facet of a broader problem.  Along with illegal
search and seizures, wiretapping, false arrest, illegal detention and the
third degree, it is a type of lawless enforcement. They all spring from
common motivations.  Each is a substitute for skillful and scientific
investigation. Each is condoned by the sinister sophism that the end,
when dealing with known criminals of the 'criminal classes,' justifies
the employment of illegal means."[88]
It is thus imperative that the presumption, juris tantum, of regularity in
the performance of official duty by law enforcement agents raised by
the Solicitor General be applied with studied restraint.  This
presumption should not by itself prevail over the presumption of
innocence and the constitutionally-protected rights of the individual.
[89]
 It is the duty of courts to preserve the purity of their own temple
from the prostitution of the criminal law through lawless enforcement.
[90]
 Courts should not allow themselves to be used as an instrument of
abuse and injustice lest an innocent person be made to suffer the
unusually severe penalties for drug offenses.[91]
We therefore stress that the "objective" test in buy-bust operations
demands that the details of the purported transaction must be clearly
and adequately shown. This must start from the initial contact between
the poseur-buyer and the pusher, the offer to purchase, the promise or
payment of the consideration until the consummation of the sale by
the delivery of the illegal drug subject of the sale.[92] The manner by
which the initial contact was made, whether or not through an
informant, the offer to purchase the drug, the payment of the "buy-
bust" money, and the delivery of the illegal drug, whether to the
informant alone or the police officer, must be the subject of strict
scrutiny by courts to insure that law-abiding citizens are not unlawfully
induced to commit an offense. Criminals must be caught but not at all
cost. At the same time, however, examining the conduct of the police
should not disable courts into ignoring the accused's predisposition to
commit the crime. If there is overwhelming evidence of habitual
delinquency, recidivism or plain criminal proclivity, then this must also
be considered. Courts should look at all factors to determine the
predisposition of an accused to commit an offense in so far as they are
relevant to determine the validity of the defense of inducement.  
In the case at bar, the evidence shows that it was the confidential
informant who initially contacted accused-appellant Doria. At the pre-
arranged meeting, the informant was accompanied by PO3 Manlangit
who posed as the buyer of marijuana. PO3 Manlangit handed the
marked money to accused-appellant Doria as advance payment for one
(1) kilo of marijuana. Accused-appellant Doria was apprehended when
he later returned and handed the brick of marijuana to PO3 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straighforward and
categorical manner and his credibility was not crumpled on cross-
examination by defense counsel. Moreover, PO3 Manlangit's testimony
was corroborated on its material points by SPO1 Badua, his back-up
security. The non-presentation of the confidential informant is not fatal
to the prosecution. Informants are usually not presented in court
because of the need to hide their identity and preserve their invaluable
service to the police.[93] It is well-settled that except when the appellant
vehemently denies selling prohibited drugs and there are material
inconsistencies in the testimonies of the arresting officers,[94] or there
are reasons to believe that the arresting officers had motives to testify
falsely against the appellant,[95] or that only the informant was the
poseur-buyer who actually witnessed the entire transaction, [96] the
testimony of the informant may be dispensed with as it will merely be
corroborative of the apprehending officers' eyewitness testimonies.
[97]
 There is no need to present the informant in court where the sale
was actually witnessed and adequately proved by prosecution
witnesses.[98]
The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies
and the other police officers' testimonies are minor and do not detract
from the veracity and weight of the prosecution evidence. The source
of the money for the buy-bust operation is not a critical fact in the case
at bar.  It is enough that the prosecution proved that money was paid
to accused-appellant Doria in consideration of which he sold and
delivered the marijuana. 
Contrary to accused-appellant Doria's claim, the one kilo of marijuana
"sold" by him to PO3 Manlangit was actually identified by PO3
Manlangit himself before the trial court. After appellants'
apprehension, the Narcom agents placed this one (1) brick of
marijuana recovered from appellant Doria inside the carton box
lumping it together with the ten (10) bricks inside. This is why the
carton box contained eleven (11) bricks of marijuana when brought
before the trial court. The one (1) brick recovered from appellant Doria
and each of the ten (10) bricks, however, were identified and marked
in court. Thus:
"ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how
were you able to identify that box?
A     This is the box that I brought to the crime laboratory which
contained the eleven pieces of marijuana brick we confiscated from
the suspect, sir.
Q     Please open it and show those eleven bricks.
PROSECUTOR       Witness bringing out from the said box...
ATTY. VALDEZ, Counsel for Violeta Gaddao:
CRIMINAL LAW FULL CASES
Your Honor, I must protest the line of questioning considering the fact
that we are now dealing with eleven items when the question posed to
the witness was what was handed to him by Jun?
COURT       So be it.
ATTY. ARIAS        May we make it of record that the witness is pulling
out item after item from the box showed to him and brought in front of
him.
COURT       Noted.
Q    Now tell the court, how did you know that those are the eleven
bricks?
                x                                  x                                       x.
A     I have markings on these eleven bricks, sir.
Q     Point to the court, where are those markings?
A     Here, sir, my signature, my initials with the date, sir.
PROSECUTOR       Witness showed a white wrapper and pointing to
CLM and the signature.
Q     Whose signature is that?
ATTY VALDEZ     Your Honor, may we just limit the inquiry to the basic
question of the fiscal as to what was handed to him by the accused Jun,
your Honor?
PROSECUTOR       Your Honor, there is already a ruling by this
Honorable Court, your Honor, despite reconsideration.
COURT       Let the prosecution do its own thing and leave the
appreciation of what it has done to the court.
ATTY. VALDEZ    We submit, your Honor.
A     This brick is the one that was handed to me by the suspect Jun,
sir.
COURT      Why do you know that that is the thing? Are you sure that
is not "tikoy?"
A     Yes, your Honor. ATTY. ARIAS        Your Honor, there are also entries included in that
enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that
was not pointed to by the witness. I want to make it of record that
Q    What makes you so sure?
there are other entries included in the enclosure.
A     I am sure that this is the one, your Honor. This is the Exhibit "A"
COURT       Noted. The court saw it.
which I marked before I brought it to the PCCL, your Honor.
Q    Now, and this alleged brick of marijuana with a piece of paper,
Q    What are you sure of?
with a newspaper wrapping with a piece of paper inside which reads:
"D-394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?"
A     I am sure that this is the brick that was given to me by one alias
Jun, sir.
COURT      Tag it. Mark it.
Q    What makes you so sure?
Q    This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A     Because I marked it with my own initials before giving it to the
investigator and before we brought it to the PCCL, your Honor.
A     It was given to me by suspect Jun, sir.
                x                                  x                                       x.
Q    Whereat?
PROSECUTOR     May we request that a tag be placed on this white
A     At the corner of Boulevard and Jacinto St., sir.
plastic bag and this be marked as Exhibit "D?"
Q    How about the other items that you were able to recover?
COURT      Mark it as Exhibit "D."
                x                                  x                                       x.
Q     To stress, who made the entries of this date, Exhibit "A" then the
other letters and figures on this plastic?
A     These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in the
A     This one, the signature, I made the signature, the date and the
hands of Neneth and so we proceeded to the house of Neneth, sir.
time and this Exhibit "A."
                x                                  x                                       x."[99]
Q     How about this one?
The first brick identified by P03 Manlangit was the brick of marijuana
A     I don't know who made this marking, sir.
"given to [him] by suspect Jun" at the corner of Boulevard and Jacinto
Streets. This brick, including the newspaper and white plastic wrapping
PROSECUTOR       May it be of record that this was just entered this were marked as Exhibits "D," "D-1," and "D-2" and described as
morning. weighing nine hundred seventy (970) grams.[100]
Q     I am asking you about this "itim" and not the "asul." We also reject appellant's submission that the fact that PO3 Manlangit
and his team waited for almost one hour for appellant Doria to give
A     This CLM, the date and the time and the Exhibit "A," I was the one them the one kilo of marijuana after he "paid" P1,600.00 strains
credulity.  Appellant cannot capitalize on the circumstance that the
who made these markings, sir.
money and the  marijuana in the case at bar did not change hands
under the usual "kaliwaan" system.  There is no rule of law which
PROSECUTOR       May we place on record that the one that was requires that in "buy-bust" operations there must be a simultaneous
enclosed... exchange of the marked money and the prohibited drug between the
poseur-buyer and the pusher.[101] Again, the decisive fact is that the
poseur-buyer received the marijuana from the accused-appellant. [102]
CRIMINAL LAW FULL CASES

We also hold that the warrantless arrest of accused-appellant Doria is
not unlawful. Warrantless arrests are allowed in three instances as
provided by Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure, to wit:
"Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
arrest was made in "hot pursuit" and the search was an incident to her A     Her, sir. We asked her to give us the money, the marked money
lawful arrest. which Jun gave her, sir.
To be lawful, the warrantless arrest of appellant Gaddao must fall Q     And what happened?
under any of the three (3) instances enumerated in Section 5 of Rule
113 of the 1985 Rules on Criminal Procedure as aforequoted.  The
A     At this instance, it was SPO1 Badua who can testify regarding this
direct testimony of PO3 Manlangit, the arresting officer, however
buy-bust money, sir.
shows otherwise:
                x                                  x                                       x."[112]
"ATTY VALDEZ, Counsel for appellant Gaddao:

SPO1 Badua testified on cross-examination that:

(b) When an offense has in fact just been committed, and he has We submit at this juncture, your Honor, that there will be no basis for
personal knowledge of facts indicating that the person to be arrested that question.
has committed it; and Q    What was your intention in going to the house of Aling Neneth?
Q     This particular exhibit that you identified, the wrapper and the
(c) When the person to be arrested is a prisoner who escaped from a contents was given to you by whom? A     To arrest her, sir.
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while Q    But the fact is, Mr. Witness, when you reached the house of Aling
A     It was given to me by suspect Jun, sir.
being transferred from one confinement to another. Neneth, Aling Neneth was there?
Q     Whereat?
                x                                  x                                       x."[103] A     Yes, sir.
A     At the corner of Boulevard and Jacinto Street, sir.
Under Section 5 (a), as above-quoted, a person may be arrested Q    As far as you can see, she was just inside her house?
without a warrant if he "has committed, is actually committing, or is
attempting to commit an offense." Appellant Doria was caught in the Q     How about the other items that you were able to recover?
act of committing an offense. When an accused is apprehended in A     I saw her outside, sir.
flagrante delicto as a result of a buy-bust operation, the police are not ATTY. VALDEZ:    We submit at this juncture, your Honor, that there will
only authorized but duty-bound to arrest him even without a warrant. be no basis for that question. Q    She was fetching water as a matter of fact?
[104]

COURT       There is. Answer. A     She was `sa bandang poso.'

The warrantless arrest of appellant Gaddao, the search of her person
and residence, and the seizure of the box of marijuana and marked bills
are different matters. A     These other marijuana bricks, because during our follow-up, Q    Carrying a baby?
because according to Jun the money which I gave him was in the
hands of Neneth and so we proceeded to the house of Neneth, sir. A     No, sir.
Our Constitution proscribes search and seizure without a judicial
warrant and any evidence obtained without such warrant is
inadmissible for any purpose in any proceeding.[105] The rule is, Q    Whereat? Q    At that particular time when you reached the house of Aling
however, not absolute. Search and seizure may be made without a Neneth and saw her outside the house, she was not committing any
warrant and the evidence obtained therefrom may be admissible in the A     At Daang Bakal near the crime scene at Shaw Boulevard, sir. crime, she was just outside the house?
following instances:[106] (1) search incident to a lawful arrest;[107] (2)
search of a moving motor vehicle;[108] (3) search in violation of customs
Q    And what happened upon arrival thereat? A     No, sir.
laws;[109] (4) seizure of evidence in plain view;[110] (5) when the accused
himself waives his right against unreasonable searches and seizures.[111]
A     We saw alias Neneth inside the house and we asked him to give Q    She was not about to commit any crime because she was just
us the buy-bust money, sir. outside the house doing her daily chores.  Am I correct?
The prosecution admits that appellant Gaddao was arrested without a
warrant of arrest and the search and seizure of the box of marijuana
and the marked bills were likewise made without a search warrant. It is Q     You mentioned "him?" A     I just saw her outside, sir.
claimed, however, that the warrants were not necessary because the
CRIMINAL LAW FULL CASES
Q    And at that point in time you already wanted to arrest her.  That ATTY. VALDEZ:
is correct, is it not?
I was asking him precisely.
A     Yes, sir.
PROSECUTOR:
Q     Now, if any memory of your testimony is correct, according to you
SPO1 Manlangit approached her?
No basis.
A     PO3 Manlangit, sir.
COURT:
Q     You did not approach her because PO3 Manlangit approached
Sustained.
her?
Q     Alright.  I will ask you a question and I expect an honest
A     Yes, sir.
answer.  According to the records, the amount of P1,600.00 was
recovered from the person of Aling Neneth.  That's right?
Q     During all the time that this confrontation, arrest or whatever by
SPO3 Manlangit was taking place, you were just in the side lines?
A     Yes, sir, the buy-bust money.
A     I was just watching, sir.
Q     What you are now saying for certain and for the record is the fact
that you were not the one who retrieved the money from Aling
Q     So you were just an on-looker to what Manlangit was doing, Neneth, it was Manlangit maybe?
because precisely according to you your role in this buy-bust operation
was as a back-up?
A     I saw it, sir.
A     Yes, sir.
Q     It was Manlangit who got the money from Aling Neneth?
Q     Who got the alleged marijuana from inside the house of Mrs.
A     The buy-bust money was recovered from the house of Aling
Neneth?
Neneth, sir.
A     PO3 Manlangit, sir.
Q     It was taken from the house of Aling Neneth, not from the person
of Aling Neneth.  Is that what you are trying to tell the Court?
Q     Manlangit got the marijuana?
A     No, sir.
A     Yes, sir.
ATTY. VALDEZ:    I am through with this witness, your Honor."[113]
Q     And the money from Aling Neneth?
Accused-appellant Gaddao was not caught red-handed during the buy-
A     I don't know, sir. bust operation to give ground for her arrest under Section 5 (a) of Rule
113.  She was not committing any crime. Contrary to the finding of the
trial court, there was no occasion at all for appellant Gaddao to flee
Q     You did not even know who got the money from Aling Neneth?
from the policemen to justify her arrest in "hot pursuit." [114] In fact, she
was going about her daily chores when the policemen pounced on her.
PROSECUTOR:
Neither could the arrest of appellant Gaddao be justified under the
There is no basis for this question, your Honor.  Money, there's no second instance of Rule 113.  "Personal knowledge" of facts in arrests
testimony on that. without warrant under Section 5 (b) of Rule 113 must be based upon
"probable cause" which means an "actual belief or reasonable grounds
of suspicion."[115] The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the offense, is
based on actual facts, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt of the person
to be arrested.[116] A reasonable suspicion therefore must be founded
on probable cause, coupled with good faith on the part of the peace
officers making the arrest.[117]
Accused-appellant Gaddao was arrested solely on the basis of the
alleged identification made by her co-accused.  PO3 Manlangit,
however, declared in his direct examination that appellant Doria
named his co-accused in response to his (PO3 Manlangit's) query as to
where the marked money was.[118] Appellant Doria did not point to
appellant Gaddao as his associate in the drug business, but as the
person with whom he left the marked bills.  This identification does not
necessarily lead to the conclusion that appellant Gaddao conspired
with her co-accused in pushing drugs.  Appellant Doria may have left
the money in her house,[119] with or without her knowledge, with or
without any conspiracy.  Save for accused-appellant Doria's word, the
Narcom agents had no reasonable grounds to believe that she was
engaged in drug pushing.  If there is no showing that the person who
effected the warrantless arrest had, in his own right, knowledge of
facts implicating the person arrested to the perpetration of a criminal
offense, the arrest is legally objectionable.[120]
Since the warrantless arrest of accused-appellant Gaddao was illegal, it
follows that the search of her person and home and the subsequent
seizure of the marked bills and marijuana cannot be deemed legal as
an incident to her arrest.  This brings us to the question of whether the
trial court correctly found that the box of marijuana was in plain view,
making its warrantless seizure  valid.
Objects falling in plain view of an officer who has a right to be in the
position to have that view are subject to seizure even without a search
warrant and may be introduced in evidence.[121] The "plain view"
doctrine applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification
for an intrusion or is in a position from which he can view a particular
area; (b) the discovery of the evidence in plain view is inadvertent; (c) it
is immediately apparent to the officer that the item he observes may
be evidence of a crime, contraband or otherwise subject to seizure.
[122]
 The law enforcement officer must lawfully make an initial intrusion
or properly be in a position from which he can particularly view the
area.[123] In the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused.[124] The object
must be open to eye and hand[125] and its discovery inadvertent.[126]
It is clear that an object is in plain view if the object itself is plainly
exposed to sight.  The difficulty arises when the object is inside a closed
CRIMINAL LAW FULL CASES

container.  Where the object seized was inside a closed package, the INTERPRETER A     Yes, sir.
object itself is not in plain view and therefore cannot be seized without
a warrant.  However, if the package proclaims its contents, whether by
Witness went down the witness stand and approached a carton box. Q     When you proceeded to take hold of this carton, Aling Neneth was
its distinctive configuration, its transparency, or if its contents are
not yet frisked, is it not [sic]?
obvious to an observer, then the contents are in plain view and may be
seized.[127] In other words, if the package is such that an experienced A     Like this, sir.
observer could infer from its appearance that it contains the prohibited A     I just don't know if she was frisked already by Badua, sir.
article, then the article is deemed in plain view.[128] It must be PROSECUTOR
immediately apparent to the police that the items that they observe Q     Who got hold of this?
may be evidence of a crime, contraband or otherwise subject to
seizure.[129] Can we describe it?
A     I was the one, sir.

PO3 Manlangit, the Narcom agent who found the box, testified on ATTY. VALDEZ
cross-examination as follows:  Q     You were the one who got this?
Yes.
"ATTY. VALDEZ: A     Yes, sir.
PROSECUTOR
So here we are.  When you and Badua arrived, Aling Neneth was inside Q     At that particular point in time, you did not know if the alleged
the house? buy-bust money was already retrieved by Badua?
One flap is inside and the other flap is standing and with the contents
visible.
A     Yes, sir. A     Yes, sir.
COURT
Q     Badua demanded from Aling Neneth the buy-bust money? Q     You went inside the house?
Noted.
A     Yes, sir. A     Yes, sir.
Q    At this juncture, you went inside the house?
Q    At that particular instance, you saw the carton? Q     You did not have any search warrant?
A     Yes, sir.
A     Yes, sir. A     Yes, sir.
Q    And got hold of this carton?
Q    This carton, according to you was under a table? Q     In fact, there was nothing yet as far as you were concerned to
validate the fact that Mrs. Gadao was in possession of the buy-bust
A     Yes, sir.
money because according to you, you did not know whether Badua
A     Yes, sir, dining table. already retrieved the buy-bust money from her?
Q    Did you mention anything to Aling Neneth?
Q    I noticed that this carton has a cover? A     Yes, sir.
A     I asked her, what's this...
A     Yes, sir. Q     How far was this from the door?
Q     No, no. no. did you mention anything to Aling Neneth before
Q    I ask you were the flaps of the cover raised or closed? getting the carton?
A     Two and a half meters from the door, sir.  It was in plain view.

A     It was open, sir.  Not like that. A     I think it was Badua who accosted Aling Neneth regarding the buy-
Q     Under the table according to you?
bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan
ang buy-bust money namin?" sir.
COURT A     Yes, sir, dining table.
Q     Making reference to the marijuana that was given by alias Jun?
Go down there. Show to the court. Q     Somewhere here?
CRIMINAL LAW FULL CASES

A     It's far, sir. What is that?  What can you say, Fiscal?  I'm asking you? COURT

PROSECUTOR PROSECUTOR Continue.  Next question.

May we request the witness to place it, where he saw it? With due respect, what I am saying is, let's place the size of the                 x                                  x                                       x."[130]
plastic.  A piece of plastic may be big or a small one, for record
purposes.
A     Here, sir. PO3 Manlangit and the police team were at appellant Gaddao's house
because they were led there by appellant Doria.  The Narcom agents
COURT testified that they had no information on appellant Gaddao until
Q    What you see is a carton?
appellant Doria named her and led them to her.[131] Standing by the
door of appellant Gaddao's house, PO3 Manlangit had a view of the
 Leave that to the court.
A     Yes, sir, with plastic. interior of said house.  Two and a half meters away was the dining
table and underneath it was a carton box.  The box was partially open
PROSECUTOR and revealed something wrapped in plastic.
Q    Marked "Snow Time Ice Pop?"

Leave that to the court. In his direct examination, PO3 Manlangit said that he was sure that the
A     Yes, sir.
contents of the box were marijuana because he himself checked and
Q    The only reason according to you, you were able to... Look at this, marked the said contents.[132] On cross-examination, however,
Q    With a piece of plastic visible on top of the carton? he  admitted that he merely presumed the contents to be marijuana
no even Superman... I withdraw that.  Not even a man with very kin
[sic] eyes can tell the contents here.  And according to the Court, it because it had the same plastic wrapping as the "buy-bust
A     Yes, sir. could be "tikoy," is it not [sic]? marijuana."  A close scrutiny of the records reveals that the plastic
wrapper was not colorless and transparent as to clearly manifest its
contents to a viewer.  Each of the ten (10) bricks of marijuana in the
Q    That is all that you saw? A     Yes, sir. box was individually wrapped in old newspaper and placed inside
plastic bags-- white, pink or blue in color.[133] PO3 Manlangit himself
A     Yes, sir. Q    Siopao? admitted on cross-examination that the contents of the box could be
items other than marijuana.  He did not know exactly what the box
contained that he had to ask appellant Gaddao about its contents.
PROSECUTOR A     Yes, sir. [134]
 It was not immediately apparent to PO3 Manlangit that the
content of the box was marijuana.  The marijuana was not in plain
For the record, your Honor... Q    Canned goods? view and its seizure without the requisite search warrant was in
violation of the law and the Constitution.[135] It was fruit of the
Q     You were only able to verify according to you... poisonous tree and should have been excluded and never considered
A     Yes, sir.
by the trial court.[136]

PROSECUTOR Q    It could be ice cream because it says Snow Pop, Ice Pop?
The fact that the box containing about six (6) kilos of marijuana[137] was
found in the house of accused-appellant Gaddao does not justify a
Panero, wait.  Because I am objecting to the words a piece of A     I presumed it was also marijuana because it may ... finding that she herself is guilty of the crime charged.[138]Apropos is our
plastic.  By reading it... ruling in People v. Aminnudin,[139] viz:
Q    I am not asking you what your presumptions are.  I'm asking you
ATTY. VALDEZ what it could possibly be. "The Court strongly supports the campaign of the government against
drug addiction and commends the efforts of our law enforcement
That's a piece of plastic. A     It's the same plastic, sir. officers against those who would inflict this malediction upon our
people, especially the susceptible youth.  But as demanding as this
campaign may be, it cannot be more so than the compulsions of the
PROSECUTOR ATTY. VALDEZ Bill of Rights for the protection of the liberty of every individual in the
realm, including the basest of criminals.  The Constitution covers with
By reading it, it will connote... this is not a piece of plastic. I'm not even asking you that question so why are you voluntarily saying the mantle of its protection the innocent and the guilty alike against
the information.  Let the prosecutor do that for you. any manner of high-handedness from the authorities, however
praiseworthy their intentions.
ATTY. VALDEZ
CRIMINAL LAW FULL CASES
Those who are supposed to enforce the law are not justified in
disregarding the right of the individual in the name of order.  Order is
too high a price for the loss of liberty.  As Justice Holmes, again, said, 'I
think it a less evil that some criminals should escape than that the
government should play an ignoble part.'  It is simply not allowed in the
free society to violate a law to enforce another, especially if the law
violated is the Constitution itself."[140]
Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972,
as amended by Section 13 of Republic Act No. 7659 punishes the "sale,
administration, delivery, distribution and transportation of a prohibited
drug" with the penalty of reclusion perpetua to death and a fine
ranging from P500,000.00 to P10 million, to wit:
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation
of Prohibited Drugs.-- The penalty of reclusion perpetua to death, and a
fine ranging from five hundred thousand pesos to ten million pesos
shall be imposed upon any person who, unless authorized by law, shall
sell, administer, deliver, give away to another, distribute, dispatch in
transit or transport any prohibited drug, or shall act as a broker in any
of such transactions.
                x                                  x                                       x."
In every prosecution for illegal sale of dangerous drugs, what is
material is the submission of proof that the sale took place between
the poseur-buyer and the seller thereof and the presentation of the
drug, i.e., the corpus delicti, as evidence in court.[141] The prosecution
has clearly established the fact that in consideration of P1,600.00
which he received, accused-appellant Doria sold and delivered nine
hundred seventy (970) grams of marijuana to PO3 Manlangit, the
poseur-buyer.  The prosecution, however, has failed to prove that
accused-appellant Gaddao conspired with accused-appellant Doria in
the sale of said drug.  There being no mitigating or aggravating
circumstances, the lower penalty of reclusion perpetua must be
imposed.[142]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch
156, Pasig City acting as a Special Court in Criminal Case No. 3307-D is
reversed and modified as follows:
1.  Accused-appellant Florencio Doria y Bolado is sentenced to suffer
the penalty of reclusion perpetua and to pay a fine of five hundred
thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama is acquitted.
SO ORDERED.
[G.R. No. 121572. March 31, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOEL ELAMPARO Y
FONTANILLA, accused-appellant. E-xsm
DECISION
QUISUMBING, J.:
On May 31, 1995, the Regional Trial Court of Caloocan City,[1] convicted
appellant of the crime of illegal possession of drugs, imposing upon
him the penalty of reclusion perpetua and ordering him to pay a fine of
P9,000,000.00.
As summarized by the solicitor General, the facts of this case which we
find to be supported by the records are as follows: [2]
"On February 12, 1995, at about 5:00 in the morning, prosecution
witness Police Officer Romeo Baldonado, while attending to his duties
as supervising policeman of the Kalookan Police Station, received a
report from an informant that ‘some people are selling shabu and
marijuana somewhere at Bagong Barrio, Caloocan City’ (TSN, April 11,
1995, p. 3; TSN, April 4, 1995, p. 3). Said informant stated that he
himself succeeded in buying said drugs (ibid., p. 3).
Hence, Police Officer Baldonado formed a ‘buy-bust’ operation team
with himself as team leader and Police Officers Ernesto Andala, Ronielo
Reantillo and Bismark Gaviola as members (TSN, April 4, 1995, p. 4).
Said team proceeded to the area reported to at Progreso P. Gomez,
Bagong Barrio, Kalookan City at around 5:45 in the morning of the
same day (ibid., p. 3). Ky-le
Upon arrival at the area, prosecution witness Gaviola, together with
the informant ‘asset’ stood at the corner of P. Gomez Street, Bagong
barrio, Kalookan City, since the said spot was identified to be the
‘market’ or where the buyers of marijuana await a runner (seller).
Thereafter, a runner later identified to be Erwin Spencer approached
the poseur-buyer, Gaviola, who was asked ‘Iiscore ba kayo’ (TSN, April
5, 1995, p. 22). Having answered, ‘Iiscore kami’, Spencer then left and
returned after five minutes with the marijuana (ibid., p. 22). Gaviola
then handed over the marked money and arrested Spencer, but who
freed himself and ran (TSN, April 4, 1995, p. 7).
Then, the ‘buy-bust’ team pursued Spencer, who ran inside a
bungalow-type house with steel gate (ibid., p. 8). Having trapped
Spencer inside the house, the police officers frisked him and recovered
the marked money (ibid., p. 9). The police officers likewise found
appellant repacking five (5) bricks of ‘marijuana’ wrapped in a
newspaper on top of the round table inside the house’s sala (TSN, April
11, 1995, p. 7). Appellant was then arrested and he confessed that the
source of the ‘marijuana’ was Benguet (TSN, April 4, 1995, p. 10).
Spencer and appellant were later taken to the precinct where they
were delivered to the inquest fiscal for further investigation (TSN, April
11, 1995, p. 8). The arresting officers then executed an affidavit on the
incident and made a request for the National Bureau of Investigation to
conduct examination of the drugs seized (TSN, May 3, 1995, p. 2). The
NBI Report confirmed the drugs seized to be ‘marijuana’ weighing five
(5) kilos (ibid., p. 3)."
On February 15, 1995, the City Prosecutor charged appellant with the
crime of illegal possession of drugs under the following Information:[3]
"That on or about the 12th day of February 1995 in Kalookan City,
M.M. and within the jurisdiction of this Honorable Court, the above-
named accused, without having been authorized by law, did then and
there wilfully, unlawfully and feloniously have in his possession,
custody and control 5.208 kgs. of Marijuana, knowing the same to be a
prohibited drugs (sic).
CONTRARY TO LAW." Ky-calr
On March 1, 1995, appellant, duly assisted by counsel de
oficio, entered a plea of not guilty.[4]
During trial, the prosecution presented as its witnesses (1) PO2 Bismark
Gaviola, the poseur-buyer, (2) SPO2 Romeo Baldonado, one of the
police officers who took part in the buy-bust operation, and (3) Juliet
Gelacio Mahilum, a forensic chemist at the National Bureau of
Investigation (NBI). Mahilum testified that she conducted three types
of examination on the five (5) bricks of marijuana flowering tops
(chemical examination, microscopic examination, and chromatographic
examination) and that each of the five (5) bricks gave positive results
for marijuana.[5]
For the defense, appellant and Angelo Bernales, a boarder at
appellant’s house, testified. Their version of the incident is as follows: [6]
"JOEL ELAMPARO y FONTANILLA, the accused herein, gave a very
different version of the incident. At around 6:00 to 7:30 in the morning
of February 12, 1995, he was at their house when somebody knocked
at their door. His father opened the same and was informed that
somebody was looking for him. He went out and saw Erwin Spencer
CRIMINAL LAW FULL CASES
with handcuffs and being held by an arresting officer. He likewise
sighted PO3 Bismark Gaviola holding a big box. When he persistently
questioned Erwin Spencer as to why he was arrested, the arresting
officers got mad at him prompting them to likewise bring him to the
police station where he was detained. The arresting officers demanded
the amount of P15,000.00 for his release. He remained in jail as he
refused to accede to their demand. On the other hand, Erwin Spencer
was released two (2) days after they were jailed for the latter gave
money to the police officers. (TSN, pp. 1-8, May 9, 1995). Calr-ky
ANGELO BERNALE (sic), a student, testified that he is renting a small
room at the accused’ (sic) house located at No. 2 P. Gomez St., Bagong
Barrio, Kalookan City. On February 12, 1995, at about 6:00 to 7:00
o’clock in the morning he was about to go out of the accused’ (sic)
house to bring breakfast to his father when he sighted Erwin Spencer in
handcuffs, in the company of three policemen one of whom was
holding a box. Then he saw the policemen knocked at the door of the
accused’ (sic) house. Shortly thereafter, the accused was taken away by
the policemen."
After trial, the court rendered its decision,[7] disposing as follows:
"WHEREFORE, premises considered, this Court finds accused JOEL
ELAMPARO Y FONTANILLA, GUILTY beyond reasonable doubt for
violation of Section 8, Art. II of R.A. 6425, and is hereby sentenced to
suffer the penalty of RECLUSION PERPETUA and a fine of NINE MILLION
(P9,000,000.00) PESOS, pursuant to Section 17 of the Death Penalty.
With Costs.
SO ORDERED."
Hence, the present appeal. Appellant now contends that the trial court
erred in -[8]
I.        …GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION
WITNESSES AND DISREGARDING THE THEORY OF THE DEFENSE.
II.       …FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT
FOR VIOLATION OF SECTION 4 [SHOULD BE SEC. 8] OF R.A. 6425.
III.      CONTENDING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE
OFFENSE CHARGED, THE TRIAL COURT GRAVELY ERRED IN NOT
APPRECIATING THE MITIGATING CIRCUMSTANCE OF MINORITY. Jjs-c
In his brief, appellant assails the credibility of the prosecution
witnesses. He contends that it is highly unusual for arresting officers to
act on an ‘information’ of an unknown source without confirming the
veracity of the report, and that it is incredible that a peddler of
marijuana would be so brazen as to approach total strangers and offer
to sell them marijuana. Appellant insists that he was charged with As to the warrantless search, Section 2 Article III of the 1987
illegal possession of marijuana because he failed to pay the police Constitution prohibits a search and seizure without a judicial warrant.
officers the amount of P15,000.00 for his release, unlike Spencer, who Further, Section 3 thereof provides that any evidence obtained without
paid said amount. Appellant assails the legality of his arrest inside the such warrant is inadmissible for any purpose in any proceeding.
house of his father for failure of the apprehending officers to secure a
search warrant. Lastly, appellant contends that if found guilty, the
However, not being absolute, the right against unreasonable searches
privileged mitigating circumstance of minority should be appreciated in
and seizures is subject to exceptions. Thus, for example, Section 12 of
his favor.
Rule 126, of the Rules on Criminal procedure, provides that a person
lawfully arrested may be searched for "dangerous weapons or anything
The Office of the Solicitor General, for the State, contends that further which may be used as proof of the commission of an offense, without a
surveillance was unnecessary because the police "asset" had personal search warrant."
knowledge of the open buying and selling of "marijuana" in the area,
having purchased his "marijuana" a few hours before reporting the
Five generally accepted exceptions to the right against warrantless
matter to the police. Appellant also misrepresented himself in saying
searches and seizures have also been judicially formulated, viz: (1)
that Spencer was released without charges considering that a separate
search incidental to a lawful arrest, (2) search of moving vehicles, (3)
investigation was conducted against the latter. The OSG contends that
seizure in plain view, (4) customs searches, and (5) waiver by the
appellant’s arrest was an incident to a lawful hot pursuit made against
accused themselves of their right against unreasonable search and
Spencer. Appellant, in the course of the pursuit was surprised in plain
seizure.[11]marinella
view to be repacking the five (5) bricks of marijuana. The OSG
concedes, however, that the privileged mitigating circumstance of
minority should be appreciated in favor of appellant. Considering its factual milieu, this case falls squarely under the plain
view doctrine. In People v. Doria, 301 SCRA 668, 710-711 (1999), we
held that –
Considering the assigned errors and the foregoing contentions, we find
that here the issues pertain, first, to the assessment of credibility of
witnesses; second, the validity of appellant’s arrest; and third, the "Objects falling in plain view of an officer who has a right to be in the
correctness of the penalty imposed by the trial court. position to have that view are subject to seizure even without a search
warrant and may be introduced in evidence. The "plain view" doctrine
applies when the following requisites concur: (a) the law enforcement
As to the first issue, it is well-settled that the assessment of credibility
officer in search of the evidence has a prior justification for an intrusion
of witnesses is within the province of the trial court which had an
or is in a position from which he can view a particular area; (b) the
opportunity to observe the witnesses and their demeanor during their
discovery of the evidence in plain view is inadvertent; (c) it is
testimonies. Unless the trial court overlooked substantial facts which
immediately apparent to the officer that the item he observes may be
would affect the outcome of the case, we accord the utmost respect to
evidence of a crime, contraband or otherwise subject to seizure. The
their findings of facts. As compared to the baseless disclaimers of
law enforcement officer must lawfully make an initial intrusion or
appellant, the narration of the incident by the prosecution witnesses
properly be in a position from which he can particularly view the area.
appears worthy of belief, coming as it does from law enforcers who are
In the course of such lawful intrusion, he came inadvertently across a
presumed to have regularly performed their duty in the absence of
piece of evidence incriminating the accused. The object must be open
proof to the contrary.[9]Esm
to eye and hand and its discovery inadvertent."
Appellants claims that it is highly suspect that Spencer would offer to
When Spencer wrenched himself free from the grasp of PO2 Gaviola,
sell marijuana to total strangers. However, in many cases, drug pushers
he instinctively ran towards the house of appellant. The members of
did sell their prohibited articles to prospective customers, be they
the buy-bust team were justified in running after him and entering the
strangers or not, in private as well as in public places, even in the
house without a search warrant for they were hot in the heels of a
daytime. Indeed, some drug pushers appear to have become
fleeing criminal. Once inside the house, the police officers cornered
exceedingly daring, openly defiant of the law. Hence, what matters is
Spencer and recovered the buy-bust money from him. They also caught
not the existing familiarity between the buyer and the seller, or the
appellant in flagrante delicto repacking the marijuana bricks which
time and venue of the sale, but the fact of agreement as well as the act
were in full view on top of a table. PO2 Gaviola testified as to the
constituting sale and delivery of prohibited drugs.[10] As found a quo, it
circumstances of appellant’s arrest as follows – [12]
was the consummated sale between PO2 Gaviola and Spencer which
led to the eventual arrest of appellant.
PUBLIC PROSECUTOR EULOGIO MANANQUIL, JR.
CRIMINAL LAW FULL CASES
Q: Now how were you able to enter the house?
PO2 GAVIOLA: nigel
A: Because the door was already open.
Q: When you entered the house, what happened inside the house?
A: We saw Joel Elamparo, sir. He was then repacking five (5) bricks of
marijuana wrapped in a newspaper.
Q: Where was it placed, this five (5) packed (sic) of marijuana?
A: It was placed on top of the table, sir.
Q: Was Joel Elamparo alone when you saw him repacking these five (5)
bricks of marijuana?
A: He has some companions in the house, his wife, 2 other women, his
father and there was one man there who was a boarder.
Q: Now you said that you saw Joel Elamparo repacking five bricks of
marijuana, now who was his companion in repacking the same?
A: He was alone, sir.
Hence, appellant’s subsequent arrest was likewise lawful, coming as it
is within the purview of Section 5 (a) of Rule 113 of the 1985 Rules on
Criminal Procedure, to wit:
"Sec. 5. – Arrest without warrant, when lawful. – A peace officer or a
private person may, without a warrant, arrest a person:
(a)      When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
..."
Section 5 (a) is commonly referred to as the rule on in flagrante
delicto arrests.[13] Here two elements must concur: (1) the person to be
arrested must execute an overt act indicating the he has just
committed, is actually committing, or is attempting to commit a crime;
and (2) such overt act is done in the presence or within the view of the
arresting officer.[14] Thus, when appellant was seen repacking the
marijuana, the police officers were not only authorized but also duty-
bound to arrest him even without a warrant. ella
Although the caption of the Information charges the appellant with
violation of Section 4 of Article II of Republic Act No. 6425, as amended
by Republic Act No. 7659,[15] otherwise known as the death penalty law,
which refers to the sale, administration, delivery, distribution and
transportation of prohibited drugs, the body of the Information
charges appellant with the crime of illegal possession of prohibited
drugs under Section 8 of Article II of R.A. No. 6425, as amended by R.A.
No. 7659. We have held that it is not the designation of the offense in
the Information that is controlling but the allegations therein which
directly apprise the accused of the nature and cause of the accusation
against him.[16] Appellant having been fully apprised of the elements of
the crime of illegal possession of prohibited drugs, he may properly be
convicted of the crime of illegal possession of marijuana.
In drug cases, the quantity of prohibited drugs involved is
determinative of the imposable penalty. Section 20 of R.A. No. 6425, as
amended by Section 17 of R.A. No. 7659, provides that when the
quantity of indian hemp or marijuana is 750 grams or more, as in this
case, the penalty shall be reclusion perpetua to death and fine ranging
from five hundred thousand pesos (P500,000.00) to ten million pesos
(P10,000,000.00).
Appellant having been born on January 9, 1978,[17] was only 17 years, 1
month, and 3 days old, at the time of the commission of the crime on
February 12, 1995. Beginning with our decision in People v. Simon,
[18]
 and reiterated in a number of decisions thereafter, the Court has
recognized the suppletory application of the rules on penalties in the
Revised Penal Code to the Dangerous Drugs Act after the amendment
of the latter by Republic Act No. 7659. Appellant being a minor over
fifteen and under eighteen at the time of the commission of the crime,
he is entitled to a reduced penalty due to the privileged mitigating
circumstance of minority under Article 13 (2) of the Revised Penal
code. Article 68 (2) of the Revised Penal Code provides that the penalty
next lower than that prescribed by law shall be imposed, but always in
the proper period. Applying the provisions of Article 61 (2) of the
Revised Penal Code which prescribes the rules for graduating penalties,
the imposable penalty on appellant is the penalty next lower in degree
immediately following the lesser of the penalties prescribed in the
respective graduated scale. The penalty next lower in degree
than reclusion perpetua is reclusion temporal. There being no generic
mitigating or aggravating circumstances, the penalty ofreclusion
temporal shall be imposed in its medium period. Applying the
Indeterminate Sentence Law, the minimum shall be within the range of
the penalty next lower in degree which isprision mayor. No fine is
imposable in this case, for it is imposed as a conjunctive penalty only if
the penalty is reclusion perpetua to death.[19]alonzo
WHEREFORE, the decision of the Regional Trial Court, Caloocan City,
Branch 121, in Criminal Case No. C-48478 (95) finding appellant JOEL
ELAMPARO Y FONTANILLA guilty beyond reasonable doubt of the crime
of illegal possession of drugs is hereby AFFIRMED WITH MODIFICATION
that he is hereby sentenced to suffer the indeterminate penalty of ten
(10) years and one (1) day of prision mayor as minimum, and
seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum. Costs against appellant.
SO ORDERED.
[G.R. No. 109250.  September 5, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORIEL
LACERNA y CORDERO & MARLON LACERNA y ARANADOR, accused.
 MARLON LACERNA y ARANADOR, accused-appellant.
DECISION
PANGANIBAN, J.:
The unrelenting and pervading war against illegal drugs has absorbed
the attention of all branches of government, both national and local, as
well as media, parents, educators, churches and the public at
large.  This case is one more intrepid battle in such all-out war.  Herein
appellant seeks acquittal on the ground that his acts did not constitute
the crime of “giving away prohibited drugs” penalized by Section 4 of
Republic Act No. 6425, as amended (The Dangerous Drugs
Act).  Nonetheless, he cannot escape the law because the very same
deeds, which appellant admits to have performed, show his culpability
for “illegal possession of prohibited drugs” -- penalized in Section 8 of
R.A. 6425, as amended -- which is necessarily included in the crime
charged in the Information.
Statement of the Case
This ruling is explained by the Court as it resolves this appeal from the
Decision,[1] dated February 24, 1993, of the Regional Trial Court of
Manila, Branch 16,[2] convicting Appellant Marlon Lacerna y Aranador
“of violation of Section 4 of Republic Act No. 6425, as amended x x x.”
Asst. City Prosecutor of Manila Juan O. Bermejo, Jr. charged appellant
and Noriel Lacerna in an Information,[3] dated September 16, 1992,
which reads as follows:[4]
“The undersigned accuses NORIEL LACERNA Y CORDERO and MARLON
LACERNA Y ARANADOR of a violation of Section 4 Art. II, in relation to
Section 21, Art. IV of Republic Act 6425, as amended by Presidential
Decree No. 1675, xxx
“That on or about September 12, 1992, in the City of Manila,
Philippines, the said accused, not being authorized by law to sell,
CRIMINAL LAW FULL CASES
deliver or give away to another or distribute any prohibited drug, did
then and there wilfully, unlawfully and jointly sell, deliver or give away
to another the following, to wit:
Eighteen (18) blocks of marijuana
flowering tops - weight – 18.235 kilograms
which is a prohibited drug.”
When the case was called for arraignment on October 7, 1992,
appellant and his co-accused appeared without counsel but they
alleged that they had engaged the services of a certain Atty.
Kangleon.  Thus, the trial court provisionally appointed Atty. Rodolfo P.
Libatique of the Public Attorney’s Office as counsel de oficio, in case
Atty. Kangleon did not appear for the arraignment on October 28,
1992.[5] Because the alleged counsel de parte failed to show up during
the arraignment on that date, Atty. Libatique assisted the accused who
pleaded “not guilty.”[6]
After trial on the merits, the court a quo promulgated the assailed
Decision, the dispositive portion of which reads:[7]
“WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
I.  The guilt of the accused Marlon Lacerna having been established
beyond reasonable doubt for the crime of violation of Section 4 of RA
6425, as amended, he is found guilty of the same, sentencing him to
life imprisonment and to pay a fine of P20,000.  With costs.
II.   The guilt for the crime charged of accused Noriel Lacerna not
having been established beyond reasonable doubt he is hereby
ACQUITTED.  The warden of the Manila City Jail is ordered to release
his person, unless held on other charges.
The evidence seized in this case is to remain in the custody of the NBI
Director as Drugs Custodian of the Dangerous Drugs Board.  (RA 425,
Sec. 36; Supreme Court Circular No. 9 dated July 18, 1973) to be
properly disposed of after the final disposition of this case.”
Hence, only Marlon Lacerna (his co-accused having been acquitted)
interposed this appeal direct to the Supreme Court in view of the life
penalty imposed.[8]
The Facts
Version of the Prosecution
The prosecution presented the following witnesses: PO3 Carlito P.
Valenzuela, Forensic Chemist Aida A. Pascual, and PO3 Rafael
Melencio.  Their testimonies are summarized by the Solicitor General in
the Appellee’s Brief as follows: [9]
“On September 12, 1992, Police Officer 3 (PO3) Carlito P. Valenzuela, a
member of the Mobile Patrol Division of the Western Police District
(WPD), was assigned to man the checkpoint and patrol the area
somewhere along the sidestreets of Radial Road near Moriones
Street.  The assignment to monitor strategic places in the city and
barangays of Manila was a direct order from General Nazareno.  Thus,
he and his companion PO3 Angelito Camero went about cruising the
area in their Mobile Patrol car, with PO3 Valenzuela at the helm.  At
about 2:00 p.m., appellant and co-accused, who were aboard a taxicab,
passed by PO3 Valenzuela’s place of assignment, which was then heavy
with traffic, looking suspicious (t.s.n., PO3 Valenzuela, Nov. 11, 1992,
pp. 3-4; Nov. 20, 1992, pp. 2-7).
Appellant was seated beside the taxi driver while co-accused was
seated at the left back seat of the taxi.  When PO3 Valenzuela looked at
the occupants of said taxi, the latter bowed their heads and slouched,
refusing to look at him.  Feeling that something was amiss, PO3
Valenzuela and his companion stopped the vehicle, signaling the driver
to park by the side of the road (t.s.n., PO3 Valenzuela, Nov. 11, 1992,
pp. 3-4).
PO3 Valenzuela and his co-police officer asked permission to search the
vehicle.  As the occupants readily agreed, the police officers went
about searching the luggages in the vehicle which consisted of a
knapsack and a dark blue plastic grocery bag.  They asked appellant
what the contents of the plastic bag were.  Co-accused Noriel Lacerna
immediately answered that the bag contained his vomit (t.s.n., PO3
Valenzuela, Nov. 11, 1992, pp. 4-5).
Skeptical of what appellant and co-accused disclosed as regards the
contents of the plastic bag, PO3 Valenzuela made a hole in the bag and
peeped inside.  He found several blocks wrapped in newspaper, with
the distinct smell of marijuana emanating from it.  PO3 Valenzuela
opened one of the boxes and saw dried marijuana leaves.  He told
appellant and co-accused that the contents of the bag were marijuana,
which co-accused readily affirmed.  According to both Lacernas, the
bag was a ‘padala’ of their uncle.  Specifically, they claimed that the
bag was sent by their uncle, who happened to be in Baguio City, for
shipment to Iloilo (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 5-7; Nov.
20, 1992, pp. 8-10).
Appellant and co-accused, and the plastic bag containing blocks of
marijuana were brought by PO3 Valenzuela and PO3 Camero to the
WPD Headquarters on UN Avenue, Manila. [10] At about 9:00 p.m. of the
same day, both appellant and co-accused were turned over to PO3
Rafael Melencio for investigation while the blocks were turned over to
Lt. de Soto (tsn., PO3 Melencio, Dec. 11, 1992, pp. 3-5. 20).
Lt. de Soto counted the blocks of marijuana, numbering eighteen (18)
in all.  Each block was wrapped in newspaper.  After seeing what the
contents of the blocks were, the specimens (Exhs. ‘B’ to ‘B-19) were
brought to the National Bureau of Investigation (NBI) for further
examination.[11] On the other hand, PO3 Melencio investigated
appellant and co-accused, informing them of their constitutional rights
during a custodial investigation.  Thereafter, he prepared the Affidavit
of Apprehension and the Booking Sheet and Arrest Report (Exhs. ‘A’,
‘G’, List of Exhibits, pp. 1, 15; tsn., PO3 Melencio, Dec. 11, 1992, pp. 15-
24).
NBI Forensic Chemist Aida A. Pascual examined the eighteen (18)
confiscated blocks which tested positive of containing marijuana (Exhs.
‘C’, ‘F’ to ‘F-9’. List of Exhibits, pp. 2-14; tsn., A. Pascual, Dec. 2, 1992,
pp. 2-5).”
Version of the Defense
Appellant sets up the defense of denial, alleging that the blue plastic
bag was owned by his uncle who requested him to bring it to Iloilo.  He
also denied knowing that it contained marijuana.  In his Brief prepared
by the Public Attorney’s Office, he narrated his version of the factual
circumstances of this case, as follows: [12]
“On September 12, 1992, at about 2:00 P.M., accused Marlon and
Noriel Lacerna were riding in a taxicab on their way to (the) North
Harbor to board a boat bound for Iloilo City.  While plying along Pier 15
their taxicab was flagged down by a patrol mobile car.  Accused Marlon
Lacerna (appellant herein) was sitting in front while accused Noriel
Lacerna was at the back of the taxicab.  The accused carried two
bags.  One bag contained their personal belongings and the other bag
contained things which their uncle Edwin Lacerna asked them to bring
along.  When their taxicab was stopped, the two policemen in the
Mobile car requested them that they and their baggage be
searched.  Confident that they have not done anything wrong, they
allowed to be searched.  During the (search), the two accused were not
allowed to alight from the taxicab.  The knapsack bag which contained
their clothes was first examined in front of them.  The second bag was
taken out from the taxi and was checked at the back of the
taxicab.  The accused were not able to see the checking when the
policemen brought the plastic bag at the back of the taxi.  After
checking, the policemen told them its ‘positive’.  The accused were
(asked) to alight and go to the patrol car.  They were brought to the
WPD Headquarters at United Nations.  While there, they were brought
inside a room.  They asked what wrong they have done but the
policemen told them to wait for Major Rival.  At about 8:00 o’clock
P.M., Major Rival talked to them and asked them where the baggage
came from and they answered that it was given to them by their
CRIMINAL LAW FULL CASES
uncle.  Then Major Rival asked them to hold the marijuana and pictures
were taken.  Later, they were brought inside the cell where they were
maltreated by the ‘Kabo’.  The ‘Kabo’ forced them to admit ownership
of the marijuana.  Noriel was boxed on the chest, blindfolded and a
plastic (bag) was placed on his neck and was strangled.  The mauling
took place for about 30 minutes inside the toilet.  They refused to sign
the Booking and Arrest Report but they impressed their fingerprint on
a white bond paper.  They were brought by Melencio to the Inquest
Prosecutor at the City Hall.  On the way to the Inquest Prosecutor,
Melencio told them to admit the charge against them before the
Inquest Fiscal, because if they will deny, something (would happen) to
them in the afternoon and Melencio even uttered to them ‘vulva of
your mother.’  Because they were apprehensive and afraid, they
admitted the charge before the Inquest Fiscal.
(Appellant) Marlon Lacerna first met his uncle Edwin Lacerna at Munoz
Market.  The second time was on September 11, 1992, when his uncle
went to his brother’s house in Caloocan City and requested him to
bring his (uncle) personal belongings upon learning that he (Marlon) is
leaving for Iloilo city the next day, September 12, 1992.  He told his
uncle to bring his personal belongings either in the evening of that day
or the following day at the (Grand) Central (Station), Monumento
because he was going to buy a ticket for Noriel as he intend (sic) to
bring the latter with him in going home to the province.  His uncle
already gave a ticket for him.  When he and Noriel (arrived) at the
Grand Central at about 10:00 o’clock A.M. on September 12, 1992,
their uncle was already there.  The latter placed the plastic bag besides
their baggages.  They no longer inspected the contents of the bag as
the same was twisted and knotted on top.  After getting a ticket from
the office of Don Sulpicio Lines, Marlon told Noriel to hail a taxi and
then they proceeded to the pier.
(Appellant’s) purpose in going home to Iloilo was to get all the
requirements needed in his application to enter the Marines.
Accused Noriel just arrived in Manila three days before September 12,
1992 to look for a job and was staying with (appellant) at Caloocan
City.  In the evening of September 11, 1992, (appellant) requested him
to come xxx with him to Iloilo and assured him that he (would) be the
one to pay for (Noriel’s) fare.  (TSN., January 6, 1993, pp. 3-23; January
8, 1993, pp. 2-12; January 11, 1993, pp. 2-18; January 20, 1992, pp. 2-6;
January 22, 1993, pp. 2-14)”
Ruling of the Trial Court
The court a quo observed that appellant could not be convicted of
“delivering” prohibited drugs because the Information did not allege
that he knowingly delivered marijuana.  Neither could he be convicted
of “transporting or dispatching in transit” such prohibited drugs
because these acts were not alleged in the Information.  The trial court
mused further that appellant could not be convicted of “selling”
marijuana because the elements constituting this crime were not
proven.  However, the Information charged appellant with “giving
away to another” prohibited drugs, a charge which was different from
“delivery” defined under Section 2 (f) [13] of R.A. 6245, as
amended.  Citing People vs. Lo Ho Wing,[14] the trial court ruled that
“giving away” to another is akin to “transporting” prohibited drugs,
a malum prohibitum established by the mere commission of said
act.  Thus, the court a quo convicted appellant of “giving away”
marijuana to another on the following premise:[15]
“It is not denied by (appellant) that he did give to his co-accused cousin
Noriel Lacerna the bundled 18 blocks of marijuana who thereupon
seated himself at the rear of the taxi with the marijuana.  His claim that
he did not know the contents of the blue plastic bag can hardly be
believed because it is within judicial notice that the marijuana contents
readily emits a pungent odor so characteristic of marijuana as what
happened when the 18 blocks were displayed in open Court.  But as
stated, guilty knowledge is not required by the phrase ‘GIVE AWAY TO
ANOTHER’ (Sec. 4).  It was clearly established that he gave the stuff to
another, that is, to his co-accused Noriel Lacerna.  The law does not
distinguish as to whether the word ‘another’ refers to a third person
other than a co-accused or to a co-accused.  The information, as in the
case at bar, need not allege guilty knowledge on the part of Marlon
Lacerna in ‘giving away’ to another the marijuana.  (Appellant) should,
therefor be found culpable for violating Section 4 of RA 6425, as
amended, as charged for ‘giving away to another’ the marijuana.”
Accused Noriel Lacerna, on the other hand, was acquitted for
insufficiency of evidence.  The court a quo reasoned that “it cannot be
said that he did ‘give away to another’ the marijuana for it was
(appellant) who gave the marijuana to (Noriel).”  Besides, unlike
appellant who was urbanized in mannerism and speech, Noriel Lacerna
manifested probinsyano traitsand was, thus, unlikely to have dealt in
prohibited drugs.
The Issues
Appellant objects to the trial court’s Decision and assigns the following
errors:[16]
“I
The lower court erred in making a sweeping statement that the act of
‘giving away to another(’) is not defined under R.A. 6425 specifically
requiring knowledge what intent one (sic) is passing is a dangerous
drug, as contradistinguished from the term ‘deliver; where knowledge
is required.
II
The lower court erred in not giving credence to the assertion of
accused-appellant that he had no knowledge that what were inside the
plastic bag given to him by his uncle were marijuana leaves.
III
The trial court erred in convicting accused-appellant despite failure of
the prosecution to prove his guilt beyond reasonable doubt.”
The Court’s Ruling
After meticulously reviewing the records of the case and taking into
account the alleged errors cited above and the argument adduced in
support thereof, the Court believes that the issues can be restated as
follows: (1) Was appellant’s right against warrantless arrest and seizure
violated? (2) Was the trial court correct in convicting appellant for
“giving away to another” 18 blocks of marijuana? and (3) May the
appellant be held guilty of “illegal possession” of prohibited
drugs?  The Court answers the first two questions in the negative and
the third in the affirmative.
First Issue:    Appellant’s Right Against
Warrantless Search and Seizure
The defense argues that the bricks of marijuana were inadmissible in
evidence as they were obtained through illegal search and
seizure.  Appellant alleges that at the time of the search and seizure, he
and his co-accused were not committing any crime as they were merely
riding a taxicab on the way to Pier 15, North Harbor in Manila.  Hence,
the precipitate arrest and seizure violated their constitutional right and
the marijuana seized constituted “fruits of the poisonous tree.”
The Solicitor General disagrees, contending that the search and seizure
were consistent with recent jurisprudential trend liberalizing
warrantless search and seizure where the culprits are riding moving
vehicles, because a warrant cannot be secured in time to apprehend
the mobile target.
Both contentions are inaccurate.  In the recent case of People vs.
Cuison,[17] this Court reiterated the principles governing arrest, search
and seizure.  To summarize, let us begin with Section 2, Article III of the
1987 Constitution which provides:
“SEC. 2.  The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
CRIMINAL LAW FULL CASES
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.”
The Constitution further decrees that any evidence obtained in
violation of the provision mentioned is inadmissible in evidence:
“SEC. 3.  x x x
(2)     Any evidence obtained in violation of x x x the preceding section
shall be inadmissible for any purpose in any proceeding.”
However, not being absolute, this right is subject to legal and judicial
exceptions.  The Rules of Court, Section 12 of Rule 126, provides that a
person lawfully arrested may be searched for “dangerous weapons or
anything which may be used as proof of the commission of an offense,
without a search warrant.”
Five generally accepted exceptions to the rule against warrantless
arrest have also been judicially formulated as follows: (1) search
incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in
plain view, (4) customs searches, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure.
[18]
 Search and seizure relevant to moving vehicles are allowed in
recognition of the impracticability of securing a warrant under said
circumstances.  In such cases however, the search and seizure may be
made only upon probable cause, i.e., upon a belief, reasonably arising
out of circumstances known to the seizing officer, that an automobile
or other vehicle contains an item, article or object which by law is
subject to seizure and destruction.[19] Military or police checkpoints
have also been declared to be not illegal per se as long as the vehicle is
neither searched nor its occupants subjected to body search, and the
inspection of the vehicle is merely visual. [20]
In the case at bar, the taxicab occupied by appellant was validly
stopped at the police checkpoint by PO3 Valenzuela.  It should be
stressed as a caveat that the search which is normally permissible in
this instance is limited to routine checks -- visual inspection or flashing
a light inside the car, without the occupants being subjected to physical
or body searches.  A search of the luggage inside the vehicle would
require the existence of probable cause.[21]
In applicable earlier Decisions,  this Court held that there was probable
cause in the following instances: (a) where the distinctive odor of
marijuana emanated from the plastic bag carried by the accused;[22] (b)
where an informer positively identified the accused who was observed
to have been acting suspiciously;[23] (c) where the accused fled when
accosted by policemen;[24] (d) where the accused who were riding a
jeepney were stopped and searched by policemen who had earlier
received confidential reports that said accused would transport a large
quantity of marijuana;[25] and (e) where the moving vehicle was
stopped and searched on the basis of intelligence information and
clandestine reports by a deep penetration agent or spy -- one who
participated in the drug smuggling activities of the syndicate to which
the accused   belonged -- that said accused were bringing prohibited
drugs into the country.[26]
In the case at hand, however, probable cause is not evident. First, the
radio communication from General Nazareno, which the arresting
officers received and which they were implementing at that time,
concerned possible cases of robbery and holdups in their area.
[27]
 Second, Noriel Lacerna’s suspicious reactions of hiding his face and
slouching in his seat when PO3 Valenzuela’s car passed alongside the
taxicab might have annoyed the latter, or any other law enforcer, and
might have caused him to suspect that something was amiss.  But
these bare acts do not constitute probable cause to justify the search
and seizure of appellant’s person and baggage.  Furthermore,
the Claudio ruling cannot be applied to this case because the
marijuana was securely packed inside an airtight plastic bag and no
evidence, e.g., a distinctive marijuana odor, was offered by the
prosecution.
Nonetheless, we hold that appellant and his baggage were validly
searched, not because he was caught in flagrante delicto, but because
he freely consented to the search.  True, appellant and his companion
were stopped by PO3 Valenzuela on mere suspicion -- not probable
cause -- that they were engaged in a felonious enterprise.  But
Valenzuela expressly sought appellant’s permission for the
search.  Only after appellant agreed to have his person and baggage
checked did the actual search commence.  It was his consent which
validated the search, waiver being a generally recognized exception to
the rule against warrantless search.[28]
We are aware that this Court in Aniag, Jr. vs. COMELEC outlawed a
search based on an implied acquiescence, because such acquiescence
was not consent within the purview of the constitutional guaranty, but
was merely passive conformity to the search given under intimidating
and coercive circumstances.[29] In the case before us, however,
appellant himself who was “urbanized in mannerism and speech”
expressly said that he was consenting to the search as he allegedly had
nothing to hide and had done nothing wrong.[30] In his brief, appellant
explicitly, even if awkwardly, reiterated this: “Confident that they [the
accused] have not done anything wrong, they allowed to be
searched.”  This declaration of appellant is a confirmation of his
intelligent and voluntary acquiescence to the search.  The marijuana
bricks were, therefore, obtained legally through a valid search and
seizure.  They were admissible in evidence; there was no poisonous
tree to speak of.
Second Issue:  Did Appellant
“Give Away” the Prohibited Drug?
The trial court justified the conviction of appellant for “giving away to
another” the prohibited drugs, because he literally handed to Noriel
the plastic bag containing marijuana, manually transferring the plastic
bag from the front seat  to the backseat of the taxicab.  We hold,
however, that this is not the act penalized by the Dangerous Drugs Act
of 1972.
Section 4 of R.A. 6425, as amended, the violation of which is charged in
the Information, penalizes “any person who, unless authorized by law,
shall sell, administer, deliver, give awayto another, distribute, dispatch
in transit or transport any prohibited drug, or shall act as a broker in
any of such transactions.”
The phrase “give away” is commonly defined as “to make a present of;
to donate, or to make a sacrifice.”[31] As used in a statute making it an
offense to “sell, give away, or otherwise dispose of” liquor without a
license, this phrase was construed as extending only to a disposition
in ejusdem generis with a sale or a gift.[32] It is synonymous with “to
furnish,” a broad term embracing the acts of selling and giving away
with the intent of transferring ownership.  Selling by itself is one
distinct mode of committing the offense, and furnishing is intended
only to include other modes of affording something to others besides
selling it.[33]
As distinguished from “delivery,” which is an incident of sale, “giving
away” is a disposition other than a sale.  It is, therefore, an act short of
a sale which involves no consideration.  The prohibited drug becomes
an item or merchandise presented as a gift or premium (giveaway),
where ownership is transferred.
According to appellant, he gave the plastic bag and the knapsack to
Noriel because the latter got into the taxicab first and because there
was more room in the backseat than in the front.   By handing the
plastic bag to Noriel, appellant cannot be punished for giving  away
marijuana as a gift or premium to another.  In Cuison,[34] this Court
acquitted an accused of carrying and transporting prohibited drugs
because  the  act  per se  of handing over a baggage at the airport
cannot in any way be considered criminal.
Further, adopting the trial court’s interpretation would lead to absurd
conclusions.  Following the trial court’s line of reasoning, Noriel should
have been held liable for the same crime when he gave the plastic bag
to PO3 Valenzuela for the latter’s inspection.  And yet, the trial court
inexplicably acquitted him.  Valenzuela would similarly be criminally
culpable as he testified that he turned over the plastic bag to his
superior, Lt. de Soto.  It is a well-settled rule that statutes should
receive a sensible construction so as to give effect to the legislative
intention and to avoid an unjust or an absurd conclusion. [35]
CRIMINAL LAW FULL CASES
Third Issue:
May Appellant Be Convicted
of Illegal Possession?
Appellant’s exoneration from giving away a prohibited drug to another
under Section 4 of the Dangerous Drugs Act does not, however, spell
freedom from all criminal liability.  A conviction for illegal possession of
prohibited drugs, punishable under Section 8 of the same Act, is clearly
evident.
In People vs. Tabar,[36] the Court convicted appellant of illegal
possession under Section 8 of said Act, although he was charged with
“selling” marijuana under Section 4, Article II thereof. [37]
The prevailing doctrine is that possession of marijuana is absorbed in
the sale thereof, except where the seller is further apprehended in
possession of another quantity of the prohibited drugs not covered by
or included in the sale and which are probably intended for some
future dealings or use by the seller.[38]
Possession is a necessary element in a prosecution for illegal sale of
prohibited drugs.  It is indispensable that the prohibited drug subject of
the sale be identified and presented in court.[39] That the corpus
delicti of illegal sale could not be established without a showing that
the accused possessed, sold and delivered a prohibited drug clearly
indicates that possession is an element of the former.  The same rule is
applicable in cases of delivery of prohibited drugs and giving them
away to another.
In People vs. Manzano,[40] the Court identified the elements of illegal
sale of prohibited drugs, as follows: (1) the accused sold and delivered
a prohibited drug to another, and (2) he knew that what he had sold
and delivered was a dangerous drug.   Although it did not expressly
state it, the Court stressed delivery, which implies prior possession of
the prohibited drugs. Sale of a prohibited drug can never be proven
without seizure and identification of the prohibited drug, affirming that
possession is a condition sine qua non.
It being established that illegal possession is an element of and is
necessarily included in the illegal sale of prohibited drugs, the Court
will thus determine appellant’s culpability under Section 8.  prohibited by the Election Law was complete.  The intention to
From the penal provision under consideration and from the cases
adjudicated, the elements of illegal possession of prohibited drugs are
as follows: (a) the accused is in possession of an item or object which is
identified to be a prohibited drug; (b) such possession is not authorized
by law; and (c) the accused freely and consciously possessed the
prohibited drug.[41]
The evidence on record established beyond any doubt that appellant
was in possession of the plastic bag containing prohibited drugs,
without the requisite authority.  The NBI forensic chemist’s
identification of the marijuana or Indian hemp was conclusive.
Appellant protests the trial court’s finding that he knew that the plastic
bag contained marijuana.  The lower court ruled that appellant could
not have possibly missed the pervasive pungent smell emitted by
marijuana which was duly noted when the marijuana was exhibited in
open court.  This reasoning, however, is not supported by the
evidence;  the plastic bag, at the time of the search and seizure, was
“twisted and tied at the top,” and thus airtight.  PO3 Valenzuela did not
even notice this pervasive characteristic smell until he poked a hole in
the plastic bag and unwrapped the newspaper covering one of
the  marijuana bricks.
It is well-settled that criminal intent need not be proved in the
prosecution of acts mala prohibita.  On grounds of public policy and
compelled by necessity, courts have always recognized the power of
the legislature, as “the greater master of things,” to forbid certain acts
in a limited class of cases and to make their commission criminal
without regard to the intent of the doer.[42] Such legislative enactments
are based on the experience that repressive measures which depend
for their efficiency upon proof of the dealer’s knowledge or of his
intent are of little use and rarely accomplish their purposes; besides,
the prohibited act is so injurious to the public welfare that, regardless
of the person’s intent, it is the crime itself.[43]
This, however, does not lessen the prosecution’s burden because it is
still required to show that the prohibited act was intentional.[44] Intent
to commit the crime and intent to perpetrate the act must be
distinguished.  A person may not have consciously intended to commit
a crime; but if he did intend to commit an act, and that act is, by the
very nature of things, the crime itself, then he can be held liable for
the malum prohibitum.[45] Intent to commit the crime is not necessary,
but intent to perpetrate the act prohibited by the special law must be
shown.  InBayona, the Court declared:[46]
“xxx The law which the defendant violated is a statutory provision, and
the intent with which he violated it is immaterial.  x x x x  The act
intimidate the voters or to interfere otherwise with the election is not
made an essential element of the offense.  Unless such an offender
actually makes use of his revolver, it would be extremely difficult, if not
impossible, to prove that he intended to intimidate the voters.
The rule is that in acts mala in se there must be a criminal intent, but in
those mala prohibita it is sufficient if the prohibited act was
intentionally done.  ‘Care must be exercised in distinguishing the
difference between the intent to commit the crime and the intent to
perpetrate the act.  * * *’ (U.S. vs. Go Chico, 14 Phil., 128).”
In illegal possession of prohibited drugs under Section 8 of the
Dangerous Drugs Act, the prosecution is not excused from proving that
possession of the prohibited act was done “freely and consciously,”
which is an essential element of the crime.
In the case at bar, appellant was found to have in his possession a
plastic bag containing 18 kg of marijuana formed into 18 bricks which
were separately wrapped.  His possession thereof gives rise to a
disputable presumption under Section 3[j], Rule 131 of the Rules of
Court,[47] that he is the owner of such bag and its contents.  His bare,
unpersuasive, feeble and uncorroborated   disavowal -- that the plastic
bag was allegedly given to him by his uncle without his knowing the
contents -- amounts to a denial which by itself is insufficient to
overcome this presumption.[48] Besides, this defense, unless
substantiated by clear evidence, is invariably viewed with disfavor by
courts, for it can just as easily be concocted.  Verily, it is a common and
standard defense ploy in most prosecutions involving dangerous drugs.
[49]
Further, the trial court did not give credence to appellant’s denial.  It is
axiomatic that appellate courts accord the highest respect to the
assessment of  witnesses’ credibility by the trial court, because the
latter was in a better position to observe their demeanor and
deportment on the witness stand.[50] The defense failed to present
sufficient reasons showing that the trial court had overlooked or
misconstrued any evidence of substance that would justify the reversal
of its rejection of appellant’s defense of denial.
Appellant is, therefore, liable for illegal possession of prohibited drugs
under Section 8 of the Dangerous Drugs Act.[51]
WHEREFORE, the assailed Decision is hereby MODIFIED.  Appellant
is CONVICTED of illegal possession of prohibited drugs under Section 8
of R.A. 6425; SENTENCED, in accordance with the Indeterminate
Sentence Law, to eight (8) years as minimum to twelve (12) years as
maximum; and ORDERED to pay a fine of twelve thousand pesos
(P12,000.00). Costs de oficio.
SO ORDERED.
G.R. No. 16009
UY KHEYTIN, ET AL., petitioners,
vs.
ANTONIO VILLAREAL, Judge of First Instance for the Twenty-third
Judicial District, ET AL., respondents.
CRIMINAL LAW FULL CASES
Crossfield & O'Brien for petitioners.
Attorney-General Paredes & Assistant Attorney-General Santos for
respondents.
JOHNSON, J.:
This is an original petition, filed in this court, for the writs of injunction
and prohibition. It appears from the record that on April 30, 1919, one
Ramon Gayanilo, corporal of the Philippine Constabulary, presented to
the judge of the Court of First Instance of Iloilo an application for
search warrant, the said Ramon Gayanilo stating in his application;
"That in the house of Chino Uy Kheytin, Sto. Niño St., No. 20, Iloilo,
under the writing desk in his store, there is kept a certain amount of
opium." The application was subscribed and sworn to by the said
complainant before the Honorable L. M. Southworth, judge of the
Twenty-third Judicial District.
Upon that application the said judge, on the same day, issued a search
warrant in the following terms:
The United States, to any officer of the law.
Whereas on this day proof, by affidavit, having been presented before
me by Corporal Ramon Gayanilo, Philippine Constabulary, that there is
probable cause to believe that in the house of Chino Uy Kheytin, Sto.
Niño St., No. 20, under the desk for writing in his store there is kept a
certain amount of opium.
Therefore, you are hereby commanded during day or night to make an
immediate search on the person of Uy Kheytin or in the house, Sto.
Niño St., No. 20, for the following property opium and, if you find the
same or any part thereof, to bring it forthwith before me in the Court
of First Instance of Iloilo.
Witness my hand this 30th day of April, 1919.
(Sgd.) L. M. SOUTHWORTH,
Judge of the Court of Iloilo.
Armed with that search warrant, the respondent M. S. Torralba,
lieutenant of the Philippine Constabulary, accompanied by some of his
subordinates, on the same day (April 30th) searched the house of the
petitioner Uy Kheytin and found therein 60 small cans of opium. They
wanted to search also the bodega on the ground-floor of the house,
but Uy Kheytin positively denied that it was his or that he rented it.
Lieutenant Torralba wanted to be sure, and for this reason he placed a
guard in the premises to see that nothing was removed therefrom, and
then went away to find out who the owner of the bodega was. The
next morning he learned from the owner of the house, one Segovia, of
the town of Molo, that the Chinaman Uy Kheytin was the one who was
renting the bodega. Thereupon Lieutenant Torralba and his
subordinates resumed the search and then and there found and seized
the following articles:
No. 2. - One wrap of paper containing a broken bottle of opium liquid,
which is kept in a tin box No. 1.
No. 3. - One wrap of paper containing an opium pipe, complete, one
opium container, one wrap of opium ashes, one rag soaked in opium
and one thimble with opium.
No. 4. - One leather hand bag containing 7 small bottle containing
opium, with two cedulas belonging to Tian Liong, with key.
No. 5. - One wooden box containing 75 empty cans, opium containers.
No. 6. - One tin box containing 23 small empty cans, opium containers.
No. 7. - One cardboard box containing 3 pieces of wood, one old chisel,
one file, one piece of soldering lead, one box of matches, 5 pieces of
iron plates, and several other tin plates.
No. 8. - One roll of 7 ½ sheets of brass.
No. 9. - Three soldering outfits.
No. 10. - One hammer.
No. 11. - One Chinese scale for opium.
No. 12. - Twelve small bottles empty.
No. 13. - Two bottles containing opium.
No. 14. - One bundle of Chinese books of accounts with several
personal letter of Chine Uy Kheytin.
No. 15. - One tin box containing 60 cans of molasses, with 1 small
bottle containing molasses.
Thereafter a criminal complaint was filed in the court of the justice of
the peace of Iloilo against all the petitioners herein, charging them with
a violation of the Opium Law. They were duly arrested, and a
preliminary investigation was conducted by the justice of the peace,
after which he found that there was probable cause for believing that
the crime complained of had been committed and that the defendants
were the persons responsible therefor. The cause was duly transmitted
to the Court of First Instance.
While said cause was in the Court of First Instance, pending the filing of
a complaint by the provincial fiscal, the defendants, petitioners herein,
through their attorney, filed a petition in the Court of First Instance,
asking for the return of "private papers, books and other property"
which the Constabulary officers had seized from said defendants, upon
the ground that they had been so seized illegally and in violation of the
constitutional rights of the defendants. It was urged (1) that the search
warrant of April 30th was illegal because the requisites prescribed by
the General Orders No. 58 had not been complied with in its issuance;
(2) that the searches and seizures made on May 1st had been made
without any semblance of authority and hence illegal; and (3) that the
seizure of the defendants' books and letters was a violation of the
provisions of the Jones Law providing that no person shall be
compelled to testify against himself, and protecting him against
unreasonable searches and seizures.
After a hearing upon said motion, the Honorable Antonio Villareal,
judge, in a very carefully prepared opinion, reached the conclusion that
the searches and seizures complained of had been legally made, and
consequently, denied the defendants' petition.
Thereafter and on November 22, 1919, the said defendants, petitioners
herein, filed the present petition in this court, praying as follows:
Wherefore, in view of the foregoing allegations, it is respectfully prayed
that a preliminary injunction issue.
First, restraining the respondent judge, and his successors from making
any cognizance of any action of any kind which has or may be brought
against these petitioners which have resulted directly or indirectly from
the unlawful searches and seizures above-mentioned;
Second, restraining the respondent clerk of the court, the respondent
fiscal, the respondent commandant of the Constabulary, and the
successors of any of them, and the assistants of any of them, from any
further examination of the private papers, books, and other property
unlawfully seized as above alleged; from making or using the same for
the purpose or in such a manner that the character or reputation of
these petitioners might be injured; from making or using any copies,
memorandum, notes, or extracts obtained from the books, papers,
etc., so seized; from making any examinations of any of the property
thus obtained or from using any reports or from publishing in any
manner any reports already prepared as a result of the examination of
such property; or from making any other use of the property and
papers so obtained until orders are received from this court regarding
the disposition of the same.
CRIMINAL LAW FULL CASES
It is further requested, that a writ of prohibition issue, restraining the
respondent judge from at any time taking cognizance of any action or
prosecution growing out of the unlawful searches and seizures above-
mentioned, and directing such judge or his successor to order the
immediate return to these petitioners of all of the papers and other
property thus unlawfully obtained, together with all copies, extracts,
memorandum, notes, photographs, reports, samples, or evidence
obtained by reason of such searches and seizures whereby the
reputation and character of petitioners may be further damaged;
furthermore enjoining all of the respondents and their assistants from
divulging any of the secrets or information which they have thus
unlawfully obtained from these petitioners; and especially ordering the
respondent judge to dismiss all actions or prosecutions already filed
before him or which may hereafter come before him as a result of the
unlawful acts herein alleged.
I authorities to answer for the crime, he could plead that he was first
THE SEARCH WARRANT OF APRIL 30TH
The petitioners contend that the search warrant of April 30, 1919, was
illegal, (1) because it was not issued upon either of the grounds
mentioned in section 96 of General Orders No. 58, and (2) because the
judge who issued it did not determine the probable cause by examining
witnesses under oath, a required by section 98 of said General Orders
No. 58.
Section 96 of General Orders No. 58 is as follows:
SEC. 96. It (a search warrant) may be issued upon either of the
following grounds:
1. When the property was stolen or embezzled.
2. When it was used or when the intent exists to use it as the means of
committing a felony.
In support of their first contention the petitioners argue that the
property ordered to be seized, namely, opium, under the said search
warrant, had not been stolen or embezzled, nor had it been used or
intended to be used as the means of committing a felony; that the
word "felony" is applicable only to a serious crime which is malum per
se and not to one which is merely malum prohibitum, such as the
possession of opium.
For the purpose of this decision we deem it unnecessary to draw the
distinction between the words "felony" and "misdemeanor" a used in
the common law. Suffice it to say that, whatever may be the technical
common-law meaning of the word "felony," which is used in paragraph
2 of section 96 above quoted, we believe it would be the height of
absurdity to hold, upon technical grounds, that a search warrant is
illegal which is issued to search for and seize property the very brought back to the State of Illinois without any pretense of authority.
possession of which is forbidden by law and constitutes a crime. Opium Passing upon the question of the constitutionality of the arrest of Ker,
is such property. "Search-warrants have heretofore been allowed to the Supreme Court of the United States, speaking through Mr. Justice
search for stolen goods, for goods supposed to have been smuggled Miller, said:
into the country in violation of the revenue laws, for implements of
gaming or counterfeiting, for lottery tickets or prohibited liquors kept
We do not intend to say that there may not be proceedings previous to
for sale contrary to law, for obscene books and paper kept for sale or
the trial in regard to which the prisoner could invoke in some manner
circulation, and for powder or other explosive and dangerous material
the provisions of this clause of the Constitution; but for mere
so kept as to endanger the public safety." (Cooley on Constitutional
irregularities in the manner in which he may be brought into the
Limitations, 7th ed., p. 432.)
custody of the law, we do not think he is entitled to say that he should
not be tried at all for the crime with which he is charged in a regular
In support of their second contention, the petitioners invoke section 98 indictment. He may be arrested for a very heinous offense by persons
of General Orders No. 58, which provides a follow: without any warrant, or without any previous complaint, and brought
before a proper officer, and this may be in some sense said to be
"without due process of law." But it would hardly be claimed that after
SEC. 98. The judge or justice must, before issuing the warrant, examine
the case had been investigated, and the defendant held by the proper
on oath the complainant and any witnesses he may produce and take
their depositions in writing.
arrested "without due process of law." (Followed in U. S. vs. Grant and
Kennedy, 18 Phil., 122, 146; U. S. vs. Wilson, 4 Phil., 317.)
Section 97 provides that "a search warrant shall not issue except for
probable cause" and section 98 above quoted provides the manner in
In the present case there was an irregularity in the issuance of the
which that probable cause shall be determined by the judge issuing the
search warrant in question in that the judge did not first examine the
warrant. In the present case, however, the judge did not examine any
complainant or any witnesses under oath, as required by section 98 of
witness under oath but relied solely upon the sworn application of the
General Orders No. 58. But the property sought to be searched for and
Constabulary officer in determining whether there was probable cause.
seized having been actually found in the place described by the
In that application the complainant swore positively: "That in the house
complainant, reasoning by analogy from the case of an improper
of Chino Uy Kheytin, Sto. Niño St., No. 20, Iloilo, under the writing desk
arrest, we are of the opinion that that irregularity is not sufficient cause
in his store, there is kept a certain amount of opium." This statement
for ordering the return of the opium found and seized under said
was found to be true by the subsequent finding and seizure of a
warrant, to the petitioners, and exonerating the latter.
considerable quantity of opium in the place mentioned. The question
now is, whether the omission of the judge to comply with the
requirements of section 98 would, under the circumstances, justify the II
court in declaring that the search warrant in question was illegal and THE SEARCH MADE ON MAY 1ST
ordering the return of the opium found and seized under said warrant.
Petitioners content that this was made without any search warrant and
A search warrant may be likened to a warrant of arrest. The issuance of without any authority of law; that the search warrant of April 30th
both is restricted by the same provision of the Jones Law (sec. 3) which could not be used on May 1st because that warrant had been executed
is as follows: on the day of its issuance. In support of this contention counsel for the
petitioners, in the lower court, argued that:
That no warrant shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be While it is true that a warrant is good for 10 days after the date of
searched and the person or thing to be seized. issuance, this cannot be interpreted to mean that a search warrant can
be used every day for 10 days, and for a different purpose each day.
This would be absurd. It is admitted, for sake of argument, that if upon
A person, then, is protected from unreasonable arrests just as much as
a search, under a legally issued warrant, some other prohibited articles
he is protected from unreasonable searches. But suppose he happened
than those named in the warrant should be found, these articles might
to be arrested without any warrant, or upon a warrant which had been
be seized. Also, it might possibly be true, that if a warrant was issued to
issued by a judge without first properly determining whether there was
search for a certain article and it was not found after the first search,
probable cause, and upon investigation it should be found, from his
that another search could be made sometime within the 10 days. But
own admission, that he was the author of the crime, - should he be
this is certainly the furthest possible extreme the doctrine could be
released upon the ground that he had not been legally arrested? In the
carried. It certainly could not be interpreted to allow a search to be
case of Ker vs. Illinois (119 U. S., 436) Ker having committed the crime
of larceny, escaped and went to Peru. He was kidnapped in Peru and
CRIMINAL LAW FULL CASES
made, and after the articles for which the warrant was issued had been
seized, to use this same warrant as authority to make another search.
We agree with counsel that a search warrant cannot be used every day
for ten days, "and for a different purpose each day," and that after the
articles for which the warrant was issued have been seized the same
warrant cannot be used as authority to make another search. But this
argument is not applicable to the facts in this case. It appears from the
oral evidence adduced during the hearing of the petitioners' motion in
the court below that the search for opium, the property mentioned in
the warrant, was not completed on April 30th; it was interrupted by
the necessity to ascertain who the owner of the bodega on the ground-
floor was, because the petitioner Uy Kheytin falsely disclaimed
ownership thereof. In other words, the search of May 1st was not
made "for a different purpose," nor could it be considered "another
search," but was really a continuation of the search begun on April
30th. This is shown by the fact that during the interval between the
two searches the premises in question were guarded by Constabulary
soldiers, and the petitioners were made to understand on April 30th
that the authorities were not yet through with the search and would
continue the same as soon as they found out that the bodega was also
occupied by the petitioner Uy Kheytin. We are, therefore, of the
opinion that the search made on May 1st was authorized under the
search warrant of April 30th.
III
THE SEIZURE OF BOOKS, LETTERS, ETC.
The important question that remains to be decided is whether, under a
search warrant for opium, the officers of the law were authorized to
seize books, personal letters, and other property having a remote or no
connection with opium. The respondent M. S. Torralba, lieutenant of
the Constabulary, testified that he seized these articles because he
believed or suspected that they had some relation with the opium in
question; in other words, he thought that they might be used as
evidence against the petitioners when they are prosecuted for a
violation of the Opium Law. The respondents contend that this was a
sufficient justification under the law for the seizure of such articles
under the same warrant for opium.
We are of the opinion that the respondent's contention in untenable.
Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97)
specifically require that a search warrant should particularly describe
the place to be searched and the things to be seized. The evident
purpose and intent of this requirement is to limit the things to be
seized to those, and only those, particularly described in the search
warrant - to leave the officers of the law with no discretion regarding
what articles they shall seize, to the end that "unreasonable searches
and seizures" may not be made, - that abuses may not be committed.
That this is the correct interpretation of this constitutional provision is
borne out by American authorities.
In order to comply with the constitutional provisions regulating the
issuance of search warrants, the property to be seized under a warrant
must be particularly described therein and no other property can be
taken thereunder. The goods to be seized must be described with such
certainty as to identify them, and the description must be so particular
that the officer charged with the execution of the warrant will be left
with no discretion respecting the property to be taken. . . . Under a
warrant to search a person for stolen goods, the officer cannot lawfully
take from the person a letter, such letter not being particularly
described in the warrant as property to be searched for. (24 R. C. L.,
714, 715.)
It is a violation of the declaration of rights respecting searches and
seizures for an officer, while searching one's person under a search
warrant for stolen goods, to take from it, against the party's will, a
letter written to him. (State vs. Slamon, 87 Am. St. Rep., 711.)
We have said that if the officer follows the command of his warrant, he
is protected; and this is so even when the complaint proves to have
been unfounded. But if he exceed the command by searching in places
not described therein, or by seizing persons or articles not commanded,
he is not protected by the warrant, and can only justify himself as in
other cases where he assumes to act without process. Obeying strictly
the command of his warrant, he may break open outer or inner doors,
and his justification does not depend upon his discovering that for
which he is to make search. (Cooley on Constitutional Limitations, 7th
ed., p. 434)
That the officers of the law believed that the books, papers, etc., which
they seized might be used as evidence against the petitioners herein a
criminal action against them for a violation of the Opium Law, is no
reason or justification under the law for the seizure: First, because they
were not "particularly described" or even mentioned in the search
warrant; second, because, even if they had been mentioned in the
search warrant, they could not be legally seized, for a search warrant
cannot be used for the purpose of obtaining evidence; and third,
because to compel a person to produce his private papers to be used in
evidence against him would be equivalent to compelling him to be a
witness against himself.
1. The authorities for the first proposition have already been given
above.
2. It may be said that -
Books of account, private documents, and private papers are property
which men may lawfully possess. It is not believed that the stature
(subsection 2 of section 96, G. O. 58) was intended to cover property of
this class. Granting that property of which men may lawfully possess
themselves has been used in the commission of a crime and not
possessed nor created purely for the purpose of committing a crime,
and not likely to be used again, then certainly its seizure can only be for
the purpose of using the same as evidence to prove the commission of
the crime already committed. This purpose is not contemplated by the
provision of the law. The finding of evidence can not be the immediate
reason for issuing the search warrant. To use a search warrant for the
purpose of obtaining possession of property for this purpose would be
an "unreasonable" use of the remedy by search warrant, which is
prohibited by law. (Regidor vs. Araullo, 5 Off. Gaz., 955, 961, 962; U. S.
vs. De los Reyes and Esguerra, 20 Phil., 467.)
Judge Cooley in his work on Constitutional Limitations, 7th ed., p. 431,
says:
The warrant is not allowed for the purpose of obtaining evidence of an
intended crime; but only after the lawful evidence of an offense
actually committed. Nor even then is it allowable to invade one's
privacy for the sole purpose of obtaining evidence against him, except
in a few special cases where that which is the subject of the crime is
supposed to be concealed, and the public or the complainant has an
interest in it on its destruction.
3. In the case of Boyd vs. United States (116 U. S., 616), the Supreme
Court of the United States, speaking through Mr. Justice Bradley, said:
The seizure or compulsory production of a man's private papers to be
used in evidence against him is equivalent to compelling him to be a
witness against himself, and, in a prosecution for a crime, penalty or
forfeiture, is equally within the prohibition of the Fifth Amendment.
Both amendments (fourth and fifth) relate to the personal security of
the citizen. They nearly run into and mutually throw light upon each
other. When the thing forbidden in the Fifth Amendment, namely,
compelling a man to be a witness against himself, is the object of a
search and seizure of his private papers, it is an "unreasonable search
and seizure" within the Fourth Amendment.
Search and seizure of a man's private papers to be used in evidence for
the purpose of convicting him of a crime, recovering a penalty, or of
forfeiting his property, is totally different from the search and seizure
of stolen goods, dutiable articles on which the duties have not been
paid, and the like, which rightfully belong to the custody of the law. (Se
also Silverthorne Lumber Co. vs. United States, decided Jan. 26, 1920,
by the Supreme Court of the United States.)
The seizure of a person's private papers, to be used in evidence against
him, is equivalent to compelling him to be a witness against himself.
(State vs. Slamon, 73 Vt., 212; 87 Am. St. Rep., 711.)
From all of the foregoing our conclusions are:
CRIMINAL LAW FULL CASES
1. That although in the issuance of the search warrant in question the
judge did not comply with the requirements of section 98 of General
Orders No. 58, the petitioners are not entitled to the return of the
opium and its paraphernalia which were found and seized under said
warrant, and much less are they entitled to be exonerated because of
such omission of the judge.
2. That the search made on May 1st was a continuation of the search
begun on the previous day, and, therefore, did not require another
search warrant.
3. That the seizure of the petitioner's books, letters, telegrams, and
other articles which have no inherent relation with opium and the
possession of which is not forbidden by law, was illegal and in violation
of the petitioners' constitutional rights.
Therefore, it is hereby ordered and decreed that each and all of the
respondents herein, their assistants or successors, be, and they hereby
are, forbidden from examining or making any use of said books, letters,
telegrams, etc., namely, the articles described in items Nos. 7, 8, 9, 10,
12, 14, and 15 of the sheriff's return (Exhibit 3, reproduced at the top
of page 3 of this decision 1) and they are hereby ordered to
immediately return the said articles to the petitioners. So ordered.
Araullo and Villamor, JJ., concur.
Mapa, C.J., concurs in the result.
Separate Opinions
AVANCEÑA, J., concurring and dissenting:
I concur with the decision except as to the part which declares that the
search warrant was irregularly issued
MOIR, J., concurring and dissenting:
In concurring in the result in this decision, I desire to state that I do not
concur in that part of the decision which says that the judge did not
comply with the requirement of section 98 of General Orders No. 58
before issuing an order of arrest. That section reads:
The judge or justice must, before issuing the warrant, examine on oath
the complainant and any witnesses he may produce and take their
depositions in writing.
It appears that complainant in this case was a Constabulary corporal.
He made affidavit before the judge of First Instance when the search
warrant was issued. It does not appear that he presented any seem that the metal found was for making small containers for the
witnesses whose depositions were to be taken. opium. The writer does not know why the molasses was present, but it
is most frequently present where there is any considerable quantity of
opium found.
General Orders No. 58 expressly provides, in section 99 thereof,
It would seem that what petitioners really want are the Chinese
If the judge or justice is thereupon satisfied of the existence of facts
account book and the letters, and the reason for their ardent desire to
upon which the application is based, or that there is probable cause to
get them can easily be imagined.
believe that they exist, he must issue the warrant, which must be
substantially in the following form:
We must follow the decisions quoted, and hold that this book and the
letters should be returned, and to this I agree, but we must assume
...........................................................}
that everything else was used in and about the sale of opium, and they
Province of ........................................
should not be returned.
The United States to any ......................., or policeman in the Province
of ...............................,
Proof, by affidavit, having this day been made before me by, etc. etc.
This court says, on page 8 of the decision:[[1]]
In the present case there was an irregularity in the issuance of the
search warrant in question in that the judge did not first examine the
complainant or any witnesses under oath, as required by section 98 of
General Orders No. 58. But the property sought to be searched for and
seized having been actually found in the place described by the
G.R. Nos. 172070-72             June 1, 2007
complainant, reasoning by analogy from the case of an improper
arrest, we are of the opinion that that irregularity is not sufficient
cause for ordering the return of the opium found and seized under said VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS,
warrant, to the petitioners, and exonerating the latter. and REY CLARO C. CASAMBRE,Petitioners, 
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE
We do not think there was nay irregularity.
PROSECUTOR JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR
AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A. MARAYA,
The affidavit required by law was made. It is a general practice to issue and STATE PROSECUTOR MERBA A. WAGA, in their capacity as
search warrants on a single affidavit. To require more than one or to members of the Department of Justice panel of prosecutors
require witnesses to be presented, would add to the law and would investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE
defeat the very object of a search warrant, which is to seize evidence SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C.
of crime before it can be destroyed. Publicity, which would ordinarily LOMIBAO, in his capacity as Chief, Philippine National Police,
follow the presentation of witnesses or even getting more than one P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G.
affidavit, would invite, if not assure, a failure. TANIGUE,Respondents.
If one witness may be sufficient to convict a man of the gravest crime, x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
certainly one affidavit should be sufficient for a judge to issue a search
warrant upon.
G.R. Nos. 172074-76             June 1, 2007
Judging from the quantity of opium captured, all the articles
LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO
mentioned in the decision were used by the petitioners for unlawful
A. CASIÑO, CRISPIN B. BELTRAN, and RAFAEL V.
purposes; i.e., the carrying on of a trade in opium. Liquid opium is
MARIANO, Petitioners, 
necessarily put up in bottles and other small receptacles, and it would
vs.
CRIMINAL LAW FULL CASES
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,  The authorities brought back Beltran to Camp Crame where, on 27
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.2Petitioners 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
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
CRIMINAL LAW FULL CASES
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.21However, 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
CRIMINAL LAW FULL CASES
(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 2006,31as 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.1a\^/phi1.net Nowhere in the minutes was
Beltran implicated. While the minutes 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.35However, 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
CRIMINAL LAW FULL CASES
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 complaints 39 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 We find merit in petitioners’ doubt on respondent prosecutors’
3(a) of Rule 112. 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,
Further, Section 3(b) of Rule 112 mandates that the prosecutor, after
that, "We [the DOJ] will just declare probable cause, then it’s up to the
receiving the complaint, must determine if there are grounds to
[C]ourt to decide x x x."42 Petitioners raised this issue in their
continue with the investigation. If there is none, he shall dismiss the
petition,43 but respondents never disputed the veracity of this
case, otherwise he shall "issue a subpoena to the respondents." Here,
statement. This clearly shows pre-judgment, a determination to file the
after receiving the CIDG letters, respondent prosecutors peremptorily
Information even in the absence of probable cause.
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 A Final Word
allowed the CIDG to present a masked Fuentes who subscribed to an
affidavit before respondent prosecutor Velasco. Velasco proceeded to
The obvious involvement of political considerations in the actuations of
distribute copies of Fuentes’ affidavit not to petitioners or their
respondent Secretary of Justice and respondent prosecutors brings to
counsels but to members of the media who covered the proceedings.
mind an observation we made in another equally politically charged
Respondent prosecutors then required petitioners to submit their
case. We reiterate what we stated then, if only to emphasize the
counter-affidavits in 10 days. It was only four days later, on 17 March
importance of maintaining the integrity of criminal prosecutions in
2006, that petitioners received the complete copy of the attachments
general and preliminary investigations in particular, thus:
to the CIDG letters.1a\^/phi1.net
[W]e cannot emphasize too strongly that prosecutors should not allow,
These uncontroverted facts belie respondent prosecutors’ statement in
and should avoid, giving the impression that their noble office is being
the Order of 22 March 2006 that the preliminary investigation "was
used or prostituted, wittingly or unwittingly, for political ends, or other
done in accordance with the Revised Rules o[f] Criminal
purposes alien to, or subversive of, the basic and fundamental
Procedure."40 Indeed, by peremptorily issuing the subpoenas to
objective of observing the interest of justice evenhandedly, without
petitioners, tolerating the complainant’s antics during the
fear or favor to any and all litigants alike, whether rich or poor, weak or
investigation, and distributing copies of a witness’ affidavit to members
strong, powerless or mighty. Only by strict adherence to the
of the media knowing that petitioners have not had the opportunity to
established procedure may be public’s perception of the impartiality of
examine the charges against them, respondent prosecutors not only
the prosecutor be enhanced.44 1a\^/phi1.net
trivialized the investigation but also lent credence to petitioners’ claim
that the entire proceeding was a sham.
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
A preliminary investigation is the crucial sieve in the criminal justice
City, Branch 146 and the Order dated 29 August 2006 of the Regional
system which spells for an individual the difference between months if
Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and
not years of agonizing trial and possibly jail term, on the one hand, and
172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April
peace of mind and liberty, on the other hand. Thus, we have
2006 issued by respondent prosecutors. We ORDER the Regional Trial
characterized the right to a preliminary investigation as not "a mere
Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06-452
formal or technical right" but a "substantive" one, forming part of due
and 06-944.
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. SO ORDERED.
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\^/phi1.net
On Respondent Prosecutors’ Lack of Impartiality G.R. No. 112235 November 29, 1995
CRIMINAL LAW FULL CASES
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  After trial, the court a quo found accused-appellant guilty beyond
vs.
ELIAS LOVEDIORO y CASTRO, defendant-appellant.
 
KAPUNAN, J.:
Off-duty policeman SPO3 Jesus Lucilo was walking along Burgos St.,
away from the Daraga, Albay Public Market when a man suddenly
walked beside him, pulled a .45 caliber gun from his waist, aimed the
gun at the policeman's right ear and fired. The man who shot Lucilo
had three other companions with him, one of whom shot the fallen
policeman four times as he lay on the ground. After taking the latter's
gun, the man and his companions boarded a tricycle and fled. 1
The incident was witnessed from a distance of about nine meters by
Nestor Armenta, a 25 year old welder from Pilar, Sorsogon, who
claimed that he knew both the victim and the man who fired the fatal
shot. Armenta identified the man who fired at the deceased as Elias
Lovedioro y Castro, his nephew (appellant's father was his first cousin)
and alleged that he knew the victim from the fact that the latter was a
resident of Bagumbayan.
Lucilo died on the same day of massive blood loss from multiple
gunshot wounds on the face, the chest, and other parts of the
body. 2 On autopsy, the municipal health officer established the cause
of death as hypovolemic shock.3
As a result of the killing, the office of the provincial prosecutor of
Albay, on November 6, 1992 filed an Information charging accused-
appellant Elias Lovedioro y Castro of the crime of Murder under Article
248 of the Revised Penal Code. The Information reads:
That on or about the 27th day of July, 1992, at more or less 5:30
o'clock in the afternoon, at Burgos Street, Municipality of Daraga,
Province of Albay, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, together with Gilberto
Longasa, who is already charged in Crim. Case No. 5931 before RTC,
Branch I, and three (3) others whose true identities are at present
unknown and remain at large, conniving, conspiring, confederating and
helping one another for a common purpose, armed with firearms, with
intent to kill and with treachery and evident premeditation, did then
and there wilfully, unlawfully and feloniously fire and shoot one SPO3
JESUS LUCILO, a member of the Daraga Police Station, inflicting upon
the latter multiple gunshot wounds causing his death, to the damage
and prejudice of his legal heirs.
reasonable doubt of the crime of Murder. The dispositive portion of
said decision, dated September 24, 1993 states:
WHEREFORE, in view of all the foregoing considerations, this Court
finds the accused ELIAS LOVEDIORO guilty beyond reasonable doubt as
principal, acting in conspiracy with his co-accused who are still at large,
of the crime of murder, defined and penalized under Article 248 of the
Revised Penal Code, and hereby sentences him to suffer the penalty
of Reclusion Perpetua with all the accessories provided by law; to pay
the heirs of the deceased SPO3 Jesus Lucilo through the widow, Mrs.
Remeline Lucilo, the amount of Fifty Thousand (P50,000.00) Pesos
representing the civil indemnity for death; to pay the said widow the
sum of Thirty Thousand (P30,000.00) Pesos representing reasonable
moral damages; and to pay the said widow the sum of Eighteen
Thousand Five Hundred Eighty-Eight (P18,588.00) Pesos, representing
actual damages, without subsidiary imprisonment however, in case of
insolvency on the part of the said accused.
With costs against the accused.
SO ORDERED.
Hence, the instant appeal, in which the sole issue interposed is that
portion of trial court decision finding him guilty of the crime of murder
and not rebellion.
Appellant cites the testimony of the prosecution's principal witness,
Nestor Armenta, as supporting his claim that he should have been
charged with the crime of rebellion, not murder. In his Brief, he
asseverates that Armenta, a police informer, identified him as a
member of the New People's Army. Additionally, he contends that
because the killing of Lucilo was "a means to or in furtherance of
subversive ends," 4 (said killing) should have been deemed absorbed in
the crime of rebellion under Arts. 134 and 135 of the Revised Penal
Code. Finally, claiming that he did not fire the fatal shot but merely
acted as a look-out in the liquidation of Lucilo, he avers that he should
have been charged merely as a participant in the commission of the
crime of rebellion under paragraph 2 of Article 135 of the Revised
Penal Code and should therefore have been meted only the penalty
of prison mayor by the lower court.
Asserting that the trial court correctly convicted appellant of the crime
of murder, the Solicitor General avers that the crime committed by
appellant may be considered as rebellion only if the defense itself had
conclusively proven that the motive or intent for the killing of the
policeman was for "political and subversive ends." 5 Moreover, the
Solicitor General contends that even if appellant were to be convicted
of rebellion, and even if the trial court had found appellant guilty
merely of being a participant in a rebellion, the proper imposable
penalty is not prision mayor as appellant contends, but reclusion
temporal, because Executive Order No. 187 as amended by Republic
Act 
No. 6968, the Coup D'etat Law, prescribes reclusion temporal as the
penalty imposable for individuals found guilty as participants in a
rebellion.
We agree with the Solicitor General that the crime committed was
murder and not rebellion.
Under Art. 134 of the Revised Penal Code, as amended by Republic Act
No. 6968, rebellion is committed in the following manner:
[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, of 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. 6
The gravamen of the crime of rebellion is an armed public uprising
against the government. 7 By its very nature, rebellion is essentially a
crime of masses or multitudes involving crowd action, which cannot be
confined a priori within predetermined bounds. 8 One aspect
noteworthy in the commission of rebellion is that other acts committed
in its pursuance are, by law, absorbed in the crime itself because they
acquire a political character. This peculiarity was underscored in the
case of People v. Hernandez, 9 thus:
In short, political crimes are those 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. If a crime
usually regarded as common, like homicide, is perpetrated for the
purpose of removing from the allegiance "to the Government the
territory of the Philippine Islands or any part thereof," then it becomes
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.
Divested of its common complexion therefore, any ordinary act,
however grave, assumes a different color by being absorbed in the
crime of rebellion, which carries a lighter penalty than the crime of
murder. In deciding if the crime committed is rebellion, not murder, it
becomes imperative for our courts to ascertain whether or not the act
was done in furtherance of a political end. The political motive of the
act should be conclusively demonstrated.
In such cases, the burden of demonstrating political motive falls on the
defense, motive, being a state of mind which the accused, better than
any individual, knows. Thus, in People v. Gempes, 10 this court stressed
that:
CRIMINAL LAW FULL CASES
Since this is a matter that lies peculiarly with (the accused's) knowledge
and since moreover this is an affirmative defense, the burden is on
them to prove, or at least to state, which they could easily do
personally or through witnesses, that they killed the deceased in
furtherance of the resistance movement.
From the foregoing, it is plainly obvious that it is not enough that the
overt acts of rebellion are duly proven. Both purpose and overt acts are
essential components of the crime. With either of these elements
wanting, the crime of rebellion legally does not exist. In fact, even in
cases where the act complained of were committed simultaneously
with or in the course of the rebellion, if the killing, robbing, or etc.,
were accomplished for private purposes or profit, without any political
motivation, it has been held that the crime would be separately
punishable as a common crime and would not be absorbed by the
crime rebellion. 11
Clearly, political motive should be established before a person charged
with a common crime — alleging rebellion in order to lessen the
possible imposable penalty — could benefit from the law's relatively
benign attitude towards political crimes. Instructive in this regard is the
case of Enrile v. 
Amin, 12 where the prosecution sought to charge Senator Juan Ponce
Enrile with violation of P.D. No. 1829, 13 for allegedly harboring or
concealing in his home Col. Gregorio Honasan in spite of the senator's
knowledge that Honasan might have committed a crime. This Court
held, against the prosecution's contention, that rebellion and violation
of P.D 1829 could be tried separately 14 (on the principle that rebellion
is based on the Revised Penal Code while P.D. 1829 is a special law),
that the act for which the senator was being charged, though
punishable under a special law, was absorbed in the crime of rebellion
being motivated by, and related to the acts for which he was charged
in Enrile vs. Salazar (G.R. Nos. 92163 and 92164) a case decided on
June 5, 1990. Ruling in favor of Senator Enrile and holding that the
prosecution for violation of P.D. No. 1829 cannot prosper because a
separate prosecution for rebellion had already been filed and in fact
decided, the Court said:
The attendant circumstances in the instant case, however constrain us
to rule that the theory of absorption in rebellion cases must not
confine itself to common crimes but also to offenses under special laws
which are perpetrated in furtherance of the political offense. 15
Noting the importance of purpose in cases of rebellion the court
in Enrile vs. Amin further underscored that:
[I]ntent or motive is a decisive factor. If Senator Ponce Enrile is not
charged with rebellion and he harbored or concealed Colonel Honasan
simply because the latter is a friend and former associate, the motive
for the act is completely different. But if the act is committed with
political or social motives, that is in furtherance of rebellion, then it
should be deemed to form part of the crime of rebellion instead of
being punished separately.
It follows, therefore, that if no political motive is established and
proved, the accused should be convicted of the common crime and not
of rebellion. In cases of rebellion, motive relates to the act, and mere
membership in an organization dedicated to the furtherance of
rebellion would not, by and of itself, suffice.
The similarity of some of the factual circumstances of People
v. Ompad, Jr., 16 to the instant case is striking. Two witnesses, both
former NPA recruits identified the accused Ompad, alias "Commander
Brando," a known hitman of the NPA, as having led three other
members of the NPA in the liquidation of Dionilo Barlaan, a military
informer, also in a rebel infested area. In spite of his notoriety as an
NPA hitman, Ompad was merely charged with and convicted of
murder, not rebellion because political motive was neither alleged nor
proved.
As stated hereinabove, the burden of proof that the act committed was
impelled by a political motive lies on the accused. Political motive must
be alleged in the information. 17 It must be established by clear and
satisfactory evidence. In People v. Paz and Tica we held:
That the killing was in pursuance of the Huk rebellion is a matter of
mitigation or defense that the accused has the burden of proving
clearly and satisfactorily. The lone uncorroborated assertion of
appellant that his superiors told him of Dayrit being an informer, and
his suspicion that he was one such, is neither sufficient or adequate to
establish that the motivation for the killing was political, considering
appellant's obvious interest in testifying to that effect. 18
Similarly, in People v. Buco, 19 the Court stressed that accused in that
case failed to establish that the reason for the killing of their victim was
to further or carry out rebellion. The evidence adduced by the defense
therein simply showed that appellant Francisco Buco was ordered by
Tomas Calma, alias "Commander Sol" to kill municipal mayor Conrado
G. Dizon. However, the evidence likewise showed that Calma was
induced by an acquaintance, a civilian, to order the killing on account
of private differences over a ninety (90) hectare piece of land. The
court attributed no political motive for the killing, though committed
by known members of the Hukbalahap movement. 20
People v. Dasig 21 has a factual milieu almost similar to the instant case.
There, the Court held that "the act of killing a police officer, knowing
too well that the victim is a person in authority is a mere component or
ingredient of rebellion or an act done in furtherance of a rebellion."
In Dasig the Court however noted that the accused, who was charged
with murder, not only admitted his membership with the NPA but also
executed an extrajudicial confession to the effect that he was a
member of an NPA "sparrow unit," a fact to which even the Solicitor
General, in his brief therein was in agreement. The Solicitor General's
brief in Dasig which this Court favorably quoted, noted that:
[T]he sparrow unit is the liquidation squad of the New People's Army
with the objective of overthrowing the duly constituted government. It
is therefore not hard to comprehend that the killing of Pfc. Manatad
was committed as a means to or in furtherance of the subversive ends
of the NPA.22
By contrast, the Solicitor General vigorously argues for a different
result in the case at bench. He states that accused-appellant's belated
claims to membership in the NPA were not only insubstantial but also
self serving 23an averment to which, given a thorough review of the
circumstances of the case, we fully agree. He states:
[In the case cited] the appellants, admittedly members of the NPA,
clearly overcame the burden of proving motive or intent. It was shown
that the political motivation for the killing of the victim was the fact
that Ragaul was suspected as an informer for the PC. The perpetrators
even left a letter card, a drawing on the body of Ragaul as a warning to
others not to follow his example. It is entirely different in the case at
bar where the evidence for the appellant merely contains self-serving
assertions and denials not substantial enough as an indicia of political
motivation in the killing of victim SPO3 Jesus Lucilo. 24
In the case at bench, the appellant, assisted by counsel, admitted in his
extrajudicial confession to having participated in the killing of Lucilo as
follows:
Q What was that incident if any, please narrate?
A July 27, 1992 at more or less 12:00 noon. I am at home, three male
person a certainalias ALWIN, ALIAS SAMUEL and the other one
unknown to me, fetched me and told me to go with them, so I asked
them where, Alwin handed me a hand gun and same he stopped/call a
passenger jeepney and told me board on said jeepney. (sic)
Q Please continue.
A Upon reaching Daraga, Albay fronting Petron Gasoline Station, we
alighted on said jeep, so we walk towards Daraga Bakery we stopped
walking due to it is raining, when the rain stopped we continue walking
by using the road near the bakery. (sic)
Q When you reached Daraga bakery, as you have said in Q. 7 you used
the road near the bakery where did you proceed?
A I am not familiar with that place, but I and my companion continue
walking, at more less 4:30 P.M. July 27, 1992 one of my companion told
CRIMINAL LAW FULL CASES
us as to quote in Bicol dialect, to wit: "AMO NA YADI AN TINAMPO
PALUWAS" (This is the place towards the poblacion), so, I placed myself
just ahead of a small store, my three (3) companions continue walking
towards poblacion, later on a policeman sporting white T-shirt and a
khaki pant was walking towards me, while the said policeman is nearly
approaching me, ALWIN shot the said policeman in front of the small
store, when the said policeman fell on the asphalted road, ALWIN took
the service firearm of the said policeman, then we ran towards the
subdivision, then my two (2) companions commanded a tricycle then
we fled until we reached a hill wherein there is a small bridge,
thereafter Ka Samuel took the handgun that was handed to me by
them at Pilar, Sorsogon. (sic)
Q Do you know the policeman that was killed by your companion?
A I just came to know his name when I reached home and heard it
radio, that he is JESUS LUCILO. (sic)
Q What is your participation in the group?
A Look-out sir.
Q I have nothing more to asked you what else, if there is any? (sic)
A No more sir. 25
It bears emphasis that nowhere in his entire extrajudicial
confession did appellant ever mention that he was a member of the
New People's Army. A thorough reading of the same reveals nothing
which would suggest that the killing in which he was a participant was
motivated by a political purpose. Moreover, the information filed
against appellant, based on sworn statements, did not contain any
mention or allusion as to the involvement of the NPA in the death of
SPO3 Lucilo. 26 Even prosecution eyewitness Nestor Armenta did not
mention the NPA in his sworn statement of October 19, 1992. 27
As the record would show, allegations relating to appellant's
membership in the NPA surfaced almost merely as an afterthought,
something which the defense merely picked up and followed through
upon prosecution eyewitness Armenta's testimony on cross-
examination that he knew appellant to be a member of the NPA.
Interestingly, however, in the same testimony, Armenta admitted that
he was "forced" to pinpoint appellant as an NPA member. 28 The logical
result, of course, was that the trial court did not give any weight and
credence to said testimony. The trial court, after all, had the
prerogative of rejecting only a part of a witness' testimony while
upholding the rest of it. 29 While disbelieving the portion of Armenta's
testimony on appellant's alleged membership in the NPA, the trial
court correctly gave credence to his unflawed narration about how the
crime was committed. 30 Such narration is even corroborated in its
pertinent portions, except as to the identity of the gun wielder, by the
testimony of the appellant himself.
In any case, appellant's claim regarding the political color attending the
commission of the crime being a matter of defense, its viability
depends on his sole and unsupported testimony. He testified that,
upon the prodding of aliasAlwin and alias Samuel, he joined the NPA
because of the organization's  delivered by appellant was sudden, and without warning of any
goals. 31 He claimed that his two companions shot Lucilo because he
"had offended our organization," 32 without, however, specifying what
the "offense" was. Appellant claimed that he had been a member of
the NPA for five months before the shooting incident. 33
As correctly observed by the Solicitor General, appellant's contentions
are couched in terms so general and non-specific 34 that they offer no
explanation as to what contribution the killing would have made
towards the achievement of the NPA's subversive aims. SPO3 Jesus
Lucilo, a mere policeman, was never alleged to be an informer. No acts
of his were specifically shown to have offended the NPA. Against
appellant's attempts to shade his participation in the killing with a
political color, the evidence on record leaves the impression that
appellant's bare allegations of membership in the NPA was
conveniently infused to mitigate the penalty imposable upon him. It is
of judicial notice that in many NPA infested areas, crimes have been all-
too-quickly attributed to the furtherance of an ideology or under the
cloak of political color for the purpose of mitigating the imposable
penalty when in fact they are no more than ordinary crimes
perpetrated by common criminals. In Baylosis v. Chavez, Jr., Chief
Justice Narvasa aptly observed:
The existence of rebellious groups in our society today, and of
numerous bandits, or irresponsible or deranged individuals, is a reality
that cannot be ignored or belittled. Their activities, the killings and acts
of destruction and terrorism that they perpetrate, unfortunately
continue unabated despite the best efforts that the Government
authorities are exerting, although it may be true that the
insurrectionist groups of the right or the left no longer pose a genuine
threat to the security of the state. The need for more stringent laws
and more rigorous law-enforcement, cannot be gainsaid.  35
In the absence of clear and satisfactory evidence pointing to a political
motive for the killing of SPO3 Jesus Lucilo, we are satisfied that the trial
court correctly convicted appellant of the crime of murder. 36 It is of no
moment that a single eyewitness, Nestor Armenta, sealed his fate, for
it is settled that the testimony of one witness, if credible and positive,
is sufficient to convict. 37 Against appellant's claims that he acted
merely as a look-out, the testimony of one witness, his blood relative,
free from any signs of impropriety or falsehood, was sufficient to
convict the accused. 38Moreover, neither may lack of motive be availing
to exculpate the appellant. Lack or absence of motive for committing a
crime does not preclude conviction, there being a reliable eyewitness
who fully and satisfactorily identified appellant as the perpetrator of
the felony. 39 In the case at bench, the strength of the prosecution's
case was furthermore bolstered by accused-appellant's admission in
open court that he and the eyewitness, his own uncle, bore no grudges
against each other.40
Finally, treachery was adequately proved in the court below. The attack
kind. 41 The killing having been qualified by treachery, the crime
committed is murder under Art. 248 of the Revised Penal Code. In the
absence of any mitigating and aggravating circumstances, the trial
court was correct in imposing the penalty of reclusion
perpetua together with all the accessories provided by law.
WHEREFORE, PREMISES CONSIDERED, the trial court's decision dated
September 14, 1993, sentencing the accused of Murder is hereby
AFFIRMED, in toto.
SO ORDERED.
G.R. No. L-6025             May 30, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
AMADO V. HERNANDEZ, ET AL., accused, 
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
-----------------------------
G.R. No. L-6026             May 30, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
BAYANI ESPIRITU, ET AL., accused, 
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment
rendered by the Court of First Instance of Manila, Hon. Agustin P.
Montesa, presiding, in its Criminal Case No. 15841, People vs. Amado
V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani
Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the charge
is for Rebellion with Multiple Murder, Arsons and Robberies; the
appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz,
Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino
Bunsol, Adriano Samson and Andres Baisa, Jr. were among those
sentenced in the judgment appealed from, but they have withdrawn
their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is
CRIMINAL LAW FULL CASES
for rebellion with murders, arsons and kidnappings; the accused are
Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all appealed
but Andres Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandez and others in
Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said
date and continuously thereafter, until the present time, in the City of
Manila, Philippines, and the place which they had chosen as the nerve
center of all their rebellious activities in the different parts of the
Philippines, the said accused, conspiring, confederating and
cooperating with each other, as well as with the thirty-one (31)
defendants charged in Criminal Cases Nos. 19071, 14082, 14270, 14315
and 14344 of the Court of First Instance of Manila (decided May 11,
1951) and also with others whose whereabouts and identities are still
unknown, the said accused and their other co-conspirators, being then
high ranking officers and/or members of, or otherwise affiliated with
the Communist Party of the Philippines (P.K.P.), which is now actively
engaged in an armed rebellion against the Government of the
Philippines thru act theretofore committed and planned to be further
committed in Manila and other places in the Philippines, and of which
party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or
formerly known as the "Hukbalahaps" (Huks), unlawfully and did then
and there willfully, unlawfully and feloniously help, support, promote,
maintain, cause, direct and/or command the "Hukbong Mapagpalaya
Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and
take arms against the Republic of the Philippines, or otherwise
participate in such armed public uprising, for the purpose of removing
the territory of the Philippines from the allegiance to the government
and laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan"
or "Hukbalahaps" have risen publicly and taken arms to attain the said
purpose by then and there making armed raids, sorties and ambushes,
attacks against police, constabulary and army detachments as well as
innocent civilians, and as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof, have
then and there committed acts of murder, pillage, looting, plunder,
arson, and planned destruction of private and public property to create
and spread chaos, disorder, terror, and fear so as to facilitate the
accomplishment of the aforesaid purpose, as. follows, to wit:
(Enumeration of thirteen attacks on government forces or civilians by
Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947,
August 19, 1947, June, 1946, April 28, 1949, August 25, 1950, August
26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and
March 29, 1950.)
II. That during the period of time and under the same circumstances
herein-above indicated the said accused in the above-entitled case,
conspiring among themselves and with several others as aforesaid,
willfully, unlawfully and feloniously organized, established, led and/or
maintained the Congress of Labor Organizations (CLO), formerly known
as the Committee on Labor Organizations (CLO), with central offices in
Manila and chapters and affiliated or associated labor unions and other
"mass organizations" in different places in the Philippines, as an active
agency, organ, and instrumentality of the Communist Party of the
Philippines (P.K.P.) and as such agency, organ, and instrumentality, to
fully cooperate in, and synchronize its activities — as the CLO thus
organized, established, led and/or maintained by the herein accused
and their co-conspirators, has in fact fully cooperated in and
synchronized its activities with the activities of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) and other organs, agencies, and
instrumentalities of the Communist Party of the Philippines (P.K.P.), to
thereby assure, facilitate, and effect the complete and permanent
success of the above-mentioned armed rebellion against the
Government of the Philippines.
The information filed against the defendants in Criminal Case No.
15479, Bayani Espiritu Andres Baisa, Jr. and Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and
subsequent thereto and continuously up to the present time, in the
City of Manila, the seat of the government of the Republic of the
Philippines, which the herein accused have intended to overthrow, and
the place chosen for that purpose as the nerve center of all their
rebellious atrocities in the different parts of the country, the said
accused being then high ranking officials and/or members of the
Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the
"Hukbalahaps" (HUKS), the latter being the armed forces of said
Communist Party of the Philippines; having come to an agreement with
the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270,
14315, 14344 of the Court of First Instance of Manila and decided to
commit the crime of rebellion, and therefore, conspiring and
confederating with all of the 29 accused in said criminal cases, acting in
accordance with their conspiracy and in furtherance thereof, together
with many others whose whereabouts and identities are still unknown
up to the filing of this information, and helping one another, did then
and there willfully, unlawfully and feloniously promote maintain,
cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan",
(HMB) or the Hukbalahaps (HUKS) to rise publicly and take Arms
against the Government or otherwise participate therein for the
purpose of overthrowing the same, as in fact, the said "Hukbong
Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly and
taken arms against the Government, by then and there making armed
raids, sorties and ambushes, attacks against police, constabulary and
army detachment, and as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof, by then
and there committing wanton acts of murder, spoilage, looting, arson,
kidnappings, planned destruction of private and public buildings, to
create and spread terrorism in order to facilitate the accomplishment
of the aforesaid purpose, as follows to wit: (Enumeration of thirteen
attacks on Government forces or civilians by Huks on May 6, 1946.
August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June
1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25,
1950, September 12, 1950, March 28, 1950 and March 29, 1950).
A joint trial of both cases was held, after which the court rendered the
decision subject of the present appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado
V. Hernandez, the following: (1) that he is a member of the Communist
Party of the Philippines and as such had aliases, namely, Victor or
Soliman; (2) that he was furnished copies of "Titis", a Communist
publication, as well as other publications of the Party; (3) that he held
the position of President of the Congress of Labor Organizations; (4)
that he had close connections with the Secretariat of the Communist
Party and held continuous communications with its leaders and its
members; (5) that he furnished a mimeographing machine used by the
Communist Party, as well as clothes and supplies for the military
operations of the Huks; (6) that he had contacted well-known
Communists coming to the Philippines and had gone abroad to the
WFTU conference Brussels, Belgium as a delegate of the CLO, etc.
Evidence was also received by the court that Hernandez made various
speeches encouraging the people to join in the Huk movement in the
provinces.
The court also found that there was a close tie-up between the
Communist Party and the Congress of Labor Organizations, of which
Hernandez was the President, and that this Congress was organized by
Hernandez in conjunction with other Huks, namely: Alfredo Saulo,
Mariano Balgos, Guillermo Capadocia, etc.
We will now consider the nature and character of both the testimonial
as well as the documentary evidence, independently of each other, to
find out if the said evidence supports the findings of the court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party
in the month of October, 1947, at the offices of the Congress of Labor
Organizations at 2070 Azcarraga in the presence of Guillermo
Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a
Communist he was given the pseudonyms of Victor and Soliman, and
received copies of the Communist paper "Titis". He made various
speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at
Plaza Miranda, in which he announced that the people will soon meet
their dear comrade in the person of Comrade Luis Taruc.
CRIMINAL LAW FULL CASES
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at
the Escolta, at which occasion Balgos told Goufar that the PKM, CLO
and the Huks are in one effort that the PKM are the peasants in the
field and the Huks are the armed forces of the Communist Party; and
the CLO falls under the TUD of the Communist Party. 1äwphï1.ñët
(3) On October 2, 1948 he went abroad to attend the Second Annual
Convention of the World Federation of Trade Unions and after arrival
from abroad a dinner was given to him by the people of Gagalangin, at
which Hernandez delivered a speech and he said that he preferred to
go with the Huks because he felt safer with them than with the
authorities of the Government.
(4) In April, 1949, he made a speech before a group of tenants in
Malabon attacking the frauds in the 1947 elections, graft and
corruption in the elections and that if improvement cannot be made by
the ballots, they could be made by bullets; and enjoined the people to
go to the hills and join Luis Taruc the head of the dissidents in the
Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the
commemoration of the World Peace at the CLO headquarters at 330 P.
Campa. He attacked the city mayor and incited the people to go to
Balintawak and see Bonifacio there and thereafter join four comrades
under the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of
the unemployed at 330 P. Campa. He asked the unemployed to
approve a resolution urging the Government to give them jobs. In
conclusion he said that if the Government fails to give them jobs the
only way out was to join the revolutionary forces fighting in the hills.
He further said that Mao Tse Tung, leader of the People's Army in
China, drove Chiang Kai Shek from his country, and that Luis Taruc was
also being chased by Government forces run by puppets like Quirino,
etc.
(7) On January 13, 1950 there was another meeting at 330 P. Campa. In
his talk Hernandez expressed regret that two foremost leaders of the
CLO, Balgos and Capadocia, had gone to the field to join the liberation
army of the HMB, justifying their going out and becoming heroes by
fighting in the fields against Government forces until the ultimate goal
is achieved.
The above evidence was testified to by Florentino Diolata who was the
official photographer of the CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo
Calayag, a Communist and a Huk from 1942 to 1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the
president government by force of aims and violence; thru armed
revolution and replace it with the so-called dictatorship of the
proletariat the Communist Party carries its program of armed
overthrow of the present government by organizing the HMB and
other forms of organization's such as the CLO, PKM, union
organizations, and the professional and intellectual group; the CLO was
organized by the Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and
the Central Committee of the CLO were also top ranking officials of the
Communist Party; activities undertaken by the TUD - the vital
undertaking of the TUD is to see that the directives coming from the
organizational bureau of the Communist Party can be discussed within
the CLO especially the Executive Committee. And it is a fact that since a
good majority of the members of the Executive Committee are party
members, there is no time, there is no single time that those directives
and decisions of the organizational department, thru the TUD are being
objected to by the Executive Committee of the CLO. These directives
refer to how the CLO will conduct its functions. The executive
committee is under the chairmanship of accused Amado V. Hernandez.
(3) The CLO played its role in the overall Communist program of armed
overthrow of the present government and its replacement by the
dictatorship of the proletariat by means of propaganda - by
propagating the principles of Communism, by giving monetary aid,
clothing, medicine and other forms of material help to the HMB. This
role is manifested in the very constitution of the CLO itself which
expounded the theory of classless society and the eradication of social
classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution contained
in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-
1579"). Thru propaganda, the CLO promoted the aims of Communist
Party and disseminated Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto
Evangelista (Exh. V-1662), founder of Communism in the Philippines, in
the session hall of the CLO headquarters at 2070 Azcarraga and then at
330 P. Campa;
(b) The distribution of foreign communist reading materials such as the
World Federation of Trade Union Magazine, International Union of
Students magazine, Voice magazine of the marine cooks of the CLO,
World Committee of the Defenders of the Peace magazine, Free
Bulgaria magazine, Soviet Russia Today magazine and World
Federation of Democratic Youth magazine (Exhs. V-911, V-907, V-910,
V-899, V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive
publications such as the "Titis", "Bisig", Kidlat", which are Communist
Party organs; "The Philippine Labor Demands Justice" and "Hands Off
Korea" authored by accused Amado V. Hernandez;
(d) Principles of Communism were also propagated thru lectures,
meetings, and by means of organization of committees in the
educational department as well as researches in the Worker's Institute
of the CLO.
(4) The CLO also helped carry out the program of the Communist Party
thru infiltration of party members and selected leaders of the HMB
within the trade unions under the control of the CLO. The Communist
Party thru the CLO assigned Communist Party leaders and organizers to
different factories in order to organize unions. After the organization of
the union, it will affiliate itself with the CLO thru the Communist
leaders and the CLO in turn, will register said union with the
Department of Labor; and the orientation and indoctrination of the
workers is continued in the line of class struggle. After this orientation
and infiltration of the Communist Party members and selected leaders
of the HMB with the trade unions under the control of the CLO is
already achieved and the group made strong enough to carry out its
aims, they will begin the sporadic strikes and the liquidation of anti-
labor elements and anti-Communist elements and will create a so-
called revolutionary crisis. That revolutionary crisis will be done for the
party to give directives to the HMB who are fighting in the countrysides
and made them come to the city gates. The entry of the HMB is being
paved by the simultaneous and sporadic strikes, by ultimate general
strikes thru the management of the CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used the aliases
"Victor", or was referred to as "Victor" or "Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie
telling the latter of his sympathies for other communists, describing his
experiences with Communists abroad, telling Julie to dispose of
materials that may be sent by Victor. (Exh. D-2001-2004)
(b) "Paano Maisasagawa, etc." — mentions different groups of labor
unions of which Victor heads one group, consisting of the MRRCO,
PTLD, PGWU, EMWU and IRWU (Exh. C-2001-2008) Cadres assigned to
different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew
Amado Hernandez as Victor from co-party members Hugo and Ely.
(Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached
letter to Victor. (Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press statement
was not published in the newspapers. (Exh. C-362) Letter was however
published by Hernandez in the Daily Mirror.
CRIMINAL LAW FULL CASES
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk
Story to Victor. (Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman
at Pampanga St. to bring to the latter communications from the
Communist Party. (Exh. D-1203) That Soliman was given copies of
"Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be involved
with Nacionalista Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and
Soliman has "tendencies of careerism and tendency to want to deal
with leaders of the party"; that he should be asked to choose to go
underground or fight legally. (Exh. F-562)
(j) Explanation given by Hernandez why he did not join Saulo in going
underground. (Exh. V-87) (1) His election as councilor until December,
1951. (Exhs. V-42, W-9) (2) His election as President of CLO until August
of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)
(b) To SOBSI Jakarta — that Filipinos are joining other communist
countries of the East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado
Hernandez. (Exh. W-116-120)
(d) To Hugh and Eddie, July 8, 1949 — Extends greetings to National
Union of Marine Cooks and Stewards, states that labor has one
common struggle — "the liberation of all the peoples from the chains
of tyranny, fascism and imperialism". (Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-
85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are being
persecuted, like Taruc. Tells of reward of P100,000.00 on Taruc's head.
(Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker — condemns Wall Street
maneuvers; corruption and graft in Quirino administration, etc. (Exh. V-
83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist.
(Exh. V-79)
(k) Communication of Hernandez to CLO at MRRCO — Praises Balgos
and Capadocia for joining the Huks. (Exhs. V-12-22, V-289)
(l) "Philippine labor Demands Justice" — Attacks czars of Wall Street
and U.S. Army and Government. (Exh. V-94) .
(m) Letter to Taruc — June 28, 1948.-States solidarity among the CLO
Huks and PKM. Attacks North Atlantic Pact. Praises Mao Tse Tung
(contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" — States of a delegation to Roxas
attacking unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" — (Exh. V-287)
(p) Article "Hands Off Korea" — (Exhs. V-488-494, 495-501, 509-515,
W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-
35-38)
(r) Press statement of Hernandez — opposes acceptance of
decorations from Greece by Romulo. (Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which
clothes he sent to the field. Letters show of sending of supplies to
Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did
furnish to Huks. (Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about
Huks to Bulosan for inclusion in Bulosan's book. (Exh. FF-1)
(d) Had conference with Kumar Goshal a Hindu, about the Huks and
their armed forces. (Photographs, Exhs. X-6 RR-54-55A)
(e) Supervised taking of pictures of sons of Capadocia and Joven.
(Photographs, Exhs. T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and Balgos
and issued press release about their going underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to
Taruc. (Exh. D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1)
that the Communist Party was fully organized as a party and in order to
carry out its aims and policies a established a National Congress, a
Central Committee (CC), Politburo PB, Secretariat (SEC), Organization
Bureau (OB), and National Courier or Communication Division (NCD),
each body performing functions indicated in their respective names; (2)
that in a meeting held on August 11, 1950 the SEC discussed the
creation of a Military Committee of the Party and a new GHQ, under
which on September 29, 1950 the SEC organized a special warfare
division, with a technological division; (3) that on May 5, 1950 a body
known as the National Intelligence Division was created, to gather
essential military intelligence and, in general, all information useful for
the conduct of the armed struggle (4) that a National Finance
Committee was also organized as a part of the Politburo and
answerable to it; (5) that the country was divided into 10 Recos, the
10th Reco comprising the Manila and suburbs command; (6) that since
November, 1949 the CPP had declared the existence of a revolutionary
situation and since then the Party had gone underground and the CPP
is leading the armed struggle for national liberation, and called on the
people to organize guerrillas and coordinate with the HMB on the
decisive struggle and final overthrow of the imperialist government; (7)
that in accordance with such plan the CPP prepared plans for
expansion and development not only of the Party but also of the HMB;
the expansion of the cadres from 3,600 in July 1950 to 56,000 in
September 1951, the HMB from 10,800 in July 1950 to 172,000 in
September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to
intensify HMB military operations for political purposes. The Politburo
sanctioned the attacks made by the Huks on the anniversary of the
HMB on March 25, 1950. The HMB attacks that were reported to the
PB were those made in May, 1946; June, 1946; April 10, 1947; May 9,
1947; August 19, 1947; August 25, 1950; August 26, 1950; October 15
and 17, 1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9,
1947; August 19, 1947; April 29, 1949; August 25, 1950; August 26,
1950; September 12, 1950; March 26, 1950; March 29, 1950.
CRIMINAL LAW FULL CASES
The theory of the prosecution, as stated in the lower court's decision, is
as follows:
The evidence does not show that the defendants in these cases now
before this Court had taken a direct part in those raids and in the
commission of the crimes that had been committed. It is not, however,
the theory of the prosecution that they in fact had direct participation
in the commission of the same but rather that the defendants in these
cases have cooperated, conspired and confederated with the
Communist Party in the prosecution and successful accomplishment of
the aims and purposes of the said Party thru the organization called the
CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the
CPP, organized under the same pattern as the CPP, having its own
National Congress, a Central Committee (which acts in the absence of
and in representation of the National Congress), an Executive
Committee (which acts when the National Congress and the Executive
Committee are not in session), and seven permanent Committees,
namely, of Organization, Unemployment and Public Relations, Different
Strikes and Pickets, Finance, Auditing, Legislation and Political Action.
Members of the Communist Party dominate the committees of the
CLO. The supposed tie-up between CPP and the CLO of which
Hernandez was the President, is described by the court below in
finding, thus:
Just how the CLO coordinates its functions with the Communist Party
organ under which it operates was explained by witness Guillermo S.
Calayag, one-time ranking member of the Communist Party and the
CLO who typewrites the "Patnubay sa Education" from a handwritten
draft of Capadocia, which is one of the texts used in the Worker's
institute of the CLO. According to him, the CLO plays its role by means
of propaganda, giving monetary aid, clothing, medicine and other
material forms of help to the HMB, which constitutes the armed forces
of the Communist Party. Propaganda is done by lectures, meetings, and
the organization of committees of the educational department as well
as researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is by
allowing the Communist Party leaders to act as organizers in the
different factories in forming a union. These Party Members help
workers in the factories to agitate for the eradication of social classes
and ultimately effect the total emancipation of the working classes thru
the establishment of the so-called dictatorship of the proletariat. It is
the duty of these Communist Party members to indoctrinate
uninitiated workers in the union to become proselytes of the
Communist Party ideology. After the right number is secured and a
union is formed under a communist leader, this union is affiliated with
the CLO and this in turn registers the same with the Department of
Labor. The orientation and indoctrination of the masses is continued
with the help of the CLO. The primary objective of the CLO is to create
what is called a revolutionary crisis. It seeks to attain this objective by
first making demands from the employers for concessions which
become more and more unreasonable until the employers would find
it difficult to grant the same. Then a strike is declared. But the strikes
are only preparation for the ultimate attainment of the Communist
goal of armed overthrow of the government. After the workers in the
factories have already struck in general at the behest of the Communist
Party thru the CLO a critical point is reached when a signal is given for
the armed forces of the Communist Party, the HMB, to intervene and
carry the revolution now being conducted outside to within the city.
On the basis of the above findings, the court below found Hernandez
guilty as principal of the crime charged against him and sentenced him
to suffer the penalty of reclusion perpetua with the accessories
provided by law, and to pay the proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially
those cited by the Court in its decision and by the Solicitor General in
his brief, discloses that defendant-appellant Amado V. Hernandez, as a
Communist, was an active advocate of the principles of Communism,
frequently exhorting his hearers to follow the footsteps of Taruc and
join the uprising of the laboring classes against capitalism and more
specifically against America and the Quirino administration, which he
dubbed as a regime of puppets of American imperialism. But beyond
the open advocacy of Communistic Theory there appears no evidence
that he actually participated in the actual conspiracy to overthrow by
force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his
relation to the rebellion? If, as testified to by Guillermo S. Calayag, the
CLO plays merely the role of propagation by lectures, meetings and
organization of committees of education by Communists; if, as stated,
the CLO merely allowed Communist Party leaders to act as organizers
in the different factories, to indoctrinate the CLO members into the
Communist Party and proselytize them to the Communist ideology; if,
as also indicated by Calayag, the CLO purports to attain the ultimate
overthrow of the Government first by making demands from
employers for concessions until the employers find it difficult to grant
the same, at which time a strike is declared; if it is only after the
various strikes have been carried out and a crisis is thereby developed
among the laboring class, that the Communist forces would intervene
and carry the revolution — it is apparent that the CLO was merely a
stepping stone in the preparation of the laborers for the Communist'
ultimate revolution. In other words, the CLO had no function but that
of indoctrination and preparation of the members for the uprising that
would come. It was only a preparatory organization prior to revolution,
not the revolution itself. The leader of the CLO therefore, namely
Hernandez, cannot be considered as a leader in actual rebellion or of
the actual uprising subject of the accusation. Hernandez, as President
of the CLO therefore, by his presidency and leadership of the CLO
cannot be considered as having actually risen up in arms in rebellion
against the Government of the Philippines, or taken part in the
conspiracy to commit the rebellion as charged against him in the
present case; he was merely a propagandist and indoctrinator of
Communism, he was not a Communist conspiring to commit the actual
rebellion by the mere fact of his presidency of the CLO.
The court below declares that since November 1949 the Communist
Party of the Philippines had declared the existence of the revolutionary
situation and since then the Party had gone underground, with the CPP
leading the struggle for national integration and that in the month of
January 1950, it was decided by the said Party to intensify the HMB
military operations for political purposes. The court implicates the
appellant Hernandez as a co-conspirator in this resolution or acts of the
Communist Party by his mere membership thereto. We find this
conclusion unwarranted. The seditious speeches of Hernandez took
place before November, 1949 when the CPP went underground. The
court below has not been able to point out, nor have We been able to
find among all acts attributed to Hernandez, any single fact or act of his
from which it may be inferred that he took part in the deliberations
declaring the existence of a revolutionary situation, or that he had
gone underground. As a matter of fact the prosecution's evidence is to
the effect that Hernandez refused to go underground preferring to
engage in what they consider the legal battle for the cause.
We have also looked into the different documents which have been
presented at the time of the trial and which were confiscated from the
office of the Politburo of the Communist Party. The speeches of
Hernandez were delivered before the declaration by the Communist
Party of a state of revolutionary situation in 1949. Neither was it shown
that Hernandez was a member of the Executive Committee, or of the
SEC, or of the Politburo of the Communist Party; so NO presumption
can arise that he had taken part in the accord or conspiracy declaring a
revolution. In short, there has been no evidence, direct or indirect, to
relate or connect the appellant Hernandez with the uprising or the
resolution to continue or maintain said uprising, his participation in the
deliberations leading to the uprising being inferred only from the fact
that he was a communist.
The practice among the top Communists, as declared by the trial court
appears to have been for important members, if they intend actually to
join the rebellion, to go underground, which meant leaving the city,
disappearing from sight and/or secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision, contains
the directive of the SEC of September 1, 1950, to Saulo and Hernandez,
which reads:
11. In view of the new developments in the city, send out Elias who
prefers to work outside. Present problem of fighting legally to Com.
Soliman. If Soliman is prepared for martyrdom, retain him to fight
legally. If not, send him out with Elias. Same goes with Com. Mino and
other relatively exposed mass leaders.
CRIMINAL LAW FULL CASES
And the lower court itself found that whereas Saulo went underground
and joined the underground forces outside the City, Hernandez
remained in the City, engaged in the work of propaganda, making
speeches and causing the publication of such matters as the
Communist Party leaders directed him to publish.
That Hernandez refused to go underground is a fact which is further
corroborated by the following reasons (excuses) given by him for not
going underground, namely (1) that his term of councilor of the City of
Manila was to extend to December, 1951; and (2) that he was elected
President of the CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be
involved with Nacionalista Rebels, and reported to the Politburo that
Hernandez "has tendencies of careerism, and tending to want to deal
with leaders of the Nacionalista Party instead of following CPP
organizational procedures."
The court below further found that Hernandez had been furnishing
supplies for the Huks in the field. But the very document dated
December 3, 1949, Exhibit D-420422, cited in the decision (printed, p.
49), is to the effect that clothes and shoes that Hernandez was
supposed to have sent have not been received. It is true that some
clothes had been sent thru him to the field, but these clothes had come
from a crew member of a ship of the American President Lines. He
also, upon request, sent a portable typewriter to the SEC or Politburo.
Furthermore, a certain Niagara Duplicating machine received by
Hernandez from one Rolland Scott Bullard a crew member of the SS
President Cleveland, appease later to have been forwarded by him to
the officers of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send
notes to appellant Hernandez, who in turn issued press releases for
which he found space in the local papers. His acts in this respect belong
to the category of propaganda, to which he appears to have limited his
actions as a Communist.
The acts of the appellant as thus explained and analyzed fall under the
category of acts of propaganda, but do not prove that he actually and
in fact conspired with the leaders of the Communist Party in the
uprising or in the actual rebellion, for which acts he is charged in the
information. And his refusal to go underground because of his political
commitments occasioned by his term of election as president of the
CLO and the impressions caused by his acts on the Communist leaders,
to the effect that he was in direct communication or understanding
with the Nacionalista Party to which he was affiliated, creates in Us the
reasonable doubt that it was not his Communistic leanings but his
political ambitions, that motivated his speeches sympathizing with the
Huks. For which reason We hold that the evidence submitted fails to
prove beyond reasonable doubt that he has conspired in the instigation
of the rebellion for which he is held to account in this criminal case.
The question that next comes up for resolution is: Does his or anyone's
membership in the Communist Party per se render Hernandez or any
Communist guilty of conspiracy to commit rebellion under the
provisions of Article 136 of the Revised Penal Code? The pertinent
provision reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection.
— The conspiracy and proposal to commit rebellion or insurrection
shall be punished, respectively, by prision correccional in its maximum
period and a fine which shall not exceed 5,000 pesos, and by prision
correccional in its medium period and a fine not exceeding 2,000
pesos.
The advocacy of Communism or Communistic theory and principle is
not to be considered as a criminal act of conspiracy unless transformed
or converted into an advocacy of action. In the very nature of things,
mere advocacy of a theory or principle is insufficient unless the
communist advocates action, immediate and positive, the actual
agreement to start an uprising or rebellion or an agreement forged to
use force and violence in an uprising of the working class to overthrow
constituted authority and seize the reins of Government itself. Unless
action is actually advocated or intended or contemplated, the
Communist is a mere theorist, merely holding belief in the supremacy
of the proletariat a Communist does not yet advocate the seizing of the
reins of Government by it. As a theorist the Communist is not yet
actually considered as engaging in the criminal field subject to
punishment. Only when the Communist advocates action and actual
uprising, war or otherwise, does he become guilty of conspiracy to
commit rebellion. Borrowing the language of the Supreme Court of the
United States:
In our jurisprudence guilt is personal, and when the imposition of
punishment on a status or on conduct can only be justified by
reference to the relationship of that status or conduct to other
concededly criminal activity (here advocacy of violent overthrow), that
relationship must be sufficiently substantial to satisfy the concept of
personal guilt in order to withstand attack under the Due Process
Clause of the Fifth Amendment. Membership, without more, in an
organization engaged in illegal advocacy, it is now said, has not
heretofore been recognized by this Court to be such a relationship. ... .
What must be met, then, is the argument that membership, even when
accompanied by the elements of knowledge and specific intent, affords
an insufficient quantum of participation in the organization's alleged
criminal activity, that is, an insufficiently significant form of aid and
encouragement to permit the imposition of criminal sanctions on that
basis. It must indeed be recognized that a person who merely becomes
a member of an illegal organization, by that "act" alone need be doing
nothing more than signifying his assent to its purposes and activities on
one hand, and providing, on the other, only the sort of moral
encouragement which comes from the knowledge that others believe
in what the organization is doing. It may indeed be argued that such
assent and encouragement do fall short of the concrete, practical
impetus given to a criminal enterprise which is lent for instance by a
commitment on the part of the conspirator to act in furtherance of
that enterprise. A member, as distinguished from a conspirator, may
indicate his approval of a criminal enterprise by the very fact of his
membership without thereby necessarily committing himself to further
it by any act or course of conduct whatever. (Scales v. United States,
367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the
propagation of improvement of conditions of labor through his
organization, the CLO. While the CLO of which he is the founder and
active president, has communistic tendencies, its activity refers to the
strengthening of the unity and cooperation between labor elements
and preparing them for struggle; they are not yet indoctrinated in the
need of an actual war with or against Capitalism. The appellant was a
politician and a labor leader and it is not unreasonable to suspect that
his labor activities especially in connection with the CLO and other
trade unions, were impelled and fostered by the desire to secure the
labor vote to support his political ambitions. It is doubtful whether his
desire to foster the labor union of which he was the head was impelled
by an actual desire to advance the cause of Communism, not merely to
advance his political aspirations.
Insofar as the appellant's alleged activities as a Communist are
concerned, We have not found, nor has any particular act on his part
been pointed to Us, which would indicate that he had advocated action
or the use of force in securing the ends of Communism. True it is, he
had friends among the leaders of the Communist Party, and especially
the heads of the rebellion, but this notwithstanding, evidence is
wanting to show that he ever attended their meetings, or collaborated
and conspired with said leaders in planning and encouraging the acts of
rebellion, or advancing the cause thereof. Insofar as the furnishing of
the mimeograph machine and clothes is concerned, it appears that he
acted merely as an intermediary, who passed said machine and clothes
on to others. It does not appear that he himself furnished funds or
material help of his own to the members of the rebellion or to the
forces of the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in
spite of the apparent desire of the chief of the rebellion, is clear proof
of his non-participation in the conspiracy to engage in or to foster the
rebellion or the uprising.
We next consider the question as to whether the fact that Hernandez
delivered speeches of propaganda in favor of Communism and in favor
of rebellion can be considered as a criminal act of conspiracy to commit
rebellion as defined in the law. In this respect, the mere fact of his
giving and rendering speeches favoring Communism would not make
him guilty of conspiracy, because there was no evidence that the
CRIMINAL LAW FULL CASES
hearers of his speeches of propaganda then and there agreed to rise up
in arms for the purpose of obtaining the overthrow of the democratic
government as envisaged by the principles of Communism. To this
effect is the following comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos,
induciendoles a que el dia que se anunciara la subasta de consumes se
echaran a la calle para conseguir aunque fuera preciso acudir a la
fuerza el reparto entre los vecinos ricos solamente, sera responsable
de un delito de conspiracion para la sedicion? — El Tribunal Supreme
ha resuelto la negative al casar cierta sentencia de la Audiencia de
Valencia, que entendio lo contrario: "Considerando que, con areglo a lo
que dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o
mas personas se conciertan para la execution de un delito y resuelven
cmeterlo; y no constando que existiera ese concierto en cuanto a los
hechos que se refieren en la tercera pregunta del veredicto, pues en
ella solo se habla de los actos de induccion que el procesado realizo, sin
expresar el efecto que la mismo produjo en el animo de las personas a
quienes se dirigian, ni si estas aceptaron o no lo que se las propuso,
resulta evidence que faltan los clementos integrantes de la
conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de Enero de
1909.) (Viada, Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no
concrete evidence proving beyond reasonable doubt that the appellant
(Hernandez) actually participated in the rebellion or in any act of
conspiracy to commit or foster the cause of the rebellion. We are
constrained, in view of these circumstances, to absolve, as We hereby
absolve, the appellant Amado V. Hernandez from the crime charged,
with a proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime
of rebellion as charged in the information and were each sentenced to
suffer the penalty of 10 years and 1 day of prision mayor, with the
accessories provided by law, and to pay their proportionate share of
the costs.
Legal Considerations. — Before proceeding to consider the appeals of
the other defendants, it is believed useful if not necessary to lay dawn
the circumstances or facts that may be determinative of their criminal
responsibility or the existence or nature thereof. To begin with, as We
have exhaustively discussed in relation to the appeal of Hernandez, we
do not believe that mere membership in the Communist Party or in the
CLO renders the member liable, either of rebellion or of conspiracy to
commit rebellion, because mere membership and nothing more merely
implies advocacy of abstract theory or principle without any action
being induced thereby; and that such advocacy becomes criminal only
if it is coupled with action or advocacy of action, namely, actual
rebellion or conspiracy to commit rebellion, or acts conducive thereto
or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies
participation in an actual uprising or rebellion to secure, as the Huks
pretend, the liberation of the peasants and laboring class from
thraldom. By membership in the HMB, one already advocates uprising
and the use of force, and by such membership he agrees or conspires
that force be used to secure the ends of the party. Such membership,
therefore, even if there is nothing more, renders the member guilty of
conspiracy to commit rebellion punishable by law.
And when a Huk member, not content with his membership, does
anything to promote the ends of the rebellion like soliciting
contributions, or acting as courier, he thereby becomes guilty of
conspiracy, unless he takes to the field and joins in the rebellion or
uprising, in which latter case he commits rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society
commonly known as the "Katipunan", the purpose of which was to
overthrow the government by force. Each of the defendants on various
times solicited funds from the people of Mexico, Pampanga. The Court
held that the defendants were guilty of conspiracy and proposal to
commit rebellion or insurrection and not of rebellion or insurrection
itself. Thus, the Court ruled that:
From the evidence adduced in this case we are of the opinion that the
said defendants are guilty, not of inciting, setting or foot, or assisting or
engaging in rebellion, but rather of the crime of conspiring to
overthrow, put down, and destroy by force the Government of the
United States in the Philippine Islands, and therefore we find that said
defendants, and each of them, did, together with others, in the months
of February and March, 1903, in the Province of Pampanga, Philippine
Islands, conspire to overthrow, put down, and to destroy by force the
Government of the United States in the Philippine Islands. (U.S. v.
Vergara, et al., 3 Phil. 432, 434.)
JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member
of the Central Committee of the CLO member of the Central
Committee of the CPP and as such committed to the establishment of
the dictatorship of the proletariat To the same effect is the testimony
of Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the
conspiracy to commit rebellion. He should therefore be absolved of the
charges contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and
Executive Committee member of the CLO a communications center of
the Communist Party, having been found in possession of letters from
Federico Maclang to Salome Cruz, and solicitor of contributions for the
Huks.
Racanday admits being a member of the Executive Committee of the
CLO Editor of the Kidlat of the Government Workers Union, receiving
copies of the Titis. Calayag testified that he was a member of the
Central Committee of the Communist Party entrusted with the duty of
receiving directives of the Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before
the Communist Party went underground. We have been unable to find
the evidence upon which the court bases its conclusion that he
received contributions for the Huks. With these circumstances in mind,
We are not convinced beyond reasonable doubt that as a Communist
he took part in the conspiracy among the officials of the Communist
Party to take part and support the rebellion of the Huks.
We are, therefore, constrained to absolve him of the charges filed
against him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an
organized Communist branch in Pasay City, a member of the Central
Committee and Treasurer of the CLO. He admitted his membership and
his position as member of the executive committee and treasurer of
the CLO these facts being corroborated by the witness Guillermo
Calayag.
His membership in the Communist Party dates as far back as the year
1945. As a communist, Genaro de la Cruz received quotas and
monetary contributions coming from the areas under his jurisdiction,
and one time he made a receipt from a member from Caloocan at the
CLO headquarters at Azcarraga signing the receipt as "Gonzalo" which
is one of his aliases. He also distributed copies of the "Titis" magazine. `
While his membership in the Communist Party plus his having received
contributions for the party indicate that he is an active member, it was
not shown that the contributions that he received from Communist
Party members were received around the year 1950 when the Central
Committee of the Communist Party had already agreed to conspire and
go underground and support the Huk rebellion. Under these
circumstances We cannot find him guilty of conspiracy to commit
rebellion because of the lack of evidence to prove his guilt beyond
reasonable doubt.
JULIAN LUMANOG
CRIMINAL LAW FULL CASES
The court found him to be an organizer of HMB among the mill
workers, solicited contributions for the HMB and Central Committee
member of the CLO as per Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made
to believe that the Party is for the welfare of the laborers. He also
admitted being a member of the Central Committee of the CLO Calayag
testified that Lumanog organized the HMB units of the Communist
Party in the Lumber Unions and attended a Communist meeting held
by Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the
money collected by him to one Nicasio Pamintuan, one of the
members of the HMB Special Unit Trigger Squad) in Manila for the use
of the said unit.
Considering that the HMB was engaged in a rebellion to overthrow the
government, it is evident that by giving his contributions he actually
participated in the conspiracy to overthrow the government and
should, therefore, be held liable for such conspiracy, and should be
sentenced accordingly.
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP
and the CLO that his activities consisted in soliciting contributions, in
cash and in kind, from city residents for the use of the HMB, turning
over said collections to the Party; that he has given asylum to a wanted
Hukbalahap at his house at Juan Luna St., Gagalangin, which house was
used as Military post. The above findings of the court are fully
supported by the testimony of Domingo Clarin.
Considering that while he has not actually taken part in the rebellion,
he has shown sympathy with the cause by soliciting contributions for it
and had given shelter to the Huks. We feel that the court was fully
justified in finding him guilty, but We hold that he should be declared
liable merely as a co-conspirator in the crime of conspiracy to commit
rebellion, and should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having
admitted membership in the Communist Party since 1945; that his
duties as a Communist was to help in the office of the National Finance
Committee, assorting papers and written documents; that sometimes
he accompanied the purchaser of medicines, shoes, papers, foodstuffs
and clothing to be given to the Huks; that he is a member of the
Communication Division of the CPP in Manila, in charge of distribution
of letters or communications; that he admits having written to Salome
Cruz, courier of the Communist Party, when he asked for his
necessities, such as money and shoes, etc.
The facts found by the court are sufficiently supported by the
communications and evidence submitted by the prosecution. The
exhibits show that he was in constant communication with the
communists; serving them as courier. His oath as a member of the
Communist Party was submitted in court and in it he admits obedience
to all orders of the Party and to propagate the stability of the PKP.
Considering that the PKP was engaged in an actual uprising against the
constituted Government and that Bayani Espiritu was in constant
communication with the Communist Party and served it as courier, We
believe that the court was fully justified in finding him guilty. However,
We believe that not having actually taken up arms in the uprising he
may only be declared guilty of conspiracy to commit rebellion.
TEOPISTA VALERIO
The court below found that this appellant joined the Communists in
1938 in San Luis, Pampanga, under Casto Alejandrino, who later
became her common-law husband; that her aliases are "Estrella" and
"Star"; that she was found in possession of various documents written
to top Communists like Alejandrino, Lava and Romy, as well as a letter
from Taruc congratulating her for the delivers, of a son.
Jose Taguiang testified that she was a member of the Provincial
Committee of the CPP in Nueva Ecija, later Chairman of the Finance
Department, and then promoted to Finance Officer of the Central
Luzon Committee. Alicia Vergara, a Huk courier, testified that she
delivered letter from the mountains to Teopista Valerie, who was in
turn also a courier.
Without considering the close relationship that she had with top
Communist Casto Alejandrino, We are satisfied that she herself was,
aside from being a Huk courier, also a Huk, a member of the HMB from
1942 to 1951. As she was a Communist and at the same time a
member of the HMB, and considering that the HMB was engaged in an
uprising to uproot the legitimate government, there cannot be any
question that she was in conspiracy with the other members of her
Party against the constituted government. We hold, therefore, that the
evidence proves beyond reasonable doubt that she is guilty of
conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION
In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo
Capadocia, Mariano P. Balgos, Alfredo B. Saulo and Jacobo Espino was
dismissed because they have not been apprehended at the time of the
trial.
PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND 
REPUBLIC ACT NO. 1700, DISTINGUISHED
In the case at bar the prosecution is for actual rebellion which consists
in rising publicly and taking aims against the Government for the
purpose of removing from the allegiance to said Government or its
laws, the territory of the Philippines, or any part thereof, etc., a crime
defined in Article 134 of the Revised Penal Code; whereas Evangelista
was charged and convicted for inciting to rebellion under Art. 138,
Revised Penal Code (formerly Sec. 2, Act No. 292). As the specific
charge against appellants is that of rising up in arms in actual rebellion
against the Government, they cannot be held guilty of inciting the
people to arms under Article 138, which is a different offense.
On the other hand, Rep. Act 1700, known as the Anti-subversion Act,
which penalizes membership in any organization or association
committed to subvert the Government, cannot be applied to the
appellants because said Act was approved on June 20, 1957 and was
not in force at the time of the commission of the acts charged against
appellants (committed 1945-1950) ; the Anti-Subversion Act punishes
participation or membership in an organization committed to
overthrow the duly constituted Government, a crime district from that
of actual rebellion with which appellants are charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-
appellants Amado V. Hernandez, Juan J. Cruz, Amado Racanday and
Genaro de la Cruz are absolved from the charges contained in the
information, with their proportionate share of the costs de oficio. The
defendants-appellants Julian Lumanog and Fermin Rodillas in Criminal
Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani
Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R. No. L-
6026) are hereby found guilty of the crime of conspiracy to commit
rebellion, as defined and punished in Article 136 of the Revised Penal
Code, and each and everyone of them is hereby sentenced to suffer
imprisonment for five years, four months and twenty-one days
of prision correccional, and to pay a fine of P5,000.00, with subsidiary
imprisonment in case of insolvency and to pay their proportional share
of the costs. So ordered.
G.R. No. 92163 June 5, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE
ENRILE, petitioner 
vs.
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of
Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE,
PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY
PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF
INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA
CRIMINAL LAW FULL CASES
TORRES (Superintendent of the Northern Police District) AND/ OR
ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE
PERSON OF JUAN PONCE ENRILE, respondents.
G.R. No. 92164 June 5, 1990
SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,  (a) abandon Hernandez and adopt the minority view expressed in the
vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE,
FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON.
JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional
Trial Court, Quezon City, Branch 103, respondents.
 
NARVASA, J.:
Thirty-four years after it wrote history into our criminal
jurisprudence, People vs. Hernandez 1 once more takes center stage as
the focus of a confrontation at law that would re-examine, if not the
validity of its doctrine, the limits of its applicability. To be sure, the
intervening period saw a number of similar cases 2 that took issue with
the ruling-all with a marked lack of success-but none, it would Beem,
where season and circumstance had more effectively conspired to
attract wide public attention and excite impassioned debate, even
among laymen; none, certainly, which has seen quite the kind and
range of arguments that are now brought to bear on the same
question.
The facts are not in dispute. In the afternoon of February 27, 1990,
Senate Minority Floor Leader Juan Ponce Enrile was arrested by law
enforcement officers led by Director Alfredo Lim of the National
Bureau of Investigation on the strength of a warrant issued by Hon.
Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in
Criminal Case No. 9010941. The warrant had issued on an information
signed and earlier that day filed by a panel of prosecutors composed of
Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand
R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr.,
charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and
Gregorio Honasan with the crime of rebellion with murder and multiple
frustrated murder allegedly committed during the period of the failed
coup attempt from November 29 to December 10, 1990. Senator Enrile
was taken to and held overnight at the NBI headquarters on Taft
Avenue, Manila, without bail, none having been recommended in the
information and none fixed in the arrest warrant. The following
morning, February 28, 1990, he was brought to Camp Tomas Karingal
in Quezon City where he was given over to the custody of the
Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula
Torres. 3
On the same date of February 28, 1990, Senator Enrile, through
counsel, filed the petition for habeas corpusherein (which was followed
by a supplemental petition filed on March 2, 1990), alleging that he
was deprived of his constitutional rights in being, or having been:
(a) held to answer for criminal offense which does not exist in the
statute books;
(b) charged with a criminal offense in an information for which no
complaint was initially filed or preliminary investigation was conducted,
hence was denied due process;
(c) denied his right to bail; and
(d) arrested and detained on the strength of a warrant issued without
the judge who issued it first having personally determined the
existence of probable cause. 4
The Court issued the writ prayed for, returnable March 5, 1990 and set
the plea for hearing on March 6, 1990. 5On March 5, 1990, the Solicitor
General filed a consolidated return 6 for the respondents in this case
and in G.R. No. 921647 Which had been contemporaneously but
separately filed by two of Senator Enrile's co-accused, the spouses
Rebecco and Erlinda Panlilio, and raised similar questions. Said return
urged that the petitioners' case does not fall within
the Hernandezruling because-and this is putting it very simply-the
information in Hernandez charged murders and other common crimes
committed as a necessary means for the commission of
rebellion, whereas the information against Sen. Enrile et al.charged
murder and frustrated murder committed on the occasion, but not in
furtherance, of rebellion. Stated otherwise, the Solicitor General would
distinguish between the complex crime ("delito complejo") arising from
an offense being a necessary means for committing another, which is
referred to in the second clause of Article 48, Revised Penal Code, and
is the subject of the Hernandez ruling, and the compound crime
("delito compuesto") arising from a single act constituting two or more
grave or less grave offenses referred to in the first clause of the same
paragraph, with which Hernandez was not concerned and to which,
therefore, it should not apply.
The parties were heard in oral argument, as scheduled, on March 6,
1990, after which the Court issued its Resolution of the same
date 8 granting Senator Enrile and the Panlilio spouses provisional
liberty conditioned upon their filing, within 24 hours from notice, cash
or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00
(for the Panlilios), respectively. The Resolution stated that it was issued
without prejudice to a more extended resolution on the matter of the
provisional liberty of the petitioners and stressed that it was not
passing upon the legal issues raised in both cases. Four Members of the
Court 9 voted against granting bail to Senator Enrile, and two 10 against
granting bail to the Panlilios.
The Court now addresses those issues insofar as they are raised and
litigated in Senator Enrile's petition, G.R. No. 92163.
The parties' oral and written pleas presented the Court with the
following options:
main dissent of Justice Montemayor in said case that rebellion cannot
absorb more serious crimes, and that under Article 48 of the Revised
Penal Code rebellion may properly be complexed with common
offenses, so-called; this option was suggested by the Solicitor General
in oral argument although it is not offered in his written pleadings;
(b) hold Hernandez applicable only to offenses committed in
furtherance, or as a necessary means for the commission, of rebellion,
but not to acts committed in the course of a rebellion which also
constitute "common" crimes of grave or less grave character;
(c) maintain Hernandez as applying to make rebellion absorb all other
offenses committed in its course, whether or not necessary to its
commission or in furtherance thereof.
On the first option, eleven (11) Members of the Court voted against
abandoning Hernandez. Two (2) Members felt that the doctrine should
be re-examined. 10-A In the view of the majority, the ruling remains
good law, its substantive and logical bases have withstood all
subsequent challenges and no new ones are presented here persuasive
enough to warrant a complete reversal. This view is reinforced by the
fact that not too long ago, the incumbent President, exercising her
powers under the 1986 Freedom Constitution, saw fit to repeal, among
others, Presidential Decree No. 942 of the former regime which
precisely sought to nullify or neutralize Hernandez by enacting a new
provision (Art. 142-A) into the Revised Penal Code to the effect that
"(w)hen by reason, or on the occasion, of any of the crimes penalized
in this Chapter (Chapter I of Title 3, which includes rebellion), acts
which constitute offenses upon which graver penalties are imposed by
law are committed, the penalty for the most serious offense in its
maximum period shall be imposed upon the offender."' 11In thus acting,
the President in effect by legislative flat reinstated Hernandez as
binding doctrine with the effect of law. The Court can do no less than
accord it the same recognition, absent any sufficiently powerful reason
against so doing.
On the second option, the Court unanimously voted to reject the
theory that Hernandez is, or should be, limited in its application to
offenses committed as a necessary means for the commission of
rebellion and that the ruling should not be interpreted as prohibiting
the complexing of rebellion with other common crimes committed on
the occasion, but not in furtherance, thereof. While four Members of
the Court felt that the proponents' arguments were not entirely devoid
of merit, the consensus was that they were not sufficient to overcome
CRIMINAL LAW FULL CASES
what appears to be the real thrust of Hernandez to rule out the
complexing of rebellion with any other offense committed in its course
under either of the aforecited clauses of Article 48, as is made clear by
the following excerpt from the majority opinion in that case:
There is one other reason-and a fundamental one at that-why Article
48 of our Penal Code cannot be applied in the case at bar. If murder
were not complexed with rebellion, and the two crimes were punished
separately (assuming that this could be done), the following penalties
would be imposable upon the movant, namely: (1) for the crime of
rebellion, a fine not exceeding P20,000 and prision mayor, in the
corresponding period, depending upon the modifying circumstances
present, but never exceeding 12 years of prision mayor, and (2) for the
crime of murder, reclusion temporal in its maximum period to death,
depending upon the modifying circumstances present. in other words,
in the absence of aggravating circumstances, the extreme penalty could
not be imposed upon him. However, under Article 48 said penalty
would have to be meted out to him, even in the absence of a single
aggravating circumstance. Thus, said provision, if construed in
conformity with the theory of the prosecution, would
be unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose
of favoring the culprit, not of sentencing him to a penalty more
severe than that which would be proper if the several acts performed
by him were punished separately. In the words of Rodriguez Navarro:
La unificacion de penas en los casos de concurso de delitos a que hace
referencia este articulo (75 del Codigo de 1932), esta basado
francamente en el principio pro reo.' (II Doctrina Penal del Tribunal
Supremo de Espana, p. 2168.)
We are aware of the fact that this observation refers to Article 71 (later
75) of the Spanish Penal Code (the counterpart of our Article 48), as
amended in 1908 and then in 1932, reading:
Las disposiciones del articulo anterior no son aplicables en el caso de
que un solo hecho constituya dos o mas delitos, o cuando el uno de
ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas
grave en su grado maximo, hasta el limite que represents la suma de
las que pudieran imponerse, penando separadamente los delitos.
Cuando la pena asi computada exceda de este limite, se sancionaran
los delitos por separado. (Rodriguez Navarro, Doctrina Penal del
Tribunal Supremo, Vol. II, p. 2163)
and that our Article 48 does not contain the qualification inserted in
said amendment, restricting the imposition of the penalty for the
graver offense in its maximum period to the case when it does not
exceed the sum total of the penalties imposable if the acts charged
were dealt with separately. The absence of said limitation in our Penal
Code does not, to our mind, affect substantially the spirit of said Article
48. Indeed, if one act constitutes two or more offenses, there can be
no reason to inflict a punishment graver than that prescribed for each
one of said offenses put together. In directing that the penalty for the
graver offense be, in such case, imposed in its maximum period, Article
48 could have had no other purpose than to prescribe a
penalty lower than the aggregate of the penalties for each offense, if
imposed separately. The reason for this benevolent spirit of article 48
is readily discernible. When two or more crimes are the result of a
single act, the offender is deemed less perverse than when he commits
said crimes thru separate and distinct acts. Instead of sentencing him
for each crime independently from the other, he must suffer the
maximum of the penalty for the more serious one, on the assumption
that it is less grave than the sum total of the separate penalties for
each offense. 12
The rejection of both options shapes and determines the primary ruling
of the Court, which is that Hernandezremains binding doctrine
operating to prohibit the complexing of rebellion with any other
offense committed on the occasion thereof, either as a means
necessary to its commission or as an unintended effect of an activity
that constitutes rebellion.
This, however, does not write finis to the case. Petitioner's guilt or
innocence is not here inquired into, much less adjudged. That is for the
trial court to do at the proper time. The Court's ruling merely provides
a take-off point for the disposition of other questions relevant to the
petitioner's complaints about the denial of his rights and to the
propriety of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed
against the petitioner does in fact charge an offense. Disregarding the
objectionable phrasing that would complex rebellion with murder and
multiple frustrated murder, that indictment is to be read as
charging simple rebellion. Thus, in Hernandez, the Court said:
In conclusion, we hold that, under the allegations of the amended
information against defendant-appellant Amado V. Hernandez, the
murders, arsons and robberies described therein are mere
ingredients of the crime of rebellion allegedly committed by said
defendants, as means "necessary" (4) for the perpetration of said
offense of rebellion; that the crime charged in the aforementioned
amended information is, therefore, simple rebellion, not the complex
crime of rebellion with multiple murder, arsons and robberies; that the
maximum penalty imposable under such charge cannot exceed twelve
(12) years of prision mayor and a fine of P2H,HHH; and that, in
conformity with the policy of this court in dealing with accused persons
amenable to a similar punishment, said defendant may be allowed
bail. 13
The plaint of petitioner's counsel that he is charged with a crime that
does not exist in the statute books, while technically correct so far as
the Court has ruled that rebellion may not be complexed with other
offenses committed on the occasion thereof, must therefore be
dismissed as a mere flight of rhetoric. Read in the context
of Hernandez, the information does indeed charge the petitioner with a
crime defined and punished by the Revised Penal Code: simple
rebellion.
Was the petitioner charged without a complaint having been initially
filed and/or preliminary investigation conducted? The record shows
otherwise, that a complaint against petitioner for simple rebellion was
filed by the Director of the National Bureau of Investigation, and that
on the strength of said complaint a preliminary investigation was
conducted by the respondent prosecutors, culminating in the filing of
the questioned information. 14 There is nothing inherently irregular or
contrary to law in filing against a respondent an indictment for an
offense different from what is charged in the initiatory complaint, if
warranted by the evidence developed during the preliminary
investigation.
It is also contended that the respondent Judge issued the warrant for
petitioner's arrest without first personallydetermining the existence of
probable cause by examining under oath or affirmation the
complainant and his witnesses, in violation of Art. III, sec. 2, of the
Constitution. 15 This Court has already ruled, however, that it is not the
unavoidable duty of the judge to make such a personal examination, it
being sufficient that he follows established procedure
by personally evaluating the report and the supporting documents
submitted by the prosecutor. 16 Petitioner claims that the warrant of
arrest issued barely one hour and twenty minutes after the case was
raffled off to the respondent Judge, which hardly gave the latter
sufficient time to personally go over the voluminous records of the
preliminary investigation. 17 Merely because said respondent had what
some might consider only a relatively brief period within which to
comply with that duty, gives no reason to assume that he had not, or
could not have, so complied; nor does that single circumstance suffice
to overcome the legal presumption that official duty has been regularly
performed.
Petitioner finally claims that he was denied the right to bail. In the light
of the Court's reaffirmation of Hernandezas applicable to petitioner's
case, and of the logical and necessary corollary that the information
against him should be considered as charging only the crime of simple
rebellion, which is bailable before conviction, that must now be
accepted as a correct proposition. But the question remains: Given the
facts from which this case arose, was a petition for habeas corpus in
CRIMINAL LAW FULL CASES
this Court the appropriate vehicle for asserting a right to bail or
vindicating its denial?
The criminal case before the respondent Judge was the normal venue
for invoking the petitioner's right to have provisional liberty pending
trial and judgment. The original jurisdiction to grant or deny bail rested
with said respondent. The correct course was for petitioner to invoke
that jurisdiction by filing a petition to be admitted to bail, claiming a
right to bail per se by reason of the weakness of the evidence against
him. Only after that remedy was denied by the trial court should the
review jurisdiction of this Court have been invoked, and even then, not
without first applying to the Court of Appeals if appropriate relief was
also available there.
Even acceptance of petitioner's premise that going by
the Hernandez ruling, the information charges a non-existent crime or,
contrarily, theorizing on the same basis that it charges more than one
offense, would not excuse or justify his improper choice of remedies.
Under either hypothesis, the obvious recourse would have been a
motion to quash brought in the criminal action before the respondent
Judge. 18
There thus seems to be no question that All the grounds upon which
petitioner has founded the present petition, whether these went into
the substance of what is charged in the information or imputed error
or omission on the part of the prosecuting panel or of the respondent
Judge in dealing with the charges against him, were originally
justiciable in the criminal case before said Judge and should have been
brought up there instead of directly to this Court.
There was and is no reason to assume that the resolution of any of
these questions was beyond the ability or competence of the
respondent Judge-indeed such an assumption would be demeaning
and less than fair to our trial courts; none whatever to hold them to be
of such complexity or transcendental importance as to disqualify every
court, except this Court, from deciding them; none, in short that would
justify by passing established judicial processes designed to orderly
move litigation through the hierarchy of our courts. Parenthentically,
this is the reason behind the vote of four Members of the Court against
the grant of bail to petitioner: the view that the trial court should not
thus be precipitately ousted of its original jurisdiction to grant or deny
bail, and if it erred in that matter, denied an opportunity to correct its
error. It makes no difference that the respondent Judge here issued a
warrant of arrest fixing no bail. Immemorial practice sanctions simply
following the prosecutor's recommendation regarding bail, though it
may be perceived as the better course for the judge motu proprio to
set a bail hearing where a capital offense is charged. 19 It is, in any
event, incumbent on the accused as to whom no bail has been
recommended or fixed to claim the right to a bail hearing and thereby
put to proof the strength or weakness of the evidence against him.
It is apropos to point out that the present petition has triggered a rush absorbed thereby, so that it cannot be conveniently utilized as the
to this Court of other parties in a similar situation, all apparently taking umbrella for every sort of illegal activity undertaken in its name. The
their cue from it, distrustful or contemptuous of the efficacy of seeking Court has no power to effect such change, for it can only interpret the
recourse in the regular manner just outlined. The proliferation of such law as it stands at any given time, and what is needed lies beyond
pleas has only contributed to the delay that the petitioner may have interpretation. Hopefully, Congress will perceive the need for promptly
hoped to avoid by coming directly to this Court. seizing the initiative in this matter, which is properly within its
province.
Not only because popular interest seems focused on the outcome of
the present petition, but also because to wash the Court's hand off it WHEREFORE, the Court reiterates that based on the doctrine
on jurisdictional grounds would only compound the delay that it has enunciated in People vs. Hernandez, the questioned information filed
already gone through, the Court now decides the same on the merits. against petitioners Juan Ponce Enrile and the spouses Rebecco and
But in so doing, the Court cannot express too strongly the view that Erlinda Panlilio must be read as charging simple rebellion only, hence
said petition interdicted the ordered and orderly progression of said petitioners are entitled to bail, before final conviction, as a matter
proceedings that should have started with the trial court and reached of right. The Court's earlier grant of bail to petitioners being merely
this Court only if the relief appealed for was denied by the former and, provisional in character, the proceedings in both cases are ordered
in a proper case, by the Court of Appeals on review. REMANDED to the respondent Judge to fix the amount of bail to be
posted by the petitioners. Once bail is fixed by said respondent for any
of the petitioners, the corresponding bail bond flied with this Court
Let it be made very clear that hereafter the Court will no longer
shall become functus oficio. No pronouncement as to costs.
countenance, but will give short shrift to, pleas like the present, that
clearly short-circuit the judicial process and burden it with the
resolution of issues properly within the original competence of the SO ORDERED.
lower courts. What has thus far been stated is equally applicable to and
decisive of the petition of the Panlilio spouses (G.R. No. 92164) which is
Cruz, Gancayco and Regalado, JJ., concur.
virtually Identical to that of petitioner Enrile in factualmilieu and is
therefore determinable on the same principles already set forth. Said
spouses have uncontestedly pleaded 20 that warrants of arrest issued Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No.
against them as co-accused of petitioner Enrile in Criminal Case No. 90- 92163.
10941, that when they appeared before NBI Director Alfredo Lim in the
afternoon of March 1, 1990, they were taken into custody and Cortes and Griño-Aquino, JJ., are on leave.
detained without bail on the strength of said warrants in violation-they
claim-of their constitutional rights.
 
It may be that in the light of contemporary events, the act of rebellion
 
has lost that quitessentiany quixotic quality that justifies the relative
leniency with which it is regarded and punished by law, that present-
day rebels are less impelled by love of country than by lust for power Separate Opinions
and have become no better than mere terrorists to whom nothing, not
even the sanctity of human life, is allowed to stand in the way of their
 
ambitions. Nothing so underscores this aberration as the rash of
seemingly senseless killings, bombings, kidnappings and assorted
mayhem so much in the news these days, as often perpetrated against MELENCIO-HERRERA, J., concurring:
innocent civilians as against the military, but by and large attributable
to, or even claimed by so-called rebels to be part of, an ongoing
I join my colleagues in holding that the Hernandez doctrine, which has
rebellion.
been with us for the past three decades, remains good law and, thus,
should remain undisturbed, despite periodic challenges to it that,
It is enough to give anyone pause-and the Court is no exception-that ironically, have only served to strengthen its pronouncements.
not even the crowded streets of our capital City seem safe from such
unsettling violence that is disruptive of the public peace and stymies
I take exception to the view, however, that habeas corpus was not the
every effort at national economic recovery. There is an apparent need
proper remedy.
to restructure the law on rebellion, either to raise the penalty therefor
or to clearly define and delimit the other offenses to be considered as
CRIMINAL LAW FULL CASES
Had the Information filed below charged merely the simple crime of
Rebellion, that proposition could have been plausible. But that
Information charged Rebellion complexed with Murder and Multiple
Frustrated Murder, a crime which does not exist in our statute books.
The charge was obviously intended to make the penalty for the most
serious offense in its maximum period imposable upon the offender
pursuant to Article 48 of the Revised Penal Code. Thus, no bail was
recommended in the Information nor was any prescribed in the
Warrant of Arrest issued by the Trial Court.
Under the attendant circumstances, therefore, to have filed a Motion
to Quash before the lower Court would not have brought about the
speedy relief from unlawful restraint that petitioner was seeking.
During the pendency of said Motion before the lower Court, petitioner
could have continued to languish in detention. Besides, the Writ
ofHabeas Corpus may still issue even if another remedy, which is less
effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).
It is true that habeas corpus would ordinarily not he when a person is
under custody by virtue of a process issued by a Court.
The Court, however, must have jurisdiction to issue the process. In this
case, the Court below must be deemed to have been ousted of
jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus
is thus available.
The writ of habeas corpus is available to relieve persons from unlawful
restraint. But where the detention or confinement is the result of a
process issued by the court or judge or by virtue of a judgment or
sentence, the writ ordinarily cannot be availed of. It may still be
invoked though if the process, judgment or sentence proceeded from a
court or tribunal the jurisdiction of which may be assailed. Even if it had
authority to act at the outset, it is now the prevailing doctrine that a
deprivation of constitutional right, if shown to exist, would oust it of
jurisdiction. In such a case, habeas corpus could be relied upon to
regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis
emphasis].
The Petition for habeas corpus was precisely premised on the violation
of petitioner's constitutional right to bail inasmuch as rebellion, under
the present state of the law, is a bailable offense and the crime for
which petitioner stands accused of and for which he was denied bail is
non-existent in law.
While litigants should, as a rule, ascend the steps of the judicial ladder,
nothing should stop this Court from taking cognizance of petitions
brought before it raising urgent constitutional issues, any procedural
flaw notwithstanding.
The rules on habeas corpus are to be liberally construed (Ganaway v.
Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental
instrument for safeguarding individual freedom against arbitrary and
lawless state action. The scope and flexibility of the writ-its capacity to
reach all manner of illegal detention-its ability to cut through barriers
of form and procedural mazes-have always been emphasized and
jealously guarded by courts and lawmakers (Gumabon v. Director of
Bureau of Prisons, 37 SCRA 420) [emphasis supplied].
The proliferation of cases in this Court, which followed in the wake of
this Petition, was brought about by the insistence of the prosecution to
charge the crime of Rebellion complexed with other common offenses
notwithstanding the fact that this Court had not yet ruled on the
validity of that charge and had granted provisional liberty to petitioner.
If, indeed, it is desired to make the crime of Rebellion a capital offense
(now punishable by reclusion perpetua), the remedy lies in legislation.
But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942,
were repealed, for being "repressive," by EO No. 187 on 5 June 1987.
EO 187 further explicitly provided that Article 134 (and others
enumerated) of the Revised Penal Code was "restored to its full force
and effect as it existed before said amendatory decrees." Having been
so repealed, this Court is bereft of power to legislate into existence,
under the guise of re-examining a settled doctrine, a "creature
unknown in law"- the complex crime of Rebellion with Murder. The
remand of the case to the lower Court for further proceedings is in
order. The Writ of Habeas Corpus has served its purpose.
 
GUTIERREZ, JR., J., concurring:
I join the Court's decision to grant the petition. In reiterating the rule
that under existing law rebellion may not be complexed with murder,
the Court emphasizes that it cannot legislate a new-crime into
existence nor prescribe a penalty for its commission. That function is
exclusively for Congress.
I write this separate opinion to make clear how I view certain issues
arising from these cases, especially on how the defective informations
filed by the prosecutors should have been treated.
I agree with the ponente that a petition for habeas corpus is ordinarily
not the proper procedure to assert the right to bail. Under the special
circumstances of this case, however, the petitioners had no other
recourse. They had to come to us.
First, the trial court was certainly aware of the decision in People v.
Hernandez, 99 Phil. 515 (1956) that there is no such crime in our
statute books as rebellion complexed with murder, that murder
committed in connection with a rebellion is absorbed by the crime of
rebellion, and that a resort to arms resulting in the destruction of life
or property constitutes neither two or more offenses nor a complex
crime but one crime-rebellion pure and simple.
Second, Hernandez has been the law for 34 years. It has been
reiterated in equally sensational cases. All lawyers and even law
students are aware of the doctrine. Attempts to have the doctrine re-
examined have been consistently rejected by this Court.
Third, President Marcos through the use of his then legislative powers,
issued Pres. Decree 942, thereby installing the new crime of rebellion
complexed with offenses like murder where graver penalties are
imposed by law. However, President Aquino using her then legislative
powers expressly repealed PD 942 by issuing Exec. Order 187. She
thereby erased the crime of rebellion complexed with murder and
made it clear that theHernandez doctrine remains the controlling rule.
The prosecution has not explained why it insists on resurrecting an
offense expressly wiped out by the President. The prosecution, in
effect, questions the action of the President in repealing a repressive
decree, a decree which, according to the repeal order, is violative of
human rights.
Fourth, any re-examination of the Hernandez doctrine brings the ex
post facto principle into the picture. Decisions of this Court form part
of our legal system. Even if we declare that rebellion may be
complexed with murder, our declaration can not be made retroactive
where the effect is to imprison a person for a crime which did not exist
until the Supreme Court reversed itself.
And fifth, the attempts to distinguish this case from
the Hernandez case by stressing that the killings charged in the
information were committed "on the occasion of, but not a necessary
means for, the commission of rebellion" result in outlandish
consequences and ignore the basic nature of rebellion. Thus, under the
prosecution theory a bomb dropped on PTV-4 which kills government
troopers results in simple rebellion because the act is a necessary
means to make the rebellion succeed. However, if the same bomb also
kills some civilians in the neighborhood, the dropping of the bomb
becomes rebellion complexed with murder because the killing of
civilians is not necessary for the success of a rebellion and, therefore,
the killings are only "on the occasion of but not a 'necessary means for'
the commission of rebellion.
This argument is puerile.
The crime of rebellion consists of many acts. The dropping of one bomb
cannot be isolated as a separate crime of rebellion. Neither should the
dropping of one hundred bombs or the firing of thousands of machine
gun bullets be broken up into a hundred or thousands of separate
offenses, if each bomb or each bullet happens to result in the
CRIMINAL LAW FULL CASES
destruction of life and property. The same act cannot be punishable by
separate penalties depending on what strikes the fancy of prosecutors-
punishment for the killing of soldiers or retribution for the deaths of
civilians. The prosecution also loses sight of the regrettable fact that in
total war and in rebellion the killing of civilians, the laying waste of
civilian economies, the massacre of innocent people, the blowing up of
passenger airplanes, and other acts of terrorism are all used by those
engaged in rebellion. We cannot and should not try to ascertain the
intent of rebels for each single act unless the act is plainly not
connected to the rebellion. We cannot use Article 48 of the Revised
Penal Code in lieu of still-to- be-enacted legislation. The killing of
civilians during a rebel attack on military facilities furthers the rebellion
and is part of the rebellion.
The trial court was certainly aware of all the above considerations. I
cannot understand why the trial Judge issued the warrant of arrest
which categorically states therein that the accused was not entitled to
bail. The petitioner was compelled to come to us so he would not be
arrested without bail for a nonexistent crime. The trial court forgot to
apply an established doctrine of the Supreme Court. Worse, it issued a
warrant which reversed 34 years of established procedure based on a
well-known Supreme Court ruling.
All courts should remember that they form part of an independent
judicial system; they do not belong to the prosecution service. A court
should never play into the hands of the prosecution and blindly comply
with its erroneous manifestations. Faced with an information charging
a manifestly non-existent crime, the duty of a trial court is to throw it
out. Or, at the very least and where possible, make it conform to the
law.
A lower court cannot re-examine and reverse a decision of the
Supreme Court especially a decision consistently followed for 34 years.
Where a Judge disagrees with a Supreme Court ruling, he is free to
express his reservations in the body of his decision, order, or
resolution. However, any judgment he renders, any order he
prescribes, and any processes he issues must follow the Supreme Court
precedent. A trial court has no jurisdiction to reverse or ignore
precedents of the Supreme Court. In this particular case, it should have
been the Solicitor General coming to this Court to question the lower
court's rejection of the application for a warrant of arrest without bail.
It should have been the Solicitor-General provoking the issue of re-
examination instead of the petitioners asking to be freed from their
arrest for a non-existent crime.
The principle bears repeating:
Respondent Court of Appeals really was devoid of any choice at all. It
could not have ruled in any other way on the legal question raised. This
Tribunal having spoken, its duty was to obey. It is as simple as that.
There is relevance to this excerpt from Barrera v. Barrera. (L-31589,
July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the
significance that attaches to a constitutional or statutory provision, an
executive order, a procedural norm or a municipal ordinance is
committed to the judiciary. It thus discharges a role no less crucial than
that appertaining to the other two departments in the maintenance of
the rule of law. To assure stability in legal relations and avoid
confusion, it has to speak with one voice. It does so with finality,
logically and rightly, through the highest judicial organ, this Court.
What it says then should be definitive and authoritative, binding on
those occupying the lower ranks in the judicial hierarchy. They have to
defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People
v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the
opinion in Barrera further emphasizes the point: Such a thought was
reiterated in an opinion of Justice J.B.L. Reyes and further emphasized
in these words: 'Judge Gaudencio Cloribel need not be reminded that
the Supreme Court, by tradition and in our system of judicial
administration, has the last word on what the law is; it is the final
arbiter of any justifiable controversy. There is only one Supreme Court
from whose decisions all other courts should take their bearings. (Ibid.
Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of
Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v.
Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First
Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services,
Inc. v. NLRC, 125 SCRA 577 [1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon,
et al. even more inexplicable. In the case of the Panlilios, any probable
cause to commit the non- existent crime of rebellion complexed with
murder exists only in the minds of the prosecutors, not in the records
of the case.
I have gone over the records and pleadings furnished to the members
of the Supreme Court. I listened intently to the oral arguments during
the hearing and it was quite apparent that the constitutional
requirement of probable cause was not satisfied. In fact, in answer to
my query for any other proofs to support the issuance of a warrant of
arrest, the answer was that the evidence would be submitted in due
time to the trial court.
The spouses Panlilio and one parent have been in the restaurant
business for decades. Under the records of these petitions, any
restaurant owner or hotel manager who serves food to rebels is a co-
conspirator in the rebellion. The absurdity of this proposition is
apparent if we bear in mind that rebels ride in buses and jeepneys, eat
meals in rural houses when mealtime finds them in the vicinity, join
weddings, fiestas, and other parties, play basketball with barrio youths,
attend masses and church services and otherwise mix with people in
various gatherings. Even if the hosts recognize them to be rebels and
fail to shoo them away, it does not necessarily follow that the former
are co-conspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio
case is the alleged fact that the petitioners served food to rebels at the
Enrile household and a hotel supervisor asked two or three of their
waiters, without reason, to go on a vacation. Clearly, a much, much
stronger showing of probable cause must be shown.
In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga
was charged as a conspirator in the heinous bombing of innocent
civilians because the man who planted the bomb had, sometime
earlier, appeared in a group photograph taken during a birthday party
in the United States with the Senator and other guests. It was a case of
conspiracy proved through a group picture. Here, it is a case of
conspiracy sought to proved through the catering of food.
The Court in Salonga stressed:
The purpose of a preliminary investigation is to secure the innocent
against hasty, malicious and oppressive prosecution, and to protect
him from an open and public accusation of crime, from the trouble,
expense and anxiety of a public trial, and also to protect the state from
useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing
Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to
transgress constitutional due process. (See People v. Oandasa, 25 SCRA
277) However, in order to satisfy the due process clause it is not
enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the State.
More important, it is a part of the guarantees of freedom and fair play
which are birthrights of all who live in our country. It is, therefore,
imperative upon the fiscal or the judge as the case may be, to relieve
the accused from the pain of going through a trial once it is ascertained
that the evidence is insufficient to sustain a prima facie case or that no
probable cause exists to form a sufficient belief as to the guilt of the
accused. Although there is no general formula or fixed rule for the
determination of probable cause since the same must be decided in
the light of the conditions obtaining in given situations and its
existence depends to a large degree upon the finding or opinion of the
judge conducting the examination, such a finding should not disregard
the facts before the judge nor run counter to the clear dictates of
reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The
judge or fiscal, therefore, should not go on with the prosecution in the
hope that some credible evidence might later turn up during trial for
this would be a flagrant violation of a basic right which the courts are
created to uphold. It bears repeating that the judiciary lives up to its
mission by vitalizing and not denigrating constitutional rights. So it has
been before. It should continue to be so. (id., pp. 461- 462)
Because of the foregoing, I take exception to that part of the ponencia
which will read the informations as charging simple rebellion. This case
did not arise from innocent error. If an information charges murder but
CRIMINAL LAW FULL CASES
its contents show only the ingredients of homicide, the Judge may
rightly read it as charging homicide. In these cases, however, there is a
deliberate attempt to charge the petitioners for an offense which this
Court has ruled as non-existent. The prosecution wanted Hernandez to
be reversed. Since the prosecution has filed informations for a crime
which, under our rulings, does not exist, those informations should be
treated as null and void. New informations charging the correct offense
should be filed. And in G.R. No. 92164, an extra effort should be made
to see whether or not the Principle in Salonga v. Cruz Patio, et al.
(supra) has been violated.
The Court is not, in any way, preventing the Government from using
more effective weapons to suppress rebellion. If the Government feels
that the current situation calls for the imposition of more severe
penalties like death or the creation of new crimes like rebellion
complexed with murder, the remedy is with Congress, not the courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent
court to DISMISS the void informations for a non-existent crime.
 
FELICIANO, J., concurring:
I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that,
as an abstract question of law, could stand reexamination or
clarification. I have in mind in particular matters such as the correct or
appropriate relationship between Article 134 and Article 135 of the
Revised Penal Code. This is a matter which relates to the legal concept
of rebellion in our legal system. If one examines the actual terms of
Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it
would appear that this Article specifies both the overt acts and
the criminal purpose which, when put together, would constitute the
offense of rebellion. Thus, Article 134 states that "the crime of
rebellion is committed by rising publicly and taking arms against the
Government "(i.e., the overt acts comprising rebellion), "for the
purpose of (i.e., the specific criminal intent or political objective)
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 their powers or
prerogatives." At the same time, Article 135 (entitled: "Penalty for
Rebellion or Insurrection.") sets out a listing of acts or particular
measures which appear to fall under the rubric of rebellion or
insurrection: "engaging in war against the forces of the Government,
destroying property or committing serious violence, exacting
contributions or diverting public funds from the lawful purpose for
which they have been appropriated." Are these modalities of
rebellion generally? Or are they particular modes by which those
"who promote [ ], maintain [ ] or head [ ] a rebellion or
insurrection" commit rebellion, or particular modes of participation in a
rebellion by public officers or employees? Clearly, the scope of the legal
concept of rebellion relates to the distinction between, on the one
hand, the indispensable acts or ingredients of the crime of rebellion
under the Revised Penal Code and, on the other hand, differing
optional modes of seeking to carry out the political or social objective
of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more
even the above threshold questions is that the results of such re-
examination may well be that acts which under the Hernandez doctrine
are absorbed into rebellion, may be characterized as separate or
discrete offenses which, as a matter of law, can either be prosecuted
separately from rebellion or prosecuted under the provisions of Article
48 of the Revised Penal Code, which (both Clause 1 and Clause 2
thereof) clearly envisage the existence of at least two (2) distinct
offenses. To reach such a conclusion in the case at bar, would, as far as
I can see, result in colliding with the fundamental non-retroactivity
principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in
relation to Article 8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes
do not exist in the abstract but rather bear upon the lives of people
with the specific form given them by judicial decisions interpreting
their norms. Judicial decisions construing statutory norms give specific
shape and content to such norms. In time, the statutory norms become
encrusted with the glosses placed upon them by the courts and the
glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA
247 [1966]). Thus, while in legal theory, judicial interpretation of a
statute becomes part of the law as of the date that the law was
originally enacted, I believe this theory is not to be applied rigorously
where a new judicial doctrine is announced, in particular one
overruling a previous existing doctrine of long standing (here, 36 years)
and most specially not where the statute construed is criminal in
nature and the new doctrine is more onerous for the accused than the
pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v.
Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA
420 [1971]). Moreover, the non-retroactivity rule whether in respect of
legislative acts or judicial decisions has constitutional implications. The
prevailing rule in the United States is that a judicial decision that
retroactively renders an act criminal or enhances the severity of the
penalty prescribed for an offense, is vulnerable to constitutional
challenge based upon the rule against ex post facto laws and the due
process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894
[1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New
Mexico Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle
does not present any real problem for the reason that
the Hernandez doctrine was based upon Article 48, second clause, of
the Revised Penal Code and not upon the first clause thereof, while it is
precisely the first clause of Article 48 that the Government here
invokes. It is, however, open to serious doubt whether Hernandez can
reasonably be so simply and sharply characterized. And assuming
the Hernandez could be so characterized, subsequent cases refer to
the Hernandezdoctrine in terms which do not distinguish clearly
between the first clause and the second clause of Article 48 (e.g.,
People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil.
659 [1960]). Thus, it appears to me that the critical question would be
whether a man of ordinary intelligence would have necessarily read or
understood the Hernandez doctrine as referring exclusively to Article
48, second clause. Put in slightly different terms, the important
question would be whether the new doctrine here proposed by the
Government could fairly have been derived by a man of average
intelligence (or counsel of average competence in the law) from an
examination of Articles 134 and 135 of the Revised Penal Code as
interpreted by the Court in the Hernandez and subsequent cases. To
formulate the question ill these terms would almost be to compel a
negative answer, especially in view of the conclusions reached by the
Court and its several Members today.
Finally, there appears to be no question that the new doctrine that the
Government would have us discover for the first time since the
promulgation of the Revised Penal Code in 1932, would be more
onerous for the respondent accused than the simple application of
the Hernandez doctrine that murders which have been committed on
the occasion of and in furtherance of the crime of rebellion must be
deemed absorbed in the offense of simple rebellion.
I agree therefore that the information in this case must be viewed as
charging only the crime of simple rebellion.
FERNAN, C.J., concurring and dissenting:
I am constrained to write this separate opinion on what seems to be a
rigid adherence to the 1956 ruling of the Court. The numerous
challenges to the doctrine enunciated in the case of People vs.
Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to
redefine the applicability of said doctrine so as to make it conformable
with accepted and well-settled principles of criminal law and
jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an
all-embracing authority for the rule that all common crimes committed
on the occasion, or in furtherance of, or in connection with, rebellion
are absorbed by the latter. To that extent, I cannot go along with the
view of the majority in the instant case that 'Hernandez remains
binding doctrine operating to prohibit the complexing of rebellion with
any other offense committed on the occasion thereof, either as a
CRIMINAL LAW FULL CASES
means necessary to its commission or as an unintended effect of an
activity that constitutes rebellion" (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was
appealed by the Court in 1956 during the communist-inspired rebellion
of the Huks. The changes in our society in the span of 34 years since
then have far-reaching effects on the all-embracing applicability of the
doctrine considering the emergence of alternative modes of seizing the
powers of the duly constituted Government not contemplated in
Articles 134 and 135 of the Revised Penal Code and their consequent
effects on the lives of our people. The doctrine was good law then, but
I believe that there is a certain aspect of the Hernandez doctrine that
needs clarification.
With all due respect to the views of my brethren in the Court, I believe
that the Court, in the instant case, should have further considered that
distinction between acts or offenses which are indispensable in the
commission of rebellion, on the one hand, and those acts or offenses
that are merely necessary but not indispensable in the commission of
rebellion, on the other. The majority of the Court is correct in adopting,
albeit impliedly, the view in Hernandez case that when an offense
perpetrated as a necessary means of committing another, which is an
element of the latter, the resulting interlocking crimes should be
considered as only one simple offense and must be deemed outside
the operation of the complex crime provision (Article 48) of the
Revised Penal Code. As in the case of Hernandez, the Court, however,
failed in the instant case to distinguish what is indispensable from what
is merely necessary in the commission of an offense, resulting thus in
the rule that common crimes like murder, arson, robbery, etc.
committed in the course or on the occasion of rebellion are absorbed
or included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if
applied to contemporaneous events happening in our country today.
Theoretically, a crime which is indispensable in the commission of
another must necessarily be an element of the latter; but a crime that
is merely necessary but not indispensable in the commission of
another is not an element of the latter, and if and when actually
committed, brings the interlocking crime within the operation of the
complex crime provision (Art. 48) of the Revised Penal Code. With that
distinction, common crimes committed against Government forces and
property in the course of rebellion are properly considered
indispensable overt acts of rebellion and are logically absorbed in it as
virtual ingredients or elements thereof, but common crimes committed
against the civilian population in the course or on the occasion of
rebellion and in furtherance thereof, may be necessary but not
indispensable in committing the latter, and may, therefore, not be
considered as elements of the said crime of rebellion. To illustrate, the
deaths occurring during armed confrontation or clashes between
government forces and the rebels are absorbed in the rebellion, and
would be those resulting from the bombing of military camps and
installations, as these acts are indispensable in carrying out the
rebellion. But deliberately shooting down an unarmed innocent civilian
to instill fear or create chaos among the people, although done in the
furtherance of the rebellion, should not be absorbed in the crime of
rebellion as the felonious act is merely necessary, but not
indispensable. In the latter case, Article 48 of the Revised Penal Code
should apply.
The occurrence of a coup d' etat in our country as a mode of seizing the
powers of the duly-constituted government by staging surprise attacks
or occupying centers of powers, of which this Court should take judicial
notice, has introduced a new dimension to the interpretation of the
provisions on rebellion and insurrection in the Revised Penal Code.
Generally, as a mode of seizing the powers of the duly constituted
government, it falls within the contemplation of rebellion under the
Revised Penal Code, but, strictly construed, a coup d'etat per se is a
class by itself. The manner of its execution and the extent and
magnitude of its effects on the lives of the people distinguish a coup
d'etat from the traditional definition and modes of commission
attached by the Revised Penal Code to the crime of rebellion as applied
by the Court to the communist-inspired rebellion of the 1950's. A coup
d'etat may be executed successfully without its perpetrators resorting
to the commission of other serious crimes such as murder, arson,
kidnapping, robbery, etc. because of the element of surprise and the
precise timing of its execution. In extreme cases where murder, arson,
robbery, and other common crimes are committed on the occasion of a
coup d' etat, the distinction referred to above on what is necessary and
what is indispensable in the commission of the coup d'etat should be
painstakingly considered as the Court should have done in the case of
herein petitioners.
I concur in the result insofar as the other issues are resolved by the
Court but I take exception to the vote of the majority on the broad
application of the Hernandez doctrine.
BIDIN, J., concurring and dissenting:
I concur with the majority opinion except as regards the dispositive
portion thereof which orders the remand of the case to the respondent
judge for further proceedings to fix the amount of bail to be posted by
the petitioner.
I submit that the proceedings need not be remanded to the
respondent judge for the purpose of fixing bail since we have
construed the indictment herein as charging simple rebellion, an
offense which is bailable. Consequently,habeas corpus is the proper
remedy available to petitioner as an accused who had been charged
with simple rebellion, a bailable offense but who had been denied his
right to bail by the respondent judge in violation of petitioner's
constitutional right to bail. In view thereof, the responsibility of fixing
the amount of bail and approval thereof when filed, devolves upon us,
if complete relief is to be accorded to petitioner in the instant
proceedings.
It is indubitable that before conviction, admission to bail is a matter of
right to the defendant, accused before the Regional Trial Court of an
offense less than capital (Section 13 Article III, Constitution and Section
3, Rule 114). Petitioner is, before Us, on a petition for habeas
corpus praying, among others, for his provisional release on bail. Since
the offense charged (construed as simple rebellion) admits of bail, it is
incumbent upon us m the exercise of our jurisdiction over the petition
for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2,
Rule 102), to grant petitioner his right to bail and having admitted him
to bail, to fix the amount thereof in such sums as the court deems
reasonable. Thereafter, the rules require that "the proceedings
together with the bond" shall forthwith be certified to the respondent
trial court (Section 14, Rule 102).
Accordingly, the cash bond in the amount of P 100,000.00 posted by
petitioner for his provisional release pursuant to our resolution dated
March 6, 1990 should now be deemed and admitted as his bail bond
for his provisional release in the case (simple rebellion) pending before
the respondent judge, without necessity of a remand for further
proceedings, conditioned for his (petitioner's) appearance before the
trial court to abide its order or judgment in the said case.
 
SARMIENTO, J., concurring and dissenting:
I agree that People v. Hernandez 1 should abide. More than three
decades after which it was penned, it has firmly settled in the tomes of
our jurisprudence as correct doctrine.
As Hernandez put it, rebellion means "engaging m war against the
forces of the government," 2 which implies "resort to arms, requisition
of property and services, collection of taxes and contributions, restraint
of liberty, damage to property, physical injuries and loss of life, and the
hunger, illness and unhappiness that war leaves in its
wake. ..." 3whether committed in furtherance, of as a necessary means
for the commission, or in the course, of rebellion. To say that rebellion
may be complexed with any other offense, in this case murder, is to
play into a contradiction in terms because exactly, rebellion includes
murder, among other possible crimes.
I also agree that the information may stand as an accusation for simple
rebellion. Since the acts complained of as constituting rebellion have
been embodied in the information, mention therein of murder as a
complexing offense is a surplusage, because in any case, the crime of
rebellion is left fully described. 4
CRIMINAL LAW FULL CASES
At any rate, the government need only amend the information by a
clerical correction, since an amendment will not alter its substance.
I dissent, however, insofar as the majority orders the remand of the
matter of bail to the lower court. I take it that when we, in our
Resolution of March 6, 1990, granted the petitioner "provisional
liberty" upon the filing of a bond of P100,000.00, we granted him bail.
The fact that we gave him "provisional liberty" is in my view, of no
moment, because bail means provisional liberty. It will serve no useful
purpose to have the trial court hear the incident again when we
ourselves have been satisfied that the petitioner is entitled to
temporary freedom.
PADILLA, J., dissenting:
I concur in the majority opinion insofar as it holds that the ruling
in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine
operating to prohibit the complexing of rebellion with any other
offense committed on the occasion thereof, either as a means
necessary to its commission or as an unintended effect of an activity
that constitutes rebellion."
I dissent, however, from the majority opinion insofar as it holds that
the information in question, while charging the complex crime of
rebellion with murder and multiple frustrated murder, "is to be read as
charging simple rebellion."
The present cases are to be distinguished from the Hernandez case in
at least one (1) material respect. In theHernandez case, this Court was
confronted with an appealed case, i.e., Hernandez had been convicted
by the trial court of the complex crime of rebellion with murder, arson
and robbery, and his plea to be released on bail before the Supreme
Court, pending appeal, gave birth to the now
celebrated Hernandez doctrine that the crime of rebellion complexed
with murder, arson and robbery does not exist. In the present cases, on
the other hand, the Court is confronted with an original case, i.e.,
where an information has been recently filed in the trial court and the
petitioners have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was "ground-
breaking" on the issue of whether rebellion can be complexed with
murder, arson, robbery, etc. In the present cases, on the other hand,
the prosecution and the lower court, not only had
the Hernandez doctrine (as case law), but Executive Order No. 187 of
President Corazon C. Aquino dated 5 June 1987 (as statutory law) to
bind them to the legal proposition that the crime of rebellion
complexed with murder, and multiple frustrated murder does not exist.
And yet, notwithstanding these unmistakable and controlling beacon
lights-absent when this Court laid down theHernandez doctrine-the
prosecution has insisted in filing, and the lower court has persisted in
hearing, an information charging the petitioners with rebellion
complexed with murder an multiple frustrated murder. That
information is clearly a nullity and plainly void ab initio. Its head should
not be allowed to surface. As a nullity in substantive law, it charges
nothing; it has given rise to nothing. The warrants of arrest issued
pursuant thereto are as null and void as the information on which they
are anchored. And, since the entire question of the information's
validity is before the Court in these habeas corpus cases, I venture to
say that the information is fatally defective,even under procedural law,
because it charges more than one (1) offense (Sec. 13, Rule 110, Rules
of Court).
I submit then that it is not for this Court to energize a dead and, at
best, fatally decrepit information by labelling or "baptizing" it
differently from what it announces itself to be. The prosecution must
file an entirely new and properinformation, for this entire exercise to
merit the serious consideration of the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of
arrest, and ORDER the information for rebellion complexed with
murder and multiple frustrated murder in Criminal Case Nos. 90-10941,
RTC of Quezon City, DISMISSED.
Consequently, the petitioners should be ordered permanently released
and their bails cancelled.
Paras, J., concurs.
 
Separate Opinions
MELENCIO-HERRERA, J., concurring:
I join my colleagues in holding that the Hernandez doctrine, which has
been with us for the past three decades, remains good law and, thus,
should remain undisturbed, despite periodic challenges to it that,
ironically, have only served to strengthen its pronouncements.
I take exception to the view, however, that habeas corpus was not the
proper remedy.
Had the Information filed below charged merely the simple crime of
Rebellion, that proposition could have been plausible. But that
Information charged Rebellion complexed with Murder and Multiple
Frustrated Murder, a crime which does not exist in our statute books.
The charge was obviously intended to make the penalty for the most
serious offense in its maximum period imposable upon the offender
pursuant to Article 48 of the Revised Penal Code. Thus, no bail was
recommended in the Information nor was any prescribed in the
Warrant of Arrest issued by the Trial Court.
Under the attendant circumstances, therefore, to have filed a Motion
to Quash before the lower Court would not have brought about the
speedy relief from unlawful restraint that petitioner was seeking.
During the pendency of said Motion before the lower Court, petitioner
could have continued to languish in detention. Besides, the Writ
ofHabeas Corpus may still issue even if another remedy, which is less
effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).
It is true that habeas corpus would ordinarily not he when a person is
under custody by virtue of a process issued by a Court.
The Court, however, must have jurisdiction to issue the process. In this
case, the Court below must be deemed to have been ousted of
jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus
is thus available.
The writ of habeas corpus is available to relieve persons from unlawful
restraint. But where the detention or confinement is the result of a
process issued by the court or judge or by virtue of a judgment or
sentence, the writ ordinarily cannot be availed of. It may still be
invoked though if the process, judgment or sentence proceeded from a
court or tribunal the jurisdiction of which may be assailed. Even if it had
authority to act at the outset, it is now the prevailing doctrine that a
deprivation of constitutional right, if shown to exist, would oust it of
jurisdiction. In such a case, habeas corpus could be relied upon to
regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis
emphasis].
The Petition for habeas corpus was precisely premised on the violation
of petitioner's constitutional right to bail inasmuch as rebellion, under
the present state of the law, is a bailable offense and the crime for
which petitioner stands accused of and for which he was denied bail is
non-existent in law.
While litigants should, as a rule, ascend the steps of the judicial ladder,
nothing should stop this Court from taking cognizance of petitions
brought before it raising urgent constitutional issues, any procedural
flaw notwithstanding.
CRIMINAL LAW FULL CASES
The rules on habeas corpus are to be liberally construed (Ganaway v.
Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental
instrument for safeguarding individual freedom against arbitrary and
lawless state action. The scope and flexibility of the writ-its capacity to
reach all manner of illegal detention-its ability to cut through barriers
of form and procedural mazes-have always been emphasized and
jealously guarded by courts and lawmakers (Gumabon v. Director of
Bureau of Prisons, 37 SCRA 420) [emphasis supplied].
The proliferation of cases in this Court, which followed in the wake of
this Petition, was brought about by the insistence of the prosecution to
charge the crime of Rebellion complexed with other common offenses
notwithstanding the fact that this Court had not yet ruled on the
validity of that charge and had granted provisional liberty to petitioner.
If, indeed, it is desired to make the crime of Rebellion a capital offense
(now punishable by reclusion perpetua), the remedy lies in legislation.
But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942,
were repealed, for being "repressive," by EO No. 187 on 5 June 1987.
EO 187 further explicitly provided that Article 134 (and others
enumerated) of the Revised Penal Code was "restored to its full force
and effect as it existed before said amendatory decrees." Having been
so repealed, this Court is bereft of power to legislate into existence,
under the guise of re-examining a settled doctrine, a "creature
unknown in law"- the complex crime of Rebellion with Murder. The
remand of the case to the lower Court for further proceedings is in
order. The Writ of Habeas Corpus has served its purpose.
 
GUTIERREZ, JR., J., concurring:
I join the Court's decision to grant the petition. In reiterating the rule
that under existing law rebellion may not be complexed with murder,
the Court emphasizes that it cannot legislate a new-crime into
existence nor prescribe a penalty for its commission. That function is
exclusively for Congress.
I write this separate opinion to make clear how I view certain issues
arising from these cases, especially on how the defective informations
filed by the prosecutors should have been treated.
I agree with the ponente that a petition for habeas corpus is ordinarily
not the proper procedure to assert the right to bail. Under the special
circumstances of this case, however, the petitioners had no other
recourse. They had to come to us.
First, the trial court was certainly aware of the decision in People v.
Hernandez, 99 Phil. 515 (1956) that there is no such crime in our
statute books as rebellion complexed with murder, that murder
committed in connection with a rebellion is absorbed by the crime of destruction of life and property. The same act cannot be punishable by
rebellion, and that a resort to arms resulting in the destruction of life separate penalties depending on what strikes the fancy of prosecutors-
or property constitutes neither two or more offenses nor a complex punishment for the killing of soldiers or retribution for the deaths of
crime but one crime-rebellion pure and simple. civilians. The prosecution also loses sight of the regrettable fact that in
total war and in rebellion the killing of civilians, the laying waste of
civilian economies, the massacre of innocent people, the blowing up of
Second, Hernandez has been the law for 34 years. It has been
passenger airplanes, and other acts of terrorism are all used by those
reiterated in equally sensational cases. All lawyers and even law
engaged in rebellion. We cannot and should not try to ascertain the
students are aware of the doctrine. Attempts to have the doctrine re-
intent of rebels for each single act unless the act is plainly not
examined have been consistently rejected by this Court.
connected to the rebellion. We cannot use Article 48 of the Revised
Penal Code in lieu of still-to- be-enacted legislation. The killing of
Third, President Marcos through the use of his then legislative powers, civilians during a rebel attack on military facilities furthers the rebellion
issued Pres. Decree 942, thereby installing the new crime of rebellion and is part of the rebellion.
complexed with offenses like murder where graver penalties are
imposed by law. However, President Aquino using her then legislative
The trial court was certainly aware of all the above considerations. I
powers expressly repealed PD 942 by issuing Exec. Order 187. She
cannot understand why the trial Judge issued the warrant of arrest
thereby erased the crime of rebellion complexed with murder and
which categorically states therein that the accused was not entitled to
made it clear that theHernandez doctrine remains the controlling rule.
bail. The petitioner was compelled to come to us so he would not be
The prosecution has not explained why it insists on resurrecting an
arrested without bail for a nonexistent crime. The trial court forgot to
offense expressly wiped out by the President. The prosecution, in
apply an established doctrine of the Supreme Court. Worse, it issued a
effect, questions the action of the President in repealing a repressive
warrant which reversed 34 years of established procedure based on a
decree, a decree which, according to the repeal order, is violative of
well-known Supreme Court ruling.
human rights.
All courts should remember that they form part of an independent
Fourth, any re-examination of the Hernandez doctrine brings the ex
judicial system; they do not belong to the prosecution service. A court
post facto principle into the picture. Decisions of this Court form part
should never play into the hands of the prosecution and blindly comply
of our legal system. Even if we declare that rebellion may be
with its erroneous manifestations. Faced with an information charging
complexed with murder, our declaration can not be made retroactive
a manifestly non-existent crime, the duty of a trial court is to throw it
where the effect is to imprison a person for a crime which did not exist
out. Or, at the very least and where possible, make it conform to the
until the Supreme Court reversed itself.
law.
And fifth, the attempts to distinguish this case from
A lower court cannot re-examine and reverse a decision of the
the Hernandez case by stressing that the killings charged in the
Supreme Court especially a decision consistently followed for 34 years.
information were committed "on the occasion of, but not a necessary
Where a Judge disagrees with a Supreme Court ruling, he is free to
means for, the commission of rebellion" result in outlandish
express his reservations in the body of his decision, order, or
consequences and ignore the basic nature of rebellion. Thus, under the
resolution. However, any judgment he renders, any order he
prosecution theory a bomb dropped on PTV-4 which kills government
prescribes, and any processes he issues must follow the Supreme Court
troopers results in simple rebellion because the act is a necessary
precedent. A trial court has no jurisdiction to reverse or ignore
means to make the rebellion succeed. However, if the same bomb also
precedents of the Supreme Court. In this particular case, it should have
kills some civilians in the neighborhood, the dropping of the bomb
been the Solicitor General coming to this Court to question the lower
becomes rebellion complexed with murder because the killing of
court's rejection of the application for a warrant of arrest without bail.
civilians is not necessary for the success of a rebellion and, therefore,
It should have been the Solicitor-General provoking the issue of re-
the killings are only "on the occasion of but not a 'necessary means for'
examination instead of the petitioners asking to be freed from their
the commission of rebellion.
arrest for a non-existent crime.
This argument is puerile.
The principle bears repeating:
The crime of rebellion consists of many acts. The dropping of one
Respondent Court of Appeals really was devoid of any choice at all. It
bomb cannot be isolated as a separate crime of rebellion. Neither
could not have ruled in any other way on the legal question raised. This
should the dropping of one hundred bombs or the firing of thousands
Tribunal having spoken, its duty was to obey. It is as simple as that.
of machine gun bullets be broken up into a hundred or thousands of
There is relevance to this excerpt from Barrera v. Barrera. (L-31589,
separate offenses, if each bomb or each bullet happens to result in the
CRIMINAL LAW FULL CASES
July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the
significance that attaches to a constitutional or statutory provision, an
executive order, a procedural norm or a municipal ordinance is
committed to the judiciary. It thus discharges a role no less crucial than
that appertaining to the other two departments in the maintenance of
the rule of law. To assure stability in legal relations and avoid
confusion, it has to speak with one voice. It does so with finality,
logically and rightly, through the highest judicial organ, this Court.
What it says then should be definitive and authoritative, binding on
those occupying the lower ranks in the judicial hierarchy. They have to
defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People
v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the
opinion in Barrera further emphasizes the point: Such a thought was
reiterated in an opinion of Justice J.B.L. Reyes and further emphasized
in these words: 'Judge Gaudencio Cloribel need not be reminded that
the Supreme Court, by tradition and in our system of judicial
administration, has the last word on what the law is; it is the final
arbiter of any justifiable controversy. There is only one Supreme Court
from whose decisions all other courts should take their bearings. (Ibid.
Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of
Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v.
Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First
Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services,
Inc. v. NLRC, 125 SCRA 577 [1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon,
et al. even more inexplicable. In the case of the Panlilios, any probable
cause to commit the non- existent crime of rebellion complexed with
murder exists only in the minds of the prosecutors, not in the records
of the case.
I have gone over the records and pleadings furnished to the members
of the Supreme Court. I listened intently to the oral arguments during
the hearing and it was quite apparent that the constitutional
requirement of probable cause was not satisfied. In fact, in answer to
my query for any other proofs to support the issuance of a warrant of
arrest, the answer was that the evidence would be submitted in due
time to the trial court.
The spouses Panlilio and one parent have been in the restaurant
business for decades. Under the records of these petitions, any
restaurant owner or hotel manager who serves food to rebels is a co-
conspirator in the rebellion. The absurdity of this proposition is
apparent if we bear in mind that rebels ride in buses and jeepneys, eat
meals in rural houses when mealtime finds them in the vicinity, join
weddings, fiestas, and other parties, play basketball with barrio youths,
attend masses and church services and otherwise mix with people in
various gatherings. Even if the hosts recognize them to be rebels and
fail to shoo them away, it does not necessarily follow that the former
are co-conspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio
case is the alleged fact that the petitioners served food to rebels at the
Enrile household and a hotel supervisor asked two or three of their
waiters, without reason, to go on a vacation. Clearly, a much, much
stronger showing of probable cause must be shown.
In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga
was charged as a conspirator in the heinous bombing of innocent
civilians because the man who planted the bomb had, sometime
earlier, appeared in a group photograph taken during a birthday party
in the United States with the Senator and other guests. It was a case of
conspiracy proved through a group picture. Here, it is a case of
conspiracy sought to proved through the catering of food.
The Court in Salonga stressed:
The purpose of a preliminary investigation is to secure the innocent
against hasty, malicious and oppressive prosecution, and to protect
him from an open and public accusation of crime, from the trouble,
expense and anxiety of a public trial, and also to protect the state from
useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing
Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to
transgress constitutional due process. (See People v. Oandasa, 25 SCRA
277) However, in order to satisfy the due process clause it is not
enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the State.
More important, it is a part of the guarantees of freedom and fair play
which are birthrights of all who live in our country. It is, therefore,
imperative upon the fiscal or the judge as the case may be, to relieve
the accused from the pain of going through a trial once it is ascertained
that the evidence is insufficient to sustain a prima facie case or that no
probable cause exists to form a sufficient belief as to the guilt of the
accused. Although there is no general formula or fixed rule for the
determination of probable cause since the same must be decided in
the light of the conditions obtaining in given situations and its
existence depends to a large degree upon the finding or opinion of the
judge conducting the examination, such a finding should not disregard
the facts before the judge nor run counter to the clear dictates of
reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The
judge or fiscal, therefore, should not go on with the prosecution in the
hope that some credible evidence might later turn up during trial for
this would be a flagrant violation of a basic right which the courts are
created to uphold. It bears repeating that the judiciary lives up to its
mission by vitalizing and not denigrating constitutional rights. So it has
been before. It should continue to be so. (id., pp. 461- 462)
Because of the foregoing, I take exception to that part of the ponencia
which will read the informations as charging simple rebellion. This case
did not arise from innocent error. If an information charges murder but
its contents show only the ingredients of homicide, the Judge may
rightly read it as charging homicide. In these cases, however, there is a
deliberate attempt to charge the petitioners for an offense which this
Court has ruled as non-existent. The prosecution wanted Hernandez to
be reversed. Since the prosecution has filed informations for a crime
which, under our rulings, does not exist, those informations should be
treated as null and void. New informations charging the correct offense
should be filed. And in G.R. No. 92164, an extra effort should be made
to see whether or not the Principle in Salonga v. Cruz Patio, et al.
(supra) has been violated.
The Court is not, in any way, preventing the Government from using
more effective weapons to suppress rebellion. If the Government feels
that the current situation calls for the imposition of more severe
penalties like death or the creation of new crimes like rebellion
complexed with murder, the remedy is with Congress, not the courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent
court to DISMISS the void informations for a non-existent crime.
 
FELICIANO, J., concurring:
I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that,
as an abstract question of law, could stand reexamination or
clarification. I have in mind in particular matters such as the correct or
appropriate relationship between Article 134 and Article 135 of the
Revised Penal Code. This is a matter which relates to the legal concept
of rebellion in our legal system. If one examines the actual terms of
Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it
would appear that this Article specifies both the overt acts and
the criminal purpose which, when put together, would constitute the
offense of rebellion. Thus, Article 134 states that "the crime of
rebellion is committed by rising publicly and taking arms against the
Government "(i.e., the overt acts comprising rebellion), "for the
purpose of (i.e., the specific criminal intent or political objective)
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 their powers or
prerogatives." At the same time, Article 135 (entitled: "Penalty for
Rebellion or Insurrection.") sets out a listing of acts or particular
measures which appear to fall under the rubric of rebellion or
insurrection: "engaging in war against the forces of the Government,
destroying property or committing serious violence, exacting
contributions or diverting public funds from the lawful purpose for
which they have been appropriated." Are these modalities of
rebellion generally? Or are they particular modes by which those
CRIMINAL LAW FULL CASES
"who promote [ ], maintain [ ] or head [ ] a rebellion or
insurrection" commit rebellion, or particular modes of participation in a
rebellion by public officers or employees? Clearly, the scope of the legal
concept of rebellion relates to the distinction between, on the one
hand, the indispensable acts or ingredients of the crime of rebellion
under the Revised Penal Code and, on the other hand, differing
optional modes of seeking to carry out the political or social objective
of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more
even the above threshold questions is that the results of such re-
examination may well be that acts which under the Hernandez doctrine
are absorbed into rebellion, may be characterized as separate or
discrete offenses which, as a matter of law, can either be prosecuted
separately from rebellion or prosecuted under the provisions of Article
48 of the Revised Penal Code, which (both Clause 1 and Clause 2
thereof) clearly envisage the existence of at least two (2) distinct
offenses. To reach such a conclusion in the case at bar, would, as far as
I can see, result in colliding with the fundamental non-retroactivity
principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in
relation to Article 8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes
do not exist in the abstract but rather bear upon the lives of people
with the specific form given them by judicial decisions interpreting
their norms. Judicial decisions construing statutory norms give specific
shape and content to such norms. In time, the statutory norms become
encrusted with the glosses placed upon them by the courts and the
glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA
247 [1966]). Thus, while in legal theory, judicial interpretation of a
statute becomes part of the law as of the date that the law was
originally enacted, I believe this theory is not to be applied rigorously
where a new judicial doctrine is announced, in particular one
overruling a previous existing doctrine of long standing (here, 36 years)
and most specially not where the statute construed is criminal in
nature and the new doctrine is more onerous for the accused than the
pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v.
Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA
420 [1971]). Moreover, the non-retroactivity rule whether in respect of
legislative acts or judicial decisions has constitutional implications. The
prevailing rule in the United States is that a judicial decision that
retroactively renders an act criminal or enhances the severity of the
penalty prescribed for an offense, is vulnerable to constitutional
challenge based upon the rule against ex post facto laws and the due
process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894
[1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New
Mexico Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle
does not present any real problem for the reason that
the Hernandez doctrine was based upon Article 48, second clause, of
the Revised Penal Code and not upon the first clause thereof, while it is
precisely the first clause of Article 48 that the Government here
invokes. It is, however, open to serious doubt whether Hernandez can
reasonably be so simply and sharply characterized. And assuming
the Hernandez could be so characterized, subsequent cases refer to
the Hernandezdoctrine in terms which do not distinguish clearly
between the first clause and the second clause of Article 48 (e.g.,
People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil.
659 [1960]). Thus, it appears to me that the critical question would be
whether a man of ordinary intelligence would have necessarily read or
understood the Hernandez doctrine as referring exclusively to Article
48, second clause. Put in slightly different terms, the important
question would be whether the new doctrine here proposed by the
Government could fairly have been derived by a man of average
intelligence (or counsel of average competence in the law) from an
examination of Articles 134 and 135 of the Revised Penal Code as
interpreted by the Court in the Hernandez and subsequent cases. To
formulate the question ill these terms would almost be to compel a
negative answer, especially in view of the conclusions reached by the
Court and its several Members today.
Finally, there appears to be no question that the new doctrine that the
Government would have us discover for the first time since the
promulgation of the Revised Penal Code in 1932, would be more
onerous for the respondent accused than the simple application of
the Hernandez doctrine that murders which have been committed on
the occasion of and in furtherance of the crime of rebellion must be
deemed absorbed in the offense of simple rebellion.
I agree therefore that the information in this case must be viewed as
charging only the crime of simple rebellion.
FERNAN, C.J., concurring and dissenting:
I am constrained to write this separate opinion on what seems to be a
rigid adherence to the 1956 ruling of the Court. The numerous
challenges to the doctrine enunciated in the case of People vs.
Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to
redefine the applicability of said doctrine so as to make it conformable
with accepted and well-settled principles of criminal law and
jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an
all-embracing authority for the rule that all common crimes committed
on the occasion, or in furtherance of, or in connection with, rebellion
are absorbed by the latter. To that extent, I cannot go along with the
view of the majority in the instant case that 'Hernandez remains
binding doctrine operating to prohibit the complexing of rebellion with
any other offense committed on the occasion thereof, either as a
means necessary to its commission or as an unintended effect of an
activity that constitutes rebellion" (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was
appealed by the Court in 1956 during the communist-inspired rebellion
of the Huks. The changes in our society in the span of 34 years since
then have far-reaching effects on the all-embracing applicability of the
doctrine considering the emergence of alternative modes of seizing the
powers of the duly constituted Government not contemplated in
Articles 134 and 135 of the Revised Penal Code and their consequent
effects on the lives of our people. The doctrine was good law then, but
I believe that there is a certain aspect of the Hernandez doctrine that
needs clarification.
With all due respect to the views of my brethren in the Court, I believe
that the Court, in the instant case, should have further considered that
distinction between acts or offenses which are indispensable in the
commission of rebellion, on the one hand, and those acts or offenses
that are merely necessary but not indispensable in the commission of
rebellion, on the other. The majority of the Court is correct in adopting,
albeit impliedly, the view in Hernandez case that when an offense
perpetrated as a necessary means of committing another, which is an
element of the latter, the resulting interlocking crimes should be
considered as only one simple offense and must be deemed outside
the operation of the complex crime provision (Article 48) of the
Revised Penal Code. As in the case of Hernandez, the Court, however,
failed in the instant case to distinguish what is indispensable from what
is merely necessary in the commission of an offense, resulting thus in
the rule that common crimes like murder, arson, robbery, etc.
committed in the course or on the occasion of rebellion are absorbed
or included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if
applied to contemporaneous events happening in our country today.
Theoretically, a crime which is indispensable in the commission of
another must necessarily be an element of the latter; but a crime that
is merely necessary but not indispensable in the commission of another
is not an element of the latter, and if and when actually committed,
brings the interlocking crime within the operation of the complex crime
provision (Art. 48) of the Revised Penal Code. With that distinction,
common crimes committed against Government forces and property in
the course of rebellion are properly considered indispensable overt
acts of rebellion and are logically absorbed in it as virtual ingredients or
elements thereof, but common crimes committed against the civilian
population in the course or on the occasion of rebellion and in
furtherance thereof, may be necessary but not indispensable in
committing the latter, and may, therefore, not be considered as
elements of the said crime of rebellion. To illustrate, the deaths
occurring during armed confrontation or clashes between government
forces and the rebels are absorbed in the rebellion, and would be those
resulting from the bombing of military camps and installations, as
these acts are indispensable in carrying out the rebellion. But
CRIMINAL LAW FULL CASES
deliberately shooting down an unarmed innocent civilian to instill fear
or create chaos among the people, although done in the furtherance of
the rebellion, should not be absorbed in the crime of rebellion as the
felonious act is merely necessary, but not indispensable. In the latter
case, Article 48 of the Revised Penal Code should apply.
The occurrence of a coup d' etat in our country as a mode of seizing the
powers of the duly-constituted government by staging surprise attacks
or occupying centers of powers, of which this Court should take judicial
notice, has introduced a new dimension to the interpretation of the
provisions on rebellion and insurrection in the Revised Penal Code.
Generally, as a mode of seizing the powers of the duly constituted
government, it falls within the contemplation of rebellion under the
Revised Penal Code, but, strictly construed, a coup d'etat per se is a
class by itself. The manner of its execution and the extent and
magnitude of its effects on the lives of the people distinguish a coup
d'etat from the traditional definition and modes of commission
attached by the Revised Penal Code to the crime of rebellion as applied
by the Court to the communist-inspired rebellion of the 1950's. A coup
d'etat may be executed successfully without its perpetrators resorting
to the commission of other serious crimes such as murder, arson,
kidnapping, robbery, etc. because of the element of surprise and the
precise timing of its execution. In extreme cases where murder, arson,
robbery, and other common crimes are committed on the occasion of a
coup d' etat, the distinction referred to above on what is necessary and
what is indispensable in the commission of the coup d'etat should be
painstakingly considered as the Court should have done in the case of
herein petitioners.
I concur in the result insofar as the other issues are resolved by the
Court but I take exception to the vote of the majority on the broad
application of the Hernandez doctrine.
BIDIN, J., concurring and dissenting:
I concur with the majority opinion except as regards the dispositive
portion thereof which orders the remand of the case to the respondent
judge for further proceedings to fix the amount of bail to be posted by
the petitioner.
I submit that the proceedings need not be remanded to the
respondent judge for the purpose of fixing bail since we have
construed the indictment herein as charging simple rebellion, an
offense which is bailable. Consequently,habeas corpus is the proper
remedy available to petitioner as an accused who had been charged
with simple rebellion, a bailable offense but who had been denied his
right to bail by the respondent judge in violation of petitioner's
constitutional right to bail. In view thereof, the responsibility of fixing
the amount of bail and approval thereof when filed, devolves upon us,
if complete relief is to be accorded to petitioner in the instant
proceedings.
It is indubitable that before conviction, admission to bail is a matter of
right to the defendant, accused before the Regional Trial Court of an
offense less than capital (Section 13 Article III, Constitution and Section
3, Rule 114). Petitioner is, before Us, on a petition for habeas
corpus praying, among others, for his provisional release on bail. Since
the offense charged (construed as simple rebellion) admits of bail, it is
incumbent upon us m the exercise of our jurisdiction over the petition
for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2,
Rule 102), to grant petitioner his right to bail and having admitted him
to bail, to fix the amount thereof in such sums as the court deems
reasonable. Thereafter, the rules require that "the proceedings
together with the bond" shall forthwith be certified to the respondent
trial court (Section 14, Rule 102).
Accordingly, the cash bond in the amount of P 100,000.00 posted by
petitioner for his provisional release pursuant to our resolution dated
March 6, 1990 should now be deemed and admitted as his bail bond
for his provisional release in the case (simple rebellion) pending before
the respondent judge, without necessity of a remand for further
proceedings, conditioned for his (petitioner's) appearance before the
trial court to abide its order or judgment in the said case.
SARMIENTO, J., concurring and dissenting:
I agree that People v. Hernandez 1 should abide. More than three
decades after which it was penned, it has firmly settled in the tomes of
our jurisprudence as correct doctrine.
As Hernandez put it, rebellion means "engaging m war against the
forces of the government," 2 which implies "resort to arms, requisition
of property and services, collection of taxes and contributions, restraint
of liberty, damage to property, physical injuries and loss of life, and the
hunger, illness and unhappiness that war leaves in its
wake. ..." 3whether committed in furtherance, of as a necessary means
for the commission, or in the course, of rebellion. To say that rebellion
may be complexed with any other offense, in this case murder, is to
play into a contradiction in terms because exactly, rebellion includes
murder, among other possible crimes.
I also agree that the information may stand as an accusation for simple
rebellion. Since the acts complained of as constituting rebellion have
been embodied in the information, mention therein of murder as a
complexing offense is a surplusage, because in any case, the crime of
rebellion is left fully described. 4
At any rate, the government need only amend the information by a
clerical correction, since an amendment will not alter its substance.
I dissent, however, insofar as the majority orders the remand of the
matter of bail to the lower court. I take it that when we, in our
Resolution of March 6, 1990, granted the petitioner "provisional
liberty" upon the filing of a bond of P100,000.00, we granted him bail.
The fact that we gave him "provisional liberty" is in my view, of no
moment, because bail means provisional liberty. It will serve no useful
purpose to have the trial court hear the incident again when we
ourselves have been satisfied that the petitioner is entitled to
temporary freedom.
PADILLA, J., dissenting:
I concur in the majority opinion insofar as it holds that the ruling
in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine
operating to prohibit the complexing of rebellion with any other
offense committed on the occasion thereof, either as a means
necessary to its commission or as an unintended effect of an activity
that constitutes rebellion."
I dissent, however, from the majority opinion insofar as it holds that
the information in question, while charging the complex crime of
rebellion with murder and multiple frustrated murder, "is to be read as
charging simple rebellion."
The present cases are to be distinguished from the Hernandez case in
at least one (1) material respect. In theHernandez case, this Court was
confronted with an appealed case, i.e., Hernandez had been convicted
by the trial court of the complex crime of rebellion with murder, arson
and robbery, and his plea to be released on bail before the Supreme
Court, pending appeal, gave birth to the now
celebrated Hernandez doctrine that the crime of rebellion complexed
with murder, arson and robbery does not exist. In the present cases, on
the other hand, the Court is confronted with an original case, i.e.,
where an information has been recently filed in the trial court and the
petitioners have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was "ground-
breaking" on the issue of whether rebellion can be complexed with
murder, arson, robbery, etc. In the present cases, on the other hand,
the prosecution and the lower court, not only had
the Hernandez doctrine (as case law), but Executive Order No. 187 of
President Corazon C. Aquino dated 5 June 1987 (as statutory law) to
bind them to the legal proposition that the crime of rebellion
complexed with murder, and multiple frustrated murder does not exist.
And yet, notwithstanding these unmistakable and controlling beacon
lights-absent when this Court laid down theHernandez doctrine-the
prosecution has insisted in filing, and the lower court has persisted in
CRIMINAL LAW FULL CASES
hearing, an information charging the petitioners with rebellion
complexed with murder an multiple frustrated murder. That
information is clearly a nullity and plainly void ab initio. Its head should
not be allowed to surface. As a nullity in substantive law, it charges
nothing; it has given rise to nothing. The warrants of arrest issued
pursuant thereto are as null and void as the information on which they
are anchored. And, since the entire question of the information's
validity is before the Court in these habeas corpus cases, I venture to
say that the information is fatally defective,even under procedural law,
because it charges more than one (1) offense (Sec. 13, Rule 110, Rules
of Court).
I submit then that it is not for this Court to energize a dead and, at
best, fatally decrepit information by labelling or "baptizing" it
differently from what it announces itself to be. The prosecution must
file an entirely new and properinformation, for this entire exercise to
merit the serious consideration of the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of
arrest, and ORDER the information for rebellion complexed with
murder and multiple frustrated murder in Criminal Case Nos. 90-10941,
RTC of Quezon City, DISMISSED.
Consequently, the petitioners should be ordered permanently released
and their bails cancelled.
G.R. No. 93335 September 13, 1990
JUAN PONCE ENRILE, petitioner, 
vs.
HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of
Makati, Branch 135, HON. IGNACIO M. CAPULONG, Presiding Judge of
Regional Trial Court of Makati, Branch 134, Pairing Judge, SPECIAL
COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE,
State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor
EULOGIO MANANQUIL; and PEOPLE OF THE PHILIPPINES,respondents.
Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.
 
GUTIERREZ, JR., J.:
Together with the filing of an information charging Senator Juan Ponce
Enrile as having committed rebellion complexed with murder 1 with the
Regional Trial Court of Quezon City, government prosecutors filed
another information charging him for violation of Presidential Decree
No. 1829 with the Regional Trial Court of Makati. The second
information reads:
That on or about the 1st day of December 1989, at Dasmariñas Village,
Makati, Metro Manila and within the jurisdiction of this Honorable
Court, the above-named accused, having reasonable ground to believe
or suspect that Ex-Col. Gregorio "Gringo" Honasan has committed a
crime, did then and there unlawfully, feloniously, willfully and
knowingly obstruct, impede, frustrate or delay the apprehension of
said Ex. Lt. Col. Gregorio "Gringo" Honasan by harboring or concealing
him in his house.
On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold
in abeyance the issuance of a warrant of arrest pending personal
determination by the court of probable cause, and (b) to dismiss the
case and expunge the information from the record.
On March 16, 1990, respondent Judge Ignacio Capulong, as pairing
judge of respondent Judge Omar Amin, denied Senator Enrile's
Omnibus motion on the basis of a finding that "there (was) probable
cause to hold the accused Juan Ponce Enrile liable for violation of PD
No. 1829."
On March 21, 1990, the petitioner filed a Motion for Reconsideration
and to Quash/Dismiss the Information on the grounds that:
(a) The facts charged do not constitute an offense;
(b) The respondent court's finding of probable cause was devoid of
factual and legal basis; and
(c) The pending charge of rebellion complexed with murder and
frustrated murder against Senator Enrile as alleged co-conspirator of
Col. Honasan, on the basis of their alleged meeting on December 1,
1989 preclude the prosecution of the Senator for harboring or
concealing the Colonel on the same occasion under PD 1829.
On May 10, 1990, the respondent court issued an order denying the
motion for reconsideration for alleged lack of merit and setting Senator
Enrile's arraignment to May 30, 1990.
The petitioner comes to this Court on certiorari imputing grave abuse
of discretion amounting to lack or excess of jurisdiction committed by
the respondent court in refusing to quash/ dismiss the information on
the following grounds, to wit:
I. The facts charged do not constitute an offense;
II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in
a supposed meeting on 1 December 1989 is absorbed in, or is a
component element of, the "complexed" rebellion presently charged
against Sen. Enrile as alleged co-conspirator of Col. Honasan on the
basis of the same meeting on 1 December 1989;
III. The orderly administration of Justice requires that there be only one
prosecution for all the component acts of rebellion;
IV. There is no probable cause to hold Sen. Enrile for trial for alleged
violation of Presidential Decree No. 1829;
V. No preliminary investigation was conducted for alleged violation of
Presidential Decree No. 1829. The preliminary investigation, held only
for rebellion, was marred by patent irregularities resulting in denial of
due process.
On May 20, 1990 we issued a temporary restraining order enjoining the
respondents from conducting further proceedings in Criminal Case No.
90-777 until otherwise directed by this Court.
The pivotal issue in this case is whether or not the petitioner could be
separately charged for violation of PD No. 1829 notwithstanding the
rebellion case earlier filed against him.
Respondent Judge Amin sustained the charge of violation of PD No.
1829 notwithstanding the rebellion case filed against the petitioner on
the theory that the former involves a special law while the latter is
based on the Revised Penal Code or a general law.
The resolution of the above issue brings us anew to the case of People
v. Hernandez (99 Phil. 515 [1956]) the rulings of which were recently
repeated in the petition for habeas corpus of Juan Ponce Enrile v.
Judge Salazar,(G.R. Nos. 92163 and 92164, June 5, 1990).
The Enrile case gave this Court the occasion to reiterate the long
standing proscription against splitting the component offenses of
rebellion and subjecting them to separate prosecutions, a procedure
reprobated in the Hernandez case. This Court recently declared:
The rejection of both options shapes and determines the primary ruling
of the Court, which thatHernandez remains binding doctrine operating
to prohibit the complexing of rebellion with any other offense
committed on the occasion thereof, either as a means to its
commission or as an unintended effect of an activity that commutes
rebellion. (Emphasis supplied)
This doctrine is applicable in the case at bar. If a person can not be
charged with the complex crime of rebellion for the greater penalty to
be applied, neither can he be charged separately for two (2) different
CRIMINAL LAW FULL CASES
offenses where one is a constitutive or component element or
committed in furtherance of rebellion.
The petitioner is presently charged with having violated PD No. 1829
particularly Section 1 (c) which states:
SECTION 1. The penalty of prison correccional in its maximum period,
or a fine ranging from 1,000 to 6,000 pesos or both, shall be imposed
upon any person who knowingly or wilfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation
and prosecution of criminal cases by committing any of the following
acts:
xxx xxx xxx
(c) harboring or concealing, or facilitating the escape of, any person he
knows, or has reasonable ground to believe or suspect has committed
any offense under existing penal laws in order to prevent his arrest,
prosecution and conviction.
xxx xxx xxx
The prosecution in this Makati case alleges that the petitioner
entertained and accommodated Col. Honasan by giving him food and
comfort on December 1, 1989 in his house. Knowing that Colonel
Honasan is a fugitive from justice, Sen. Enrile allegedly did not do
anything to have Honasan arrested or apprehended. And because of
such failure the petitioner prevented Col. Honasan's arrest and
conviction in violation of Section 1 (c) of PD No. 1829.
The rebellion charges filed against the petitioner in Quezon City were
based on the affidavits executed by three (3) employees of the Silahis
International Hotel who stated that the fugitive Col. Gregorio "Gringo"
Honasan and some 100 rebel soldiers attended the mass and birthday
party held at the residence of the petitioner in the evening of
December 1, 1989. The information (Annex "C", p. 3) particularly reads
that on "or about 6:30 p.m., 1 December, 1989, Col. Gregorio "Gringo"
Honasan conferred with accused Senator Juan Ponce Enrile
accompanied by about 100 fully armed rebel soldiers wearing white
armed patches". The prosecution thereby concluded that:
In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio
"Gringo" Honasan in his house in the presence of about 100 uniformed
soldiers who were fully armed, can be inferred that they were co-
conspirators in the failed December coup. (Annex A, Rollo, p. 65;
Emphasis supplied)
As can be readily seen, the factual allegations supporting the rebellion
charge constitute or include the very incident which gave rise to the
charge of the violation under Presidential Decree No. 1829. Under the
Department of Justice resolution (Annex A, Rollo, p. 49) there is only
one crime of rebellion complexed with murder and multiple frustrated
murder but there could be 101 separate and independent prosecutions
for harboring and concealing" Honasan and 100 other armed rebels
under PD No. 1829. The splitting of component elements is readily
apparent.
The petitioner is now facing charges of rebellion in conspiracy with the
fugitive Col. Gringo Honasan. Necessarily, being in conspiracy with
Honasan, petitioners alleged act of harboring or concealing was for no
other purpose but in furtherance of the crime of rebellion thus
constitute a component thereof. it was motivated by the single intent
or resolution to commit the crime of rebellion. As held in People v.
Hernandez, supra:
In short, political crimes are those 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. (p. 536)
The crime of rebellion consists of many acts. It is described as a vast
movement of men and a complex net of intrigues and plots. (People v.
Almasan [CA] O.G. 1932). Jurisprudence tells us that acts committed in
furtherance of the rebellion though crimes in themselves are deemed
absorbed in the one single crime of rebellion. (People v. Geronimo, 100
Phil. 90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v.
Rodriguez, 107 Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]). In
this case, the act of harboring or concealing Col. Honasan is clearly a
mere component or ingredient of rebellion or an act done in
furtherance of the rebellion. It cannot therefore be made the basis of a
separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is
instructive:
In the nature of things, the giving of aid and comfort can only be
accomplished by some kind of action. Its very nature partakes of a
deed or physical activity as opposed to a mental operation. (Cramer v.
U.S., ante) This deed or physical activity may be, and often is, in itself a
criminal offense under another penal statute or provision. Even so,
when the deed is charged as an element of treason it becomes
Identified with the latter crime and can not be the subject of a separate
punishment, or used in combination with treason to increase the
penalty as article 48 of the Revised Penal Code provides. Just as one
can not be punished for possessing opium in a prosecution for smoking
the Identical drug, and a robber cannot be held guilty of coercion or
trespass to a dwelling in a prosecution for robbery, because possession
of opium and force and trespass are inherent in smoking and in
robbery respectively, so may not a defendant be made liable for
murder as a separate crime or in conjunction with another offense
where, as in this case, it is averred as a constitutive ingredient of
treason.
The prosecution tries to distinguish by contending that harboring or
concealing a fugitive is punishable under a special law while the
rebellion case is based on the Revised Penal Code; hence, prosecution
under one law will not bar a prosecution under the other. This
argument is specious in rebellion cases.
In the light of the Hernandez doctrine the prosecution's theory must
fail. The rationale remains the same. All crimes, whether punishable
under a special law or general law, which are mere components or
ingredients, or committed in furtherance thereof, become absorbed in
the crime of rebellion and can not be isolated and charged as separate
crimes in themselves. Thus:
This does not detract, however, from the rule that the ingredients of a
crime form part and parcel thereof, and hence, are absorbed by the
same and cannot be punished either separately therefrom or by the
application of Article 48 of the Revised Penal Code. ... (People v.
Hernandez, supra, at p. 528)
The Hernandez and other related cases mention common crimes as
absorbed in the crime of rebellion. These common crimes refer to all
acts of violence such as murder, arson, robbery, kidnapping etc. as
provided in the Revised Penal Code. The attendant circumstances in
the instant case, however, constrain us to rule that the theory of
absorption in rebellion cases must not confine itself to common crimes
but also to offenses under special laws which are perpetrated in
furtherance of the political offense.
The conversation and, therefore, alleged conspiring of Senator Ponce
Enrile with Colonel Honasan is too intimately tied up with his allegedly
harboring and concealing Honasan for practically the same act to form
two separate crimes of rebellion and violation of PD No. 1829.
Clearly, the petitioner's alleged act of harboring or concealing which
was based on his acts of conspiring with Honasan was committed in
connection with or in furtherance of rebellion and must now be
deemed as absorbed by, merged in, and Identified with the crime of
rebellion punished in Articles 134 and 135 of the RPC.
Thus, national, as well as international, laws and jurisprudence
overwhelmingly favor the proposition that common crimes,
perpetrated in furtherance of a political offense, are divested of their
character as "common" offenses, and assume the political complexion
of the main crime of which they are mere ingredients, and
consequently, cannot be punished separately from the principal
offense, or complexed with the same, to justify the imposition of a
graver penalty. (People v. Hernandez, supra, p. 541)
In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after
having pleaded guilty and convicted of the crime of rebellion, faced an
CRIMINAL LAW FULL CASES
independent prosecution for illegal possession of firearms. The Court
ruled:
An examination of the record, however, discloses that the crime with
which the accused is charged in the present case which is that of illegal
possession of firearm and ammunition is already absorbed as a
necessary element or ingredient in the crime of rebellion with which
the same accused is charged with other persons in a separate case and
wherein he pleaded guilty and was convicted. (at page 662)
xxx xxx xxx
[T]he conclusion is inescapable that the crime with which the accused
is charged in the present case is already absorbed in the rebellion case
and so to press it further now would be to place him in double
jeopardy. (at page 663)
Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341,
January 30, 1990) where the Court had the occasion to pass upon a
nearly similar issue. In this case, the petitioner Misolas, an alleged
member of the New Peoples Army (NPA), was charged with illegal
possession of firearms and ammunitions in furtherance of subversion
under Section 1 of PD 1866. In his motion to quash the information, the
petitioner based his arguments on the Hernandez and Geronimo rulings
on the doctrine of absorption of common in rebellion. The Court,
however, clarified, to wit:
... in the present case, petitioner is being charged specifically for the
qualified offense of illegal possession of firearms and ammunition
under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME
OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS
HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL
POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez,
Geronimo and Rodriguez find no application in this case.
The Court in the above case upheld the prosecution for illegal
possession of firearms under PD 1866 because no separate prosecution
for subversion or rebellion had been filed. 3 The prosecution must
make up its mind whether to charge Senator Ponce Enrile with
rebellion alone or to drop the rebellion case and charge him with
murder and multiple frustrated murder and also violation of P.D. 1829.
It cannot complex the rebellion with murder and multiple frustrated
murder. Neither can it prosecute him for rebellion in Quezon City and
violation of PD 1829 in Makati. It should be noted that there is in fact a
separate prosecution for rebellion already filed with the Regional Trial
Court of Quezon City. In such a case, the independent prosecution
under PD 1829 can not prosper.
As we have earlier mentioned, the intent or motive is a decisive factor.
If Senator Ponce Enrile is not charged with rebellion and he harbored
or concealed Colonel Honasan simply because the latter is a friend and IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY
former associate, the motive for the act is completely different. But if A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners, 
the act is committed with political or social motives, that is in vs.
furtherance of rebellion, then it should be deemed to form part of the BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL.
crime of rebellion instead of being punished separately. NESTOR MARIANO, respondents.
In view of the foregoing, the petitioner can not be tried separately G.R. No. 85727 October 3, 1991
under PD 1829 in addition to his being prosecuted in the rebellion case.
With this ruling, there is no need for the Court to pass upon the other
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF
issues raised by the petitioner.
DEOGRACIAS ESPIRITU, petitioner, 
vs.
WHEREFORE, the petition is GRANTED. The Information in Criminal BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.
Case No. 90-777 is QUASHED. The writ of preliminary injunction,
enjoining respondent Judges and their successors in Criminal Case No.
G.R. No. 86332 October 3, 1991
90-777, Regional Trial Court of Makati, from holding the arraignment of
Sen. Juan Ponce Enrile and from conducting further proceedings
therein is made permanent. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO
B. NAZARENO: ALFREDO NAZARENO,petitioner, 
vs.
SO ORDERED.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION,
Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO
G.R. No. 81567 October 3, 1991 TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO
AROJADO, respondents.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO
UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.
UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, 
vs.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.
Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.
G.R. Nos. 84581-82 October 3, 1991
Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, 
vs. The Solicitor General for the respondents.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.
RESOLUTION
G.R. Nos. 84583-84 October 3, 1991
 
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY.
DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T.
PER CURIAM:p
ANONUEVO and RAMON CASIPLE, petitioners, 
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO Before the Court are separate motions filed by the petitioners in the
CARIÑO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. above-entitled petitions, seeking reconsideration of the Court's
ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, decision promulgated on 9 July 1990 (the decision, for brevity) which
Camp Crame, Quezon City, respondents. dismissed the petitions, with the following dispositive part:
G.R. No. 83162 October 3, 1991 WHEREFORE, the petitions are hereby DISMISSED, except that in G.R.
No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional
CRIMINAL LAW FULL CASES
liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No
costs.
The Court avails of this opportunity to clarify its ruling a begins with the
statement that the decision did not rule — as many misunderstood it
to do — that mere suspicion that one is Communist Party or New
People's Army member is a valid ground for his arrest without warrant.
Moreover, the decision merely applied long existing lawsto the factual
situations obtaining in the several petitions. Among these laws are th
outlawing the Communist Party of the Philippines (CPP) similar
organizations and penalizing membership therein be dealt with
shortly). It is elementary, in this connection, if these laws no longer
reflect the thinking or sentiment of the people, it is Congress as the
elected representative of the people — not the Court — that should
repeal, change or modify them.
In their separate motions for reconsideration, petitioners, in sum,
maintain:
1. That the assailed decision, in upholding the validity of the
questioned arrests made without warrant, and in relying on the
provisions of the Rules of Court, particularly Section 5 of Rule 113
(Arrest), disregards the fact that such arrests violated the constitutional
rights of the persons arrested;
2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan
vs. Enrile 2 should be abandoned;
3. That the decision erred in considering the admissions made by the
persons arrested as to their membership in the Communist Party of the
Philippines/New People's Army, and their ownership of the unlicensed
firearms, ammunitions and subversive documents found in their
possession at the time of arrest, inasmuch as those confessions do not
comply with the requirements on admissibility of extrajudicial
admissions;
4. That the assailed decision is based on a misappreciation of facts;
5. That G.R. No. 81567 (the Umil case) should not be deemed moot and
academic.
We find no merit in the motions for reconsideration.
It can not be overlooked that these are petitions for the issuance of the
writ of habeas corpus, filed by petitioners under the Rules of
Court. 3 The writ of habeas corpus exists as a speedy and effective
remedy to relieve persons from unlawful restraint. 4Therefore, the
function of the special proceedings of habeas corpus is to inquire into
the legality of one's detention, 5 so that if detention is illegal, the
detainee may be ordered forthwit released.
In the petitions at bar, to ascertain whether the detention petitioners
was illegal or not, the Court before rendering decision dated 9 July
1990, looked into whether their questioned arrests without warrant
were made in accordance with law. For, if the arrests were made in
accordance with law, would follow that the detention resulting from
such arrests also in accordance with law.
There can be no dispute that, as a general rule, no peace officer or
person has the power or authority to arrest anyo without a warrant of
arrest, except in those cases express authorized by law. 6 The law
expressly allowing arrests witho warrant is found in Section 5, Rule 113
of the Rules of Court which states the grounds upon which a valid
arrest, without warrant, can be conducted.
In the present cases, the focus is understandably on Section 5,
paragraphs (a) and (b) of the said Rule 113, which read:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to he arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrest has
committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando
Dural (G.R. No. 81567) without warrant is justified it can be said that,
within the contemplation of Section 5 Rule 113, he (Dural) was
committing an offense, when arrested because Dural was arrested for
being a member of the New People's Army, an outlawed organization,
where membership penalized, 7 and for subversion which, like
rebellion is, under the doctrine of Garcia vs. Enrile, 8 a continuing
offense, thus:
The crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and offenses
committed in the furtherance (sic) on the occasion thereof, or incident
thereto, or in connection therewith under Presidential Proclamation
No. 2045, are all in the nature of continuing offenses which set them
apart from the common offenses, aside from their essentially involving
a massive conspiracy of nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA which
includes armed struggle for the overthrow of organized government,
Dural did not cease to be, or became less of a subversive, FOR
PURPOSES OF ARREST, simply because he was, at the time of arrest,
confined in the St. Agnes Hospital. Dural was identified as one of
several persons who the day before his arrest, without warrant, at the
St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol
car. That Dural had shot the two (2) policemen in Caloocan City as part
of his mission as a "sparrow" (NPA member) did not end there and
then. Dural, given another opportunity, would have shot or would
shoot other policemen anywhere as agents or representatives of
organized government. It is in this sense that subversion like rebellion
(or insurrection) is perceived here as a continuing offense. Unlike other
so-called "common" offenses, i.e. adultery, murder, arson, etc., which
generally end upon their commission, subversion and rebellion are
anchored on an ideological base which compels the repetition of the
same acts of lawlessness and violence until the overriding objective of
overthrowing organized government is attained.
Nor can it be said that Dural's arrest was grounded on mere suspicion
by the arresting officers of his membership in the CPP/NPA. His arrest
was based on "probable cause," as supported by actual facts that will
be shown hereafter.
Viewed from another but related perspective, it may also be said,
under the facts of the Umil case, that the arrest of Dural falls
under Section 5, paragraph (b), Rule 113 of the Rules of Court, which
requires two (2) conditions for a valid arrestt without warrant: first,
that the person to be arrested has just committed an offense,
and second, that the arresting peace officer or private person has
personal knowledge of facts indicating that the person to be arrested is
the one who committed the offense. Section 5(b), Rule 113, it will be
noted, refers to arrests without warrant, based on "personal
knowledge of facts" acquired by the arresting officer or private person.
It has been ruled that "personal knowledge of facts," in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion 9
The grounds of suspicion are reasonable when, in the absence of actual
belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense, is based
on actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be
arrested. 10 A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace
officers making the arrest. 11
These requisites were complied with in the Umil case and in the other
cases at bar.
CRIMINAL LAW FULL CASES
In G.R. No. 81567 (Umil case), military agents, on 1 February 1988,
were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon
City, to verify a confidential information which was received by their
office, about a "sparrow man" (NPA member) who had been admitted
to the said hospital with a gunshot wound; that the information further
disclosed that the wounded man in the said hospital was among the
five (5) male "sparrows" who murdered two (2) Capcom mobile patrols
the day before, or on 31 January 1988 at about 12:00 o'clock noon,
before a road hump along Macanining St., Bagong Barrio, Caloocan
City; that based on the same information, the wounded man's name
was listed by the hospital management as "Ronnie Javellon," twenty-
two (22) years old of Block 10, Lot 4, South City Homes, Biñan,
Laguna. 12
Said confidential information received by the arresting officers, to the
effect that an NPA member ("sparrow unit") was being treated for a
gunshot wound in the named hospital, is deemed reasonable and with
cause as it was based on actual facts and supported by circumstances
sufficient to engender a belief that an NPA member was truly in the
said hospital. The actual facts supported by circumstances are: first —
the day before, or on 31 January 1988, two (2) CAPCOM soldiers were
actually killed in Bagong Bario, Caloocan City by five (5) "sparrows"
including Dural; second — a wounded person listed in the hospital
records as "Ronnie Javellon" was actually then being treated in St.
Agnes Hospital for a gunshot wound; third — as the records of this
case disclosed later, "Ronnie Javellon" and his address entered in the
hospital records were fictitious and the wounded man was in reality
Rolando Dural.
In fine, the confidential information received by the arresting officers
merited their immediate attention and action and, in fact, it was found
to be true. Even the petitioners in their motion for
reconsideration, 13 believe that the confidential information of the
arresting officers to the effect that Dural was then being treated in St.
Agnes Hospital was actually received from the attending doctor and
hospital management in compliance with the directives of the
law, 14 and, therefore, came from reliable sources.
As to the condition that "probable cause" must also be coupled with
acts done in good faith by the officers who make the arrest, the Court
notes that the peace officers wno arrested Dural are deemed to have
conducted the same in good faith, considering that law enforcers are
presumed to regularly perform their official duties. The records show
that the arresting officers did not appear to have been ill-motivated in
arresting Dural. 15 It is therefore clear that the arrest, without warrant,
of Dural was made in compliance with the requirements of paragraphs
(a) and (b) of Section 5, Rule 113.
Parenthetically, it should be mentioned here that a few day after
Dural's arrest, without warrant, an information charging double
murder with assault against agents of persons in authority was filed
against Dural in the Regional Trial Court of Caloocan City (Criminal Case
No. C-30112). He was thus promptly placed under judicial custody (as
distinguished fro custody of the arresting officers). On 31 August 1988,
he wa convicted of the crime charged and sentenced to reclusion
perpetua. The judgment of conviction is now on appeal before this
Court in G.R. No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-
82), Domingo Anonuevo and Ramon Casiple(G.R. Nos. 84583-84)
and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are
also justified. They were searched pursuant to search warrants issued
by a court of law and were found wit unlicensed firearms, explosives
and/or ammunition in their persons. They were, therefore, caught
in flagrante delicto which justified their outright arrests without
warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it
should be mentioned here that a few davs after their arrests without
warrant, informations were filed in court against said petitioners,
thereby placing them within judicial custody and disposition.
Furthermore, Buenaobra mooted his own petition fo habeas corpus by
announcing to this Court during the hearing of these petitions that he
had chosen to remain in detention in the custody of the authorities.
More specifically, the antecedent facts in the "in flagrante" cases are:
1. On 27 June 1988, the military agents received information imparted
by a former NPA about the operations of the CPP and NPA in Metro
Manila and that a certain house occupied by one Renato Constantine,
located in the Villaluz Compound, Molave St., Marikina Heights,
Marikina, Metro Manila was being used as their safehouse; that in view
of this information, the said house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant duly
issued by court, a search of the house was conducted; that when
Renato Constantine was then confronted he could not produce any
permit to possess the firearms, ammunitions, radio and other
communications equipment, and he admitted that he was a ranking
member of the CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato
Constantino in the evening of 12 August 1988, and admitted that he
was an NPA courier and he had with him letters to Renato Constantine
and other members of the rebel group.
3. On the other hand, the arrest of Amelia Roque was a consequence of
the arrest of Buenaobra who had in his possession papers leading to
the whereabouts of Roque; 17 that, at the time of her arrest, the
military agents found subversive documents and live ammunitions, and
she admitted then that the documents belonged to her. 18
4. As regards Domingo Anonuevo and Ramon Casiple they were
arrested without warrant on 13 August 1988, when they arrived at the
said house of Renato Constantine in the evening of said date; that
when the agents frisked them, subversive documents, and loaded guns
were found in the latter's possession but failing to show a permit to
possess them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant when
she arrived (on 12 May 1988) at the premises ofthe house of one
Benito Tiamzon who was believed to be the head of the CPP/NPA,
and whose house was subject of a search warrant duly issued by the
court. At the time of her arrest without warrant the agents of the PC-
Intelligence and Investigation found ammunitions and subversive
documents in the car of Ocaya. 20
It is to be noted in the above cases (Roque, Buenaobra, Anonuevo,
Casiple and Ocaya) that the reason which compelled the military
agents to make the arrests without warrant was the information given
to the military authorities that two (2) safehouses (one occupied by
Renato Constantine and the other by Benito Tiamzon) were being used
by the CPP/NPA for their operations, with information as to their exact
location and the names of Renato Constantine and Benito Tiamzon as
residents or occupants thereof.
And at the time of the actual arrests, the following circumstances
surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple),
which confirmed the belief of the military agents that the information
they had received was true and the persons to be arrested were
probably guilty of the commission of certain crimes: first: search
warrant was duly issued to effect the search of the Constantine
safehouse; second: found in the safehouse was a person named Renato
Constantine, who admitted that he was a ranking member of the CPP,
and found in his possession were unlicensed firearms and
communications equipment; third: at the time of their arrests, in their
possession were unlicensed firearms, ammunitions and/or subversive
documents, and they admitted ownership thereof as well as their
membership in the CPP/NPA. And then, shortly after their arrests, they
were positively identified by their former comrades in the organization
as CPP/NPA members. In view of these circumstances, the
corresponding informations were filed in court against said arrested
persons. The records also show that, as in the case of Dural, the arrests
without warrant made by the military agents in the Constantino
safehouse and later in the Amelia Roque house, do not appear to have
been ill-motivated or irregularly performed.
With all these facts and circumstances existing before, during and after
the arrest of the afore-named persons (Dural, Buenaobra, Roque,
Anonuevo, Casiple and Ocaya), no prudent an can say that it would
have been better for the military agents not to have acted at all and
made any arrest. That would have been an unpardonable neglect of
official duty and a cause for disciplinary action against the peace
officers involved.
CRIMINAL LAW FULL CASES
For, one of the duties of law enforcers is to arrest lawbreakers in order
to place them in the hands of executive and judicial authorities upon
whom devolves the duty to investigate the acts constituting the alleged
violation of law and to prosecute and secure the punishment
therefor. 21 An arrest is therefore in the nature of an administrative
measure. The power to arrest without warrant is without limitation as
long as the requirements of Section 5, Rule 113 are met. This rule is
founded on an overwhelming public interest in peace and order in our
communities.
In ascertaining whether the arrest without warrant is conducted in
accordance with the conditions set forth in Section 5, Rule 113, this
Court determines not whether the persons arrested are indeed guilty
of committing the crime for which they were arrested. 22 Not evidence
of guilt, but "probable cause" is the reason that can validly compel the
peace officers, in the performance of their duties and in the interest of
public order, to conduct an arrest without warrant. 23
The courts should not expect of law-enforcers more than what the law
requires of them. Under the conditions set forth in Section 5, Rule 113,
particularly paragraph (b) thereof, even if the arrested persons are
later found to be innocent and acquitted, the arresting officers are not
liable. 24 But if they do not strictly comply with the said conditions, the
arresting officers can be held liable for the crime of arbitrary
detention, 25 for damages under Article 32 of the Civil Code 26 and/or
for other administrative sanctions.
In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested
without warrant, on the basis of the attestation of certain witnesses:
that about 5:00 o'clock in the afternoon of 22 November 1988, at the
corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila,
Espiritu spoke at a gathering of drivers and sympathizers, where he
said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa
magkagulona. 27 (Emphasis supplied)
and that the police authorities were present during the press
conference held at the National Press Club (NPC) on 22 November
1988 where Espiritu called for a nationwide strike (of jeepney and bus
drivers) on 23 November 1988. 28 Espiritu was arrested without
warrant, not for subversion or any "continuing offense," but for
uttering the above-quoted language which, in the perception of the
arresting officers, was inciting to sedition.
Many persons may differ as to the validity of such perception and
regard the language as falling within free speech guaranteed by the
Constitution. But, then, Espiritu had not lost the right to insist, during
the pre-trial or trial on the merits, that he was just exercising his right
to free speech regardless of the charged atmosphere in which it was
uttered. But, the authority of the peace officers to make the arrest,
without warrant, at the time the words were uttered, or soon
thereafter, is still another thing. In the balancing of authority and
freedom, which obviously becomes difficult at times, the Court has, in
this case, tilted the scale in favor of authority but only for purposes of
the arrest (not conviction). Let it be noted that the Court has ordered
the bail for Espiritu's release to be reduced from P60,000.00 to
P10,000.00.
Let it also be noted that supervening events have made
the Espiritu case moot and academic. For Espiritu had before
arraignment asked the court a quo for re-investigation, the peace
officers did not appear. Because of this development, the defense
asked the court a quo at the resumption of the hearings to dismiss the
case. Case against Espiritu (Criminal Case No. 88-68385) has been
provisionally dismissed and his bail bond cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the morning of
14 December 1988, Romulo Bunye II was killed by a group of men in
Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the
morning of 28 December 1988, Ramil Regala, one of the suspects in the
said killing, was arrested and he pointed to Narciso Nazareno as one of
his companions during the killing of Bunye II; that at 7:20 of the same
morning (28 December 1988), the police agents arrested Nazareno,
without warrant, for investigation. 29
Although the killing of Bunye II occurred on 14 December 1988, while
Nazareno's arrest without warrant was made only on 28 December
1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113,
since it was only on 28 December 1988 that the police authorities came
to know that Nazareno was probably one of those guilty in the killing of
Bunye II and the arrest had to be made promptly, even without
warrant, (after the police were alerted) and despite the lapse of
fourteen (14) days to prevent possible flight.
As shown in the decision under consideration, this Court, in upholding
the arrest without warrant of Nazareno noted several facts and events
surrounding his arrest and detention, as follows:
. . . on 3 January 1989 (or six (6) days after his arrest without warrant),
an information charging Narciso Nazareno, Ramil Regala and two (2)
others, with the killing of Romulo Bunye II was filed wit the Regional
Trial Court of Makati, Metro Manila. The case is dock eted therein as
Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail but the
motion was denied by the trial court in an order dated 10 January
1989, even as the motion to post bail, earlier filed by his co-accused,
Manuel Laureaga, was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this
Court on behalf of Narciso Nazareno and on 13 January 1989, the Court
issued the writ of habeas corpus, retumable to the Presiding Judge of
the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said
court to hear the case on 30 January 1989 and thereafter resolve the
petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding
Judge of the Regional Trial Court of Biñan, Laguna issued a resolution
denying the petition for habeas corpus, it appearing that the said
Narciso Nazareno is in the custody of the respondents by reason of an
information filed against him with the Regional Trial Court of Makati,
Metro Manila which liad taken cognizance of said case and had, in fact,
denied the motion for bail filed by said Narciso Nazareno (presumably
because of the strength of the evidence against him).
This Court reiterates that shortly after the arrests
of Espiritu and Nazareno, the corresponding informations against them
were filed in court. The arrests of Espiritu and Nazareno were based on
probable cause and supported by factual circumstances. They complied
with conditions set forth in Section 5(b) of Rule 113. They were not
arbitrary or whimsical arrests.
Parenthetically, it should be here stated that Nazareno has since been
convicted by the court a quo for murder and sentenced to reclusion
perpetua. He has appealed the judgment of conviction to the Court of
Appeals where it is pending as of this date ( CA-G.R. No. still
undocketed).
Petitioners contend that the decision of 9 July 1990 ignored the
contitution requisiteds for admissibility of an extrajudicial admission.
In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he
was an NPA courier. On the other hand, in the case ofAmelia Roque,
she admitted 31 that the unlicensed firearms, ammunition and
subversive documents found in her possession during her arrest,
belonged to her.
The Court, it is true, took into account the admissions of the arrested
persons of their membership in the CPP/NPA, as well as their
ownership of the unlicensed firearms, ammunitions and documents in
their possession. But again, these admissions, as revealed by the
records, strengthen the Court's perception that truly the grounds upon
which the arresting officers based their arrests without warrant, are
supported by probable cause, i.e. that the persons arrested were
probably guilty of the commission of certain offenses, in compliance
with Section 5, Rule 113 of the Rules of Court. To note these
admissions, on the other hand, is not to rule that the persons arrested
are already guilty of the offenses upon which their warrantless arrests
were predicated. The task of determining the guilt or innocence of
CRIMINAL LAW FULL CASES
persons arrested without warrant is not proper in a petition for habeas
corpus. It pertains to the trial of the case on the merits.
As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan
vs. Enrile should be abandoned, this Court finds no compelling
reason at this time to disturb the same, particularly ln the light of
prevailing conditions where national security and liability are still
directly challenged perhaps with greater vigor from the communist
rebels. What is important is that everv arrest without warrant be
tested as to its legality via habeas corpus proceeding. This Court. will
promptly look into — and all other appropriate courts are enjoined to
do the same — the legality of the arrest without warrant so that if the
conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this
Resolution, are not met, then the detainee shall forthwith be ordered
released; but if such conditions are met, then the detainee shall not be
made to languish in his detention but must be promptly tried to the
end that he may be either acquitted or convicted, with the least delay,
as warranted by the evidence.
A Final Word
This Resolution ends as it began, reiterating that mere suspicion of
being a Communist Party member or a subversive is absolutely not a
ground for the arrest without warrant of the suspect. The Court
predicated the validity of the questioned arrests without warrant in
these petitions, not on mere unsubstantiated suspicion, but on
compliance with the conditions set forth in Section 5, Rule 113, Rules
of Court, a long existing law, and which, for stress, are probable
cause and good faith of the arresting peace officers, and, further, on
the basis of, as the records show, the actual facts and
circumstances supporting the arrests. More than the allure of
popularity or palatability to some groups, what is important is that the
Court be right.
ACCORDINGLY, the motions for reconsideration of the decision dated 9
July 1990, are DENIED. This denial is FINAL.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino,
Medialdea and Davide, Jr., JJ., concur.
 
 
 
Separate Opinions
 
FERNAN, C.J., concurring and dissenting:
After a deep and thorough reexamination of the decision of Julv 9,
1990 and an exhaustive evaluation of the motions for reconsideration
of the said decision, I am inclined to agree with the, majority's
resolution on said motions for reconsideration except for the legality of
the warrantless arrests of petitioner Deogracias Espiritu for the crime
of inciting to sedition and petitioner Alfredo Nazareno for the crime of
murder.
In the words of the resolution, Espiritu "was arrested without warrant,
not for subversion or any 'continuing offense,' but for uttering" the
following: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo
na." Apparently, such statement was, in the perception of the arresting
officers, inciting to sedition. While not conceding the validity of such
perception, realizing that it is indeed possible that Espiritu was merely
exercising his right to free speech, the resolution nonetheless supports
the authority of peace officers "only for purposes of the arrest."
I find this position to be adverse to the very essence of the resolution
which sanctions warrantless arrests provided they are made in
accordance with law. In the first place, Espiritu mav not be considered
as having "just committed" the crime charged. He allegedly first
uttered seditious remarks at the National Press Club in the afternoon of
November 12, 1988. The second allegedly seditious remark
aforequoted was made at around 5:00 o'clock in the same afternoon
(Decision, pp. 23-24). Under these circumstances, the law enforcement
agents had time, short though it might seem, to secure a warrant for
his arrest. Espiritu's apprehension may not therefore be considered as
covered by Section 5(b) of Rule 113 which allows warrantless arrests
"when an offense has in fact just been committed."
The same observation applies with greater force in the case of
Nazareno who was arrested 14 days after the commission of the crime
imputed to him.
Secondly, warrantless arrests may not be allowed if the arresting
officer are not sure what particular provision of law had beeri violated
by the person arrested. True it is that law en.orcement agents and
even prosecutors are not all adept at the However, errneous
perception, not to mention ineptitude among their ranks, especially if it
would result in the violation of any right of a person, may not be
tolerated. That the arrested person has the "right to insist during the
pre-trial or trial on the merits" (Resolution., p. 18) that he was
exercising a right which the arresting officer considered as contrary to
law, is beside the point. No person should be subjected to the ordeal of
a trial just because the law enforcers wrongly perceived his action.
Thirdly, inciting to sedition is not a continuous crime for which the
offender may be arrested without a warrant duly issued by the proper
authority. By its nature, a single act of urging others to commit any of
the acts enumerated in Article 142 of the Revised Penal Code may
suffice to hold anyone liable for inciting to sedition. While the crime is
aimed at anarchy and radicalism and presents largely a question of
policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be
remembered that any of the prohibited acts in Article 142 may infringe
upon the fundamental freedoms of speech and expression. There
arises, therefore, the necessity of balancing interests; those of the
State as against those of its individual citizen. Here lies the urgency of
judicial intervention before an arrest is made. Added to this is the
subjectivity of the determination of what may incite other people to
sedition. Hence, while the police should act swiftly when a seditious
statement has been uttered in view of the jeopardy it may cause the
government, speedy action should consist not in warrantless arrests
but in securing warrants for such arrests.
On the legality of warrantless arrests of violators of the Anti-Subversion
Law, it should be underscored that anyone who undertakes such arrest
must see to it that the alleged violator is knowing member of a
subversive organization as distinguished from a nominal one (People
vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a
subversive may be arrested even if has not committed overt act of
overthrowing the government such as bombing of government offices
trie assassination of government officials provided there is probable
cause to believe that he is in the roll of members of a subversive
organization. It devolves upon the accused to prove membership by
force or ciorcion. Certainly, one may not be in such a roll without
undergoing the concious act of enlistment.
It bears repeating theat warrantless arrests are governed by law and
subject to stringent application. Section 5, Rule 113 of the Rules on
Criminal Procedure now requires that an offense "has in fact just been
committed. "connotes immediacy in point of time and excludes cases
under the old rule where an offense 'has in fact been committed' no
how long ago. Similarly, the arrestor must have 'personal knowledge of
the facts indicating that the [arrestee] has committed it' (instead of
just 'reasonable ground believe that the [arrestee] has committed it'
under the old rule)." (Dissenting opinion in Ilagan vs. Enrile, G.R. No.
70748, October 21, 1985, 139 SCRA 349, 408).
I deem it aptherein to recall other Court rulings provide guidelines in
effecting arrests without warrants. In People vs. Burgos (G.R. No.
68955, September 4, 1986,144 SCRA 1), the Court considered as illegal
the warrantless arrest of a subversive not based on the arresting
officer's personal knowledge such subversion and held that any rule on
arrests witho warrants must be strictly construed. We categorically
state therein that warrantless arrests should "clearly fall within the
situations when securing a warrant be absurd or is manifestly
unnecessary was provided by the Rules" (144 SCRA at 14). Moreover.
"it is not enough that there is reasonable ground to believe that the
CRIMINAL LAW FULL CASES
person to be arrested has committed a crime. A crime must in fact or
actually (has just) been committed first. That crime has actually been
committed is an essential precondition. It is not enough to suspect that
a crime may have been committed. The fact of the commission of the
offense must be undisputed. The test of reasonable ground applies
only to the identity of the perpetrator. (Supra, at p. 15).
Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121
SCRA 538), the Court laid out the procedure to be observed the
moment a person is arrested:
At the time a person is arrested, it shall be the duty of the arresting
officer to imform him of the reason for the arrest and he must be
shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any
statement he might make could be used against him. The person shall
have the right to communicate with his lawyer, a relative, or anyone he
chooses by the most expedient means — by telephone if possible — or
by letter or messenger. It shall be the responsibility of the arresting
officer to see to it that this is accomplished. No custodial investigation
shall be conducted unless it be in the presence of counsel engaged by
the person arressted, by any person on his behalf, or appointed by the
court upon petition on his behalf, or appointed the court upon the
petition either of the detainee himself or by anyone on his behalf. The
right to counsel may be waived but the waiver shall not be valid unless
made with the assistance of counsel. Any statement obtained in
violation of the procedure herein laid down, whether exculpatory or
inculpatory, in whole or in part shall be inadmissible evidence. (121
SCRA at 554).
These judicial pronouncements must be observed by everyone
concerned: the military and civilian components of the government
tasked with law enforcement as well as the ordinary citizen who faces
a situation wherein civic duty demands his intervention to preserve
peace in the community.
I am not unmindful of the fact that abuses occur in arrests especially of
offenders of crimes with a political or ideological element. Such abuses
are more often than not, triggered by the difficulty in finding evidence
that could stand judicial scrutiny — to pinpoint a subversive, police
officers usually have to make long persistent surveillance. However, for
the orderly administration of government and the maintenance of
peace and order in the country, good faith should be reposed on the
officials implementing the law. After all, we are not wanting in laws to
hold any offending peace officer liable both administratively and
criminally for abuses in the performance of their duties. Victims of
abuses should resort to legal remedies to redress their grievances.
If existing laws are inadequate, the policy-determining branches of the
government may be exhorted peacefully by the citizenry to effect
positive changes. This Court, mandated b the Constitution to uphold
the law, can only go as far as inter pruting existing laws and the spirit
behind them. Otherwise, we hail be entering the dangerous ground of
judicial legislation.
GUTIERREZ, JR., J., concurring and dissenting:
The philosophy adopted in our Constitution is that liberty is an
essential condition for order, It is disturbing whenever the Court leans
in the direction of order instead of liberty in har cases coming before
us.
People all over the world are fast accepting the theory that only as a
society encourages freedom and permits dissent can it have lasting
security and real progress, the theory that enhancing order through
constraints on freedom is deceptive because restrictions on liberty
corrode the very values Govenment pretends to promote. I believe we
should move with the people of the world who are fast liberating
themselves.
I, therefore, vote for the strict application of Section 5 (a) and (b) of
Rule 113 on arrests without warrant, to wit:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it.
xxx xxx xxx
Only in the cases found in the Rule should we allow arrests without
warrants. In case of doubt, the tendency should be to declare the
warrantless arrest illegal.
Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162
involving Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo,
Ramon Casiple, and Vicky Ocaya are concerned, the petitioners were
arrested after having been apprehended while in possession of illegal
firearms and ammunitions. They were actually committing a crime
when arrested. I concur in the denial of their motions for
reconsideration.
I vote to grant the motion for reconsideration in G.R. No. 85727 where
Deogracias Espiritu was arrested while urging jeepnev and bus drivers
to join a strike of transport workers on the ground that that was
inciting to sedition.
This impresses me as Court validation of a clear infringement of an
individual's freedom of speech. "Inciting to sedition" is a term over
which the most learned writers and jurists will differ when applied to
actual cases. I doubt if there are more than a handful of policemen in
the whole country who would know the full dimensions of the fine
distinctions which separate the nation's interest in the liberty to fully
anfd freely discuss matters of national importance on one hand and the
application of the clear and present danger rule as the test when claims
of national security and public safety are asserted, on the other. In fact,
the percentage of knowledgeability would go down further if we
consider that "inciting to sedition" requires the ability to define, among
other (1) what kinds of speeches or writings fall lander the term
"inciting" (2) the meaning of rising publicly and tumultously; (3,) when
does a certain effort amount to force, intimidation. or illegal method;
(4) what constitute the five objects or ends of sedition; and (5) what is a
scurrilous libel against the Philippines. If we allow public speakers to be
picked up simply because what they say is irritating or obnoxious to the
ears of a peace officer or critical of government policy and action, we
will undermine all pronouncements of this Court on the need to
protect that matrix of all freedoms, which is freedom of expression. At
the very least, a warrant of arrest after a preliminary examination by a
Judge is essential in this type of offense.
Insofar as G.R. No. 81567 is concemed, I join the other dissenting
Justices in their observations regarding "continuing oftenses." To base
warrantless arrests on the doctrine of continuing offense is to give a
license for the illegal detention of persons on pure suspicion. Rebellion,
insurrection, or sedition are political offenses where the line between
overt acts and simple advocacy or adherence to a belief is extremely
thin. If a court has convicted an accused of rebellion and he is found
roaming around, he may be arrested. But until a person is proved
guilty, I fail to see how anybody can jump to a personal conclusion that
the suspect is indeed a rebel and must be picked up on sight whenever
seen. The grant of authority in the majority opinion is too broad. If
warrantless searches are to be validated, it should be Congress and not
this Court which should draw strict and narrow standards. Otherwise,
the non-rebels who are critical, noisy, or obnoxious will be
indiscriminately lumped up with those actually taking up arms against
the Government.
The belief of law enforcement authorities, no matter how well
grounded on past events, that the petitioner would probably shoot
other policemen whom he may meet does not validate warrantless
arrests. I cannot understand why the authorities preferred to bide their
time, await the petitioner's surfacing from underground, and pounce
on him with no legal authority instead of securing warrants of arrest
for his apprehension. The subsequent conviction of a person arrested
illegally does not the warrantless arrest.
CRIMINAL LAW FULL CASES
In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988.
The information that Narciso Nazareno was one of the killers came to
the attention of peace officers only on December 28, 1988 or fourteen
(14) days later. To say that the offense "has in fact just been
committed" even if 14 days have lapsed is to stretch Rule 11 3 on
warrantless arrests into ridiculous limits. A warrant of arrest is essential
in this case. I vote to grant the motion for reconsideration.
The subsequent conviction of a person arrested illegally does not reach
back into the past and render legal what was illegal. The violation of
the constitutional right against illegal seizures is not cured by the fact
that the arrested person is indeed guilty of the offense for which he
was seized. A government of laws must abide by its own Constitution.
CONSIDERING THE FOREGOING, I VOTE TO:
(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R.
No. 84583-84; and G.R. No. 83162;
(2) GRANT the motion for reconsideration in G.R. No. 85727;
(3) GRANT the motion for reconsideration in G.R. No. 86332;and
(4) GRANT the motion for reconsideration in G.R. No. 81567.
CRUZ, J., Separate Opinion:
I reiterate my concurrence with the ponencia insofar as it dismissed
the petitions of those who were arrested inflagrante, or subsequently
posted bail or chose to remain in the custody of the military, or
voluntarily permitted the search of the house without warrant. I do not
think that under the applicable circumstances the petitioners can
validly complain that they are being unlawfully detained.
But I must again express may dissent to the continued observance
of Garcia-Padilla vs. Enrile, 121 SCRA 472, to justify the warrantless
arrest and detention of the other petitioners on the ground that they
were apprehended for the continuing offenses of rebellion and other
allied crimes.
We find in the said decision this partltularly disturbing observation,
which was quoted with approval in the originalponencia:
The arrest of persons involved in the rebellion, whether as its fighting
armed elements, or for committing non-violent acts but in furtherance
of the rebellion, is more an act of capturing them in the course of an
armed conflict, to quell the rebellion, than for the purpose of
immediately prosecuting them in court for a statutory offense. The
arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of
the existence of probable cause before the issuance of arrest and the
granting of bail of the offense is bailable. Obviously, the absence of a
judicial warrant is no legal impediment to arresting or capturing
persons committing overt acts of violence against govenment forces, or
any other milder acts but equally in pursuance of the rebellious
movement. (Emphasis supplied.)
The treatment suggested envisions an actual state of war and is
justified only when a recognition of beuigerency is accorded by the
legitimate government to the rebels, resulting in the application of
the laws of war in the regulation of their relations. The rebels are then
considered alien enemies-to be treated as prisoners of war when
captured-and cannot invoke the municipal law of the legitimate
government they have disowned. It is in such a situation that the
processes of the local courts are not observed and the rebels cannot
demand the protection of the Bill of Rights that they are deemed to
have renounced by their defiance of the government.
But as long as that recognition has not yet been extended, the
legitimate govenment must treat the rebels as its citizens, subject to its
municipal law and entitled to all the rights provided thereunder,
including and especially those guaranteed by the Constitution. Principal
among these — in our country — are whose embodied in the Bill of
Rights, particularly those guaranteeing due process, prohibiting
unreasonable searches and seizures, allowing bail, and presuming the
innocence of the accused. The legitimate government cannot excuse
the suppression of these rights by the "exigencies" of an armed conflict
that at this time remains an intemal matter governed exclusively by the
laws of the Republic of the Philippines.
Treatment of the rebels as if they were foreign invaders — or
combatants — is not justified in the present situation as our
government continues to prosecute them as violators of our own laws.
Under the doctrine announced in Garcia-Padilla, however, all persons
suspected as rebels are by such suspicion alone made subject to
summary arrest no different from the unceremonious capture of an
enemy soldier in the course of a battle. The decision itself says that the
arrest "need not follow the usual procedure in the prosecution of
offenses" and "the absence of a judicial warrant is no impediment" as
long as the person arrested is suspected by the authorities of the
"continuing offense" of subversion or rebellion or other related crimes.
International law is thus substituted for municipal law in regulating the
relations of the Republic with its own citizens in a purely domestic
matter.
As for the duration of the offenses, the decision contained the
following pronouncement which this Court has also adopted as its own:
. . . The crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and offenses
committed in the furtherance on the occasion thereof, or incident
thereto, or in connection therewith under Presidential Proclamation
No. 2045, are all in the nature of continuing offenses which set them
apart from the common offenses, aside front their essentially involving
a massive conspiracy of nationwide manitude. (Emphasis supplied.)
The beginning of the "continuing offense" may be arbitrarily fixed by
the authorities, usually by simply placing the suspect "under
surveillance," to lay the basis for his eventual apprehension. Once so
placed, he may at any time be arrested without warrant on the
specious pretext that he is in the process of committing the "continuing
offense," no matter that what he may be actuallly doing at the time is a
perfectly innocent act.
In the case of Dural. the arrest was made while he was engaged in the
passive and innocuous act of undergoing medical treatment. The
fiction was indulged that he was even then, as he lay supine in his
sickbed, engaged in the continuing offense of rebellion against the
State. In further justification, the Court says that the arresting officers
acted on "confidential information" that he was in the hospital, which
information "was found to be true." This is supposed to have validated
the determination of the officers that there was "probable cause" that
excused the absence of a warrant.
My own impression is that probable cause must be established
precisely to justify the issuance of a warrant, not to dispense with it;
moreover, probable cause must be determined by the judge issuing the
warrant, not the arresting officer who says it is not necessary.
In the case of Espiritu, the arrest was made while he was
actually sleeping, and for allegedly seditious remarks made by him the
day before. The Court says his case is not covered by the Garcia-Padilla
doctrine but approves the arrest just the same because the remarks
were supposed to continue their effects even to the following day. The
offense was considered as having been just committed (to make it
come under Rule 113, Section 5, of the Rules of Court) despite the
considerable time lapse.
It was worse in the case of Nazareno, who was also arrested without
warrant, and no less than fourteen days after the killing. In sustaining
this act, the Court says that it was only on the day of his arrest that he
was identified as one of the probable killers, thus suggesting that the
validity of a warrantless arrest is reckoned not from the time of the
commission of an offense but from the time of the Identification of the
suspect.
Section 5 of Rule 113 says that a peace officer may arrest a person
without a warrant if the latter "has committed, is actually committing,
or is attempting to commit an offense" or when an offense "has in fact
CRIMINAL LAW FULL CASES
just been committed." The requirement of immediacy is obvious from
the word "just," which, according to Webster, means "a very short time
ago." The arrest must be made almost immediately or soon after these
acts, not at any time after the suspicion of the arresting officer begins,
no matter how long ago the offense was committed.
I am also uneasy over the following observations in the present
resolution which I hope will not be the start of another dangerous
doctrine:
The Court, it is true, took into account the admissions of the arrested
persons of their membership in the CPP/NPA, as well as their
ownership of the unlicensed firearms, ammunitions and documents in
their possession. But again, these admissions, as revealed by the
records, strengthen the Court's perception that truly the grounds upon
wmch the arresting officers based their arrests without warrant, are
supported by probable cause, i.e., that the persons arrested were
probably guilty of the commission of certain offenses, in compliance
with Section 5, Rule 113 of the Rules of Court.
I can only repeat my own misgivings when I dissented in the recent
case of People vs. Malmstedt, G.R. No. 91107, June 19, 1991, where I
noted: "The conclusion that there was probable cause may have been
influenced by the subsequent discovery that the accused was carrying
a prohibited drug. This is supposed to justify the soldier's suspicion. In
other words, it was the fact of illegal possession that retroactively
established the probable cause that validated the illegal search and
seizure. It was the fruit of the poisonous tree that washed clean the
tree itself."
I submit that the affirmation by this Court of the Garcia-Padilla decision
to justify the illegal arrests made in the cases before us is a step back to
that shameful past when individual rights were wantonly and
systematically violated by the Marcos dictatorship. It seems some of us
have short memories of that repressive regime, but I for one am not
one to forget so soon. As the ultimate defender of the Constitution,
this Court should not gloss over the abuses of those who, out of
mistaken zeal, would violate individual liberty in the dubious name of
national security. Whatever their ideology and even if it be hostile to
ours, the petitioners are entitled to the protection of the Bill of Rights,
no more and no less than any other person in this country. That is what
democracy is all about.
FELICIANO, J., concurring and dissenting:
I concur in the result reached by the majority in the Resolution
disposing of the Motion for Reconsideration.
At the same time, however, I feel compelled to dissent from certain
statements made by the majority principally concerning the
applicability of the "continuing crimes" doctrine to the problem of
arrests without warrants. It seems clear that these statements are
really obiter dicta, since they are quite unnecessary for sustaining the
actual results reached in the majority Resolution. This was summarily
pointed out in my very brief statement concurring in the result reached
in the original Decision of the Court dated 9 July 1990. The subsequent
developments in several of the cases here consolidated, which are
carefully detailed in the majority Resolution, make this even clearer.
Nonetheless, the majority Resolution has taken the time and trouble
expressly to reiterate the "continuing crimes" doctrine as applicable in
respect of warrantless arrests. Although the above statements
are obiter, they have been made and, I believe, need to be addressed
to some extent and the inter-relation of the "continuing crimes"
doctrine with constitutional rights explored.
1. We start at the beginning, that is, the constitutional guarantee
against unreasonable seizures of persons. Article III Section 2 of the
Constitution reads:
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge 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. (Emphais supplied)
Under the above provision, arrests, i.e., the constraint and seizure of
the persons of individual members of society, must, as a general rule,
be preceded by the securing of a warrant of arrest, the rendition of
which complies with the constitutional procedure specified in Article III
Section 2. Arrests made without a warrant issued by a judge after
complying with the constitutional procedure, are prima
facie unreasonable seizures of persons within the meaning of Article III
Section 2.
2. There are, however, certain well-recognized exceptions to the norm
that warrantless arrests are unreasonable seizures of persons. Those
exceptions are, in our day, essentially found in Section 5(a) and (b) of
Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the
situations where an officer of the law, or a private person for that
matter, may lawfully arrest a person without previously securing a
warrant of arrest. The full text of Section 5, Rule 113 follows:
Sec. 5. Arrest without warrant, when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the nearest
police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7.
3. Before examining the scope and implications of Section 5(a) and (b),
it is important to recall that judicial interpretation and application of
Section 5(a) and (b) must take those provision for what they are: they
areexceptions to a vital constitutional norm enshrined in the Bill of
Rights. Exceptions to such a norm must be strictly construed so as not
to render futile and meaningless the constitutional rule requiring
warrants of arrests before the persons of individuals may be lawfully
constrained and seized. The ordinary rule generally applicable to
statutory provisions is that exceptions to such provisions must not be
stretched beyond what the language in which they are cast fairly
warrants, and all doubts should be resolved in favor of the general
provision, rather than the exception. 1 This rule must apply with special
exigency and cogency where we deal, not with an ordinary statutory
provision, but with a constitutional guarantee. 2 Exceptions to such a
guarantee must be read with especial care and sensitivity and kept
within the limits of their language so to keep vital and significant the
general constitutional norms warrantless arrests. In Alvarez vs. Court
of First Instance, 3 this Court, stressing that:
II. As the protection of the citizen and the maintenance of his
constitutional rights is one of the highest duties and privileges of the
court. these constitutional guaranties should be given a liberal
construction or a strict construction in favor of the individual, to
prevent stealthy encroachment upon, or gradual depreciation of, the
rights secured by them (State vs. Custer County, 198 Pac., 362; State vs.
McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a
drastic one, it is the general rule that statutes authorizing searches and
seizures or search warrants must be strictly construed (Rose vs. St.
Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S.,
14 Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)
held that:
. . . All illegal searches and seizures are unreasonable whith lawful ones
are reasonable. 4
CRIMINAL LAW FULL CASES
In People vs. Burgos, 5 this Court reiterated the above rule in the
following terms:
There is no such personal knowledge in this case. Whatever knowledge
was possessed by the arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The location of the firearm
was given by the appellant's wife.
At the time of the appellant's arrest, he was not in actual possession of
any firearm or subversive document. Neither was he commit ting any
act which could be described as subversive. He was, in fact plowing his
field at the time of the arrest.
The right of a person to be secure against any unreasonable seizure of
his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions the
requirement of warrants of arrest is strictly construed. Any exception
must clearly fall within the situations when securing a warrant would
be absurd or is manifestly unnecessary as provided by the Rule. We
cannot liberally construe the rule on arrests without warrant or extend
its application beyond the cases specifically provided by law. To do so
would infringe upon personal liberty and set back a basic right so often
vilated and so deserving of full protection. 6 (emphasis supplied)
4. Section 5(a) relates to situations where a crime is committed or
attempted to be committed in the presence of the arresting officer.
The fact of the occurrence of the offense, or of the attempt to commit
an offense, in the presence of the arresting officer, may be seen to be
the substitute, under the circumstances, for the securing of a warrant
of arrest. In such situation, there is an obvious need for immediate,
even instantaneous, action on the part of the arresting officer to
suppress the breach of public order and to prevent further breaches
then and there. Section 5(a) may, moreover, be seen to refer to overt
acts constitutive of a crime taking place in the presence of
the arresting officer. The term "presence" in this connection is properly
and restrictively construed to relate to acts taking place within the
optical or perhaps auditory perception of the arresting officer. 7 If no
overt, recognizably criminal, acts occur which are perceptible through
the senses of the arresting officer, such officer could not, of course,
become aware at all that a crime is being committed or attempted to
be committed in his presence. 8 It is elementary that purely mental or
psychological phenomena, not externalized in overt physical acts of a
human person, cannot constitute a crime in our legal system. For a
crime to exist in our legal law, it is not enough that mens rea be shown;
there must also be an actus reus. If no such overt acts are actually
taking place in the presence or within the sensor perception of the
arresting officer, there would, in principle, be ample time to go to a
magistrate and ask for a warrant of arrest. There would, in other
words, not be that imperious necessity for instant action to prevent an
attempted crime, to repress the crime being committed, or to capture
the doer of the perceive criminal act, the necessity which serves as the
justification in law of warrantless arrests under Section 5(a).
5. Turning to Section 5 (b), two (2) elements must be coincide before a
warrantless arrest may be sustained under this subsection: 1) the
offense must have "just been committed" when the arresting officer
arrived in the scene; and 2) the officer must have "personal
knowledge" of facts indicating tha the person to be arrested has
committed the offense. In somewhat different terms, the first
requirement imports that th effects or corpus of the offense which has
just been committed are still visible: e.g. a person sprawled on the
ground, dead of gunshot wound; or a person staggering around
bleeding profusely from stab wounds. The arresting officer may not ha
seen the actual shooting or stabbing of the victim, and thereto the
offense can not be said to have been committed "in [his] presence."
The requirement of "personal knowledge" on the part of the arresting
officer is a requirement that such knowledge must have been
obtained directly from sense perception the arresting officer. That
requirement would exclude informtion conveyed by another person,
no matter what his reputation for, truth and reliability might
be. 9 Thus, where the arresting officer comes upon a person dead on
the street and sees a person running away with a knife from where the
victim is sprawled the ground, he has personal knowledge of facts
which render it highly probable that the person fleeing was the doer of
the criminal deed. The arresting officer must, in other words, perceive
through his own senses some act which directly connects the person to
be arrested with the visible effects or corpus of a crime which has "just
been committed."
6. The use of the words "has in fact just been committed" underscores
the requirement that the time interval between the actual commission
of the crime and the arrival of the arresting officer must be brief
indeed. In the first place, the word "just" was fairly recently inserted in
Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in
order to underscore the point here being made. In the second place, a
latitudinarian view of the phrase "has in fact just been committed"
would obviously render pointless the requirement in Section 5(a) that
the crime must have been committed "[in] the presence" of the
arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo
Nazareno 14-days after the occurrence of the killing with which he was
charged along with other persons, cannot by any standard be justified
under Section 5(b). In G.R. No. 81567, Dural was arrested without
warrant while being treated in a hospital the day after the shooting of
the policemen in which he was suspected to have been a participant.
While 1-day may be substantially different from 14-days, still it must be
pointed out that at the time Dural was arrested in the hospital, the
killing of the two (2) policemen in Caloocan City far away from the St.
Agnes Hospital in Quezon City could not reasonably be said to have
been just committed. There was no showing, nor did the Court require
it, that the arresting officers had been in "hot pursuit" of Dural
beginning at the scene of the killing and ending the next day in the
hospital.
7. It is worth noting that the requisite of "personal knowledge" on the
part of the arresting officer who is determining "probable cause" right
at the scene of the crime, is in a sense more exacting than the standard
imposed by the Constitution upon the judge who, in the seclusion of
his chambers, ascertains "probable cause" by examining the evidence
submitted before him. The arresting officer must himself have
"personal knowledge"; the magistrate may rely upon the personal
knowledge of the witnesses examined by or for him in issuing a
warrant of arrest. In the present Resolution, the majority begins with
noting the requirement of "personal knowledge" in Section 5(b), but
winds up in the next page with a very diluted standard of "reasonable
belief and "good faith" on the part of the arresting officers. The stricter
standard is properly applicable to the officers seizing a person without
a warrant of arrest, for they are acting in derogation of a constitutional
right. That the person unlawfully arrested without a warrant may later
turn out to be guilty of the offense he was suspected of in the first
place is, course, quite beside the point. Even a person secretly guilty
some earlier crime is constitutionally entitled to be secure from
warrantless arrest, unless he has in fact committed physically
observable criminal acts in the presence of the arresting officer or
hadjust committed such acts when the arresting officer burst upon the
scene.
8. Examination of the utilization in the majotity Resolution of the
doctrine of "continuing crimes," shows that doctrine is here being used
as a substitute for the requirement under Section 5(a) that the offense
"has in fact just been presence of the arresting officer arrived, but
rather because the person to be arrested is suspected of having
committed a crime in the future. The pertinent portion of the majority
Resolution reads:
. . . Dural did not cease to be, or because less of a subversive, FOR
PURPOSE OF ARREST, simply because he was, at the time of arrest,
confined in the St. Agnes Hospital. . . . That Dural had shot the two (2)
policemen in Caloocan City as part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural, given another opportunity,
would have shot or would shoot other policemen anywhere as agents
or representatives of organized government. It is in this sense that
subversion like rebelion (or insurrection) is perceived here as a
continuing offense. Unlike other so-called "common" offenses, i.e.,
adultery, murder, arson, etc., which generally end upon their
commission,subversion and rebellion are anchored on an ideological
base which compels the repetition of the same acts of lawlessness and
violence until the overriding objectives of overthrowing organized
government is attained. (Emphasis supplied)
9. I respectfully submit that an examination of the "continuing crimes"
doctrine as actually found in our case law offers no reasonable basis for
such use of the dotrine. More specifically, that doctrine, in my
submission, does notdispence with the requirement that overt acts
recognizably criminal in character must take place in the presence of
the arresting officer, or must have just been committed when the
CRIMINAL LAW FULL CASES
arresting officer arrived, if the warrantless arrest it to be lawful. The
"continuing crimes" doctrine in our case law (before rendition
of Garcia-Padilla vs. Enrile10 does not sustain warrantless arrests of
person to be arrested is, as it were, merely resting in between specific
lawless and commit the moment he gets an opportunity to do so.
Our case law shows that the "continuing crimes" doctrine has been
used basically in relation to two (2) problems: the first problem is that
of determination of whether or not a particular offense was committed
within the territorial jurisdiction of the trial court; the second problem
is that of determining whether a single crime or multiple crimes were
committed where the defense of double jeopardy is raised.
10. In respect of the first problem, the gist of our case law is that where
some of the ingredients or elements of an offense taken place within
the territorial jurisdiction of one court and some other ingredients or
elements of the same offense occur in the territory of another court,
(e.g., estafa or malversation) either one of the two courts has
jurisdiction to try the offense. Where all of the essential elements of a
crime take place within the territory of one court but "by reason of he
very nature of the offense committed" the violation of the law is
deemed to be "continuing," then the court within whose territorial
jurisdiction the offense continues to be committed, has jurisdiction to
try a person charged with such offense. In the latter case, the offense is
deemed to be continuing because some or all of the elements
constituting the offense occurred within jurisdiction of the second
court (e.g., kidnapping and illegal detention; libel; evasion of service of
sentence). The criminal acts are regarded as repeated or as continuing
within the province or city where the defendant was found and
arrested. 11 Clearly, overt acts of the accussed constituting elements of
the crime charged must be shown to have been committed within the
territorial jurisdiction of the court where he is charged.
11. Turning to the second type of problem, the question is normally
presented in terms of whether one crime or multiple crimes were
committed by the accused. Where the series of acts actually alleged
and proven to have been committed by the accused constituted only
one and the same crime, the defense of double jeopardy becomes
available where a second information is filed covering acts later in the
series. Upon the other hand, where the acts of the accused constituted
discrete, multiple offenses, each act comprising a distinct and separate
offense, the double jeopardy defense is non-available. 12 The point
worth stressing is that in passing upon the issue relating to the unity or
multiplicity of offense committed, the overt acts of the accused
constitutive either of the single offense or of the plural offenses, must
be shown.
12. My final submission, is that, the doctrine of "continuing crimes,"
which has its own legitimate function to serve in our criminal law
jurisprudence, cannot be invoked for weakening and dissolving the
constitutional guarantee against warrantless arrest. Where no overt
acts comprising all or some of the elements of the offense charged are
shown to have been committed by the person arrested without
warrant, the "continuing crime" doctrine should not be used to dress
up the pretense that a crime, begun or committed elsewhere,
continued to be committed by the person arrested in the presence of
the arresting officer. The capacity for mischief of such a utilization of
the "continuing crimes" doctrine, is infinitely increased where the
crime charged does not consist of unambiguous criminal acts with a
definite beginning and end in time and space (such as the killing or
wounding of a person or kidnapping and illegal dentention or arson)
but rather of such problematic offenses as membership in or affiliation
with or becoming a member of, a subversive association or
organization. For in such cases, the overt constitutive acts may be
morally neutral in themselves, and the unlawfulness of the acts a
function of the aims or objectives of the organization involved. Note,
for instance, the following acts which constitute prima facie evidence
of "membership in any subversive association:" 13
a) Allowing himself to be listed as a member in any book or any of the
lists, records, correspondence, or any other document of the
organization;
b) Subjecting himself to the discipline of such association or
organization in any form whatsoever;
c) Giving financial contribution to such association or organization in
dues, assessments, loans or in any other forms;
xxx xxx xxx
f) Conferring with officers or other members of such association or
organization in furtherance of any plan or enterprise thereof;
xxx xxx xxx
h) Preparing documents, pamphlets, leaflets, books, or any other type
of publication to promote the objectives and purposes of such
association or organization;
xxx xxx xxx
k) Participating in any was in the activities, planning action, objectives,
or purposes of such association or organization;
xxx xxx xxx
It may well be, as the majority implies, that the constitutional rule
against warrantless arrests and seizures makes the law enforcement
work of police agencies more difficult to carry out. It is not our Court's
function, however, and the Bill of Rights was not designed, to make life
easy for police forces but rather to protect the liberties of private
individuals. Our police forces must simply learn to live with the
requirements of the Bill of Rights, to enforce the law by modalities
which themselves comply with the fundamental law. Otherwise they
are very likely to destroy, whether through sheer ineptness or excess of
zeal, the very freedoms which make our polity worth protecting and
saving.
REGALADO, J.: Separate Opinion:
While I have heretofore concurred in the ponencia in the above-
entitled cases and I reiterate such concurrence, I wish to unburden
myself of some reservations on the rationale adopted in G.R. No.
86332.
It is posited in this resolution that "(a)lthough the killing of Bunye II
occurred on 14 December 1988, while Nazareno's arrest without
warrant was made only on 28 December 1988, or 14 days later, the
arrest falls under Section 5(b) of Rule 113, since it was only on 28
December 1988 that the police authorities came to know that
Nazareno was probably one of those guilty in the killing of Bunye II."
I am afraid that there has been a misapplication of Section 5(b) of Rule
113 which, while authorizing a peace officer or a private person to
effect a warrantless arrest, specifically conditions that grant of
authority upon the situation "(w)hen an offense has in fact just been
committed, and he has personal knowledge of facts indicating that the
person to be arrested has committed it."
It is significant that when the corresponding provisions of the 1964
Rules of Court were amended in the 1985 Rules of Criminal Procedure,
the particular revision of paragraph (b) of the aforesaid section
consisted in imposing the requirements that the person making the
arrest has personal knowledge of the facts indicating that the arrestee
is responsible for an offense which has just been committed.
Now, according to the resolution, "the records show that in the
morning of 14 December 1988, Romulo Bunye II was killed by a group
of men in Alabang, Muntinlupa, Metro Manila; that at about 5 o'clock
in the morning of 28 December 1988, Ramil Regala, one of the suspects
in the said killing, was arrested and he pointed to Narciso Nazareno as
one of his companions during the killing of Bunye II; that at 7:20 of the
same morning (28 December 1988), the police agents arrested
Nazareno, without warrant, for investigation."
Since, clearly, the arresting police agents merely acted upon the
information imparted by one of the suspects, Ramil Regala, the
resolution has emasculated the requirement in Section 5(b) that the
CRIMINAL LAW FULL CASES
person making the arrest must have had personal knowledge of factual
indications regarding the complicity or liability of the arrestee for the
crime. Yet, that amendment requiring such personal knowledge must
have been designed to obviate the practice in the past of warrantless
arrests being effected on the basis of or supposed reliance upon
information obtained from third persons who merely professed such
knowledge or, worse, concocted such reports for variant reasons not
necessarily founded on truth.
Further, and obviously as an added deterrent to the possibility that
such arrest without a warrant may result from imputations based on
dubious motives, it is now required that the crime must have just been
committed. The recency contemplated here, in relation to the making
of the warrantless arrest, is the time when the crime was in fact
committed, and not the time when the crime was in fact committed,
and not the time when the person making the arrest learned or was
informed of such commission. Otherwise, at the risk of resorting
to reductio ad absurdum, such warrantless arrests could be validly
made even for a crime committed, say, more than a year ago but of
which the arresting officer received information only today.
The brevity in the interval of time between the commission of the
crime and the arrest, as now required by Section 5(b), must have been
dictated by the consideration, among others, that by reason of such
recency of the criminal occurrence, the probability of the arresting
officer acquiring personal and/or reliable knowledge of such fact and
the identity of the offender is necessarily enhanced, if not assured. The
longer the interval, the more attenuated are the chances of his
obtaining such verifiable knowledge. In the case under consideration,
the obtention of information of a crime committed fourteen (14) days
earlier necessarily undermines the capacity of the arresting officer to
ascertain the reliability of the information he is acting upon and to
acquire personal knowledge thereof after such verification.
It may be granted, as an ad hoc proposition, that the arrest of
Nazareno was based on probable cause and it was not whimsical, at
least, in this instance. It is correct to say that prevailing conditions
affecting national security and stability must also be taken into
account. However, for the reasons above elucidated, I take exception
to the conclusion that the conditions in Section 5(b) of Rule 113 had
been complied with in this case. It is true that the corresponding
information was filed against Nazareno shortly after his arrest but that,
precisely, is another cause for controversy. Definitely, if the rules on
arrest are scrupulously observed, there would be no need for the usual
invocation of Ilagan as a curative balm for unwarranted incursions into
civil liberties.
SARMIENTO, J.: dissenting:
I reiterate my dissent. I submit that in spite of its "clarificatory"
resolution, 1 the majority has not shown why the arrests in question
should after all be sustained.
According to the majority, Rolando Dural (G.R. No. 815667) was validly
arrested without a warrant and that his arrest was sufficient
compliance with the provisions of Section 5, paragraph (b), Rule 113, of
the Rules of Court. According to the majority, he, Dural, was after all
committing an offense (subversion being supposedly a continuing
offense) and that the military did have personal knowledge that he had
committed it. "Personal knowledge," according to the majority, is
supposedly no more than "actual belief or reasonable grounds . . . of
suspicion," and suspicion is supposedly reasonable:
. . . when, in the absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the probable
cause of guilty of the person to be arrested. A reasonable suspicion
therefore must be founded on probable cause, coupled with good faith
on the part of the peace officers making the arrest. 2
As I said, I dissent.
First, and as I held, subversion, as an offense punished by Executive
Order No. 167, as amended by Executive Order No. 276, in relation to
Republic Act No. 1700, 3 is made up of "overt acts." 4 In People
vs. Ferrer 5 this Court defined "overt acts" as follows:
. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be
totally unnecessary to charge Communists in court, as the law alone,
without more would suffice to secure their punishment. But the
undeniable fact is that their guilt still has to be judicially established.
The Government has yet to prove at the trial that the accused joined
the Party knowingly, willfully and by overt acts, and that they joined
the Party, knowing its subversive character and with specific intent to
further its basic objective, i.e., to overthrow the existing government
by force, deceit, and other illegal means and place the country under
the control and domination of a foreign power.
As Ferrer held, that above "overt acts" constitute the essence of
"subversion," and as Ferrer has taken pains to explain, the law requires
more than mere membership in a subversive organization to make the
accused liable. I respectfully submit that for purposes of arrest without
a warrant, that above "overt acts" should be visible to the eyes of the
police officers (if that is possible), otherwise the accused can not be
said to be committing any offense within the contemplation of the
Rules of Court, to justify police action, and otherwise, we would have
made "subversion" to mean mere "membership" when, as Ferrer tells
us, subversion means more that mere membership.
I find strained that majority's interpretation of "personal knowledge,"
as the majority would interpret it, as no more than "actual belief or
reasonable suspicion," that is, "suspicion . . . based on actual facts . . .
[and] founded on probable cause, coupled with good faith . . . " 6 I
submit that personal knowledge means exactly what it says — that the
peace officer is aware that the accused has committed an offense, in
this case, membership in a subversive organization with intent to
further the objectives thereof. It is to be noted that prior to their
amendment, the Rules (then Section 6) spoke of simple "reasonable
ground" — which would have arguably encompassed "actual belief or
suspicion . . . coupled with good faith" referred to by the majority.
Section 5(b) as amended, however, speaks of "personal knowledge"; I
respectfully submit that to give to "personal knowledge" the same
meaning as "reasonable ground" is to make the amendment as useless
exercise.
What, furthermore, we have here was a mere "confidential
information" that a "sparrow man" had been wounded and was
recuperating in the hospital, and that that person was Rolando Dural.
Clearly, what we have is second-hand, indeed, hearsay, information,
and needless to say, not personal knowledge.
I would like to point out that in the case of People vs. Burgos 7 this
Court rejected a similar arrest because of lack of personal knowledge,
and, as the Court held, "[w]hatever knowledge was possessed by the
arresting officers came in its entirety from the information furnished by
[another] . . ." 8 I do not see how We can act differently here.
I do not find the majority's reliance on the case of United States
vs. Santos 9 to be well-taken. Santos involved a prosecution for
coercion (against a peace officer for affecting an arrest without a
warrant). Santos, however, did in fact affirm the illegality of the arrest
but absolved the peace officer on grounds of good faith. Santos did not
say that so long as he, the peace officer, was acting in good faith, as the
majority here says that the military was acting in good faith, the arrest
is valid. Quite to the contrary, Santos suggested that notwithstanding
good faith on the part of the police, the arrest is nevertheless subject
to question.
As far as the information leading to the arrest of Dural is concerned,
the majority would quite evidently swallow the version of the military
as if in the first place, there truly was an information, and that it was
reliable, and that "it was found to be true;" 10 and as if, in the second
place, the hospital authorities (the alleged informants) could have
legally tipped the military under existing laws. We have, it should be
noted, previously rejected such a species of information because of the
lack of "compulsion for [the informant] to state truthfully his charges
under pain of criminal prosecution." 11 Here, it is worse, because we
do not even know who that informant was.
CRIMINAL LAW FULL CASES
The majority is apparently unaware that under Executive Order No.
212, amending Presidential Decree No. 169, hospital establishments
are required to report cases of acts of violence to "government health
authorities" — not to the military.
I am concerned that if the military were truly armed with reliable
information and if it did have personal knowledge to believe that Dural
had committed an offense, there was no reason for the military to
ignore the courts, to which the Constitution after all, gives the
authority to issue warrants. As People vs. Burgos held:
More important, we find no compelling reason for the haste with
which the arresting officers sought to arrest the accused. We fail to see
why they failed to first go through the process of obtaining a warrant
of arrest, if indeed they had reasonable ground to believe that the
accused had truly committed a crime. There is no showing that there
was a real apprehension that the accused was on the verge of flight or
escape. Likewise, there is no showing that the whereabouts of the
accused were unknown. 12
I do not likewise see how the petitioners Amelia Roque, Wilfredo
Buenaobra, Domingo Anonuevo, Ramon Caspile, and Vicky Ocaya (G.R.
Nos. 84581-82; 83162) could have been lawfully picked up under
similar circumstances. As the majority points out, the military had
(again) acted on a mere tip-the military had no personal knowledge (as
I elaborated what personal knowledge means). Second, I do not think
that the majority can say that since Amelia Roque, et al. "were NPA's
anyway" (As Roque, et al. allegedly admitted), immediatearrests were
"prudent" and necessary. As I said, that Roque, et al. were admitted
"NPA's" is (was) the question before the trial court and precisely, the
subject of controversy. I think it is imprudent for this Court to pass
judgment on the guilt of the petitioners-since after all, and as the
majority points out, we are talking simply of the legality of the
petitioner's arrests.
More important, that Roque, et al. "were NPA's anyway" is evidently, a
mere say-so of the military, and evidently, the Court is not bound by
bare say-so's. Evidently, we can not approve an arrest simply because
the military says it is a valid arrest (the accused being "NPA's anyway")
— that would be abdication of judicial duty and when, moreover, the
very basis of the claim rests on dubious "confidential information."
According to the majority, we are speaking of simple arrests; we are
not talking of the guilt or innocence of the accused. I certainly hope
not, after the majority referred to Rolando Dural as a "sparrow man"
and having Amelia Roque, et al. admit to being NPA's."
It is to gloss over at any rate, the nature of arrest as a restraining on
liberty. It is to me immaterial that the guilt of the accused still has to be
established, since meanwhile, the accused are in fact being deprived of
liberty. Arrest to me, is something to crow about, even if in the opinion
of the majority, it is nothing to crow about (a mere "administrative
measure").
I can not, again, accept the validity of the arrests of Deogracia Espiritu
or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly
picked up for inciting to sedition, in uttering supposedly, on November
22, 1988, the following:
Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13
Espiritu however was arrested on November 23, 1988, a day later-and
in no way is "inciting to sedition" a continuing offense. Obviously, the
majority is not saying that it is either, but that:
. . . Many persons may differ as to the validity of such perception and
regard the language as falling within free speech guaranteed by the
Constitution. But, then, Espiritu has not lost the right to insist, during
the trial on the merits, that he was just exercising his right to free
speech regardless of the charged atmosphere in which it was uttered.
But, the authority of the peace officers to make the arrest, without
warrant, at the time the words were uttered, or soon thereafter, is still
another thing. In the balancing of authority and freedom, which
obviously becomes difficult at times, the Court has, in this case, titled
the scale in favor of authority but only for purposes of the arrest (not
conviction). Let it be noted that the Court has ordered the bail for
Espiritu's release to be reduced from P60,000.00 to P10,000.00. 14
And obviously, the majority is concerned about whether or not
Espiritu's speech was after all, protected speech, but apparently, that is
also of no moment, since: (1) that is a matter of defense; (2) we are
talking of mere arrests, and as far as arrests are concerned, "the Court
has, in this case, titled in favor of authority," 15 and (3) we have,
anyway, given a reduced bail to the accused.
First, that the accused's statement is in the category of free speech is
not only plain to my mind, it is a question I do not think the majority
can rightly evade in these petitions without shirking the Court's
constitutional duty. It is to my mind plain, because it does not contain
enough "fighting words" recognized to be seditious. 16 Secondly, it is
the very question before the Court—whether or not the statement in
question constitutes an offense for purposes of a warrantless arrest. It
is a perfectly legal question to my mind and I am wondering why we
can not answer it.
What the majority has not answered, as I indicated, is that inciting to
sedition is in no way a continuing offense, and as I said, the majority is
not apparently convicted that it is, either. Of course, the majority
would anyway force the issue: "But the authority of the peace officers
to make the arrest, without warrant, at the time the words were
uttered, or soon thereafter, is still another thing." 17 First, Espiritu was
picked up the following day, and in no way is "the following day" "soon
thereafter". Second, we would have stretched the authority of peace
officers to make warrantless arrests for acts done days before. I do not
think this is the contemplation of the Rules of Court.
As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither
"on the verge of flight or escape" 19 and there was no impediment for
the military to go through the judicial processes, as there was none in
the case of Burgos.
In the case of People vs. Aminnudin, 20 this Court held that unless
there "was a crime about to be committed or had just been
committed," and unless there existed an urgency as where a moving
vehicle is involved, instant police action can not be justified.
"In the balancing of authority and freedom," states the majority, "the
Court has, in this case, titled in favor of authority but only for purposes
of the arrest (not conviction)." 21 It is a strange declaration, first,
because it is supported by no authority (why the Court should "tilt" on
the side of Government), and second, because this Court has leaned,
by tradition, on the side of liberty — as the custodian of the Bill of
Rights — even if we were talking of "simple" arrests.
I do not understand why this Court should "tilt" . . . the scale in favor of
authority . . . in this case," 22 as if to say that normally, this Court
would have tilted the scales the other way. I do not understand why
these cases are apparently, special cases, and apparently, the majority
is not telling us neither. I am wondering why, apart from the fact that
these cases involved, incidentally, people who think differently from
the rest of us.
The majority goes on:
Although the killing of Bunye II occurred on 14 December 1988, while
Nazareno's arrest without warrant was made only on 28 December
1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113,
since it was only on 28 December 1988 that the police authorities came
to know that Nazareno was probably one of those guilty in the killing of
Bunye II. 23
With all due respect, I do not think that the majority is aware of the
serious implications of its pronouncement on individual rights (and
statutory construction in general), and I feel I am appropriately
concerned because as a member of the Court, I am co-responsible for
the acts of my colleagues and I am afraid that I may, rightly or wrongly,
be in time made to defend such an indefensible pronouncement.
Section 5(b) of Rule 113 is clear and categorical: the offense must have
been "just committed" and the authorities must have "personal
knowledge."
CRIMINAL LAW FULL CASES
In no way can an offense be said to have been "just committed"
fourteen days after it was in fact (allegedly) committed. In no way can
the authorities be said to have "personal knowledge" two weeks
thereafter; whatever "personal knowledge" they have can not possibly
be "personal knowledge" of a crime that had "just been committed;"
whatever "personal knowledge" they have is necessarily "personal
knowledge" of a crime committed two weeks before.
In no way can Nazareno's arrest be said to be an arrest sanctioned by
the exceptional provisions of the Rules.
I am not saying that the military can not act in all cases, and it is sheer
ignorance to suppose that I am saying it, (or worse, that I am "coddling
criminals"). I am not saying that a suspected criminal, if he can not be
arrested without a warrant, can not be arrested at all — but that the
military should first procure a warrant from a judge before effecting an
arrest. It is not too much to ask of so-called law enforcers.
As it is, the majority has enlarged the authority of peace officers to act,
when the Rules have purposely limited it by way of an exception,
precisely, to the general rule, mandated by the Constitution no less,
that arrests may be done only through a judicial warrant. As it is, the
majority has in fact given the military the broadest discretion to act, a
discretion the law denies even judges 24 — today it is fourteen days,
tomorrow, one year, and sooner, a decade. I submit that a year, a
decade, would not be in fact unreasonable, following the theory of the
majority, since the military can claim anytime that it "found out only
later," as the majority did not find it unreasonable for the Capital
Command to claim that it "came to know that Nazareno was probably
one of those guilty in the killing of Bunye II" 25—and none of us can
possibly dispute it.
I would like to stress strongly that we are not talking of a simple
"administrative measure" alone—we are talking ofarrests, of depriving
people of liberty—even if we are not yet talking of whether or not
people are guilty. That we are not concerned with guilt or innocence is
hardly the point, I respectfully submit, and it will not minimize the
significance of the petitioners' predicament.
With respect to Wilfredo Buenaobra, I submit that the majority has, as
in the cases of Amelia Roque, et al., ignored the fact that Buenaobra's
alleged "admission" (actually, an uncounselled confession) was
precisely, the basis for Buenaobra's arrest. It is to beg the question, I
respectfully submit, to approve the military's action for the reason that
Buenaobra confessed, because Buenaobra confessed for the reason
that the military, precisely, pounced on him. I am not to be mistaken
for prejudging Buenaobra's innocence (although it is supposed to be
presumed) but I can not imagine that Buenaobra would have
voluntarily proclaimed to the military that he was an NPA courier so
that the military could pounce on him.
I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan
vs. Enrile 27 have been better days. I do not see how this court can
continuously sustain them "where national security and stability are
still directly challenged perhaps with greater vigor from the communist
rebels." 28 First and foremost, and as the majority has conceded, we
do not know if we are in fact dealing with "Communists." The case of
Deogracias Espiritu, for one, hardly involves subversion. Second,
"Communism" and "national security" are old hat — the dictator's own
excuses to perpetuate tyranny, and I am genuinely disappointed that
we would still fall for old excuses. Third, Garcia and Ilagan rested on
supposed grounds that can not be possibly justified in a regime that
respects the rule of law — that the Presidential Commitment Order
(PCO) is a valid presidential document (Garcia) and that the filing of an
information cures a defective arrest (Ilagan). Fourth and finally, it is
evident that neither "Communist threat" nor "national security" are
valid grounds for warrantless arrests under Section 5(b) of Rule 113.
I most respectfully submit that Garcia and Ilagan have not only been
diluted by subsequent jurisprudence (e.g., People vs. Burgos, supra),
they are relics of authoritarian rule that can no longer be defended, if
they could have been defended, in Plaza Miranda or before our own
peers in the bar.
"What is important," says the majority, "is that every arrest without
warrant be tested as to its legality, via habeas corpus proceedings." 29 I
supposed that goes without saying. But it is also to patronize the
petitioners and simply, to offer a small consolation, when after all, this
Court is validating their continued detention. 30 With all due respect, I
submit that it is nothing for which the public should be elated.
A Final Word
As I began my dissent, in this Resolution and the Decision sought to be
reconsidered, I reiterate one principle: The State has no right to bother
citizens without infringing their right against arbitrary State action.
"The right of the people," states the Constitution, "to be secure in their
persons, houses, papers, and effects against unreasonable searchers
and seizures of whatever nature and for any purpose shall be inviolable
. . . ." 31 "The State," the Charter likewise states, "values the dignity of
every human person and guarantees full respect for human
rights." 32 The Constitution states the general rule — the majority
would make the exception the rule, and the rule the exception. With all
due respect, this is not what constitutionalism is all about.
I submit that the "actual facts and circumstances" the majority refers
to are, in the first place, doubtful, the "actual facts and circumstances"
being no more than "confidential information" (manufactured or
genuine, we have no way of telling) and in the second place, any
information with which the military (or police) were armed could no
more than be hearsay, not personal, information. I submit that the
"actual facts and circumstances" the majority insists on can not justify
the arrests in question under Section 5(b) of Rule 113, the rule the
majority insists is the applicable rule.
Apparently, Section 5(b) is not the applicable rule, as far as Deogracias
Espiritu and Narciso Nazareno are concerned; certainly, it is not the
Section 5(b) I know. As I indicated, Espiritu was arrested one day after
the act, allegedly, inciting to sedition; Nazareno was picked up fourteen
days after it (allegedly, murder). Yet, the majority would approve the
police's actions nonetheless because the police supposedly "found out
only later." I submit that the majority has read into Section 5(b) a
provision that has not been written there.
"More than the allure of popularity of palatability to some groups,"
concludes the majority, "what is important is that the Court be
right." 33
Nobody has suggested in the first place, that Umil was and is a
question of popularity or palatability. Umil is a question, on the
contrary, of whether or not the military (or police), in effecting the
arrests assailed, had complied with the requirements of law on
warrantless arrests. Umil is a question of whether or not this Court, in
approving the military's actions, is right.
In spite of "EDSA", a climate of fear persists in the country, as
incidences of disappearances, torture, hamletting, bombings,
saturation drives, and various human rights violations increase in
alarming rates. In its update for October, 1990, the Task Force
Detainees of the Philippines found:
An average of 209 arrested for political reasons monthly since 1988,
94% of them illegally;
Four thousand four hundred eight (4,408) political detentions from
January, 1989 to September, 1990, 4,419, illegally;
Of those arrested, 535 showed signs of torture; 280 were eventually
salvaged, 40, of frustrated salvage, and 109 remained missing after
their arrest;
Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated
massacre, in which 157 were wounded;
The victims belonged to neighborhood and union organizations;
Since February, 1986, 532 of those illegally arrested were women;
From January to June 1990, 361 children were detained for no
apparent reason;
CRIMINAL LAW FULL CASES
One million ten thousand four hundred nine (1,010,409) have been
injured as a consequence of bombing, shellings, and food blockades
undertaken by the military since 1988. 34
It is a bleak picture, and I am disturbed that this Court should express
very little concern. I am also disappointed that it is the portrait of the
Court I am soon leaving. Nonetheless, I am hopeful that despite my
departure, it will not be too late.
Motions denied.
G.R. No. 109266 December 2, 1993
MIRIAM DEFENSOR SANTIAGO, petitioner,  April 12, 1993" (Rollo, p. 194).
vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First
Division) and PEOPLE OF THE PHILIPPINES, respondents.
Amado M. Santiago, Jr. for petitioner.
The Solicitor General for the People of the Philippines.
 
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of
Court to set aside: (a) the Resolution dated March 3, 1993 in Criminal
Case
No. 16698 of the Sandiganbayan (First Division) and to declare
Presiding Justice Francis Garchitorena of the Sandiganbayan,
disqualified from acting in said criminal case; and (b) the Resolution of
said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended
Informations against petitioner (Rollo, pp. 2-35 and pp. 36-94).
On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of
the Sandiganbayan with violation of Section 3(e) of R.A. No. 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, allegedly committed by her favoring "unqualified" aliens with the
benefits of the Alien Legalization Program (Rollo, p. 36).
On May 24, 1991, petitioner filed with us a petition for certiorari and
prohibition, docketed as G.R. No. 99289-99290 (Santiago v. Vasquez,
205 SCRA 162 [1992]), to enjoin the Sandiganbayan from proceeding
with Criminal Case No. 16698 on the ground that said case was
intended solely to harass her as she was then a presidential candidate.
She alleged that this was in violation of Section 10, Article IX-C of the
Constitution which provides that "(b)ona fide candidates for any public
office shall be free from any form of harassment and discrimination."
The petition was dismissed on January 13, 1992.
On October 16, 1992, petitioner filed a motion for inhibition of
Presiding Justice Garchitorena, which motion was set for hearing on
November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).
On October 27, 1992, the Sandiganbayan (First Division), of which
Presiding Justice Garchitorena is a member, set the criminal case for
arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)
On November 6, 1992, petitioner moved to defer the arraignment on
the grounds that there was a pending motion for inhibition, and that
petitioner intended to file a motion for a bill of particulars (Rollo, pp.
43-44).
On November 9, 1992, the Sandiganbayan (First Division) denied the
motion to defer the arraignment (Rollo, p. 45).
On November 10, 1992, petitioner filed a motion for a bill of particulars
(Rollo, pp. 47-48). The motion stated that while the information alleged
that petitioner had approved the application or legalization of "aliens"
and gave them indirect benefits and advantages it lacked a list of the
favored aliens. According to petitioner, unless she was furnished with
the names and identities of the aliens, she could not properly plead
and prepare for trial.
On November 12, 1992 and upon motion of petitioner in G.R.
No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we
directed the Sandiganbayan (First Division) to reset the arraignment to
a later date and to dispose of the two incidents pending before it (Re:
disqualification of Presiding Justice Garchitorena and the motion for
the bill of particulars).
At the hearing on November 13, 1992 on the motion for a bill of
particulars, the prosecution stated categorically that they would file
only one amended information against petitioner.
However, on December 8, 1992, the prosecution filed a motion to
admit the 32 Amended Informations (Criminal Cases Nos. 18371 to
18402; Rollo, pp. 61-126).
On March 3, 1993, Presiding Justice Garchitorena issued the
questioned Resolution dated March 11, 1993, denying the motion for
his disqualification (Rollo, pp. 151-164).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a
resolution, admitting the 32 Amended Informations and ordering
petitioner to post the corresponding bail bonds within ten days from
notice (Rollo, pp. 165-185). Petitioner's arraignment on the 32
Amended Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).
Hence, the filing of the instant petition.
Acting on the petition for the issuance of a restraining order, we issued
the Resolution dated March 25, 1993, ordering Presiding Justice
Garchitorena "to CEASE and DESIST from sitting in the case until the
question of his disqualification is finally resolved by this Court and from
enforcing the resolution dated March 11, 1993, ordering petitioner to
post bail bonds for the 32 Amended Informations and from proceeding
with the arraignment on
Re: Disqualification of the Sandiganbayan Presiding Justice
The petition for disqualification of Presiding Justice Garchitorena is
based on the publication of is letter in the July 29, 1992 issue of
the Philippine Star, which to petitioner "prejudged" the validity of the
information filed
against her. Petitioner claims that Presiding Justice Garchitorena
"cannot be expected to change the conclusions he has subconsciously
drawn in his public statements . . . when he sits in judgment on the
merits of the case . . ." (Rollo, pp. 16-17).
The letter in question was written in response to an item in Teodoro
Benigno's column in the July 22, 1992 issue of the Philippine Star,
criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-
departure order against petitioner. Benigno wrote that said order
reflected a "perverse morality" of the Sandiganbayan and the lack of
"legal morality" of its Presiding Justice, thus:
I cannot, for example accept the legal morality of Sandiganbayan
Justice Francis Garchitorena who would stop Miriam Defensor Santiago
from going abroad for a Harvard scholarship because of graft charges
against her. Some of the most perfidious Filipinos I know have come
and gone, left and returned to these shores without Mr. Garchitorena
kicking any kind of rumpus. Compared to the peccadilloes of this
country's outstanding felons, what Miriam is accused of is kindergarten
stuff. The Sandiganbayan Supremo got a lot of headlines for stopping
Miriam but I contend this is the kind of perverse morality we can do
without (Rollo, p. 156).
The portion of the letter of Presiding Justice Garchitorena, which
petitioner finds objectionable, reads as follows:
(c) Mrs. Santiago has never informed any court where her cases are
pending of her intention to travel, whether the Regional Trial Court
CRIMINAL LAW FULL CASES
where she is charged with soliciting donations from people transacting
with her office at Immigration or before the Sandiganbayan where she
is charged with having favored unqualified aliens with the benefits of
the Alien Legalization Program nor even the Supreme Court where her
petition is still pending (Rollo, p. 158).
In particular, petitioner considered as prejudgment the statement of
Presiding Justice Garchitorena that petitioner had been charged before
the Sandiganbayan "with having favored unqualified aliens with the
benefits of the Alien Legalization Program."
The statement complained of was just a restatement of the
Information filed against petitioner in Criminal Case No. 16698 in
connection with which the hold-departure order was issued. Said
Information specified the act constituting the offense charged, thus:
That on or about October 17, 1988, or for sometime prior or
subsequent thereto, in Manila, Philippines, and within the jurisdiction
of this Honorable Court, accused Miriam Defensor-Santiago, being then
the Commissioner of the Commission on Immigration and Deportation,
with evident bad faith and manifest partiality, did then and there
willfully, unlawfully and criminally approve the application for
legalization of aliens who arrived in the Philippines after January 1,
1984 in violation of Executive Order No. 324 dated April 13, 1988 which
does not allow the legalization of the same, thereby causing undue
injury to the government and giving unwarranted benefits and
advantages to said aliens in the discharge of the official and
administrative functions of said accused (Rollo, p. 36).
It appears that petitioner tried to leave the country without first
securing the permission of the Sandiganbayan, prompting it to issue
the hold-departure order which Benigno viewed as uncalled for. The
letter of Presiding Justice Garchitorena, written in defense of the
dignity and integrity of the Sandiganbayan, merely stated that all
persons facing criminal charges in court, with no exception, have to
secure permission to leave the country. Nowhere in the letter is the
merit of the charge against petitioner ever touched. Certainly, there
would have been no occasion for the letter had Benigno not written his
diatribe, unfair at that, against the Sandiganbayan.
Notwithstanding petitioner's misgiving, it should be taken into
consideration that the Sandiganbayan sits in three divisions with three
justices in each division. Unanimity among the three members is
mandatory for arriving at any decision of a division (P.D. No. 1606, Sec.
5). The collegiate character of the Sandiganbayan thus renders baseless
petitioner's fear of prejudice and bias on the part of Presiding Justice
Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ).
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional rights to due process
were violated by reason of the delay in the termination of the
preliminary investigation. According to her, while the offense was
allegedly committed "on or before October 17, 1988", the information
was filed only on May 9, 1991 and the amended informations on
December 8, 1992 (Rollo, p. 14).
Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to
petitioner's case. In Tatad, there indeed was an unexplained inaction
on the part of the public prosecutors inspite of the simplicity of the
legal and factual issues involved therein.
In the case at bench, there was a continuum of the investigatory
process but it got snarled because of the complexity of the issues
involved. The act complained of in the original information came to the
attention of the Ombudsman only when it was first reported in the
January 10, 1989 issue of the Manila Standard. Immediately thereafter,
the investigatory process was set in motion. The investigation was first
assigned to Special Prosecutor Gualberto dela Llana but on request of
petitioner herself the investigation was first assigned to Special
Prosecutor Gualberto dela Llana but on request of petitioner herself
the investigation was re-assigned to the Office of the Deputy
Ombudsman for Luzon. The case was handled by a panel of four
prosecutors, who submitted a draft resolution for the filing of the
charges on March 29, 1990. The draft resolution had to undergo the
hierarchy of review, normal for a draft resolution with a dissenting
vote, until it reached the Ombudsman in March 1991.
We note that petitioner had previously filed two petitions before us
involving Criminal Case No. 16698 (G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the
issue of delay in the preliminary investigation and the filing of the
information against her in those petitions. a piece-meal presentation of
issues, like the splitting of causes of action, is self-defeating.
Petitioner next claims that the Amended Informations did not charge
any offense punishable under Section 3 (e) of R.A. No. 3019 because
the official acts complained of therein were authorized under Executive
Order No. 324 and that the Board of Commissioners of the Bureau of
Investigation adopted the policy of approving applications for
legalization of spouses and unmarried, minor children of "qualified
aliens" even though they had arrived in the Philippines after December
31, 1983. she concludes that the Sandiganbayan erred in not granting
her motion to quash the informations (Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically the allegations
of fact in the information (People v. Supnad, 7 SCRA 603 [1963] ).
Therefore, petitioner admitted hypothetically in her motion that:
(1) She was a public officer;
(2) She approved the application for legalization of the stay of aliens,
who arrived in the Philippines after January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in "evident bad faith and manifest partiality in the
execution of her official functions."
The foregoing allegations of fact constitute the elements of the offense
defined in Section 3 (e) of R.A. No. 3019.
The claims that the acts complained of were indeed authorized under
Executive Order No. 324, that petitioner merely followed in good faith
the policy adopted by the Board of Commissioners and that the aliens
were spouses or unmarried minor children of persons qualified for
legalization of stay, are matters of defense which she can establish at
the trial.
Anent petitioner's claim that the Amended Informations did not allege
that she had caused "undue injury to any party, including the
Government," there are two ways of violating Section 3 (e) of R.A. No.
3019. These are: (a) by causing undue injury to any party, including the
Government; and (b) by giving any private party any unwarranted
benefit, advantage or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:
The use of the distinctive term "or" connotes that either act qualifies as
a violation of Section 3 (a). In other words the act of giving any private
party any unwarranted benefit, advantage or preference is not an
indispensable element of the offense of "causing any undue injury to
any party" as claimed by petitioners although there may be instances
where both elements concur.
Re: Delito continuado
Be that as it may, our attention was attracted by the allegation in the
petition that the public prosecutors filed 32 Amended Informations
against petitioner, after manifesting to the Sandiganbayan that they
would only file one amended information (Rollo, pp. 6-61). We also
noted that petitioner questioned in her opposition to the motion to
admit the 32 Amended Informations, the splitting of the original
information (Rollo, pp. 127-129). In the furtherance of justice, we
therefore proceed to inquire deeper into the validity of said plant,
which petitioner failed to pursue with vigor in her petition.
CRIMINAL LAW FULL CASES
We find that, technically, there was only one crime that was committed
in petitioner's case, and hence, there should only be one information
to be file against her.
The 32 Amended Informations charge what is known as delito
continuado or "continued crime" and sometimes referred to as
"continuous crime."
In fairness to the Ombudsman's Office of the Special Prosecutor, it
should be borne in mind that the concept ofdelito continuado has been
a vexing problem in Criminal Law — difficult as it is to define and more
difficult to apply.
According to Cuello Calon, for delito continuado to exist there should
be a plurality of acts performed during a period of time; unity of penal
provision violated; and unity of criminal intent or purpose, which
means that two or more violations of the same penal provisions are
united in one and same instant or resolution leading to the
perpetration of the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito continuado consists of
several crimes but in reality there is only one crime in the mind of the
perpetrator (Commentaries on the Revised Penal Code, 1957 ed., p.
102; Penal Science and Philippine Criminal Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from
one criminal intent or resolution (Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated as constituting
only one offense the following cases:
(1) The theft of 13 cows belonging to two different owners committed
by the accused at the same time and at the same period of time
(People v. Tumlos, 67 Phil. 320 [1939] ).
(2) The theft of six roosters belonging to two different owners from the
same coop and at the same period of time (People v. Jaranillo, 55 SCRA
563 [1974] ).
(3) The theft of two roosters in the same place and on the same
occasion (People v. De Leon, 49 Phil. 437 [1926] ).
(4) The illegal charging of fees for services rendered by a lawyer every
time he collects veteran's benefits on behalf of a client, who agreed
that the attorney's fees shall be paid out of said benefits (People v.
Sabbun, 10 SCRA 156 [1964] ). The collection of the legal fees were
impelled by the same motive, that of collecting fees for services
rendered, and all acts of collection were made under the same criminal distinct offenses as there are victims (annotation, 37 ALR 3rd 1407,
impulse (People v. Lawas, 97 Phil. 975 [1955] ). 1410-1414).
On the other hand, we declined to apply the concept to the following The American courts following the "single larceny" rule, look at the
cases: commission of the different criminal acts as but one continuous act
involving the same "transaction" or as done on the same "occasion"
(State v. Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81
(1) Two estafa cases, one of which was committed during the period
Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539).
from January 19 to December 1955 and the other from January 1956 to
July 1956 (People v. Dichupa, 113 Phil. 306 [1961] ). The said acts were
committed on two different occasions. An American court held that a contrary rule would violate the
constitutional guarantee against putting a man in jeopardy twice for
the same offense (Annotation, 28 ALR 2d 1179). Another court
(2) Several malversations committed in May, June and July, 1936, and
observed that the doctrine is a humane rule, since if a separate charge
falsifications to conceal said offenses committed in August and October
could be filed for each act, the accused may be sentenced to the
1936. The malversations and falsifications "were not the result of only
penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179).
one purpose or of only one resolution to embezzle and falsify . . ."
(People v. Cid, 66 Phil. 354 [1938] ).
In the case at bench, the original information charged petitioner with
performing a single criminal act — that of her approving the
(3) Two estafa cases, one committed in December 1963 involving the
application for legalization of aliens not qualified under the law to
failure of the collector to turn over the installments for a radio and the
enjoy such privilege.
other in June 1964 involving the pocketing of the installments for a
sewing machine (People v. Ledesma, 73 SCRA 77 [1976] ).
The original information also averred that the criminal act : (i)
committed by petitioner was in violation of a law — Executive Order
(4) 75 estafa cases committed by the conversion by the agent of
No. 324 dated
collections from customers of the employer made on different dates
April 13, 1988, (ii) caused an undue injury to one offended party, the
(Gamboa v. Court of Appeals, 68 SCRA 308 [1975]).
Government, and (iii) was done on a single day, i.e., on or about
October 17, 1988.
The concept of delito continuado, although an outcry of the Spanish
Penal Code, has been applied to crimes penalized under special laws,
The 32 Amended Informations reproduced verbatim the allegation of
e.g. violation of R.A. No. 145 penalizing the charging of fees for services
the original information, except that instead of the word "aliens" in the
rendered following up claims for war veteran's benefits (People v.
original information each amended information states the name of the
Sabbun, 10 SCRA 156 [1964] ).
individual whose stay was legalized.
Under Article 10 of the Revised Penal Code, the Code shall be
At the hearing of the motion for a bill of particulars, the public
supplementary to special laws, unless the latter provide the contrary.
prosecutors manifested that they would file only one amended
Hence, legal principles developed from the Penal Code may be applied
information embodying the legalization of stay of the 32 aliens. As
in a supplementary capacity to crimes punished under special laws.
stated in the Order dated November 12, 1992 of the Sandiganbayan
(First Division):
The question of whether a series of criminal acts over a period of time
creates a single offense or separate offenses has troubled also
On the matter of the Bill of Particulars, the prosecution has conceded
American Criminal Law and perplexed American courts as shown by the
categorically that the accusation against Miriam Defensor Santiago
several theories that have evolved in theft cases.
consists of one violation of the law represented by the approval of the
applications of 32 foreign nationals for availment (sic) of the Alien
The trend in theft cases is to follow the so-called "single larceny" Legalization Program. In this respect, and responding directly to the
doctrine, that is, the taking of several things, whether belonging to the concerns of the accused through counsel, the prosecution is categorical
same or different owners, at the same time and place constitutes but that there will not be 32 accusations but only one . . . (Rollo, p. 59).
one larceny. Many courts have abandoned the "separate larceny
doctrine," under which there is a distinct larceny as to the property of
The 32 Amended Informations aver that the offenses were committed
each victim. Also abandoned was the doctrine that the government has
on the same period of time, i.e., on or about October 17, 1988. The
the discretion to prosecute the accused or one offense or for as many
strong probability even exists that the approval of the application or
CRIMINAL LAW FULL CASES
the legalization of the stay of the 32 aliens was done by a single stroke
of the pen, as when the approval was embodied in the same
document.
Likewise, the public prosecutors manifested at the hearing the motion
for a bill of particulars that the Government suffered a single harm or
injury. The Sandiganbayan in its Order dated November 13, 1992
stated as follows:
. . . Equally, the prosecution has stated that insofar as the damage and
prejudice to the government is concerned, the same is represented not
only by the very fact of the violation of the law itself but because of the
adverse effect on the stability and security of the country in granting
citizenship to those not qualified (Rollo, p. 59).
WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No.
16698 of the Sandiganbayan (First Division) is AFFIRMED and its
Resolution dated March 11, 1993 in Criminal Case No. 16698 is
MODIFIED in the sense that the Office of the Special Prosecutor of the
Office of the Ombudsman is directed to consolidate the 32 Amended
Informations (Criminal Cases Nos. 18371 to 18402) into one
information charging only one offense under the original case
number, i.e., No. 16698. The temporary restraining order issued by this
Court on March 25, 1993 is LIFTED insofar as to the disqualification of
Presiding Justice Francis Garchitorena is concerned.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Nocon,
Bellosillo, Melo and Puno, JJ., concur.
 
 
Separate Opinions
VITUG, J., concurring and dissenting:
While I share the view expressed by Mr. Justice Florentino P. Feliciano
in his dissent from the majority opinion inMiriam Defensor-Santiago
vs. Conrado Vasquez, et al. (205 SCRA 162), the decision in said case,
however, having become final, has, in my view, the effect of foreclosing
the issues there involved.
Accordingly, in this petition now at bench (G.R. No. 109266, I vote with
the majority in simply directing, for the reasons expressed for the
Court by
Mr. Justice Camilo D. Quiason, the consolidation of the thirty-two
Amended Informations into a single Information.
FELICIANO, J., dissenting:
I dissent from the opinion written for the majority by Mr. Justice
Quiason, to the extent that that opinion directed the Office of the
Special Prosecutor of the Office of the Ombudsman to consolidate the
thirty-two (32) Amended Informations (Criminal Cases Nos. 18371 and
18402) into one Information under the original case number, i.e., No.
16698.
I believe that the Court should order the Sandiganbayan to dismiss the
thirty-two (32) Amended Informations, for that court seriously erred in
not granting petitioner's Motion to Quash those Informations. The
grounds for my submission in this respect were spelled out in detail in
my dissenting opinion 1 in Miriam Defensor-Santiago v.Conrado
M. Vasquez, Ombudsman, et al. (205 SCRA 162 at 174-180 [1992] ),
which I beg leave to reproduce here:
The information filed before the Sandiganbayan in Criminal Case No.
16698 charges the petitioner as follows:
That on or about October 17, 1988, or for sometime prior or
subsequent thereto, in Manila, Philippines, and within the jurisdiction
of this Honorable Court, accused Miriam Defensor-Santiago, being the
Commissioner of the Commission on Immigration and Deportation,
with evident bad faith and manifest partiality, did then and there,
willfully, unlawfully and criminally approve the application for
legalization of aliens who arrived in the Philippines after January 1,
1984 in violation of Executive Order No. 324 dated April 13, 1988 which
does not allow the legalization of the same, thereby causing undue
injury to the government and giving unwarranted benefits and
advantage to the said aliens in the discharge of the official and
administrative functions of said accused.
Contrary to law.
Essentially, the above information charges that petitioner had, in
violation of the provisions of Executive Order No. 324 approved
applications for legalization of the stay of aliens who had arrived in the
Philippines after January 1, 1984. The information takes the position
that the Executive Order "does not allow the legalization of the same."
Executive Order No. 324 entitled "Waiving Passport Requirements for
Immigrants under Certain Conditions," dated April 13, 1988, was
promulgated pursuant to section 47 (A)(3) of C.A. No. 613, as
amended, the Philippine Immigration Act of 1940, which provides that
Notwithstanding the provisions of this Act, the President is authorized:
(a) when the public interest to warrants:
xxx xxx xxx
(3) to waive the passport requirements for immigrants, under such
conditions as he may prescribe.
Executive Order No. 324 provides that an alien may apply with the
Commissioner of Immigration and Deportation for waiver of passport
beginning on a date to be designated by the Commissioner. The Order
provides, among other things, that the alien "must establish that he
entered the Philippines before January 1, 1984 and that he has resided
continuously in the Philippines in an unlawful status from such date to
the filing of his application."
Petitioner is charged with having unlawfully waived the passport
requirements of certain aliens who arrived after January 1, 1984. It is
clear from the record of this case, especially of the preliminary
investigation conducted by the Office of the Special Prosecutor, that
petitioner herself stated that she had allowed aliens who had arrived in
the Philippines after January 1, 1984, but who were the spouses or
minor children of qualified aliens — the latter being alien spouses or
parents who had entered the Philippines before January 1, 1984
and who were themselves qualified for waiver of passport
requirements under Executive Order No. 324 — to apply for waiver of
passport requirements and, after compliance with requirements of
Executive Order No. 324, approved such "legalization."
Executive Order No. 324 is not itself a statute prescribing penal
sanctions for certain acts. Thus, disregard of Executive Order No. 324
would not, by itself, give rise to criminal liability. The criminal
information in this case in effect links up Executive Order No. 324 with
Section 3(e) of Republic Act No. 3019, known as the Anti-Graft and
Corrupt Practices Act. Section 3(e) of the Anti-Graft Act reads as
follows:
xxx xxx xxx
It must be noted, firstly, that petitioner, as the then Commissioner of
Immigration and Deportation, was expressly authorized and obliged by
Executive Order No. 324 to apply and administer and enforce its
provisions. Indeed, petitioner was authorized to issue rules and
regulations to implement that Executive Order (paragraph 16).
Secondly, the application and administration of Executive Order No.
CRIMINAL LAW FULL CASES
324 involve, not ministerial or mechanical acts, but rather the exercise
of judgment and discretion, adjudicatory and hence quasi-judicial in
nature. Thirdly, and perhaps most notably, paragraphs 11 and 12 of the
Executive Order provide as follows:
11. Except as provided in Paragraph 12, herein, the Commissioner of
Immigration and Deportation may waive exclusion grounds under the
Immigration Act in the cases of individual aliens for humanitarian
purposes to assure family unity or for the public interest.
12. The following grounds for exclusion may not be waived by the
Commissioner of Immigration and Deportation, namely, (a) those
relating to criminals; (b) those relating to aliens likely to become public
charges; (c) those relating to drug offenses, except for so much of
those provisions as relates to a single offense of simple possession of
marijuana; and (d) those relating to national security and members of
subversive organization.
xxx xxx xxx
(Emphasis supplied)
Paragraph 11, it will be seen, expressly authorizes petitioner to waive
grounds for exclusion of aliens under the Immigration Act in two (2)
cases: (a) "for humanitarian purposes to assure family unity;" and (b)
"for the public interest." Under Section 29 (a) of the Philippine
Immigration Act of 1940, as amended, the classes of aliens excluded
from entry into the Philippines include:
(17) Persons not properly documented for admission as may be
required under the provisions of this Act. 2
Upon the other hand, paragraph 12 specifies the categories of persons
in whose cases no waiver of grounds of exclusion may be granted.
It will be seen that the acts of petitioner, which the information
assumes to be criminal in nature, constituted official acts of petitioner
done in the course of applying, interpreting and construing Executive
Order No. 324. There is no question that the applications for waiver of
passport requirements by the spouses and minor children of qualified
aliens were admitted and approved by petitioner "for humanitarian
purposes to assure family unity." It is also not disputed that the said
alien spouses and minor children did not fall under any of the (non-
waivable) excluded classes listed in paragraph 12 of Executive Order
No. 324. It is similarly undisputed that no one has pretended that
petitioner had any personal or corrupt interest in any of the cases of
alien spouses and minor children of qualified aliens she had acted
upon. No one has suggested, for instance that the feesspecified in
paragraph 9 of Executive Order No. 324 either were not collected by
petitioner and converted to her own use. It may be noted, incidentally,
that paragraph 9 expressly authorizes the Commissioner "in her petitioner in effect asks us to rule in this Petition. I believe, further, that
discretion, [to] charge a lower fee for the spouse and minor children there is nothing to prevent this Court from addressing and ruling on
below 21 years old of the applicant." The criminal information, as this legal issue. There is no real need for proof of any additional
noted above, included an allegation of "evident bad faith and manifest essential facts apart from those already admitted by petitioner. It
partiality." It is clear, however, that the facts brought out in the seems to me that a public officer is entitled to have legal questions like
preliminary investigation offered absolutely no basis for such an that before this Court resolved at the earliest possible opportunity, that
allegation which actually a conclusion offered by the Special a public officer should not be compelled to go through the aggravation,
Prosecutor, much like the words "wilfully, unlawfully and criminally" humiliation and expense of the whole process of criminal trial, if the
which are recited redundantly in the criminal information here. Again, legal characterization of the acts charged as criminal is the very issue
the facts disclosed in the preliminary investigation showed no undue at stake.
injury, "to the Government and no unwarranted benefit or advantage"
to the aliens outside of the simple acceptance and approval of the
I respectfully submit, still further, that the acts charged do not, as a
applications for waiver of passport requirements (so called
matter of law, constitute a crime.Indeed, if the acts which petitioner
"legalization") by petitioner. In other words, if the interpretation or
admits having done constitute a criminal offense, very serious
construction given by petitioner to Executive Order
consequences would follow for the administration of law and
No. 324 is correct — i.e., that applications for waiver of passport
government rules and regulations in general. For the thrust of the
requirements by alien wives and minor children, arriving after January
criminal information here would appear to be that public officers
1, 1984, of qualified aliens who had themselves arrived in the
interpret and apply statutory and regulatory provisions at their own
Philippines before January 1, 1984 and who were otherwise eligible
peril and at the risk of criminal liability, notwithstanding the absence of
under the terms and conditions of Executive Order No. 324 may be
any corrupt intent to profit personally by any such interpretation and
granted for humanitarian purposes in the interest of allowing or
application. (Emphasis in the penultimate and ultimate paragraphs
restoring family unity — there would be no "injury," let alone an
supplied)
"undue injury," to the Government. Neither can the benefit of waiver
of passport requirements in the cases of such spouses and minor
children of qualified aliens be deemed to be an "unwarranted" benefit The Information, quoted internally above, was filed in Criminal Case
to such aliens if petitioner's interpretation of Executive Order No. 16698 back in 1 May 1991. approximately two-and-a-half (2-1/2)
No. 324 be held to be correct. years later, the proceedings before the Sandiganbayan are still going
on, and indeed appear to me to be back where the case was at the
time the original Information was filed. Had this Court ruled on
It is a rule too firmly established to require documentation that
the legal question which petitioner in effect had asked us to rule
contemporaneous interpretations of a statute or implementing
inSantiago v. Vasquez (supra), the case should be terminated by now,
regulation by the executive or administrative officials precisely charged
one way or the other. Once more, I respectfully submit that a public
with the implementation of such a stature or regulation, are entitled to
officer should not be compelled to go through the aggravation,
great weight and respect from the courts. This Court itself has in many
humiliation and expense of the whole process of criminal trial, if the
instances deferred to such interpretations rendered by such
legal nature of the acts charged as criminal is the very issue at stake.
administrative officers. (See, e.g., Ramos v. Court of Industrial
Relations, 21 SCRA 1282 [1967]; Salavaria v. Buenviaje, 81 SCRA 722
[1978]; Asturias Sugar Central, Inc. v. Commissioner of Customs, 29 I vote to grant the Petition for Certiorari and to require the
SCRA 617 [1969]; University of the Philippines v. Court of Appeals, 37 Sandiganbayan to dismiss the thirty-two (32) Amended Informations.
SCRA 54 [1971]; Lim Hao Ting v. Central Bank, 104 Phil. 573 [1958] ).
But even if an administrative interpretation be ultimately found to be Romero, J., concurs.
incorrect as a matter of law by this Court, the official responsible for
such interpretation is not, for that reason alone, to be held liable
personally, whether civilly or criminally or administratively. It is just as  
firmly settled that to impose liability upon the public officer who has so
acted, something far graver that error of law or error of judgment must  
be clearly shown and that is corrupt personal intentions, personal
malice or bad faith. (See generally Marcelo v. Sandiganbayan, 185 SCRA
346 [1990]). As noted above, no such allegations were made during the # Separate Opinions
preliminary investigation in Criminal Case No. 16698.
VITUG, J., concurring and dissenting:
My submission, with respect, is that whether the acts admittedly done
by petitioner were criminal in nature, is a legal question, on which
CRIMINAL LAW FULL CASES
While I share the view expressed by Mr. Justice Florentino P. Feliciano
in his dissent from the majority opinion inMiriam Defensor-Santiago
vs. Conrado Vasquez, et al. (205 SCRA 162), the decision in said case,
however, having become final, has, in my view, the effect of foreclosing
the issues there involved.
Accordingly, in this petition now at bench (G.R. No. 109266, I vote with
the majority in simply directing, for the reasons expressed for the
Court by Mr. Justice Camilo D. Quiason, the consolidation of the thirty-
two Amended Informations into a single Information.
FELICIANO, J., dissenting:
I dissent from the opinion written for the majority by Mr. Justice
Quiason, to the extent that that opinion directed the Office of the
Special Prosecutor of the Office of the Ombudsman to consolidate the
thirty-two (32) Amended Informations (Criminal Cases Nos. 18371 and
18402) into one Information under the original case number, i.e., No.
16698.
I believe that the Court should order the Sandiganbayan to dismiss the
thirty-two (32) Amended Informations, for that court seriously erred in
not granting petitioner's Motion to Quash those Informations. The
grounds for my submission in this respect were spelled out in detail in
my dissenting opinion 1 in Miriam Defensor-Santiago v.Conrado
M. Vasquez, Ombudsman, et al. (205 SCRA 162 at 174-180 [1992] ),
which I beg leave to reproduce here:
The information filed before the Sandiganbayan in Criminal Case No.
16698 charges the petitioner as follows:
That on or about October 17, 1988, or for sometime prior or
subsequent thereto, in Manila, Philippines, and within the jurisdiction
of this Honorable Court, accused Miriam Defensor-Santiago, being the
Commissioner of the Commission on Immigration and Deportation,
with evident bad faith and manifest partiality, did then and there,
willfully, unlawfully and criminally approve the application for
legalization of aliens who arrived in the Philippines after January 1,
1984 in violation of Executive Order No. 324 dated April 13, 1988 which
does not allow the legalization of the same, thereby causing undue
injury to the government and giving unwarranted benefits and
advantage to the said aliens in the discharge of the official and
administrative functions of said accused.
Contrary to law.
Essentially, the above information charges that petitioner had, in
violation of the provisions of Executive Order No. 324 approved
applications for legalization of the stay of aliens who had arrived in the
Philippines after January 1, 1984. The information takes the position
that the Executive Order "does not allow the legalization of the same."
Executive Order No. 324 entitled "Waiving Passport Requirements for
Immigrants under Certain Conditions," dated April 13, 1988, was
promulgated pursuant to section 47 (A)(3) of C.A. No. 613, as
amended, the Philippine Immigration Act of 1940, which provides that
Notwithstanding the provisions of this Act, the President is authorized:
(a) when the public interest to warrants:
xxx xxx xxx
(3) to waive the passport requirements for immigrants, under such
conditions as he may prescribe.
Executive Order No. 324 provides that an alien may apply with the
Commissioner of Immigration and Deportation for waiver of passport
beginning on a date to be designated by the Commissioner. The Order
provides, among other things, that the alien "must establish that he
entered the Philippines before January 1, 1984 and that he has resided
continuously in the Philippines in an unlawful status from such date to
the filing of his application."
Petitioner is charged with having unlawfully waived the passport
requirements of certain aliens who arrived after January 1, 1984. It is
clear from the record of this case, especially of the preliminary
investigation conducted by the Office of the Special Prosecutor, that
petitioner herself stated that she had allowed aliens who had arrived in
the Philippines after January 1, 1984, but who were the spouses or
minor children of qualified aliens — the latter being alien spouses or
parents who had entered the Philippines before January 1, 1984
and who were themselves qualified for waiver of passport
requirements under Executive Order No. 324 — to apply for waiver of
passport requirements and, after compliance with requirements of
Executive Order No. 324, approved such "legalization."
Executive Order No. 324 is not itself a statute prescribing penal
sanctions for certain acts. Thus, disregard of Executive Order No. 324
would not, by itself, give rise to criminal liability. The criminal
information in this case in effect links up Executive Order No. 324 with
Section 3(e) of Republic Act No. 3019, known as the Anti-Graft and
Corrupt Practices Act. Section 3(e) of the Anti-Graft Act reads as
follows:
xxx xxx xxx
It must be noted, firstly, that petitioner, as the then Commissioner of
Immigration and Deportation, was expressly authorized and obliged by
Executive Order No. 324 to apply and administer and enforce its
provisions. Indeed, petitioner was authorized to issue rules and
regulations to implement that Executive Order (paragraph 16).
Secondly, the application and administration of Executive Order No.
324 involve, not ministerial or mechanical acts, but rather the exercise
of judgment and discretion, adjudicatory and hence quasi-judicial in
nature. Thirdly, and perhaps most notably, paragraphs 11 and 12 of the
Executive Order provide as follows:
11. Except as provided in Paragraph 12, herein, the Commissioner of
Immigration and Deportation may waive exclusion grounds under the
Immigration Act in the cases of individual aliens for humanitarian
purposes to assure family unity or for the public interest.
12. The following grounds for exclusion may not be waived by the
Commissioner of Immigration and Deportation, namely, (a) those
relating to criminals; (b) those relating to aliens likely to become public
charges; (c) those relating to drug offenses, except for so much of
those provisions as relates to a single offense of simple possession of
marijuana; and (d) those relating to national security and members of
subversive organization.
xxx xxx xxx
(Emphasis supplied)
Paragraph 11, it will be seen, expressly authorizes petitioner to waive
grounds for exclusion of aliens under the Immigration Act in two (2)
cases: (a) "for humanitarian purposes to assure family unity;" and (b)
"for the public interest." Under Section 29 (a) of the Philippine
Immigration Act of 1940, as amended, the classes of aliens excluded
from entry into the Philippines include:
(17) Persons not properly documented for admission as may be
required under the provisions of this Act. 2
Upon the other hand, paragraph 12 specifies the categories of persons
in whose cases no waiver of grounds of exclusion may be granted.
It will be seen that the acts of petitioner, which the information
assumes to be criminal in nature, constituted official acts of petitioner
done in the course of applying, interpreting and construing Executive
Order No. 324. There is no question that the applications for waiver of
passport requirements by the spouses and minor children of qualified
aliens were admitted and approved by petitioner "for humanitarian
purposes to assure family unity." It is also not disputed that the said
alien spouses and minor children did not fall under any of the (non-
waivable) excluded classes listed in paragraph 12 of Executive Order
CRIMINAL LAW FULL CASES
No. 324. It is similarly undisputed that no one has pretended that
petitioner had any personal or corrupt interest in any of the cases of
alien spouses and minor children of qualified aliens she had acted
upon. No one has suggested, for instance that the feesspecified in
paragraph 9 of Executive Order No. 324 either were not collected by
petitioner and converted to her own use. It may be noted, incidentally,
that paragraph 9 expressly authorizes the Commissioner "in her
discretion, [to] charge a lower fee for the spouse and minor children
below 21 years old of the applicant." The criminal information, as
noted above, included an allegation of "evident bad faith and manifest
partiality." It is clear, however, that the facts brought out in the
preliminary investigation offered absolutely no basis for such an
allegation which actually a conclusion offered by the Special
Prosecutor, much like the words "wilfully, unlawfully and criminally"
which are recited redundantly in the criminal information here. Again,
the facts disclosed in the preliminary investigation showed no undue
injury, "to the Government and no unwarranted benefit or advantage"
to the aliens outside of the simple acceptance and approval of the
applications for waiver of passport requirements (so called
"legalization") by petitioner. In other words, if the interpretation or
construction given by petitioner to Executive Order
No. 324 is correct — i.e., that applications for waiver of passport
requirements by alien wives and minor children, arriving after January
1, 1984, of qualified aliens who had themselves arrived in the
Philippines before January 1, 1984 and who were otherwise eligible
under the terms and conditions of Executive Order No. 324 may be
granted for humanitarian purposes in the interest of allowing or
restoring family unity — there would be no "injury," let alone an
"undue injury," to the Government. Neither can the benefit of waiver
of passport requirements in the cases of such spouses and minor
children of qualified aliens be deemed to be an "unwarranted" benefit
to such aliens if petitioner's interpretation of Executive Order
No. 324 be held to be correct.
It is a rule too firmly established to require documentation that
contemporaneous interpretations of a statute or implementing
regulation by the executive or administrative officials precisely charged
with the implementation of such a stature or regulation, are entitled to
great weight and respect from the courts. This Court itself has in many
instances deferred to such interpretations rendered by such
administrative officers. (See, e.g., Ramos v. Court of Industrial
Relations, 21 SCRA 1282 [1967]; Salavaria v. Buenviaje, 81 SCRA 722
[1978]; Asturias Sugar Central, Inc. v. Commissioner of Customs, 29
SCRA 617 [1969]; University of the Philippines v. Court of Appeals, 37
SCRA 54 [1971]; Lim Hao Ting v. Central Bank, 104 Phil. 573 [1958] ).
But even if an administrative interpretation be ultimately found to be
incorrect as a matter of law by this Court, the official responsible for
such interpretation is not, for that reason alone, to be held liable
personally, whether civilly or criminally or administratively. It is just as
firmly settled that to impose liability upon the public officer who has so
acted, something far graver that error of law or error of judgment must
be clearly shown and that is corrupt personal intentions, personal
malice or bad faith. (See generally Marcelo v. Sandiganbayan, 185 SCRA
346 [1990]). As noted above, no such allegations were made during the
preliminary investigation in Criminal Case No. 16698. Solicitor-General Corpus, for Appellee. 
SYLLABUS
My submission, with respect, is that whether the acts admittedly done
by petitioner were criminal in nature, is a legal question, on which
petitioner in effect asks us to rule in this Petition. I believe, further, that 1. LIBEL AND SLANDER; PUBLICATION; EDITOR, AUTHOR, PROPRIETOR,
there is nothing to prevent this Court from addressing and ruling on MANAGER. — Section 6 of the Libel Law (Act No. 277) provides a
this legal issue. There is no real need for proof of any additional punishment only for the "author, editor, or proprietor," for the
essential facts apart from those already admitted by petitioner. It publication of a libel in a newspaper. In the present case no person was
seems to me that a public officer is entitled to have legal questions like represented to be either the "author, the editor, or the proprietor" of
that before this Court resolved at the earliest possible opportunity, that the newspaper in which the alleged libel was published. The proof
a public officer should not be compelled to go through the aggravation, shows that the defendant was the "manager." There was not a word of
humiliation and expense of the whole process of criminal trial, if the proof showing that as "manager" he was the author of the article
legal characterization of the acts charged as criminal is the very issue published or the editor or the proprietor of the newspaper. The
at stake. "manager" of a newspaper may be the author of the articles published
or the editor or the publisher of the newspaper. His exact relation to
the newspaper or publication is a matter of proof. He can not avoid
I respectfully submit, still further, that the acts charged do not, as a
responsibility as the "author, editor, or proprietor" by using some other
matter of law, constitute a crime.Indeed, if the acts which petitioner
term or word, when, as a matter of fact, he is the "author, editor, or
admits having done constitute a criminal offense, very serious
proprietor." The "author, editor, or proprietor" of a newspaper or
consequences would follow for the administration of law and
publication can not avoid responsibility by simply calling himself the
government rules and regulations in general. For the thrust of the
"manager" or "printer." He can not wear the toga of "author, editor, or
criminal information here would appear to be that public officers
proprietor" and hide his responsibility by giving himself some other
interpret and apply statutory and regulatory provisions at their own
name. While the terms "author, editor, and proprietor" of a newspaper
peril and at the risk of criminal liability, notwithstanding the absence of
are terms well defined, the particular words "author, editor, or
any corrupt intent to profit personally by any such interpretation and
proprietor" are not material or important, further than they are words
application. (Emphasis in the penultimate and ultimate paragraphs
which are intended to show the relation of the responsible party to the
supplied)
publication. That relation may as well exist under some other name or
denomination.
The Information, quoted internally above, was filed in Criminal Case
No. 16698 back in 1 May 1991. approximately two-and-a-half (2-1/2)
years later, the proceedings before the Sandiganbayan are still going
on, and indeed appear to me to be back where the case was at the
time the original Information was filed. Had this Court ruled on
the legal question which petitioner in effect had asked us to rule DECISION
inSantiago v. Vasquez (supra), the case should be terminated by now,
one way or the other. Once more, I respectfully submit that a public
officer should not be compelled to go through the aggravation,
humiliation and expense of the whole process of criminal trial, if the
legal nature of the acts charged as criminal is the very issue at stake.
JOHNSON, J. :
I vote to grant the Petition for Certiorari and to require the
Sandiganbayan to dismiss the thirty-two (32) Amended Informations.
Romero, J., concurs.
[G.R. No. 9726. December 8, 1914. ] This was an action for criminal libel. 
THE UNITED STATES, Plaintiff-Appellee, v. CARSON The complaint alleged:jgc:chanrobles.com.ph
TAYLOR, Defendant-Appellant. 
"That on the 25th day of September, 1913, the said Carson Taylor,
C. W O’Brien, for Appellant.  being then and there the acting editor and proprietor, manager,
CRIMINAL LAW FULL CASES

printer, and publisher in the city of Manila, Philippine Islands, of a
certain daily bilingual newspaper, edited in the English and Spanish
languages, and known as the ’Manila Daily Bulletin,’ a paper of large
circulation throughout the Philippine Islands, as well as in the United
States and other countries in all of which both languages are spoken
and written, having as such the supervision and control of said
newspaper, did then and there willfully, feloniously, maliciously, and
with intent to impeach the honesty, virtue, and reputation of one
Ramon Sotelo as member of the bar of the Philippine Islands and as a
private individual, and to expose him to public hatred, contempt and
ridicule, compose, print, edit, publish, and circulate and procure to be
composed, printed, edited, published, and circulated in said
newspaper’s issue of the above mentioned date, September 25, 1913,
a certain false and malicious defamation and libel in the English
language of and concerning the said Ramon Sotelo, which reads as
follows. :jgc:chanrobles.com.ph
"‘OWNERS FIRED BUILDING TO COLLECT INSURANCE. — CRIMINAL
CHARGES FOLLOW CIVIL SUIT.  "Third. The court erred in finding that the alleged libelous article was
"‘Conspiracy divulged in three sworn statements made by members of
the party after a family disagreement. Sensational statement sworn to.
Mystery of Calle O’Donnell fire solved and papers served.  would be time enough to obtain the facts.  finding that there was no malice.
which resulted in sensational statements to the effect that the
destruction of the property had been an act of incendiarism in order to
collect the insurance. Then there was an investigation started and it
resulted in sworn statements of the three persons above mentioned.  and exposing him to public hatred, contempt and ridicule. Contrary to
"‘Notarial returns were made yesterday by the sheriff, based on the
sworn statements and the parties are cited to appear in court and
show cause.  guilty, was tried, found guilty of the crime charged, and sentenced by
"‘The investigation also showed that the furniture, which was supposed
to be in the house at the time of the conflagration and which was paid
for by the insurance agents, sworn statements having been made that
it was destroyed in the fire, was in a certain house in Montalban,
where it was identified upon the sworn statements of the above
mentioned. Implicated in the charges of conspiracy and fraud is the
name of the attorney for the plaintiff who made affidavit as to the
burning of the house and against whom criminal proceedings will be
brought as well as against the original owners. 
"‘Attorney Burke, who represents Lutz & Co. in the proceedings, was
seen last night and asked for a statement as to the case. Mr. Burke
refused to talk on the case and stated that when it came to trial it
made in said paragraph are wholly false and untrue, thus impeaching
the honesty, virtue and reputation of the said offended party as a
member of the bar of the Philippine Islands and as a private individual,
law."cralaw virtua1aw library
Upon said complaint the defendant was arrested, arraigned, plead not
the Honorable George N. Hurd, judge, to pay a fine of P200. From that
sentence the defendant appealed to this court and made the following
assignment of error:jgc:chanrobles.com.ph
"First. The court erred in finding that the defendant was responsible for
and guilty of the alleged libel. 
"Second. The court erred in finding that the defendant was the
proprietor and publisher of the ’Manila Daily Bulletin.’
libelous per se. 
"Fourth. The court erred in holding that the article was libelous, while

"‘Conspiracy to defraud the insurance company.  "‘The present action came before the court on a motion of Attorney "Fifth. The court erred in finding that the alleged libelous article
Burke to set aside the judgment, which, in the original case, gave the referred to attorney Ramon Sotelo. 
"‘The building was fired to collect the amount of insurance.  owners of the property judgment for the amount of the insurance.
"Sixth. The court erred in finding that Ramon Sotelo was attorney for
"‘The movable furniture of value was removed before the fire.  "‘Attorney Burke filed the sworn statements with the court and the the plaintiffs in case No. 10191, when the alleged libel was
notarial returns to the same were made yesterday afternoon, the published."cralaw virtua1aw library
"‘The full amount of the insurance was collected, and the conspiracy sworn statements as to the burning of the house being in the hands of
was a success.  the sheriff.  After a careful examination of the record and the arguments presented
by the appellant, we deem it necessary to discuss only the first and
"‘The above is the gist of the sworn statements of Vicente Sotelo and "‘It was stated yesterday that a criminal action would follow the civil second assignments of error. 
Eugenio Martin in connection with the fire that destroyed house No. proceedings instituted to recover the funds in the case entitled on the
2157 Calle O’Donnell on April 4.  court records, Maria Mortera de Eceiza and Manuel Eceiza versus the In the Philippine Islands there exist no crimes such as are known in the
west of Scotland Association, Limited, No. 10191 on the court records.  United States and England as common law crimes. No act constitutes a
"‘The case in question is a sensational one to say .he least, and the crime here unless it is made so by law. Libel is made a crime here by
court is being petitioned to set aside the ruling and cite the parties to "‘It might be stated also that Eugenio Martin was one of the plaintiffs in Act No. 277 of the United States Philippine Commission. Said Act (No.
show cause why they should not be cited to answer charges of the recent suit brought against Ex Governor W. Cameron Forbes for 277) not only defines the crime of libel and prescribes the particular
conspiracy to defraud.  lumber supplied for his Boston home.’ conditions necessary to constitute it, but it also names the persons
who may be guilty of such crime. In the present case the complaint
"‘On April 4, 1913, the house located at 2157 Calle O’Donnell was "That in this article is contained the following paragraph. to alleges that the defendant was, at the time of the publication of said
destroyed by fire. The house was insured for P5,000, the contents for wit:jgc:chanrobles.com.ph alleged article "the acting editor, proprietor, manager, printer,
an additional P5,000, with the West of Scotland Insurance Association, publisher, etc. etc. of a certain bilingual newspaper, etc., known as the
of which Lutz & Co. are the local agents, with an additional P1,500 with "‘ . . .Implicated in the charges of conspiracy and fraud is the name of ’Manila Daily Bulletin,’ a paper of large circulation throughout the
Smith, Bell & Co.  the attorney for the plaintiff who made affidavit as to the burning of Philippine Islands, as well as in the United States and other
the house and against whom criminal proceedings will be brought as countries."cralaw virtua1aw library
"‘The full amount of the insurance on the property was paid by the well as against the original owners,’ by which the said accused meant
agents of the insurance companies and the matter apparently dropped to refer and did refer to the said Ramon Sotelo, who then and there It will be noted that the complaint charges the defendant as "the acting
from the records.  was the attorney for the plaintiff in the case aforesaid, No. 10191 of editor, proprietor, manager, printer, and publisher." From an
the Court of First Instance of the city of Manila, and so was understood examination of said Act No. 277, we find that section 6 provides that:
"‘Then there was internal trouble and information began to leak out by the public who read the same; that the statements and allegations "Every author, editor, or proprietor of any book, newspaper, or serial
CRIMINAL LAW FULL CASES
publication is chargeable with the publication of any words contained
in any part of said book or number of each newspaper or serial as fully
as if he were the author of the same."cralaw virtua1aw library
By an examination of said article, with reference to the persons who
may be liable for the publication of a libel in a newspaper, we find that
it only provides for the punishment of "the author, editor, or
proprietor." It would follow, therefore, that unless the proof shows
that the defendant in the present case is the "author, editor, or
proprietor" of the newspaper in which the libel was published, he can
not be held liable.  "author, editor, or proprietor" can not avoid responsibility for the
In the present case the Solicitor-General in his brief said that — "No
person is represented to be either the ’author, editor, or proprietor.’"
That statement of the Solicitor-General is fully sustained by the record.
There is not a word of proof in the record showing that the defendant
was either the "author, the editor, or the proprietor." The proof shows
that the defendant was the "manager." He must, therefore, be
acquitted of the crime charged against him, unless it is shown by the
proof that he, as "manager" of the newspaper, was in some way
directly responsible for the writing, editing, or publishing of the matter
contained in said alleged libelous article. The prosecution presented
the newspaper, the "Manila Daily Bulletin," for the purpose of showing
the relation which the defendant had to it. That was the only proof
presented by the prosecution to show the relation which the
defendant had to the publication of the libel in question. From an
examination of the editorial page of said exhibit, we find that it shows
that the "Manila Daily Bulletin" is owned by the "Bulletin Publishing
Company," and that the defendant was its manager. There is not a
word of proof in the record which shows what relation the manager
had to the publication of said newspaper. We might, by a series of
presumptions and assumptions, conclude that the manager of a
newspaper has some direct responsibility with its publication. We
believe, however, that such presumptions and assumptions, in the
absence of a single letter of proof relating thereto, would be
unwarranted and unjustified. The prosecuting attorney had an
opportunity to present proof upon that question. Either because he
had no proof or because no such proof was obtainable, he presented
none. It certainly is not a difficult matter to ascertain who is the real
person responsible for the publication of a newspaper which is
published daily and has a wide circulation in a particular community.
No question was asked the defendant concerning his particular relation
to the publication of the newspaper in question. We do not desire to
be understood in our conclusions here as holding that the "manager"
or the "printer" may not, under certain conditions and proper proof, be
held to be the "author, editor, or proprietor" of a newspaper. He may
denominate himself as "manager" or "printer" simply, and be at the
same time the "author, editor, or proprietor" of the newspaper. He can
not avoid responsibility by using some other term or word, indicating
his relation to the newspaper or the publication, when, as a matter of
fact, he is the "author, the editor, or the proprietor" of the same. His
real relation to the said publication is a matter of proof. The Solicitor-
General, in his brief, says that the defendant used the word "manager"
with the hope of evading legal responsibility, as the Libel Law places
the responsibility for publishing a libel, on "every author, editor, or
proprietor of any book, etc." Had the prosecuting attorney in the trial
of the cause believed that the defendant, even though he called
himself the "manager" was, in fact, the "author, editor, or proprietor"
of said publication, he should have presented some proof supporting
that contention. Neither do we desire to be understood as holding that
simply because a person connected with the publication of a
newspaper who calls himself the "manager" or "printer" may not, in
fact and at the same time, be the "author, editor, or proprietor." The
writing and publication of a libelous article, by simply calling himself
the "manager" or the "printer" of a newspaper. That, however, is a
question of proof. The burden is upon the prosecution to show that the
defendant is, by whatever name he may call himself, in truth and in
fact, the "author, editor, or proprietor" of a newspaper. The courts
cannot assume, in the absence of proof, that one who called himself
"manager" was in fact the "author, editor, or proprietor." We might
assume, perhaps, that the ’’manager" of a newspaper plays an
important part in the publication of the same by virtue of the general
signification of the word "manager." Men can not, however, be
sentenced upon the basis of a mere assumption. There must be some
proof. The word "manage" has been defined by Webster to mean "to
have under control and direction; to conduct; to guide; to administer;
to treat; to handle." Webster defines "manager" to be "one who
manages; a conductor or director; as, the manager of a theater." A
manager, as that word is generally understood, we do not believe
includes the idea of ownership. Generally speaking it means one who is
representing another as an agent. That being true, his powers and
duties and obligations are generally defined by contract. He may have
expressed as well as implied powers, but whatever his powers and
duties are they must be dependent upon the nature of the business
and the terms of his contract. There is no fixed rule which indicates
particularly and definitely his duties, powers and obligations. An
examination into the character of the business and the contract of his
employment must be made for the purpose of ascertaining definitely
what his duties and obligations are. His exact relation is always a
matter of proof. It is incumbent upon the prosecution in a case like the
present, to show that whatever title, name or designation the
defendant may bear, he was, in fact, the "author, the editor, or the
proprietor" of the newspaper. If he was in fact the "author, editor, or
proprietor," he can not escape responsibility by calling himself the
"manager" or "printer." It is the relation which he bears to the
publication and not the name or title which he has assumed, which is
important in an investigation. He can not wear the toga of author or
editor and hide his responsibility by giving himself some other name.
While the terms "author, editor, and proprietor" of a newspaper are
terms well defined, the particular words "author, editor, or proprietor"
are not material or important, further than that they are words which
are intended to show the relation of the responsible party to the
publication. That relation may as well exist under some other name or
denomination.  5. ID.; ID.; ID. — The true test of admissibility is that the confession is
For the foregoing reasons. therefore, there being no proof whatever in
the record showing that the defendant was the "author, the editor, or
the proprietor" of the newspaper in question, the sentence of the
lower court must be reversed, the complaint dismissed and the
defendant discharged from the custody of the law, with costs de
officio. So ordered. 
[G.R. No. L-17855. March 4, 1922. ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v.
GRACIANO L. CABRERA ET AL., Defendants-Appellants. 
Vicente Sotto for Appellants. 
Acting Attorney-General Tuason for Appellee. 
SYLLABUS
1. MURDER; INSTANT CASE. — Seventy-seven members of the
Philippine Constabulary who, to avenge a fancied wrong, murdered six
members of the police force of the city of Manila among them the
respected Captain William E. Wichman, assistant chief of police, and
two private citizens, and gravely wounded three other civilians, found
guilty of the crime of murder. The eleven sergeants and corporals
among the Constabulary soldiers are sentenced therefor to the death
penalty, and the sixty-six private soldiers are sentenced therefor to
cadena perpetua computed at forty years’ imprisonment. 
2. ID.; CREDIBILITY OF WITNESSES. — The Supreme Court will not
interfere with the judgment of the trial court in passing upon the
credibility of the opposing witnesses, unless there appears in the
record some fact or circumstance of weight and influence which has
been overlooked or the significance of which has been misinterpreted. 
3. CRIMINAL LAW; CONFESSIONS; ADMISSION OF EXHIBITS C TO C-76
OF INSTANT CASE. — The admission by the trial court of Exhibits C to C-
76 of the prosecution in the instant case, held not to constitute
reversible error. 
4. ID.; ID.; ID. — Section 4 of Act No. 619, entitled "An Act to promote
good order and discipline in the Philippines Constabulary," and reading:
"No confession of any person charged with crime shall be received as
evidence against him by any court of justice unless it be first shown to
the satisfaction of the court that it was freely and voluntarily made and
not the result of violence, intimidation, threat, menace, or of promises
or offers of reward or leniency," was repealed by the first
Administrative Code. But the same rule of jurisprudence continues
without the law. 
made freely, voluntarily, and without compulsion or inducement of any
CRIMINAL LAW FULL CASES

sort.  state of excitement among the soldiers at Santa Lucia Barracks because
14. ID.; ID. — The ruling of the trial court in not allowing the defense of almost immediately after the shooting of private Macasinag, Captain
6. ID.; ID.; ID. — If the confession is freely and voluntarily made, it double jeopardy in the instant case held not to constitute reversible Page, the commanding officer of the barracks, increased the number of
constitutes one of the most effectual proofs in the law against the error. The defendants may have been tried for the same act or acts; guards, and confined all the soldiers in the barracks. 
party making it.  they have not been put in jeopardy for the same offense.
During the afternoon of the next day, December 15, 1920, a rumor
7. ID.; ID.; ID. — The burden of proof that the confession was not spread among the soldiers in Santa Lucia Barracks to the effect that
DECISION
voluntarily made or was obtained by undue pressure is on the accused. policeman Mojica was allowed to continue on duty on the streets of
(U.S. v. Zara [1921], 42 Phil. 308.)  Intramuros and that private Macasinag had died as a consequence of
MALCOLM, J. : the shot he received the night before. This rumor contributed in no
8. ID.; CONSPIRACY. — The declaration of the trial court that there was small degree in precipitating a movement for reprisal by the
a conspiracy between the accused in the instant case held not to Constabulary soldiers against the policemen. 
constitute reversible error. It is incontestable that all the defendants
were imbued with the same purpose, which was to avenge themselves At about 7 o’clock in the evening of the same day, December 15, 1920,
on the police force of the city of Manila.  corporal Ingles of the Fourth Company approached private Nicolas
No more serious violation of the criminal law of these Islands and no Torio who was then the man in charge of quarters, and asked him to let
9. ID.; ID. — It is a primary rule that if two or more persons combine to more wanton defiance of the law by the very men whose sworn duty it the soldiers out through the window of the quarters of the Fourth
perform a criminal act, each is responsible for all the acts of the others was to enforce the law, has ever been brought before this court than is Company. Private Torio was easily persuaded to permit private
done in furtherance of the common design; and "the result is the same now presented for consideration in this case. To avenge a fancied Francisco Garcia of the Second Company to saw out the window bars
if the act is divided into parts and each person proceeds with his part wrong, members of the Philippine Constabulary murdered six members of the quarters in his charge, and to allow soldiers to escape through
unaided."cralaw virtua1aw library of the police force of the city of Manila, among them the respected the window with rifles and ammunition under the command of their
Captain William E. Wichman, assistant chief of police, and two private sergeants and corporals. When outside of the quarters, these soldiers
10. ID.; ID.; PROOF OF. — Conspiracies are generally proved by a citizens, and gravely wounded three other civilians.  divided into groups for attack upon the city police force. 
number of definite acts, conditions, and circumstances which vary
according to the purposes to be accomplished. If it be proved that the To the task of reviewing the facts, of preparing an opinion on the One platoon of Constabulary soldiers apparently numbering about ten
defendants pursued by their acts the same object, one performing one pertinent issues, and of rendering judgment, if no reversible error be or twelve, on Calle Real, Intramuros fired in the direction of the
part and another part of the same, so as to complete it, with a view to found, regarding the appropriate penalty, we now propose to address intersection of Calles Real and Cabildo where an American policeman
the attainment of that same object, one will be justified in the ourselves.  named Driskill was stationed, and was talking with a friend named
conclusion that they were engaged in a conspiracy to effect that Jacumin, a field clerk in the United States Army. These two men were
object.  STATEMENT OF THE CASE AND OF THE FACTS shot and died soon afterwards. To the credit of policeman Driskill be it
said, that although in a dying condition and in the face of
11. CONSTITUTIONAL LAW; DOUBLE JEOPARDY. — The prohibition in On December 13, 1920, policemen of the city of Manila arrested a overwhelming odds, he valiantly returned the fire with his revolver.
Philippine organic and statutory law relating to double jeopardy is woman who was a member of the household of a Constabulary soldier Jacumin was killed notwithstanding that in response to the command
against a second jeopardy for the same offense. To entitle a defendant stationed at the Santa Lucia Barracks in this city. The arrest of the of the Constabulary, "Hands up!," he elevated both arms. 
to plead successfully former jeopardy, the offense charged in the two woman was considered by some of the Constabulary soldiers at Santa
prosecutions must be the same in law and in fact. The test is not Lucia Barracks as an outrage committed by the policemen, and it A street car happened to stop at this time at the corner of Calles Real
whether the defendant has already been tried for the same act, but instantly gave rise to friction between members of the Manila police and Cabildo. Without considering that the passengers in the car were
whether he has been put in jeopardy for the same offense.  department and members of the Philippine Constabulary.  innocent passersby, the Constabulary squad fired a volley into the car,
killing instantly the passenger named Victor de Torres and gravely
12. ID.; ID. — The same acts may violate two or more provisions of the The next day, December 14, at about sunset, a policeman named wounding three other civilian passengers, Gregorio Cailles, Vicente
criminal law. When they do, a prosecution under one will not bar a Artemio Mojica posted on Calle Real, in the District of Intramuros, city Antonio, and Mariano Cortes. Father Jose Tahon, a priest of the
prosecution under another.  of Manila, had an encounter with various Constabulary soldiers which Cathedral of Manila, proved himself of here on this occasion for,
resulted in the shooting of private Macasina of the Constabulary. against the command of the Constabulary, he persisted in persuading
13. ID.; ID.; CRIMES OF SEDITION AND MURDER CONTRASTED. — Private Macasinag was seriously, and, as afterwards appeared, mortally them to cease firing and advanced in order that he might administer
Sedition is not the same offense as murder. Sedition is a crime against wounded.  spiritual aid to those who had been wounded. 
public order; murder is a crime against persons. Sedition is a crime
directed against the existence of the State, the authority of the The encounter between policeman Mojica and other companions of The firing on Calle Real did not end at that time. Some minutes later,
government, and the general public tranquillity; murder is a crime the Manila police force and private Macasinag and other companions Captain William E. Wichman, assistant chief of police of the city of
directed against the lives of individuals. (U.S. v. Abad [1902], 1 Phil., of the Constabulary, with its grave consequences for a Constabulary Manila, riding in a motorcycle driven by policeman Saplala, arrived at
437.) Sedition in its more general sense is the raising of commotions or soldier, engendered a deep feeling of resentment on the part of the the corner of Calles Real and Magallanes in Intramuros, and a volley of
disturbances in the state; murder at common law is where a person of soldiers at Santa Lucia Barracks. This resentment was soon converted shots by Constabulary soldiers resulted in the instantaneous death of
sound mind and discretion unlawfully kills any human being, in the into a desire for revenge against the police force of the city of Manila. Captain Wichman and the death shortly afterwards of patrolman
peace of the sovereign with malice aforethought, express implied.  The officers of the Constabulary appear to have been aware of the Saplala. 
CRIMINAL LAW FULL CASES
About the same time, a police patrol came from the Meisic police
station. When it was on Calle Real near Cabildo, in Intramuros, it was
fire upon by Constabulary soldiers who had stationed themselves in the
courtyard of the San Agustin Church. This attack resulted in the death
of patrolmen Trogue and Sison.  repeat exactly what I told them that morning. I spoke to them that
Another platoon of the Constabulary, between thirty and forty in
number, had, in the meantime, arranged themselves in a firing line on
the Sunken Gardens on the east side of Calle General Luna opposite
the Aquarium. From this advantageous position the Constabulary fired
upon the motorcycle occupied by sergeant Armada and driven by
policeman Policarpio who with companions were passing along Calle
General Luna in front of the Aquarium going in the direction of Calle
Real, Intramuros. As a result of the shooting, the driver of the
motorcycle, policeman Policarpio, was mortally wounded. This same
platoon of Constabulary soldiers fired several volleys indiscriminately
into the Luneta police station, and the office of the secret service of the
city of Manila across Calles General Luna and Padre Burgos, but
fortunately no one was injured.  during the afternoon of the same day, December 16. The questionnaire
General Rafael Crame, Chief of the Constabulary, and Captain Page,
commanding officer of the Santa Lucia Barracks, rounded up some of
the soldiers in the streets of Manila, and other soldiers one after
another returned to the Barracks where they were disarmed. No list of
the names of these soldiers was, however, made. 
In the morning of the next day, December 16, 1920, Colonel Lucien R.
Sweet of the Constabulary, in compliance with orders from General
Crame, and assisted by other Constabulary officers, and later by the
fiscals of the city of Manila, commenced an investigation of the events
of the night before. He first ordered that all the soldiers in Santa Lucia
Barracks, at that time numbering some one hundred and eighty, be
assembled on the parade grounds, and when this was done, the
soldiers were separated into their respective companies. Then Colonel
Sweet, speaking in English, with the assistance of Captain Silvino
Gallardo, who interpreted his remarks into Tagalog, made two brief
statements. The first was, in effect: "Those of you who for one reason
or another left the Barracks last night, may step forward." Responding
to this order, nearly one hundred moved to the front. Thereupon,
Colonel Sweet said to these: "For the good of the body to which you
belong, of your companions, and of yourselves, those who participated
in the riot last night may take another step forward." Seventy-three
soldiers then advanced a step. The names of four others who took part
but who were not present were taken down by Captain Gallardo.  pocket the twenty cartridges belonging to me and I must have lost
What occurred on the occasion above described can best be told in the
exact language of Colonel Sweet:jgc:chanrobles.com.ph
"After conferring or speaking among themselves, for probably two
minutes, I inferred or observed from their attitude that they were
waiting for a call to order. Accordingly, I called them to order and some
eighty-five took one step forward. After that I called them to attention;
I advised them that for the good of themselves and of their
companions who did not participate in the shooting of the night
before, for the good of the body and also of all parties interested,
those who took part in the shooting of the night before should take
another step forward. I spoke so rapidly that it is impossible for me to
morning approving the decision of those of them who took one step
forward. I believe that some seventy-two (72) took one step forward as
admitting that they took part in the shooting on the night before. I then
asked if they brought with them ammunition or arms not belonging to
them. They answered viva voce that each one of them carried their
own arms and ammunition. I asked them if there was any one who was
with them the night before but who was not present that morning;
whereupon, one or two soldiers mentioned the names of some who
were not then present. That is how the total number of those who left
and who were not in the Barracks reached seventy-seven (77)."cralaw
virtua1aw library
The statements of the seventy-seven soldiers were taken in writing
prepared by the fiscal of the city of Manila was the same for each
soldier, and was filled out either in English or Spanish. The questions
and answers were, however, when requested by the soldiers,
translated into their dialects. Each statement was signed by the soldier
making it in the presence of either two or three witnesses.  also were.
Although the answers to the questions contained in these statements
vary in phraseology, in substance they are the same. One of them, the
first in numerical order, that of sergeant Graciano L. Cabrera, taken in
Spanish and interpreted into Tagalog, may be selected as typical of the
rest, and is here literally transcribed:jgc:chanrobles.com.ph
"1. Give your name, age, status, occupation, and residence. — Graciano
L. Cabrera, 24 years of age, single, sergeant of the first company of the
General Service of the Constabulary, residing in Santa Lucia Barracks. 
"2. To what company of the Philippine Constabulary do you belong? —
First company, General Service of the Constabulary.  possession of my faculties until I reached calle Victoria; afterwards, I
"3. Where were you garrisoned yesterday afternoon, December 15,
1920? — In the Santa Lucia Barracks. 
"4. Did you leave the barracks at about 7 o’clock yesterday evening? —
Yes, sir.  precisely the number of cartridges I used; however, I placed in my
"5. For what reason, and where did you go? — We went in search of
the policemen and secret service men of Manila. It has been sometime
now since we have been having a standing grudge against the police of
Manila. The wife of one of our comrades was first arrested by the
policemen an then abused by the same; and not content with having
abused her, they arrested two soldiers of the Constabulary, falsely
accusing them of keeping women of bad reputation; after this incident,
came the shooting of Macasinag, a shooting not justified, because we
have come to know that Macasinag did nothing and the policemen
could have arrested him if they desired. Moreover, the rumor spread
among us that the police department of Manila had given orders to the
policemen to fire upon any constabulary soldier they found in the
streets, and we believe that the rumor was not without foundation
since we noticed that after the Macasinag affair, the policemen of
Manila, contrary to the usual practice, were armed with carbines or
shot-guns. For this reason we believed that if we did not put an end to
these abuses of the policemen and secret service men, they would
continue abusing the Constabulary. And as an act of vengeance we did
what we had done last night. 
"6. How did you come to join your companions who rioted last night?
— I saw that almost all the soldiers were jumping through the window
and I was to be left alone in the barracks and so I followed.
"7. Who asked you to join it? — Nobody. 
"8. Do you know private Crispin Macasinag, the one who was shot by
the Manila police the night before last on Calle Real? — Yes, sir, I know
him because he was our comrade. 
"9. Were you offended at the aggression made on the person of said
soldier? — Indeed, yes, not only was I offended, but my companions
 
"10. State how many shots you fired, if any, during the riot last night.
— I cannot tell precisely the number of shots I fired because I was
somewhat obfuscated; all I can assure you is that I fired more than
once. 
"11. Do you know if you hit any policeman or any other person? — If
so, state whether the victim was a policeman or a civilian. — I cannot
tell whether I hit any policeman or any civilian. 
"12. State the streets of the city where you fired shots. — I cannot give
an exact account of the streets where I fired my gun. I had full
became aware that I was bathed with perspiration only upon reaching
the barracks. 
"13. What arms were you carrying and how much ammunition or how
may cartridges did you use? — I carried a carbine; I cannot tell
some on the way. 
"14. How did you manage to leave the barracks? — By the window of
the quarters of the Fourth Company through the grating which I found
cut off. 
"15. Are the above statements made by you, voluntarily, freely, and
spontaneously given? — Yes, sir. 
CRIMINAL LAW FULL CASES
"16. Do you swear to said statements although no promise of immunity
is made to you? — Yes, sir; I confirm them, being true.  jointly and severally the heirs of each deceased in the sum of P500, and
"G. L. CABRERA.  signed the confessions under the impression that those who had taken
"Witnesses:jgc:chanrobles.com.ph
"S. GALLARDO.  murder case, and of the Hon. George R. Harvey who presided in the
"LAURO C. MAIQUEZ."cralaw virtua1aw library
The defendants were charged in one information filed in the Court of
First Instance of the city of Manila with the crime of sedition, and in
another information filed in the same court, with the crimes of murder
and serious physical injuries. The two cases were tried separately
before different judges of first instance. In the sedition case, which
came on for trial first, all of the accused, with the exception of eight,
namely, Francisco Ingles, Juan Noromor, P. E. Vallado, Dionisio
Verdadero, Francisco Garcia, Benigno Tagavilla, Felix Lamsing and
Paciano Cana pleaded guilty, but later, after the first witness for the
prosecution had testified, the accused who had pleaded guilty were
permitted, with the consent of the court, to substitute therefor the
plea of not guilty. In the murder case, all entered a plea of not guilty.
On petition of the defense, two assessors were chosen to sit with the
judge.  appellants. Two of the assignments of error merit little or no
The prosecution presented, in making out its case, the seventy-seven
confessions of the defendants introduced in evidence as Exhibits C to
C-76, inclusive, and all were identified by the respective constabulary
officers, interpreters, and typists who intervened in taking them. The
prosecution further relied on oral testimony, including eyewitness to
the homicides.  Garcia, Genaro Elayda, Hilario Hibalar, Primitivo E. Vallado, Maximo
The attorneys for the accused presented three defenses. The first
defense was that of jeopardy; the second was based on the contention
that the written statements Exhibits C to C-76 were not freely and
voluntarily made by the defendants; and the third defense, in favor of
the defendants Vicente Casimiro, Juan Noromor, Salvador Gregorio,
Paciano Cana, Juan Abarquez, Mariano Garcia, Felix Liron, Bonifacio
Eugnio, Patricio Bello, Baldomero Rodriguez, Roberto Palabay, Roque
Ebol, Ildefonso de la Cruz, Cipriano Lizardo, Franciso Garcia, Genaro
Elayda, Hilario Hibalar, Primitivo E. Vallado, Maximo Perlas, and
Benigno Tagavilla, was to the effect that they did not take part in the
riot. The court overruled the special defenses and found that the guilt
of the accused had been proved beyond a reasonable doubt.
Thereupon, the court rendered judgment finding all of the defendants
guilty of the crimes charged in the information and sentenced the
three sergeants Graciano L. Cabrera, Pascual Magno, and Bonifacio
Eugenio, and the eight corporals, E. E. Agbulos, Francisco Ingles,
Clemente Manigdeg, Juan Abarquez, Pedro V. Mateo, Juan Regalado,
Hilario Hibalar and Genaro Elayda, to cadena perpetua (life
imprisonment), and each of the remaining defendants to seventeen
years, four months and one day of cadena temporal, all with the 1. THE ADMISSION OF EXHIBITS C TO C-76
accessory penalties provided by the Penal Code and all to indemnify
Appellants claim that fraud and deceit marked the preparation of the
to pay a proportional part of the costs.  seventy-seven confessions. It is alleged that some of the defendants
For the statement of the cases and the facts which has just been made, part in the affray would be transferred to Mindanao, and that although
we are indebted in large measure to the conspicuously fair and they did not in fact so participate, affirmed that they did because of a
thoughtful decisions of the Hon. Carlos Imperial who presided in the desire to leave Manila; that others stepped forward "for the good of
the service" in response to appeals from Colonel Sweet and other
sedition case. As stipulated by the Attorney-General and counsel for officers; while still others simply didn’t understand what they were
the defendants, the proof is substantially the same in both cases.  doing, for the remarks of Colonel Sweet were made in English and only
translated into Tagalog, and their declarations were sometimes taken
In all material respects, we agree with the findings of fact as made by in a language which was unintelligible to them. Counsel for the accused
the trial court in this case. The rule is again applied that the Supreme entered timely objection to the admission in evidence of Exhibits C to
Court will not interfere with the judgment of the trial court in passing C-76, and the Attorney-General is wrong in stating otherwise. 
upon the credibility of the opposing witnesses, unless there appears in
the record some fact or circumstance of weight and influence which Section 4 of Act No. 619 entitled "An Act to promote good order and
has been overlooked or the significance of which has been discipline in the Philippines Constabulary" and reading: "No confession
misinterpreted. (U. S. v. Ambrosio and Falsario [1910], 17 Phil., 295; of any person charged with crime shall be received as evidence against
U.S. v. Remigio [1918], 37 Phil., 599.) In the record of the case at bar, him by any court of justice unless it be first shown to the satisfaction of
no such fact or circumstance appears.  the court that it was freely and voluntarily made and not the result of
violence, intimidation, threat, menace, or of promises or offers of
OPINION reward or leniency," was repealed by the first Administrative Code. But
the same rule of jurisprudence continues without the law. As has been
An assignment of six errors is made by counsel for the defendants and repeatedly announced by this and other courts, "the true test of
admissibility is that the confession is made freely, voluntarily, and
consideration. Assignments of error 5 and 6 (finding their counterpart without compulsion or inducement of any sort." If the confession is
in assignment of error No. 2 in the sedition case), in which it is freely and voluntarily made, it constitutes one of the most effectual
attempted to establish that Vicente Casimiro, Juan Noromor, Salvador proofs in the law against the party making it. (Wilson v. U.S. [1895],
Gregorio, Paciano Cana, Juan Abarquez, Mariano Garcia, Felix Liron, 162 U.S., 613.) The burden of proof that the confession was not
Bonifacio Eugenio, Patricio Bello, Baldomero Rodriguez, Roberto voluntarily made or was obtained by undue pressure is on the accused.
Palabay, Roque Ebol, Ildefonso de la Cruz, Cipriano Lizardo, Francisco (U.S. v. Zara [1921], 42 Phil., 308.) 
Perlas and Benigno Tagavilla did not leave the Santa Lucia Barracks on What actually occurred when the confessions were prepared is clearly
the night of the tragedy, is predicated on the special defense raise in explained in the record. The source of the rumor that the defendants
the lower court for these defendants and which was found untenable would be transferred to Mindanao if they signed the confessions, is not
by the trial court. Any further discussion of this question falls more established. On the contrary it is established that before the
appropriately under our consideration of assignment of error No. 3, declaration were taken. Lieutenant Gatuslao in response to a query
relating to the conspiracy between the accused.  had shown the improbability of such a transfer. With Military orders
given in English and living in the city of Manila where the dialect is
Assignment of error No. 4 relating to the judge deciding the case Tagalog, all of the defendants must have understood the substantial
without taking into consideration the transcript of the stenographic part of Colonel Sweet’s remarks. What is more important, there could
notes in the case for sedition does not constitute reversible error. be no misunderstanding as to the contents of the confessions as
Counsel for the defendants is the first to admit by stipulation that the written down. In open court, sixty-nine of the defendants reiterated
facts in the two cases are substantially the same.  their guilt. The officers who assisted in the investigation were of the
same service as the defendants and would naturally not be inclined to
The three pertinent issues in this case relate to: (1) The admission of prejudice the rights of their own men. 
Exhibits C to C-76 of the prosecution (assignment of error No. 2,
murder case; assignment of error No. 1, sedition case); (2) the It must also be remembered that each and every one of the defendants
conspiracy between the accused (assignment of error No. 3, murder was a member of the Insular police force. Because of the very nature of
case; assignment of error No. 4, sedition case); and (3) the defense of their duties and because of their practical experience, these
double jeopardy (assignment of error No. 1, murder case).  Constabulary soldiers must have been aware of the penalties meted
out for criminal offenses. Every man on such a momentous occasion
CRIMINAL LAW FULL CASES

would be more careful of his actions than ordinarily and whatever of alone are the men who fired the fatal shots responsible, not alone are 442), it was held that the prosecution for homicide of a person
credulity there is in him, would for the moment be laid aside. Over and the men who admit firing their carbines responsible, but all, having previously convicted of an assault and battery from which the death
above all desire for a more exciting life, over and above the so-called united to further a common design of hate and vengeance, are afterwards ensued does not place the accused twice in jeopardy for the
esprit de corps, is the instinct of self-preservation which could not but responsible for the legal consequences therefor.  same offense. The court said that "The homicide charged against the
be fully aroused by such stirring incidents too recent to be forgotten as accused in the Court of First Instance and the assault and battery for
had occurred in this case, and which would counsel prudence rather We rule that the trial court did not err in declaring that there was a which he was tried before the justice of the peace, although identical in
than rashness; secretiveness rather than garrulity.  conspiracy between the accused.  some of their elements, were distinct offenses both in law and in fact.
The death of the injured person was the principal element of the
These confessions contain the statements that they were made freely 3. THE DEFENSE OF DOUBLE JEOPARDY homicide, but was no part of the assault and battery."cralaw virtua1aw
and voluntarily without any promise of immunity. That such was the library
case was corroborated by the attesting witnesses whose credibility has The constitutional inhibition in the Philippine Bill of Rights is "that no
not been successfully impeached.  person for the same offense shall twice be put in jeopardy of Appellants rely principally on the decision of this Court in the case of
punishment." Somewhat in amplification thereof, the Code of Criminal United States v. Gustilo ([1911], 19 Phil., 208.) It was there only held
We rule that the trial court did not err in admitting Exhibits C to C-76 of Procedure provides that "When a defendant shall have been convicted that the possession of a shotgun and a revolver by the same person at
the prosecution.  or acquitted or once placed in jeopardy upon an information or the same time and in the same place, is but one act of possession, one
complaint, the conviction, acquittal or jeopardy shall be a bar to violation of the law, and that a conviction and punishment for the
2. THE CONSPIRACY BETWEEN THE ACCUSED another information or indictment for the offense charged, or for an possession of the one arm is a bar to a prosecution for the possession
attempt to commit the same, or for a frustration thereof, or for any of the other. (Compare with U.S. v. Capurro and Weems [1906], 7 Phil.,
The contention of the appellants is that evidence is lacking of any offense necessarily therein included of which he might have been 24, and other Philippine cases.) 
supposed connivance between the accused. Counsel emphasizes that convicted under such complaint or information." (Sec. 26.) The
in answer to the question in the confession, "Who asked you to join in guaranty in Philippine organic and statutory law relating to double The nearest analogy to the two crimes of murder and sedition growing
the riot?," each of the accused answered, "Nobody." The argument is jeopardy has received controlling interpretation both by the Supreme out of practically the same facts, which can be found in the American
then advanced that the appellants cannot be held criminally Court of the Philippines and the Supreme Court of the United States.  authorities, relate to the crimes of assault and riot or unlawful
responsible because of the so-called psychology of crowds theory. In assembly. A majority of the American courts have held that the offense
other words, it is claimed that at the time of the commission of the The prohibition is against a second jeopardy for the same offense. To of unlawful assembly and riot and the offense of assault and battery
crime the accused were mere automatons obeying the insistent call of entitle a defendant to plead successfully former jeopardy, the offense are distinct offenses; and that a conviction or an acquittal for either
their companions and of their uniform. From both the negative failure charged in the two prosecutions must be the same in law and in fact. does not bar a prosecution for the other offense, even though based
of evidence and the positive evidence, counsel would deduce the The test is not whether the defendant has already been tried for the on the same acts. (Freeland v. People [1588], 16 Ill., 380; U.S. v. Peaco
absence of conspiracy between the accused.  same act, but whether he has been put in jeopardy for the same [1835], 27 Fed. Cas., 477; People v. Vazquez [1905], 9 Porto Rico, 488;
offense. The same acts may violate two or more provisions of the contra, State v. Lindsay [1868], 61 N. C., 458.) 
It is primary rule that if two or more persons combine to perform a criminal law. When they do, a prosecution under one will not bar a
criminal act, each is responsible for all the acts of the others done in prosecution under another.  It is merely stating the obvious to say that sedition is not the same
furtherance of the common design; and "the result is the same if the offense as murder. Sedition is a crime against public order; murder is a
act is divided into parts and each person proceeds with this part In corroboration and in exemplification of the rules pertaining to the crime against persons. Sedition is a crime directed against the
unaided." (U.S. v. Maza [1905], 5 Phil., 346; U.S. vs Remigio [1918], 37 subject of double jeopardy, we have only to turn to leading decisions of existence of the State, the Authority of the government, and the
Phil., 599; decision of the supreme court of Spain of September 29, the United States Supreme Court on Philippine appeals. In Flemister v. general public tranquillity; murder is a crime directed against the lives
1833; People v. Mather [1830], 4 Wendell, 229.)  United States [1907], 207 U.S., 372), 1 it was held that treating as two of individuals. (U.S. v. Abad [1902], Phil., 437.) Sedition in its more
different offenses assaults on two different individuals does not place general sense is the raising of commotions or disturbances in the state;
Conspiracies are generally proved by a number of indefinite acts, the accused twice in jeopardy for the same offense, even if these murder at common law is where a person of sound mind and discretion
conditions, and circumstances which vary according to the purposes to assaults occurred very near each other in one continuing attempt to unlawfully kills any human being , in the peace of the sovereign, with
be accomplished. If it be proved that the defendants pursued by their defy the law. In Garcia Gavieres v. United States ([1911], 220 U.S., 338), malice aforethought, express or implied. 
acts the same object, one performing one part and another part of the 2 it was held that the offenses of behaving in an indecent manner in a
same, so as to complete it, with a view to the attainment of that same public place, open to public view, punishable under municipal The offenses charged in the two informations for sedition and murder
object, one will be justified in the conclusion that they were engaged in ordinance and of insulting a public officer by deed or word in his are perfectly distinct in point of law however nearly they may be
a conspiracy to effect that object. (5 R. C. L., 1088.) Applied to the facts presence, contrary to the Penal Code, are not identical, so that a connected in point of fact. Not alone are the offenses eo nomine
before us, it is incontestable that all of the defendants were imbued conviction of the first will bar a prosecution for the other, although the different, but the allegations in the body of the informations are
with the same purpose, which was to avenge themselves on the police acts and words of the accused set forth in both charges are the same. different. The gist of the information for sedition is the public and
force of the city of Manila. A common feeling of resentment animated The court said that "It is true that the acts and words of the accused set tumultuous uprising of the constabulary in order to attain by force and
all. A common plan evolved from their military training was followed.  forth in both charges are the same; but in the second case it was outside of legal methods the object of inflicting an act of hate and
charged, as was essential to conviction, that the misbehavior in deed revenge upon the persons of the police force of the city of Manila by
The effort to lead the court into the realm of psychology and and words was addressed to a public official. In this view we are of firing at them in several places in the city of Manila; the gist of the
metaphysics is unavailing in the face of actualities. The existence of a opinion that while the transaction charged is the same in each case, information in the murder case is that the Constabulary, conspiring
joint assent may be reasonably inferred from the facts proved. Not the offenses are different." In Diaz v. United States ([1912, 223 U.S., together illegally and criminally killed eight persons and gravely
CRIMINAL LAW FULL CASES
wounded three others. The crimes of murder and serious physical
injuries were not necessarily included in the information for sedition;
and the defendants could not have been convicted of these crimes
under the first information.  revenge themselves on the city police. One of them while marching
The evidence required to convict under the first information would not
have been sufficient to convict under the second. Proof of an additional
and essential fact; namely the death of one or more human beings,
was necessary to constitute the offense charged in the second
information. The defendants may have been tried for the same act or
acts; they have not been put in jeopardy for the same offense.  that advantage was taken of superior strength, but, resolving the doubt
We rule that the trial court did not err in not allowing the defense of
double jeopardy.  as taken of the shades of night in order to better serve the unlawful
JUDGMENT
The persistent efforts of counsel to protect the interests of his clients
cannot be permitted to becloud the prominent facts of the record. This
is as clear a case of cold-blooded murder as ever came to our attention.
The judicial archives of the Supreme Court of the Philippine Islands, for
the full extent of its existence extending over more than two decades,
can be searched in vain for another case which compares with the
instant one either in certainty as to guilt or in an unwavering necessity
for a severe sentence. Not the learned briefs of the counsel for the
accused and for the people, not the eloquent pleas on the one hand for
mercy and on the other for conviction, not the application of various
legal authorities, not even the voluminous transcript of the oral
testimony, either separately or all combined, constitute the sole
elements which irresistibly move us toward a stern judgment, but the
most eloquent pleader for justice to the dead and safety for the living
come from the silent photographs of the dead introduced in evidence
under the prosaic denomination of Exhibits J, K, L, LL, M, N, N, and O.
The bloody spot on the execution of an otherwise great organization
must be removed.  officers and their more responsible positions, we feel that this is proper
It is a disagreeable duty, therefore, which the members of this court
are called upon to perform. But that it is disagreeable should not of
course swerve us from its performance. Were cases of this nature
allowed to pass without condemnation, the lives of mankind would
constantly be imperilled and there would be no security in the State,
for its peace and tranquillity would be upset and the authority of the
Government would be put at naught by the very agents of law and
order who have sworn to protect it. The courts were instituted
precisely to function in times of peril to the State, to protect the rights
of the people, and to mete out punishment of those who have
rendered it unsafe for individuals to live at peace with their
fellowmen.  Quezon province finding them guilty of the complex crime of rebellion
With the determination of the trial court as to the circumstances which
fix the degree of the penalty, we are, generally speaking, in accord. The
circumstance of evident premeditation was found to exist, thus
qualifying the crime as that of murder. All the actions of the accused
demonstrate that their purpose was to kill any members of the city
police whom they should meet. A considerable number of the accused
in their confessions gave as the reason for the affray the desire to
through the streets was heard to exclaim "They killed one of us; we will
kill ten (policemen) for one." Another was heard to exclaim, "Al
cuartel!" and this was repeated by his companions, "Al cuartel!"  Felix Lamsing, Victorino Merto, Timoteo Opermaria, Bernabe Sison,
The trial judge found present as circumstances which aggravate
criminal liability, that the crime was committed in the nighttime and
in favor of the accused, was unable to find that the act was committed
with treachery. We concur with His Honor, Judge Imperial. Advantage
purpose. Seventy-seven armed Constabulary soldiers in military
formation were vastly superior in number and equipment to the
policemen whom they happened to meet.  Clemente Manigdeg, Juan Abarquez, Pedro V. Mateo, Juan Regalado,
The trial judge found present no circumstance which would mitigate
the criminal liability of the sergeants and corporals, but did estimate as
a mitigating circumstance, in the cases of the privates, that provided by
article 11 of the Penal Code, as amended, relating to the degree of
instruction and education of the offenders. Certain members of the
Court entertain an identical opinion, while other members take a
contrary view. However, the result will be the same, since there is not
a unanimous vote with regard to the propriety of the imposition of the
deaths penalty on the private soldiers.  November 29, 1954
Both the trial judge in the sedition case and the trial judge in the
murder case found a difference between the situation of the non-
commissioned officers and of the common soldiers. The opinion was
expressed by the two judges that the sergeants and corporals among
the defendants deserved a larger measure of punishment than the
privates. Considering the greater experience of he non-commissioned
appreciation of the facts. 
The trial judge found the crimes as falling within the provisions of
article 89 of the Penal Code. Certain members of the court agree.
Other members disagree and would make use of the provisions of
articles 87 and 88 of the Code. At least such doubt as exists should be
resolved in favor of the accused, and this means that, in conformity
with the provisions of article 87, they are guilty of the crimes of
multiple murder with grave injuries. The penalty is then death for the
eleven sergeants and corporals, and cadena perpetua, imprisonment
for a maximum period of forty years, for the sixty-six private soldiers.
(See U.S. v. Balaba [1917], 37 Phil., 260.)  directly to this Tribunal from a decision of the Court of First Instance of
The result is to modify the judgment appealed from by sentencing each
of the Constabulary soldiers Patricio Rubio, Mariano Aragon, Silvino
Ayangco, Guillermo Inis, Julian Andaya, Crispin Mesaluche, Prudencio
Tasis, Silvino Bacani, Salvador Gregorio, Juan Noromor, Petronilo
Antonio, Patricio Bello, Nemesio Decena, Baldomer Rodriguez, P. E.
Vallado, Pedro Layola, Felix Cenon (Liron), Dionisio Verdadero,
Francisco Garcia, Domingo Peroche, Florentino Jacob, Lorenzo Tumboc,
Paciano Cana, Domingo Canape, Arcadio San Pedro, Daniel Coralde,
Vicente Casimiro, Casiano Guinto, Nemesion Gamus, Luis Borja,
Severino Elefane, Vicente Tabien, Victor Atuel, Venancio Mira, Benigno
Tagavilla, Masaway, Marcos Marquez, Quinto Desierto, Teofilo Llana,
Eusebio Cerrudo, Julian Acantilado, Maximo Perlas, Ignacio Lechoncito,
Pascual Dionio, Marcial Pelicia, Rafael Nefrada, Cornelio Ilizaga,
Zacarias Baile, Roberto Palabay, Roque Ebol, Benito Garcia, Cipriano
Lizardo, Ildefonso de la Cruz, Juan Miranda, Honorio Bautista, Crisanto
Salgo, Francisco Luzano, Marcelino Silos, Graciano Zapata, Felizardo
Favinal, Nicanor Perlas, and Gaspar Andrada, to suffer cadena
perpetua, computed as imprisonment for forty years, and by
sentencing each of the sergeants and corporals Graciano L. Cabrera,
Pascual Magno, Bonifacio Eugenio, E. E. Agbulos, Francisco Ingles,
Hilario Hibalar, and Genaro Elayda, to suffer the death penalty as
provided by law at Bilibid Prison, at such time as shall be fixed by the
Judge of First Instance sitting in Sala No. 4 in the city of Manila, and as
thus modified, judgment is affirmed with a proportional part of the
costs of this instance against each appellant. So ordered. 
G.R. No. L-5803
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
NARCISO UMALI, ET AL., defendants.
NARCISO UMALI, EPIFANIO PASUMBAL and ISIDRO
CAPINO, defendants-appellants.
Jose P. Laurel, Cipriano Primicias, Alejo Mabanag, Manuel Concordia,
P.M. Stuart Del Rosario, Tomas R. Umali, Eufemio E. De Mesa and
Edmundo T. Zepeda for appellants.
Solicitor General Juan R. Liwag and Solicitor Martiniano P. Vivo for
appellee.
MONTEMAYOR, J.:
Narciso Umali, Epifanio Pasumbal, and Isidro Capino are appealing
with multiple murder, frustrated murder, arson and robbery, and
sentencing each of them to "life imprisonment, other accessories of
the law, to indemnify jointly and severally Marcial Punsalan in the
amount of P24,023; Valentin Robles in the amount of P10,000; Yao
Cabon in the amount of P700; Claro Robles in the amount of P12,800;
Pocho Guan in the amount of P600; the heirs of Domingo Pisigan in the
CRIMINAL LAW FULL CASES
amount of P6,000; the heirs of Locadio Untalan in the amount of
P6,000; Patrolman Pedro Lacorte in the amount of P500; Lazaro Ortega
in the amount of P300; Hilarion Aselo in the amount of P300; Calixto
Rivano in the amount P50; Melecio Garcia in the amount of P60; and
Juanito Lector in the amount of P90, each to pay one fifteenth of the
costs, without subsidiary imprisonment in case of insolvency due to the
nature of the principal penalty that is imposed upon them."
The complex crime of which appellants were found guilty was said to
have been committed during the raid staged in the town of Tiaong,
Quezon, between 8:00 and 9:00 in the evening of November 14, 1951,
by armed men. It is not denied that such a raid took place resulting in
the burning down and complete destruction of the house of Mayor
Marcial Punzalan including its content valued at P24,023; the house of
Valentin Robles valued at P10,000, and the house of one Mortega, the
death of Patrolman Domingo Pisigan and civilians Vicente Soriano and
Leocadio Untalan, and the wounding of Patrolman Pedro Lacorte and
five civilians; that during and after the burning of the houses, some of
the raiders engaged in looting, robbing one house and two Chinese
stories; and that the raiders were finally dispersed and driven from the
town by the Philippine Army soldiers stationed in the town led by
Captain Alzate.
To understand the reason for and object of the raid we have to go into
the political situation in Tiaong not only shortly before that raid but
one year or two years before it. Narciso Umali and Marcial Punzalan
were old time friends and belonged to the same political faction. In the
general elections of 1947 Umali campaigned for Punzalan who later
was elected Mayor of Tiaong. In the elections of 1949 Punzalan in his
turn campaigned and worked for Narciso Umali resulting in the latter's
election as Congressman. However, these friendly relations between
the two did not endure. In the words of Punzalan, Narciso Umali who
as Congressman regarded himself as the political head and leader in
that region including Tiaong, became jealous because of his
(Punzalan's) fast growing popularity among the people of Tiaong who
looked to him instead of Umali for political guidance, leadership, and
favors. In time the strain in their relations became such that they
ceased to have any dealings with each other and they even filed
mutual accusations. According to Punzalan, in May 1950, Umali
induced about twenty-six special policemen of his (Punzalan's) to flee
to the mountains with their arms and join the Huks, this is in order to
discredit Punzalan's administration; that he was later able to contact
two of his twenty-six policemen and tried to persuade them to return
to the town and to the service, but they told him that they and their
companions would not surrender except and with through the
intervention of Congressman Umali, and so Punzalan had to seek
Umali's intervention which resulted in the surrender of the 26 men
with their firearms; that thereafter Umali wanted to have their
firearms, claiming that they all belonged to him from his guerrilla days
when he was a colonel, and that after liberation he had merely loaned
them to the municipal authorities of Tiaong to help keep peace and
order; and that the refusal of Punzalan to grant Umali's request further
strained their relations, and thereafter Umali would not speak to him
even when they happened to meet at parties.
On September 19, 1951, the Chief of Police of Punzalan disarmed four
of Umali's men, including his bodyguard Isidro Capino who were then
charged with illegal possession of firearms. Umali interceded for his
men and Col. Gelveson, Provincial Commander, sent a telegram stating
that the firearms taken away from the men were licensed. As a result
the complaint was dismissed. This incident was naturally resented by
Umali and spurred him to have a showdown with Punzalan.
Then the elections of 1951 (November 13) approached and Punzalan
ran for reelection. To oppose him, and to clip his political wings and
definitely blast his ambition for continued power and influence in
Tiaong, Umali picked Epifanio Pasumbal, his trusted leader.
The pre-election campaign and fight waged by both factions —
Punzalan and Pasumbal, was intense and bitter, even ruthless. The
election was to be a test of political strength and would determine who
was who in Tiaong, — Umali or Punzalan. Umali spoke at political
meetings, extolling the virtues of Pasumbal and the benefits and
advantages that would accrue to the town if he was elected, at the
same time bitterly attacking Punzalan, accusing him of dishonesty,
corruption in office, abuse of power, etc. At one of those meetings he
told the audience not to vote for Punzalan because he would not be
elected and that even if he won the election, he would not sit for blood
will flow, and that he (Umali) had already prepared a golden coffin for
him (Punzalan). After denying the charges, in retort, Punzalan would
say that Umali as a Congressman was useless, and that he did not even
attend the sessions and that his chair in Congress had gathered dust,
even cobwebs.
To help in the Umali-Pasumbal campaign, Amado Mendoza who later
was to play the role of star witness for the prosecution, was drafted.
He was a compadre of Pasumbal and had some experience in political
campaigns, and although he was not exactly a model citizen, being
sometimes given to drunkenness, still, he had the gift of speech and
persuasion. In various political meetings he delivered speeches for
Pasumbal. He was ever at the back and call of Umali and Pasumbal, and
naturally he frequented the latter's houses or headquarters. The result
of the elections plainly showed that Punzalan was the political master
and leader in Tiaong. He beat Pasumbal by an overwhelming majority
of 2,221 votes. Naturally, Umali and Pasumbal were keenly
disappointed, and according to the evidence, adopted measures
calculated to frustrate Punzalan's victory, even as prophesied by Umali
himself in one of his pre-election speeches about blood flowing and
gold coffin.
Going back to the raid staged in Tiaong on November 14, 1951, it is
well to make a short narration of the happenings shortly before it,
established by the evidence, so as to ascertain and be informed of the
reason or purpose of said raid, the persons, behind it, and those who
took part in it. According to the testimony of Amado Mendoza, in the
morning of November 12th, that is, on the eve of the election, at the
house of Pasumbal's father, then being used as his electoral
headquarters, he heard Umali instruct Pasumbal to contact the Huks
through Commander Abeng so that Punzalan will be killed, Pasumbal
complying with the order of his Chief (Umali) went to the mountains
which were quite near the town and held a conference with
Commander Abeng. It would seem that Umali and Pasumbal had a
feeling that Punzalan was going to win in the elections the next day,
and that his death was the surest way to eliminate him from the
electoral fight.
The conference between Pasumbal and Commander Abeng on
November 12th was witnessed and testified to by Nazario Anonuevo, a
Huk who was under Commander Abeng, and who later took an active
part in the raid. In the evening of the same day, Mendoza heard
Pasumbal report to Umali about his conference with Commander
Abeng, saying that the latter was agreeable to the proposition and had
even outlined the manner of attack, that the Huks would enter the
town (Tiaong) under Commander Lucio and Aladin, the latter to lead
the sector towards the East; but that Commander Abeng had
suggested that the raid be postponed because Pasumbal may yet win
the election the following day, thereby rendering unnecessary the raid
and the killing of Punzalan.
Continuing with the testimony of Amado Mendoza, he told the court
that as per instructions of Umali he went to the house of the latter, in
the evening of November 14th, the day following the election, with the
result of the election already known, namely, the decisive victory of
Punzalan over Pasumbal. He was told by Umali to come with him, and
Pasumbal and the three boarded a jeep with Pasumbal at the wheel.
They drove toward the Tiaong Elementary School and once there he
(Mendoza) was left at the school premises with instructions by Umali
to wait for Commander Abeng and the Huks and point to them the
house of Punzalan. After waiting for sometime, Abeng and his troops
numbering about fifty, armed with garands and carbines, arrived and
after explaining his identity and his mission to Abeng, he had led the
dissidents or part of the contingent in the direction of Punzalan's house
and on arriving in front of the bodega of Robles, he pointed out
Punzalan's house and then walked toward his home, leaving the Huks
who proceeded to lie flat in a canal. Before reaching his house, he
already heard shots, so, he evacuated his family to their dugout in his
yard. While doing so he and his wife Catalina Tinapunan saw armed
men in the lanzones grove just across the street from their house,
belonging to the father of Umali, and among those men they saw
Congressman Umali holding a revolver, in the company of Huk
Commander Torio and about 20 armed men. Afterwards they saw
Umali and his companions leave in the direction of Taguan, by way of
the railroad tracks.
CRIMINAL LAW FULL CASES
It would appear from the evidence that the raid was well-planned. As a
diversionary measure, part of the attacking force was deployed toward
the camp or station of the Army (part of 8th B.C.T.) in the suburbs and
the camp was fired upon, not exactly to destroy or drive out that Army
unit but to keep it from going to the rescue and aid of the main
objective of the raid. The rest of the raiding party went toward
Punzalan's house and attacked it with automatic weapons, hand
grenades, and even with bottles filled with gasoline (popularly known
as Molotov's cocktail). It was evident that the purpose of the attack on
Punzalan's house was to kill him. Fortunately, however, and apparently
unknown to the attackers and those who designed the raid, at six
o'clock that morning of November 14th Punzalan and his Chief of
Police had left Tiaong to go to Lucena, the capital, to report the results
of the election to the Governor.
The attack on the house of Punzalan was witnessed and described by
several persons, including policemen who happened to be near the
house. Policeman Tomas Maguare who was in front of the house saw
Epifanio Pasumbal, Isidro Umali (brother of Congressman Umali) and
Moises Escueta enter the gate of Punzalan's house and take part in the
firing. Policeman Pedro Lacorte who was stationed as guard at the gate
of Mayor Punzalan's house recognized defendant Isidro Capino as one
of those firing at the house. Lacorte said that he was guarding the
house of Punzalan when he suddenly heard shots coming from the
sides of the house and going over to the place to investigate, he saw
armed men in fatigue and shouting "burn the house of Mayor
Punzalan"; that he was hit on the left check and later Isidro Capino
threw at him a hand grenade and he was hit in the right forearm and in
the right eye and became permanently blind in said eye. Mateo Galit,
laundryman who was sitting inside a jeep parked in front of the house
of Punzalan recognized defendant Pasumbal as one of the attackers
who, once in the yard said ina loud voice as though addressing
somebody in the house "Pare, come down." Mrs. Punzalan who was
then inside the house related to the court that at about eight in the
evening while she was resting she heard shots and rapid firing. As a
precaution she took her children to the bathroom. Then she noticed
that her house was being fired at because the glass window panes
were being shattered and she heard the explosion of a hand grenade
inside the house, followed by flares in the sala and burning of blankets
and mosquito nets in the bedrooms and she noticed the smell of
smoke of gasoline. Realizing the great danger, she and the children ran
out of the house and went to hide in the house of a neighbor.
Nazario Añonuevo declared in court that he was a farmer and was
picked up and seized by Huk Commander Tommy sometime in August
1951, and was taken to Mt. Banahaw in Laguna and mustered in the
ranks of the Huks; that just before the elections of November 13, 1951,
he saw Pasumbal come to the mountains near Tiaong and talk to
Commander Abeng; that on November 14th by order of Commander
Abeng he with other Huks left Mt. Banahaw for Tiaong; that when they
crossed the Osiw River already near Tiaong, they were met by
Pasumbal and Capino; that when they were at the outskirts of the
town, he and the party were told by Commander Tommy to attack the
8th BCT camp in Tiaong to prevent the sending of army help to the
town proper; that he took part in firing on the camp which returned
the fire in the course of which he was wounded; and that because of
his wound he could not escape with his companions to the mountains
when the Army soldiers dispersed and drove them out of the town and
so he was finally captured by said soldiers.
As to defendants Pasumbal and Capino, their participation in and
responsibility for the raid was duly established not only by the going of
Pasumbal on November 12th to the mountains following instructions
of Umali, and conferring with Commander Abeng asking him to raid
Tiaong and kill Punzalan, but also by the fact that Pasumbal and Capino
in the afternoon or evening of November 14th met the Huks at the
Osiw River as the dissidents were on their way to Tiaong and later
Pasumbal and Capino were seen in the yard of Punzalan firing at the
house with automatic weapons and hand grenades.
What about Umali? His criminal responsibility was also established, tho
indirectly. We have the testimony of Amado Mendoza who heard him
instructing Pasumbal to contact Commander Abeng and ask him to raid
Tiaong and kill Punzalan. The rest of the evidence is more or less
circumstantial, but nonetheless strong and convincing. No one saw him
take part in the firing and attack on the house of Punzalan; nor was he
seen near or around said house. Because of his important position as
Congressman, perchance he did not wish to figure too prominently in
the actual raid. Besides, he would seem to have already given out all
the instructions necessary and he could well stay in the background.
However, during the raid, not very far from Punzalan's house he was
seen in the lanzonesan of his father, holding a revolver and in the
company of about 20 armed men with Huk Commander Torio,
evidently observing and waiting for developments. Then he and his
companions left in the direction of Taguan.
Umali and Pasumbal, however, claim that during the raid, they were in
the home of Pasumbal in Taguan, about seven kilometers away from
Tiaong where a consolation party was being held. There is ample
evidence however to the effect that they arrived in Pasumbal's home
only around midnight. An Army soldier named Cabalona who
happened to be in Pasumbal's home arriving there earlier in the
evening and who was invited to take some refreshments said that he
did not see the two men until they arrived about midnight when the
Army reinforcements from Lucena passed by on their way to Tiaong.
Thus, we have this chain of circumstances that does not speak in favor
of Umali, or Pasumbal for that matter. But this is not all. There is the
rather strange and unexplained, at least not satisfactorily, behaviour of
Umali and Pasumbal that evening of November 14th. Assuming for a
moment as they claim, that the two were not in Tiaong at the
commencement of the raid between 8:00 and 9:00 p.m., and during
the whole time the raid lasted, and that they were all that time in the
home of Pasumbal in Taguan, still, according to their own evidence,
they were informed by persons coming or fleeing from Tiaong that
there was a raid going on there, and that some houses were burning.
As a matter of fact, considering the promixity of Taguan to Tiaong, a
distance of about seven kilometers and the stillness and darkness of
the night, the fire and the glow produced by the burning of three
houses and the noise produced by the firing of automatic weapons and
the explosion of the hand grenades and bottles of gasoline, could and
must have been seen and heard from Taguan. The natural and logical
reaction on the part of Umali and Pasumbal would have been to rush
to Tiaong, see what had really happened and then render help and give
succor to the stricken residents, including their own relatives. It will be
remembered that the houses of the fathers of Umali and Pasumbal
were in Tiaong and their parents and relatives were residing there. And
yet, instead of following a natural impulse and urge to go to Tiaong,
they fled in the opposite direction towards Candelaria. And Umali
instead of taking the road, purposely avoided the same and preferred
to hike through coconut groves so that upon arriving in Candelaria, he
was wet, and spattered and very tired. Had they wanted to render any
help to Tiaong they could have asked the police authorities of
Candelaria to send a rescue party to that town. Or better still, when the
army reinforcements from Lucena sent at the instance of Punzalan,
who at about eight or nine that evening was returning to Tiaong from
Lucena, found at the barrio or sitio of Lusakan near Tiaong that there
was fighting in the town, he immediately returned to Lucena to get
army reinforcements to relieve his town, was passing by Taguan, where
they were, Umali and Pasumbal could have joined said reinforcements
and gone to Tiaong. Instead the two continued on their way to the
capital (Lucena) where before dawn, they went and contacted
Provincial Fiscal Mayo, a first cousin of Umali, and Assistant Fiscal
Reyes and later had these two officials accompany them to the Army
camp to see Col. Gelveson, not for the purpose of asking for the
sending of aid or reinforcement to Tiaong but presumably to show to
the prosecution officials, specially the Army Commander that they
(Umali and Pasumbal) had nothing to do whatsoever with the raid.
Umali said he was trying to avoid and keep clear of Tiaong because he
might be suspected of having had some connection with the raid and
might be the object of reprisal. As a matter of fact, according to Umali
himself, while still in Taguan that evening and before he went to
Candelaria, somebody had informed him that Col. Legaspi of the Army
was looking for him. Instead of seeking Col. Legaspi and find out what
was wanted of him, he left in the opposite direction and fled to
Candelaria and later to Lucena, and the next day he took the train for
Manila. This strange act and behaviour of the two men, particularly
Umali, all contrary to impulse and natural reaction, and what other
people would ordinarily have done under the circumstances, prompted
the trial court in its decision to repeat the old saying "The guilty man
flees even if no one pursues, but the innocent stands bold as a lion."
We might just as well reproduce that portion of the decision of the trial
court, to wit:
. . . Considering the fact that Taguan is very near Tiaong so that even
taking it for granted as true, for the sake of argument, that the said
accused were really at the party of Pasumbal on the night in question,
that would not prevent them from being in Tiaong between 8 and 9.
CRIMINAL LAW FULL CASES
Besides, why was it that night the hasag lamp was replaced with
candles when the reinforcements passed through Taguan about
midnight of November 14, 1951. Why did Congressman Umali and
company instead of going to Tiaong which was the scene of the attack
hurried towards Candelaria, after the reinforcement has passed and
went to the house of Felix Ona walking through a muddy path under
the coconut groves? Why was Umali afraid to pass through the
provincial road and preferred a muddy road instead? Was he trying to
conceal himself? Why did Pasumbal and company also go to the house
of Ona? Why did they go to the house of Felix Ona instead of going to
the house of Manalo who could have given them better protection?
And again why did Congressman Umali and the other co-accused
repaired and sought the company of Fiscal Reyes in going at such an
early hour to the Army authorities, did they fear any reprisal? From
whom? Why did Umali go to Manila from Lucena on November 16,
1951? "The guilty man flees even if no one pursues, but the innocent
stands bold as a lion."
At first blush it would appear rather unbelievable that Umali and
Pasumbal, particularly the former should seek the aids of the Huks in
order to put down and eliminate their political enemy Punzalan. It
would seem rather strange and anomalous that a member of Congress
should have friendly relations with this dissidents whom the
Government had been fighting all these years. But if we study the
evidence, it will be found that the reason and the explanation are
there. As already stated, during the Japanese occupation, to further
the resistance movement, guerillas were organized in different parts of
the Philippines. One of these was the guerilla unit known as President
Quezon's Own Guerillas (PQOG) operating in the provinces of Tayabas
(now Quezon) and Laguna. Umali, Pasumbal, Commander Abeng and
even Punzalan himself were officers in this guerilla unit, Umali attaining
the rank of colonel, and Pasumbal and Punzalan that of Lieutenant-
colonel, Pasumbal then being known as "Panzer". After Liberation,
Abeng joined the dissidents, and became a Huk Commander. It was not
unnatural that Umali and Pasumbal should continue their friendship
and association with Commander Abeng and seek his aid when
convenient and necessary. Umali admitted that he knew Huk
Commander Kasilag. Graciano Ramos, one of the witnesses of the
prosecution told the court that way back in May 1950, in a barrio of
San Pablo City he saw Umali confer with Commander Kasilag, which
Commander after the conference told his soldiers including Ramos that
Umali wanted the Huks to raid Tiaong, burn the presidencia and kidnap
Punzalan. Of course, the last part of the testimony may be regarded as
hearsay, but the fact is that Umali conferred with a Huk commander as
early as 1950. Then we have the fact that on November 18 of the same
year Punzalan wrote to President Quirino denouncing the congressman
Umali for fraternizing with the Huks and conducting a campaign among
them in preparation for the elections the following year. And we may
also consider the fact that the town of Tiaong stands at the foothills of
Mt. Banahaw where the dissidents under Commander Abeng, Tommy,
Lucio, Aladin, and others had their hideout, so that it was not difficult
for residents of Tiaong like Umali and Pasumbal to communicate and
even associate with dissidents in that region.
After carefully considering all the evidence in the case, we are
constrained to agree with the trial court that the three appellants are
guilty. Besides, the determination of this case, in great measure, hinges
on the credibility of witnesses. The learned trial court which had the
opportunity of observing the demeanor of witnesses on the stand and
gauging their sincerity and evaluating their testimony, decided the
Government witnesses, including Amado Mendoza, to be more
credible and reliable. And we find nothing in the record to warrant
correction or reversal of the stand and finding of the trial court on the
matter. We have not overlooked the rather belated retraction of
Amado Mendoza made on October 31, 1952, about a year and 9
months after he testified in court. Considering the circumstances
surrounding the making of this affidavit or retraction, the late date at
which it was made, the reasons given by him for making it and the fact
that when he testified in court under the observation and scrutiny of
the trial court bearing in mind that he was the star witness for the
prosecution and his testimony naturally extremely important, and the
trial court after the opportunity given to it of observing his demeanor
while on the witness stand had regarded him as a witness, sincere, and
his testimony truthful, and considering further the case with which
affidavits of retraction of this nature are obtained, we confess that we
are not impressed with such retraction of Mendoza.
The last point to be determined is the nature of the offense of offenses
committed. Appellants were charged with and convicted of the
complex crime of rebellion with multiple murder, frustrated murder,
arson and robbery. Is there such a complex crime of rebellion with
multiple murder, etc? While the Solicitor General in his brief claims
that appellants are guilty of said complex crime and in support of his
stand "asks for leave to incorporate by reference" his previous
arguments in opposing Umali's petition for bail, counsel for appellants
considered it unnecessary to discuss the existence or non-existence of
such complex crime, saying that the nature of the crime committed "is
of no moment to herein appellants because they had absolutely no
part in it whatsoever". For that present, and with respect to this
particular case, we deem it unnecessary to decide this important and
controversial question, its consideration and determination to another
case or occasion more opportune, when it is more directly and
squarely raised and both parties given an opportunity to discuss and
argue the question more adequately and exhaustively. Considering
that, assuming for the moment that there is no such complex crime of
rebellion with murder, etc., and that consequently appellants could not
have been legally charged with, much less convicted of said complex
crime, and the information should therefore, be regarded as having
charged more than one offense, contrary to Rule 106, section 12 and
Rule 113, section 2 (e), of the Rules of Court, but that appellants having
interposed no objection thereto, they were properly tried for and
lawfully convicted if guilty of the several, separate crimes charged
therein, we have decided and we rule that the appellants may properly
be convicted of said several and separate crimes, as hereinafter
specified. We feel particularly supported and justified in this stand that
we take, by the result of the case, namely, that the prison sentence we
impose does not exceed, except perhaps in actual duration, that meted
out by the Court below, which is life imprisonment.
We are convinced that the principal and main, tho not necessarily the
most serious, crime committed here was not rebellion but rather that
of sedition. The purpose of the raid and the act of the raiders in rising
publicly and taking up arms was not exactly against the Government
and for the purpose of doing the things defined in Article 134 of the
Revised Penal code under rebellion. The raiders did not even attack the
Presidencia, the seat of local Government. Rather, the object was to
attain by means of force, intimidation, etc. one object, to wit, to inflict
an act of hate or revenge upon the person or property of a public
official, namely, Punzalan was then Mayor of Tiaong. Under Article 139
of the same Code this was sufficient to constitute sedition. As regards
the crime of robbery with which appellants were charged and of which
they were convicted, we are also of the opinion that it was not one of
the purposes of the raid, which was mainly to kidnap or kill Punzalan
and destroy his house. The robberies were actually committed by only
some of the raiders, presumably dissidents, as an afterthought,
because of the opportunity offered by the confusion and disorder
resulting from the shooting and the burning of the three houses, the
articles being intended presumably to replenish the supplies of the
dissidents in the mountains. For these robberies, only those who
actually took part therein are responsible, and not the three appellants
herein. With respect to the crime of multiple frustrated murder, while
the assault upon policeman Pedro Lacorte with a hand grenade causing
him injuries resulting in his blindness in one eye, may be regarded as
frustrated murder; the wounding of Ortega, Anselo, Rivano, Garcia and
Lector should be considered as mere physical injuries. The crimes
committed are, therefore, those of sedition, multiple murder, arson,
frustrated murder and physical injuries. The murders may not be
qualified by evident premeditation because the premedition was for
the killing of Punzalan. The result was the killing of three others
intended by the raiders (People vs. Guillen, 47 Off). The killing may,
however, be qualified by treachery, the raiders using firearms against
which the victims were defenseless, with the aggravating circumstance
of abuse of superior strength. The three murders may be punished
with the penalty of death. However, because of lack of the necessary
votes, the penalty should be life imprisonment.
We deem it unnecessary to discuss the other points raised by the
appellants in their brief.
In conclusion, we find appellants guilty of sedition, multiple murder,
arson, frustrated murder and physical injuries. For the crime of sedition
each of the appellants is sentenced to 5 years of prision
correctional and to pay a fine of P4,000; for each of the three murders,
each of the appellants is sentenced to life imprisonment and to
indemnify the heirs of each victim in the sum of P6,000; and for the
arson, for which we impose the maximum penalty provided in Article
321, paragraph 1, of the Revised Penal Code, for the reason that the
raiders in setting fire to the buildings, particularly the house of
CRIMINAL LAW FULL CASES
Punzalan they knew that it was then occupied by one or more persons,
because they even and actually saw an old lady, the mother of
Punzalan, at the window, and in view of the aggravating circumstances
of nighttime, each of the appellants is sentenced to reclusion
perpetua and to pay the indemnities mentioned in the decision of the
lower court. It shall be understood, however, the pursuant to the
provisions of Article 70 of the Revised Penal Code the duration of all
penalties shall not exceed 40 years. In view of the heavy penalties
already imposed and their long duration, we find it unnecessary to fix
and impose the prison sentences corresponding to frustrated murder
and physical injuries; however, the sums awarded the victims (Lacorte,
Ortega, Anselo, Rivano, Garcia and Lector), by the court below will
stand. With these modifications, the decision appealed from is hereby
affirmed, with costs.
January 27, 1948
G.R. No. L-1800
CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced
Minority Parties, petitioner,  the said ordinance to mean that it does not confer upon the Mayor the
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.
Ramon Diokno for petitioner.
City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for
respondent.
FERIA, J.:
This is an action of mandamus instituted by the petitoner, Cipriano
Primicias, a campaig manager of the Coalesced Minority Parties against
Valeraino Fugoso, as Mayor of the City of Manila, to compel the latter
to issue a permit for the holding of a public meeting at Plaza Miranda
on Sunday afternoon, November 16, 1947, for the purpose of
petitioning the government for redress to grievances on the groun that
the respondent refused to grant such permit. Due to urgency of the
case, this Court, after mature deliberation, issued a writ of mandamus,
as prayed for in the petition of November 15, 1947, without prejudice
to writing later an extended and reasoned decision.
The right of freedom of speech and to peacefully assemble and petition
the government for redress of grievances, are fundamental personal
rights of the people recognized and guaranteed by the Constitutions of
democratic countries. But it a casettled principle growing out of the
nature of well-ordered civil societies that the exercise of those rights is
not absolute for it may be so regulated that it shall not be injurious to
the equal enjoyment of others having equal rights, not injurious to the
rights of the community or society. The power to regulate the exercise
of such and other constitutional rights is termed the sovereign "police
power" which is the power to prescribe regulations, to promote the
health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the
government through its legislative branch by the enactment of laws
regulating those and other constitutional and civil rights, and it may be
delegated to political subdivisions, such as towns, municipalities, and
cities authorizing their legislative bodies, called municipal and city
councils to enact ordinances for the purpose.
The Philippine legislature has delegated the exercise of the police
power to the Municipal Board of the City of Manila, which according to
section 2439 of the Administrative Code is the legislative body of the
City. Section 2444 of the same Code grants the Municipal Board,
among others, the following legislative power, to wit: "(p)to provide for
the prohibition and suppression of riots, affrays, disturbances, and
disorderly assemblies, (u) to regulate the use of streets, avenues ...
parks, cemeteries and other public places" and "for the abatement of
nuances in the same," and "(ee) to enact all ordinances it may deem
necessary and proper for sanitation and safety, the furtherance of
prosperity and the promotion of morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants."
Under the above delegated power, the Municipal Board of the City of
Manila, enacted sections 844 and 1119. Section of the Revised
Ordinances of 1927 prohibits as an offense against public peace, and
section 1262 of the same Revised Ordinance penalizes as a
misdemeanor, "any act, in any public place, meeting, or procession,
tending to disturb the peace or excite a riot; or collect with other
persons in a body or crowd for any unlawful purpose; or disturb or
disquiet any congregation engaged in any lawful assembly." And
section 1119 provides the following:
"SEC. 1119 Free for use of public — The streets and public places of the
city shall be kept free and clear for the use of the public, and the
sidewalks and crossings for the pedestrians, and the same shall only be
used or occupied for other purposes as provided by ordinance or
regulation: Provided, that the holding of athletic games, sports, or
exercise during the celebration of national holidays in any streets or
public places of the city and on the patron saint day of any district in
question, may be permitted by means of a permit issued by the Mayor,
who shall determine the streets or public places or portions thereof,
where such athletic games, sports, or exercises may be held: And
provided, further, That the holding of any parade or procession in any
streets or public places is prohibited unless a permit therefor is first
secured from the Mayor who shall, on every such ocassion, determine
or specify the streets or public places for the formation, route, and
dismissal of such parade or procession: And provided, finally, That all
applications to hold a parade or procession shall be submitted to the
Mayor not less than twenty-four hours prior to the holding of such
parade or procession."
As there is no express and separate provision in the Revised Ordinance
of the City regulating the holding of public meeting or assembly at any
street or public places, the provisions of saif section 1119 regarding the
holding of any parade or procession in any street or public paces may
be applied by analogy to meeting and assembly in any street or public
places.
Said provision is susceptible to two constructions: one is that the
Mayor of the City of Manila is vested with unregulated discretion to
grant or refuse, to grant permit for the holding of a lawful assembly or
meeting, parade, or procession in the streets and other public places of
the City of Manila; and the other is that the applicant has the right to a
permit which shall be granted by the Mayor, subject only to the latter's
reasonable discretion to determine or specify the streets or public
places to be used for the purpose, with the view to prevent confusion
by overlapping, to secure convenient use of the streets and public
places by others, and to provide adequate and proper policing to
minimize the risk of disorder.
After a mature deliberation, we have arrived at the conclusion that we
must adopt the second construction, that is construe the provisions of
power to refuse to grant the permit, but only the discretion, in issuing
the permit, to determine or specify the streets or public places where
the parade or procession may pass or the meeting may be held.
Our conclusions find support in the decision in the case of Willis Cox vs.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P.L. Chap. 145, section 2, providing that "no parade or
procession upon any ground abutting thereon, shall be permitted
unless a special license therefor shall first be obtained from the select
men of the town or from licensing committee," was construed by the
Supreme Court of New Hampshire as not conferring upon the licensing
board unfetted discretion to refuse to grant the license, and held valid.
And the Supreme Court of the United States in its decision (1941)
penned by Chief Justice Hughes firming the judgement of the State
Supreme Court, held that " a statute requiring pewrsons using the
public streets for a parade or procession to procure a special license
therefor from the local authorities is not an unconstitutional
abridgement of the rights of assembly or a freedom of speech and
press, where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of licenses, to a
consideration, the time, place, and manner of the parade and
procession, with a view to conserving the public convenience and of
affording an opportunity to provide proper policing and are not
invested with arbitrary discretion to issue or refuse license, ... ."
We can not adopt the alternative construction or constru the
ordinance under consideration as conferring upon the Mayor power to
grant or refuse to grant the permit, which would be tantamount to
authorizing him to prohibit the use of the streets and other public
places for holding of meetings, parades or processions, because such a
construction would make the ordinance invalid and void or violative of
CRIMINAL LAW FULL CASES
the constitutional limitations. As the Municipal Boards is empowered
only to regulate the use of streets, parks, and the other public places,
and the word "regulate," as used in section 2444 of the Revised
Administrative Code, means and includes the power to control, to
govern, and to restrain, but can not be construed a synonimous with
construed "suppressed" or "prohibit" (Kwong Sing vs. City of Manila, 41
Phil., 103), the Municipal Board can not grant the Mayor a power that
it does not have. Besides, the powers and duties of the Mayor as the
Chief Executive of the City are executive and one of them is "to comply
with and enforce and give the necessary orders for the faithful
performance and execution of laws and ordinances" (section 2434 [b]
of the Revised Administrative Code), the ligislative police power of the
Municipal Board to enact ordinances regulating reasonably the
excercise of the fundamental personal rights of the citizens in the
streets and other public places, can not be delgated to the Mayor or
any other officer by conferring upon him unregulated discretion or
without laying down rules to guide and control his action by which its
impartial execution can be secured or partiality and oppression
prevented.
In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme
Court of Illinois that, under Rev. ST. Ill. c. 24, article 5 section 1, which
empowers city councils to regulate the use of public streets, the
council has no power to ordain that no processions shall be allowed
upon the streets until a permit shall be obtained from the
superintendent of police, leaving the issuance of such permits to his
discretion, since the powers conferred on the council cannot be
delegated by them.
The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering,
84 Wis., 585; 54 N.W., 1104, held the following:
"The objections urged in the case of City of Baltimore vs. Radecke, 49
Md., 217, were also, in substance, the same, for the ordinance in that
case upon its face committed to the unrestrained will of a single public
officer the power to determine the rights of parties under it, when
there was nothing in the ordinance to guide or cintrol his action, and it
was held void because "it lays down no rules by which its impartial
execution can be secured, or partiality and oppression prevented." and
that "when we remember that action or nonaction may proceed from
enmity or prejudice, from partisan zeal or animosity, from favoritism
and other improper influences and motives easy of concealment and
difficult to be detected and exposed, it becomes unnecessary to
suggest or to comment upon the injustice capable of being wrought
under cover of such a power, for that becomes apparent to every one
who gives to the subject a moment's consideration. In fact, an
ordinance which clothes a single individual with such power hardly falls
within the domain of law, and we are constrained to pronounce it
inoperative and void." ... In the exercise of police power, the council
may, in its discretion, regulate the exercise of such rights in a
reasonable manner, but can not suppress them, directly or indirectly,
by attempting to commit the power of doing so to the mayor or any
other officer. The discretion with which the council is vested is a legal
discretion, to be exercised within the limits of the law, and not a
discretion to transcend it or to confer upon any city officer and
arbitrary authority, making him in its exercise a petty tyrant."
In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance
providing that "no person or persons, or associations or organizations
shall march, parade, ride or drive, in ou upon or through the public
streets of the City of Grand Rapids with musical instrument, banners,
flags, ... without first having obtained the consent of the mayor or
common council of said city;" was held by the Supreme Court of
Michigan to be unreasonable and void. Said Supreme Court in the
course of the decision held:
". . . We must therefore construe this charter, and the powers it
assumes to grant, so far as it is not plainly unconstitutional, as only
conferring such power over the subjects referred to as will enable the
city to keep order, and suppress mischief, in accordance with the
limitations and conditions required by the rights of the people
themselves, as secured by the principles of law, which cannot be less
careful of private rights under the constitution than under the common
law."
"It is quite possible that some things have a greater tendency to
produce danger and disorder in cities than in smaller towns or in rural
places. This may justify reasonable precautionary measures, but
nothing further; and no inference can extend beyond the fair scope of
powers granted for such a purpose, and no grant of absolute discretion
to suppress lawful action altogther can be granted at all. . . . ."
"It has been customary, from time immemorial, in all free countries,
and in most civilized countries, for people who are assembled for
common purposes to parade together, by day or reasonable hours at
night, with banners and other paraphernalia, and with music of various
kinds. These processions for political, religious, and social
demonstrations are resorted to for the express purpose of keeping
unity of feeling and enthusiasm, and frequently to produce some effect
on the public mind by the spectacle of union and numbers. They are a
natural product and exponent of common aims, and valuable factors in
furthering them. ... When people assemble in riotous mobs, and move
for purposes opposed to private or public security, they become
unlawful, and their members and abettors become punishable. . . ."
"It is only when political, religious, social, or other demonstrations
create public disturbances, or operate as a nuisance, or create or
manifestly threaten some tangible public or private mischief, that the
law interferes."
"This by-law is unreasonable, because it suppresses what is in general
perfectly lawful, and because it leaves the power of permitting or
restraining processions, and thier courses, to an unregulated official
discretion, when the whole matter, if regualted at all, must be
permanent, legal provisions, operating generally and impartially."
In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the
validity of the city ordinance which made it unlawful for any person,
society or club, or association of any kind, to parade any of the streets,
with flags, banners, or transparencies, drums, horns, or other musical
instruments, without the permission of the city council first had and
obtained. The appellants were members of the Salvation Army, and
were prosecuted for a violation of the ordinance, and the court in
holding the ordinance invalid said, "Ordinances to be valid must be
reasonable; they must not be oppressive; they must be fair and
impartial; they must not be so framed as to allow their enforcement to
rest on official discretion ... Ever since the landing of the Pilgrims from
the Mayflower the right to assemble and worship accordingto the
dictates of one's conscience, and the right to parade in a peaceable
manner and for a lawful purpose, have been fostered and regarded as
among the fundamental rights of a free people. The spirit of our free
institutions allows great latitude in public parades and emonstrations
whether religious or political ... If this ordinance is held valid, then may
the city council shut off the parades of those whose nations do not suit
their views and tastes in politics or religion, and permit like parades of
those whose nations do. When men in authority are permitted in their
discretion to exercise power so arbitrary, liberty is subverted, and the
spirit of of our free institutions violated. ... Where the granting of the
permit is left to the unregulated discretion of a small body of city
eldermen, the ordinance cannot be other than partial and
discriminating in its practical operation. The law abhors partiality and
discrimination. ... (19 L.R.A., p. 861)
In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d],
1081, the Supreme Court of Colorado, in construing the provision of
section 1 of Ordinance No. 273 of the City of Walsenburg, which
provides: "That it shall be unlawful for any person or persons or
association to use the street of the City of Walsenburg, Colorado for
any parade, procession or assemblage without first obtaining a permit
from the Chief of Police of the City of Walsenburg so to do," held the
following:
"[1] The power of municipalities, under our state law, to regulate the
use of public streets is conceded. "35 C.S.A., chapter 163, section 10,
subparagraph 7. "The privilege of a citizen of the United States to use
the streets ... may be regulated in the interest of all; it is not absolute,
but relative, and must be excercised in subordination to the general, be
abridged or denied." Hague, Mayor vs. Committee for Industrial
Organization, 307 U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law, ed., 1423.
[2, 3] An excellent statement of the power of a municipality to impose
regulations in the use of public streets is found in the recent case of
Cox vs. New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85 Law, ed.
1049; 133 A.L.R., 1936, in which the following appears; "The authority
CRIMINAL LAW FULL CASES
of a municipality to impose regulations in order to assure the safety
and convenience of the people in the use of public highways has never
been regarded as inconsistent with civil liberties but rather as one of
the means of safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to
promote the public convenience in the interest of all, it cannot be
disregarded by the attempted excercise of some civil right which in
other circumstances would be entitled to protection. One would not be
justified in ignoring the familiar red traffic light because he thought it
his religious duty to disobey the municipal command or sought by that
means to direct public attention to an announcement of his opinions.
As regulation of the use of the streets for parades and processions is a
traditional excercise of control by local government, the question in a
particular case is whether that control is exerted so as not to deny or
unwarrantedly abridge the right of assembly and the opportunities for
the communication of thought and the discussion of public questions
immemorially associated with resort to public places. Lovell vs. Criffin,
303 U.S., 444, 451;58 S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs.
Committee for Industrial Organization, 307 U. S., 496, 515, 516; 59 S.
Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437]; Scheneider vs. State
of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146,
150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296,
306, 307; 60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R.
1352."
[4] Our concern here is the validity or nonvalidity of an ordinance
which leaves to the uncontrolled official discretion of the chief of police
of the municipal corporation to say who shall, who shall not, be
accorded the privilege of parading on its public streets. No standard of
regulation is even remotely suggested. Moreover, under the ordinance
as drawn, the chief of police may for any reason which he may
entertain arbitrarily deny this privelege to any group. in Cox vs. New
Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:
"In the instant case the uncontrolled official suppression of the
privilege of using the public streets in a lawful manner clearly is
apparent from the face of the ordinance before us, and we therefore
hold it null and void."
The Supreme Court of the United States in Hague vs. Committee for
Industrial Organization, 307 U. S., 496, 515, 516; 83 Law. ed., 1423,
declared that a municipal ordinance requiring the obtaining of a permit
for a public assembly in or upon the public streets, highways, public
parks, or public buildings of the city and authorizing the director of
public safety, for the purpose of preventing riots, disturbances, or
disorderly assemblage, to refuse to issue a permit when after
investigation of all the facts and circumstances pertinent to the
application he believes it to be proper to refuse to issue a permit, is not
a valid exercise of the police power. Said Court in the course of its
opinion in support of the conclusion said:
". . . Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out
of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of
the streets and public places has, from ancient times, been a part of
the privileges, immunities, rights, and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.
"We think the court below was right in holding the ordinance quoted in
Note 1 void upon its face. It does not make comfort or convenience in
the use of streets or parks the standard of official action. It enables the
Director of Safety to refuse a permit on his mere opinion that such
refusal will prevent 'riots, disturbances or disorderly assemblage.' It
can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs for the
prohibition of all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official suppression of the privilege
cannot be made a substitute for the duty to maintain order in
connection with the exercise of the right."
Section 2434 of the Administrative Code, a part of the Charter of the
City of Manila, which provides that the Mayor shall have the power to
grant and refuse municipal licenses or permits of all classes, cannot be
cited as an authority for the Mayor to deny the application of the
petitioner, for the simple reason that said general power is predicated
upon the ordinances enacted by the Municipal Board requiring licenses
or permits to be issued by the Mayor, such as those found in Chapters
40 to 87 of the Revised Ordinances of the City of Manila. It is not a
specific or substantive power independent from the corresponding
municipal ordinances which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434. Moreover "one of
the settled maxims in constitutional law is that the power conferred
upon the Legislature to make laws cannot be delegated by that
department to any other body or authority," except certain powers of
local government, specially of police regulation which are conferred
upon the legislative body of a municipal corporation. Taking this into
consideration, and that the police power to regulate the use of streets
and other public places has been delegated or rather conferred by the
Legislature upon the Municipal Board of the City (section 2444 [u] of
the Administrative Code) it is to be presumed that the Legislature has
not, in the same breath, conferred upon the Mayor in section 2434 (m)
the same power, specially if we take into account that its exercise may
be in conflict with the exercise of the same power by the Municipal
Board.
Besides, assuming arguendo that the Legislature has the power to
confer, and in fact has conferred, upon the Mayor the power to grant
or refuse licenses and permits of all classes, independent from
ordinances enacted by the Municipal Board on the matter, and the
provisions of section 2444 (u) of the same Code and of section 1119 of
the Revised Ordinances to the contrary notwithstanding, such grant of
unregulated and unlimited power to grant or refuse a permit for the
use of streets and other public places for processions, parades, or
meetings, would be null and void, for the same reasons stated in the
decisions in the cases above quoted, specially in Willis Cox vs. New
Hampshire, supra, wherein the question involved was also the validity
of a similar statute of New Hamsphire. Because the same constitutional
limitations applicable to ordinances apply to statutes, and the same
objections to a municipal ordinance which grants unrestrained
discretion upon a city officer are applicable to a law or statute that
confers unlimited power to any officer either of the municipal or state
governments. Under our democratic system of government no such
unlimited power may be validly granted to any officer of the
government, except perhaps in cases of national emergency. As stated
in State ex rel. Garrabad vs. Dering, supra, "The discretion with which
the council is vested is a legal discretion to be exercised within the
limits of the law, and not a discretion to transcend it or to confer upon
any city officer an arbitrary authority making in its exercise a petty
tyrant."
It is true that Mr. Justice Ostrand cited said provision of article 2434
(m) of the Administrative Code apparently in support of the decision in
the case of Evangelista vs. Earnshaw, 57 Phil., 255-261, but evidently
the quotation of said provision was made by the writer of the decision
under a mistaken conception of its purview and is an obiter dictum, for
it was not necessary for the decision rendered. The popular meeting or
assemblage intended to be held therein by the Communist Party of the
Philippines was clearly an unlawful one, and therefore the Mayor of
the City of Manila had no power to grant the permit applied for. On the
contrary, had the meeting been held, it was his duty to have the
promoters thereof prosecuted for violation of section 844, which is
punishable as misdemeanor by section 1262 of the Revised Ordinances
of the City of Manila. For, according to the decision, "the doctrine and
principles advocated and urged in the Constitution and by-laws of the
said Communist Party of the Philippines, and the speeches uttered,
delivered, and made by its members in the public meetings or
gatherings, as above stated, are highly seditious, in that they suggest
and incite rebelious conspiracies and disturb and obstruct the lawful
authorities in their duty."
The reason alleged by the respondent in his defense for refusing the
permit is, "that there is a reasonable ground to believe, basing upon
previous utterances and upon the fact that passions, specially on the
part of the losing groups, remains bitter and high, that similar speeches
will be delivered tending to undermine the faith and confidence of the
people in their government, and in the duly constituted authorities,
which might threaten breaches of the peace and a disruption of public
order." As the request of the petition was for a permit "to hold a
peaceful public meeting," and there is no denial of that fact or any
CRIMINAL LAW FULL CASES
doubt that it was to be a lawful assemblage, the reason given for the
refusal of the permit can not be given any consideration. As stated in
the portion of the decision in Hague vs. Committee on Industrial
Organization, supra, "It does not make comfort and convenience in the
use of streets or parks the standard of official action. It enables the
Director of Safety to refuse the permit on his mere opinion that such
refusal will prevent riots, disturbances or disorderly assemblage. It can
thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs, for the
prohibition of all speaking will undoubtedly 'prevent' such
eventualities." To this we may add the following, which we make our
own, said by Mr. Justice Brandeis in his concurring opinion in Whitney
vs. California, 71 U. S. (Law. ed.), 1105-1107:
"Fear of serious injury cannot alone justify suppression of free speech
and assembly. Men feared witches and burned women. It is the
function of speech to free men from the bondage of irrational fears. To
justify suppression of free speech there must be reasonable ground to
fear that serious evil will result if free speech is practiced. There must
be reasonable ground to believe that the danger apprehended is
imminent. There must be reasonable ground to believe that the evil to
be prevented is a serious one . .
"Those who won our independence by revolution were not cowards.
They did not fear political change. They did not exalt order at the cost
of liberty. . .
"Moreover, even imminent danger cannot justify resort to prohibition
of these functions essential effective democracy, unless the evil
apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as
the means for averting a relatively trivial harm to a society. . . . The fact
that speech is likely to result in some violence or in destruction of
property is not enough to justify its suppression. There must be the
probability of serious injury to the state. Among freemen, the
deterrents ordinarily to be applied to prevent crimes are education and
punishment for violations of the law, not abridgment of the rights of
free speech and assembly." Whitney vs. California, U. S. Sup. Ct. Rep.,
71 Law., ed., pp. 1106-1107.)
In view of all the foregoing, the petition for mandamus is granted and,
there appearing no reasonable objection to the use of the Plaza
Miranda, Quiapo, for the meeting applied for, the respondent is
ordered to issue the corresponding permit, as requested. So ordered.
Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.
Separate Opinions
PARAS, J., concurring:
The subject-matter of the petition is not new in this jurisdiction. Under
Act No. 2774, section 4, amending section 2434, paragraph (m) of the
Revised Administrative Code, the Mayor has discretion to grant or deny
the petition to hold the meeting. (SeeEvangelista vs. Earnshaw, 57
Phil., 255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422, 426, this
Court said:
"It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always wrought
to a high pitch of excitement, and the greater the grievance and the
more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers.
But if the prosecution be permitted to seize upon every instance of
such disorderly conduct by individual members of a crowd as an excuse
to characterize the assembly as a seditious and tumultuous rising
against the authorities, then the right to assemble and to petition for
redress of grievances would become a delusion and snare and the
attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they
sought to attain did not happen to be pleasing to the prosecuting
authorities. If instances of disorderly conduct occur on such occasions,
the guilty individuals should be sought out and punished therefor."
The petitioner is a distinguished member of the bar and Floor Leader of
the Nacionalista Party in the House of Representatives; he was the
chief campaigner of the said party in the last elections. As the petition
comes from a responsible party, in contrast to Evangelista's Communist
Party which was considered subversive, I believe that the fear which
caused the Mayor to deny it was not well founded and his action was
accordingly far from being a sound exercise of his discretion.
BRIONES, M., conforme:
En nombre del Partido Nacionalista y de los grupos oposicionistas
aliados, Cipriano P. Primicias, director general de campaña de las
minorias coaligadas en las ultimas elecciones y "Floor Leader" de dichas
minorias en la Camara de Representantes, solicito del Alcalde de
Manila en comunicacion de fecha 14 de Noviembre, 1947, permiso
"para celebrar un mitin publico en la Plaza Miranda el Domingo, 16 de
Noviembre, 1947, desde las 5:00 p.m. hasta la 1:00 a.m., a fin de pedir
al gobierno el remedio de ciertos agravios." Tambien se pedia en la
comunicacion licencia para usar la plataforma ya levantada en dicha
Plaza.
El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo
dia dando permiso tanto para la celebracion del mitin como para el uso
de la plataforma, "en la inteligencia de que no se pronunciaran
discursos subversivos, y ademas, de que usted (el solicitante) sera
responsable del mantenimiento de la paz y orden durante la
celebracion del mitin."
Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano E.
Fugoso revoco el permiso concedido, expresandose los motivos de la
revocacion en su carta de tal fecha dirigida al Rep. Primicias.
"Sirvase dar por informado — dice el Alcalde Fugoso en su carta — que
despues de haber leido los periodicos metropolitanos da esta mañana
en que aparece que vuestro mitin va a ser un 'rally' de indignacion en
donde se denunciaran ante el pueblo los supuestos fraudes electorales
perpetrados en varias partes de Filipinas para anular la voluntad
popular, por la presente se revoca dicho permiso.
"Se cree — añade el Alcalde — que la paz y el orden en Manila sufriran
daño en dicho 'rally' considerando que las pasiones todavia no se han
calmado y la tension sigue alta como resultado de la ultima contienda
politica.
"Segun los mismos periodicos, delegados venidos de provincias y
estudiantes de las universidades locales participaran en el 'rally,' lo
cual, a mi juicio, no haria mas que causar disturbios, pues no se puede
asegurar que concurriran alli solamente elementos de la oposicion.
Desde el momento en que se mezclen entre la multitud gentes de
diferentes matices politicos, que es lo que probablemente va a ocurrir,
el orden queda en peligro una vez que al publico se le excite, como
creo que sera excitado, teniendo en cuenta los fines del mitin tal como
han sido anunciados en los periodicos mencionados.
"Se dice que los resultados de las ultimas elecciones seran protestados.
No hay base para este proceder toda vez que los resultados todavia no
han sido oficialmente anunciados.
"Por tanto — termina el Alcalde su orden revocatoria — la accion de
esta oficina se toma en interes del orden publico y para prevenir la
perturbacion de la paz en Manila."
De ahi el presente recurso de mandamus para que se ordene al Alcalde
recurrido a que expida inmediatamente el permiso solicitado. Se pide
tambien que ordenemos al Procurador General para que investigue la
fase criminal del caso y formule la accion que justifiquen las
circunstancias.
Dada la premura del asunto, se llamo inmediatamente a vista
arguyendo extensamente los abogados de ambas partes ante esta
Corte en sus informes orales.1
El recurso se funda, respecto de su aspecto civil, en el articulo III,
seccion 1, inciso 8 de la Constitucion de Filipinas, el cual preceptua
CRIMINAL LAW FULL CASES
"que no se aprobara ninguna ley que coarte la libertad de la palabra, o
de la prensa, o el derecho del pueblo de reunirse pacificamente y
dirigir petiticiones al gobierno para remedio de sus agravios." Con
respecto al posible aspecto criminal del caso se invoca el articulo 131
del Codigo Penal Revisado, el cual dispone que "la pena de prision
correccional en su periodo minimo, se impondra al funcionario publico
o empleado que, sin fundamento legal, prohibiere o interrumpiere una
reunion pacifica, o disolviere la misma."
La defensa del recurrido invoca a su favor los llamados poderes de
policia que le asisten como guardian legal de las plazas, calles y demas
lugares publicos. Se alega que como Alcalde de la Ciudad de Manila
tiene plena discrecion para conceder o denegar el uso de la Plaza
Miranda, que es una plaza publica, para la celebracion de un mitin o
reunion, de conformidad con las exigencias del interes general tal
como el las interpreta. Especificamente se citan dos disposiciones, a
saber: el articulo 2434 (b), inciso (m) del Codigo Administrativo
Revisado, y el articulo 1119, capitulo 118 de la Compilacion de las
Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El
articulo aludido del Codigo Administrativo Revisado se lee como sigue:
xxx xxx xxx
"(m) To grant and refuse municipal license or permits of all classes and
to revoke the same for violation of the conditions upon which they
were granted, or if acts prohibited by law or municipal ordinance are
being committed under the protection of such licenses or in the
premises in which the business for which the same have been granted
is carried on, or for any other good reason of general interest." La
ordenanza municipal indicada reza lo siguiente:
La ordenanza municipal indicada reza lo siguiente:
"SEC. 1119. Free for use of public. — The streets and public places of
the city shall be kept free and clear for the use of the public, and the
sidewalks and crossings for the pedestrians, and the same shall only be
used or occupied for other purposes as provided by the ordinance or
regulation: Provided, That the holding of athletic games, sports, or
exercises during the celebration of national holidays in any streets or
public places of the city and on the patron saint day of any district in
question, may be permitted by means of a permit issued by the Mayor,
who shall determine the streets or public places, or portions thereof,
where such athletic games, sports, or exercises may be held: And
provided, further, That the holding of any parade or procession in any
streets or public places is prohibited unless a permit therefor is first
secured from the Mayor, who shall, on every occasion, determine or
specify the streets or public places for the formation, route, and
dismissal of such parade or procession: And provided, finally, That all
applications to hold a parade or procession shall be submitted to the
Mayor not less than twenty-four hours prior to the holding of such
parade or procession."
Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de bastante para denegar el permiso, pues el derecho constitucional de
indignacion de que habla el Alcalde recurrido en su carta revocando el reunirse pacificamente, ya para que los ciudadanos discutan los
permiso ya concedido no consta en la peticion del recurrente ni en asuntos publicos o se comuniquen entre si su pensamiento sobre ellos,
ningun documenmento o manifestacion verbal atribuida al mismo, sino ya para ejecer el derecho de peticion recabando del gobierno el
solamente en las columnas informativas de la prensa metropolitana. El remedio a ciertos agravios, es infinitamente superior a toda facultad
recurrente admite, sin embargo, que el objeto del mitin era comunicar reguladora en relacion con el uso de los parques, plazas y calles.
al pueblo la infinidad de telegramas y comunicaciones que como jefe
de campaña de las oposiciones habia recibido de varias partes del
La cuestion, por tanto, que tenemos que resolver en el presente
archipielago denunciando tremendas anomalias, escandalosos fraudes,
recurso es bien sencilla. ¿Tenia razon el Alcalde recurrido para denegar
actos vandalicos de terrorismo politico, etc., etc., ocurridos en las
el permiso solicitado por el recurrente, ora bajo los terminos de la
elecciones de 11 de Noviembre; llamar la atencion del Gobierno hacia
ordenanza pertinente, ora bajo la carta organica de Manila, y sobre
tales anomalias y abusos; y pedir su pronta, eficaz y honrada
todo, bajo el precepto categorico, terminante, expresado en el inciso 8,
intervencion para evitar lo que todavia se podia evitar, y con relacion a
seccion 1, del Articulo III de la Constitucion? ¿No constituye la
los hechos consumados urgir la pronta persecucion y castigo inmediato
denegacion del permiso una seria conculcacion de ciertos privilegios
de los culpables y malhechores. De esto resulta evidente que el objeto
fundamentales garantizados por la Constitucion al ciudadano y al
del mitin era completamente pacifico, absolutamente legal. No hay ni
pueblo?
la menor insinuacion de que el recurrente y los partidos oposicionistas
coaligados que representa tuvieran el proposito de utilizar el mitin para
derribar violentamente al presente gobierno, o provocar una rebelion Resulta evidente, de autos, que el recurrido denego el permiso bajo lo
o siquiera un motin. En realidad, teniendo en cuenta las serias que el mismo llama "all-pervading power of the state to regulate,"
responsabilidades del recurrente como jefe de campaña electoral de temiendo que el mitin solicitado iba a poner en peligro la paz y el orden
las minorias aliadas y como "Floor Leader" en el Congreso de dichas publico en Manila. No se fundo la denegacion en razones de "comfort"
minorias, parecia que esta consideracion debia pesar decisivamente en o conveniencia publica, vgr., para no estorbar el trafico, o para prevenir
favor de la presuncion de que el mitin seria una asamblea pacifica, de un conflicto con otro mitin ya previamente solicitado y concedido, sino
ciudadanos conscientes, responsables y amantes de la ley y del orden.2 en una simple conjetura, en un mero temor o aprension — la aprension
de que, dado el tremendo hervor de los animos resultante de una
lucha electoral harto reñida y apasionada, un discurso violento, una
Se ha llamado nuestra atencion a que en el articulo arriba citado y
arenga incendiaria podria amotinar a la gente y provocar serios
transcrito de las Ordenanzas Revisadas de Manila no figura el mitin
desordenes. La cuestion en orden es la siguiente: ¿se puede anular o
entre las materias reglamentadas, sino solo la procesion o parada por
siquiera poner en suspenso el derecho fundamentalisimo de reunion o
las calles. Esto demuestra, se sostiene, que cuando se trata de un mitin
asamblea pacifica, garantizado por la Constitucion, por razon de esta
en una plaza o lugar publico, la concesion del permiso es ineludible y el
clase de conjetura, temor o aprension? Es obvio que la contestacion
Alcalde no tiene ninguna facultad discrecional. Pareceme, sin embargo,
tiene que ser decididamente negativa. Elevar tales motivos a la
que no es necesario llegar a este extremo. Creo no debe haber
categoria de razon legal equivaldria practicamente a sancionar o
inconveniente en admitir que el mitin esta incluido en la
legitimar cualquier pretexto, a colocar los privilegios y garantias
reglamentacion, por razones de conveniencia publica. Verbigracia, es
constitucionales a merced del capricho y de la arbitrariedad. Si la
perfectamente licito denegar el permiso para celebrar un mitin en una
vigencia de tales privilegios y garantias hubiera de depender de las
plaza publica en un dia y una hora determinados cuando ya
suspicacias, temores, aprensiones, o hasta humor del gobernante, uno
previamente se ha concedido de buena fe el uso del mismo lugar a otro
podria facilmente imaginar los resultados desastrosos de semejante
a la misma hora. La prevencion de esta clase de conflictos es
proposicion; un partido mayoritario dirigido por caudillos y liders sin
precisamente uno de los ingredientes que entran en la motivacion de
escrupulos y sin conciencia podria facilmente anular todas las
la facultad reguladora del Estado o del municipio con relacion al uso de
libertades, atropellar todos los derechos incluso los mas sagrados,
calles, plazas y demas lugares publicos. Por ejemplo, es tambien
ahogar todo movimiento legitimo de protesta o peticion, estrangular,
perfectamente licito condicionar el permiso atendiendo a su relacion
en una palabra, a las minorias, las cuales — como sabe todo estudiante
con el movimiento general del trafico tanto de peatones como de
de ciencia politica — en el juego y equilibrio de fuerzas que integran el
vehiculos. Estas consideraciones de comfort y conveniencia publica son
sistema democratico son tan indispensables como las mayorias. ¿Que
por lo regular la base, el leit-motif de toda ley u ordenanza encaminada
es lo que todavia podria detener a un partido o a un hombre que
a reglamentar el uso de parques, plazas y calles. Desde luego que la
estuviera en el poder y que no quisiera oir nada desagradable de sus
regla no excluye la consideracion a veces de la paz y del buen orden,
adversarios si se le dejara abiertas las puertas para que, invocando
pero mas adelante veremos que este ultimo, para que sea atendible,
probables peligros o amagos de peligro, pudiera de una sola plumada o
requiere que exista una situacion de peligro verdadero, positivo, real,
de un solo gesto de repulsa anular o poner en suspenso los privilegios y
claro, inminente y substancial. La simple conjetura, la mera aprension,
garantias constitucionales? ¿No seria esto retornar a los dias de aquel
el temor mas o menos exagerado de que el mitin, asamblea o reunion
famoso Rey que dijo: "El Estado soy yo," o de aquel notorio cabecilla
pueda ser motivo de desorden o perturbacion de la paz no es motivo
CRIMINAL LAW FULL CASES
politico de uno de los Estados del Sur de America que asombro al resto
de su pais con este nefasto pronunciamiento: "I am the only
Constitution around here"? Es inconcebible que la facultad de
reglamentar o el llamado poder de policia deba interpretarse en el
sentido de justificar y autorizar la anulacion de un derecho, privilegio o
garantia constitucional. Sin embargo, tal seria el resultado si en
nombre de un concepto tan vago y tan elastico como es el "interes
general" se permitiera in terdecir la libertad de la palabra, de la cual los
derechos de reunion y de peticion son nada mas que complemento
logico y necesario. Una mujer famosa de Francia 3 en la epoca del
terror, momentos antes de subir al cadalso y colocar su hermoso cuello
bajo la cuchilla de la guillotina, hizo historica esta exclamacion:
"¡Libertad, cuantos crimenes se cometen en tu nombre!" Si se
denegara el presente recurso legitimando la accion del recurrido y
consiguientemente autorizando la supresion de los mitines so pretexto
de que la paz y el orden publico corren peligro con ellos, un
desengañado de la democracia en nuestro pais acaso exprese entonces
su suprema desilusion parafraseando la historica exclamacion de la
siguiente manera: "¡Interes general, paz, orden publico, cuantos
atentados se cometen en vuestro nombre contra la libertad!"
El consenso general de las autoridades en los paises
constitucionalmente regidos como Filipinas, particularmente en
Estados Unidos, es que el privilegio del ciudadano de usar los parques,
plazas y calles para el intercambio de impresiones y puntos de vista
sobre cuestiones nacionales si bien es absoluto es tambien relativo en
el sentido de que se puede regular, pero jamas se puede denegar o
coartar so pretexto o a guisa de regulacion (Hague vs. Committee for
Industrial Organization, 307 U. S., 515-517). Este asunto, planteado y
decidido en 1938, ha venido a ser clasico en la jurisprudencia
americana sobre casos del mismo tipo que el que nos ocupa. La
formidable asociacion obrera Committee for Industrial Organization
conocida mas popularmente por la famosa abreviatura CIO, planteo
una queja ante los tribunales de New Jersey contra las autoridades de
Jersey City, (a) atacando, por fundamentos constitucionales, la validez
de una ordenanza municipal que regulaba y restringia el derecho de
reunion; y (b) tachando de inconstitucionales los metodos y medios en
virtud de los cuales ponian en vigor la ordenanza las referidas
autoridades.
Los hechos del caso, brevemente expuestos, son, a saber: La CIO
trataba de celebrar mitines y asambleas publicas en Jersey City a fin de
comunicar a los ciudadanos sus puntos de vista sobre la "National
Labor Relations Act." Las autoridades de la ciudad, comenzando por el
Alcalde Hague el famoso cabecilla de la muy notoria maquina politica
de New Jersey, rehusaron consistentemente conceder licencia para
dichos mitines bajo la especiosa alegacion de que los miembros de la
organizacion obrera solicitante eran comunistas y del orden publico
corria peligro de grave perturbacion; es decir, casi, casi la misma
alegacion que en el presente caso. La denegacion de la licencia se
fundaba en una ordenanza municipal que trataba de reglamentar el
derecho constitucional de reunion y asamblea pacifica.
Los tribunales de New Jersey, declarando inconstitucionales la the standard of official action. It enables the Director of Safety to
ordenanza en cuestion y los metodos por los cuales se trataba de refuse a permit on his mere opinion that such refusal will prevent riots,
poner en vigor, sentenciaron a favor de la CIO permitiendole celebrar disturbances, or disorderly assemblage. It can thus, as the record
los mitines solicitados. Elevado el asunto en casacion e la Corte discloses, be made the instrument of arbitrary suppression of free
Suprema Federal, esta confirmo la sentencia con solo una ligera expression of views on national affairs for the prohibition of all
modificacion. Entre otros pronunciamientos se dijo que: (a) donde speaking will undoubtedly 'prevent' such eventualities. But
quiera este alojado el titulo sobre las calles, parques y plazas, desde uncontrolled official suppression of the privilege cannot be made a
tiempo inmemorial los mismos siempre se han considerado como un substitute for the duty to maintain order in connection with the
fideicomiso para uso del publico, y desde tiempos remotos que la exercise of the right." (Hague vs. Committee for Industrial Organization,
memoria no alcanza se han usado siempre para fines de reunion y de 307 U. S. 496, 515-516.)
intercambio de impresiones y puntos de vista entre los ciudadanos, asi
como para la libre discusion de los asuntos publicos; (b) que el uso de
Durante la audiencia del presente asunto se hizo mencion del caso de
las calles y plazas publicas para tales fines ha sido siempre, desde la
Evangelista contra Earnshaw, 57 Jur. Fil., 255, como un precedente en
antiguedad, una parte importante y esencial de los privilegios,
apoyo de la accion del Alcalde recurrido. Pero la similitud es solo en el
inmunidades, derechos y libertades de los ciudadanos; (c) que el
hecho de que el entonces Alcalde D. Tomas Earnshaw tambien revoco
privilegio del ciudadano de los Estados Unidos de usar las calles, plazas
el permiso previamente concedido al partido comunista que
y parques para la comunicacion de impresiones y puntos de vista sobre
representaba Crisanto Evangelista para celebrar mitines en Manila,
cuestiones nacionales puede ser regulado en interes de todos; es en tal
pero las circunstancias en ambos casos son enteramente diferentes. El
sentido absoluto pero relativo, y debe ser ejercitado con sujecion al
Alcalde Earnshaw revoco el permiso despues de una minuciosa
"comfort" y conveniencia generales y en consonancia con la paz y el
investigacion en que se habian encontrado pruebas indubitables no
buen orden; pero no puede ser coartado o denegado so pretexto y
solo de que en los estatutos y documentos del partido comunista se
forma de regulacion; (d) que el tribunal inferior estuvo acertado al
preconizaba como uno de sus primordiales objetivos el derribar al
declarar invalida la ordenanza en su faz, pues no hace del "comfort" o
gobierno americano en Filipinas — gobierno que ellos calificaban de
conveniencia en el uso de calles y plazas la norma y patron de la accion
imperialista y capitalistico — sino que de hecho en mitines celebrados
official; por el contrario, faculta al Director de Seguridad a rehusar el
con anterioridad los comunistas habian pronunciado discursos clara y
permiso en virtud de su simple opinion de que la denegacion es para
positivamente sediciosos predicando una abierta rebelion e incitando
prevenir motines, trastornos o reuniones turbulentas y desordenadas;
un alzamiento para liberar, segun ellos, al proletariado filipino de las
(e) que, de esta manera, y conforme lo demuestra el record, la
garras del imperialismo capitalista. La accion, por tanto, del Alcalde
denegacion puede ser utilizada como instrumento para la supresion
Earnshaw se fundo no en una simple conjetura, en un mero temor o
arbitraria de la libre expression de opiniones sobre asuntos nacionales,
aprension, sino en la existencia de un peligro inminente, claro, real,
pues la prohibicion de hablar producira indudablemente tal efecto: (f)
sustantivo — ingrediente unico y excepcionalisimo que permite una
y, por ultimo, que no puede echarse mano de la supresion official del
salvedad suspensiva singularisima en el ejercicio de los privilegios
privilegio para ahorrarse el trabajo y el deber de mantener el orden en
constitucionales de que se trata.
relacion con el ejercicio del derecho. En otras palabras, traduciendo
literalmente la fraseologia de la sentencia, aun a riesgo de incurrir en
un anglicismo, "no puede hacerse de la supresion official incontrolada ¿Existe ese ingrediente en el caso que nos ocupa? Indudablemente que
del privilegio un sustituto del deber de mantener el orden en relacion no. Ni siquiera se ha hecho la mas pequeña insinuacion de que las
con el ejercicio del derecho." He aqui ad verbatim la doctrina: minorias coaligadas en cuyo nombre se ha pedido la celebracion del
mitin en cuestion tuvieran el proposito de derribar al gobierno por
metodos y procedimientos violentos. El mismo Fiscal Villamor, en su
"5. Regulation of parks and streets. — "Wherever the title of streets
informe oral, admitio francamente la legalidad de la coalicion y de sus
and parks may rest, they have immemorially been held in trust for the
fines. Podemos tomar conocimiento judicial de que esas minorias
use of the public and, time out of mind, have been used for purposes
coaligadas lucharon en todas las provincias y municipios de Filipinas
of assembly, communicating thoughts between citizens, and discussing
presentando candidatos para todos los cargos — nacionales,
public questions. Such use of the streets and public places has, from
provinciales y locales, y de que su candidatura senatorial triunfo en 21
ancient times, been a part of the privileges, immunities, rights, and
provincias de las 50 que componen el mapa electoral, y en 5 ciudades
liberties of citizens. The privilege of the citizen of the United States to
con carta especial de las 8 que existen, incluyendose entre dichas 5 la
use the streets and parks for communication of views on national
de Manila, capital del archipielago.
questions may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good order; but it Que la coalicion minoritaria no es una organizacion subversiva como la
must not in the guise of regulation be abridged or denied. We think the que fue proscripta en el caso de Evangelista contra Earnshaw, sino que
court below was right in holding the ordinance . . . void upon its face. It por el contrario propugna la balota, no la bala, como el instrumento
does not make comfort or convenience in the use of streets or parks normal y democratico para cambiar los gobiernos y las
CRIMINAL LAW FULL CASES
administraciones, lo demuestra, ademas del hecho ya apuntado de que
lucho en las ultimas elecciones prevaliendose de las armas proveidas
por la legalidad y sacando partido de los medios de que disponia frente
a la natural superioridad del partido gobernante, lo demuestra, repito,
la circunstancia de que despues de hechas las votaciones y mientras se
estaban contando los votos y cuando vio que, segun ella, se habia
escamoteado o se estaba escamoteando la voluntad popular en varias
partes mediante engaños, abusos y anomalias de diferentes clases, no
busco la violencia ni recurrio a la accion directa para hallar remedio a
sus agravios o vengarlos, sino que trato de cobijarse bajo la
Constitucion reuniendo al pueblo en asamblea magna al aire libre para
comunicar y discutir sus quejas y recabar del gobierno el
correspondiente remedio. Y esto lo hizo la coalicion oficialmente, con
todas las rubricas del protocolo, formulando la peticion del mitin el
hombre que mejor podia representarla y ofrecer garantias de legalidad
y orden ante los poderes constituidos — el recurrente en este caso,
cuya solvencia moral y politica esta doblemente garantida por su
condicion de lider de las minorias en el Congreso y jefe de campaña de
las mismas en las pasadas elecciones. ¿Que mejor prueba de legalidad
y de propositos pacificos y ordenados?
Por tanto, las circunstancias han venido a situar al gobierno en una
encrucijada: por un lado, el camino angosto de la represion, de una
politica de fuerza y de cordon ferreo policiaco; por otro lado, la amplia
avenida de la libertad, una politica que consista en abrir espitas y
valvulas por donde pueda extravasarse no ya la protesta sino inclusive
la indignacion del pueblo, previniendo de esta manera que los vapores
mal reprimidos hagan estallar la caldera, o que la desesperacion lo
arrastre a conspirar en la sombra o a confiar su suerte a los azares de
una cruenta discordia civil. Creo que entre ambas politicas la eleccion
no es dudosa.
Se alega que antes del 11 de Noviembre, dia de las elecciones, el
Alcalde recurrido habia concedido a las minorias coaligadas permisos
para celebrar varios mitines politicos en diferentes sitios de Manila;
que en dichos mitines se habian pronunciado discursos altamente
inflamatorios y calumniosos llamandose ladrones y chanchulleros a
varios funcionarios del gobierno nacional y de la Ciudad de Manila,
entre ellos el Presidente de Filipinas, el Presidente del Senado y el
mismo recurrido, suscitandose contra ellos la animadversion y el
desprecio del pueblo mediante la acusacion de que han estado
malversando propiedades y fondos publicos con grave detrimento del
bienestar e interes generales; que, dado este antecedente, habia
motivo razonable para creer que semejantes discursos se
pronunciarian de nuevo, minandose de tal manera la fe y la confianza
del pueblo en su gobierno y exponiendose consiguientemente la paz y
el orden a serias perturbaciones, teniendo en cuenta la temperatura
elevadisima de las pasiones, sobre todo de parte de los grupos
perdidosos y derrotados.
Estas alegaciones son evidentemente insostenibles. Darles valor
equivaldria a instituir aqui un regimen de previa censura, el cual no
solo es extraño sino que es enteramente repulsivo e incompatible con
nuestro sistema de gobierno. Nuestro sistema, mas que de prevencion,
es de represion y castigo sobre la base de los hechos consumados. En
otras palabras, es un sistema que permite el amplio juego de la
libertad, exigiendo, sin embargo, estricta cuenta al que abusase de ella.
Este es el espiritu que informa nuestras leyes que castigan
criminalmente la calumnia, la difamacion oral y escrita, y otros delitos
semejantes. Y parafraseando lo dicho en el citado asunto de Hague vs.
Committee for Industrial Organization, la supresion incontrolada del
privilegio constitucional no puede utilizarse como sustituto de la
operacion de dichas leyes.
Se temia — dice el recurrido en su contestacion — que la probable
virulencia de los discursos y la fuerte tension de los animos pudiesen
alterar seriamente la paz y el orden publico. Pero — cabe preguntar —
¿de cuando aca la libertad, la democracia no ha sido un peligro, y un
peligro perpetuo? En realidad, de todas las formas de gobierno la
democracia no solo es la mas dificil y compleja, sino que es la mas
peligrosa. Rizal tiene en uno de sus libros inmortales una hermosa
imagen que es perfectamente aplicable a la democracia. Puede decirse
que esta es como la mar: serena, inmovil, sin siquiera ningun rizo que
arrugue su superficie, cuando no lo agita ningun viento. Pero cuando
sopla el huracan — lease, Vientos de la Libertad — sus aguas se
alborotan, sus olas se encrespan, y entonces resulta horrible,
espantosa, con la espantabilidad de las fuerzas elementales que se
desencadenan liberrimamente.
¿Ha dejado, sin embargo, el hombre de cruzar los mares tan solo
porque pueden encresparse y enfurecerse a veces? Pues bien; lo
mismo puede decirse de la democracia: hay que tomarla con todos sus
inconvenientes, con todos sus peligros. Los que temen la libertad no
merecen vivirla. La democracia no es para pusilanimes. Menos cuando
de la pusilanimidad se hace pretexto para imponer un regimen de
fuerza fundado en el miedo. Porque entonces el absolutismo se
disfraza bajo la careta odiosa de la hipocresia. Ejemplo: los Zares de
Rusia. Y ya se sabe como terminaron.
El Magistrado Sr. Carson describio con mano maestra los peligros de la
libertad y democracia y previno el temor a ellos con las luminosas
observaciones que se transcriben a continuacion, expuestas en la causa
de Estados Unidos contra Apurado, 7 Fur. Fil., 440 (1907), a saber:
"Es de esperar que haya mas o menos desorden en una reunion publica
del pueblo para protestar contra agravios ya sean reales o imaginarios
porque en esos casos los animos siempre estan excesivamente
exaltados, y mientras mayor sea el agravio y mas intenso el
resentimiento, tanto menos perfecto sera por regla general el control
disciplinario de los directores sobre sus secuaces irresponsables. Pero
si se permitiese al ministerio fiscal agarrarse de cada acto aislado de
desorden cometido por individuos o miembros de una multitud como
pretexto para caracterizar la reunion como un levantamiento sedicioso
y tumultuoso contra las autoridades, entonces el derecho de
asociacion, y de pedir reparacion de agravios seria completamente
ilusorio, y el ejercicio de ese derecho en la ocasion mas propia y en la
forma mas pacifica expondria a todos los que tomaron parte en ella, al
mas severo e inmerecido castigo si los fines que perseguian no fueron
del agrado de los representantes del ministerio fiscal. Si en tales
asociaciones ocurren casos de desorden debe averiguarse quienes son
los culpables y castigarseles por este motivo, pero debe procederse con
la mayor discrecion al trazar la linea divisoria entre el desorden y la
sedicion, y entre la reunion esencialmente pacifica y un levantamiento
tumultuoso."
En el curso de los informes se pregunto al Fiscal, defensor del
recurrido, si con motivo de los discursos que se dicen calumniosos y
difamatorios pronunciados en los mitines de la oposicion antes de las
elecciones ocurrio algun serio desorden: la contestacion fue negativa.
Como se dice mas arriba, en el mitin monstruo que despues se celebro
en virtud de nuestra decision en el presente asunto tampoco ocurrio
nada. ¿Que demuestra esto? Que los temores eran exagerados, por no
llamarlos fantasticos; que el pueblo de Manila, con su cordura,
tolerancia y amplitud de criterio, probo ser superior a las aprensiones,
temores y suspicacias de sus gobernantes.
La democracia filipina no puede ni debe sufrir un retroceso en la celosa
observancia de las garantias constitucionales sobre la libertad de la
palabra y los derechos concomitantes — el de reunion y peticion. Se
trata de derechos demasiado sagrados, harto metidos en el corazon y
alma de nuestro pueblo para ser tratados negligentemente, con un
simple encogimiento de hombros. Fueron esas libertades las que
inspiraron a nuestros antepasados en sus luchas contra la opresion y el
despotismo. Fueron esas libertades la base del programa politico de los
laborantes precursores del '96. Fueron esas libertades las que
cristalizaron en la carta organizacional de Bonifacio, generando luego el
famoso Grito de Balintawak. Fueron esas libertades las que despues
informaron los documentos politicos de Mabini y la celebre
Constitucion de Malolos. Y luego, durante cerca de medio siglo de
colaboracion filipino — americana, fueron esas mismas libertades la
esencia de nuestras instituciones, la espina dorsal del regimen
constitucional y practicamente republicano aqui establecido. Nada
mejor, creo yo, para historiar el proceso de esas libertades que los
atinados y elocuentes pronunciamientos del Magistrado Sr. Malcolm
en la causa de Estados Unidos contra Bustos, 37 Jur. Fil., 764 (1918). Es
dificil mejorarlos; asi que opto por transcribirlos ad verbatim a
continuacion:
"Hojeando las paginas de la historia, no decimos nada nuevo al afirmar
que la libertad de la palabra, tal y como la han defendido siempre
todos los paises democraticos, era desconocida en las Islas Filipinas
antes de 1900. Por tanto, existia latente la principal causa de la
revolucion. Jose Rizal en su obra 'Filipinas Dentro de Cien Años'
(paginas 62 y siguientes) describiendo 'las reformas sine quibus non,'
en que insistian los filipinos, dijo:
CRIMINAL LAW FULL CASES
"El ministro, . . . que quiera que sus reformas sean reformas, debe
principiar por declarar la prensa libre en Filipinas, y por crear diputados
filipinos.
"Los patriotas filipinos que estaban en España, por medio de las
columnas de La Solidaridad y por otros medios, al exponer los deseos
del Pueblo Filipino, pidieron invariablemente la 'libertad de prensa, de
cultos y de asociacion.' (Vease Mabini, 'La Revolucion Filipina.') La
Constitucion de Malolos, obra del Congreso Revolucionario, en su Bill
de Derechos, garantizaba celosamente la libertad de la palabra y de la
prensa y los derechos de reunion y de peticion.
"Tan solo se mencionan los datos que anteceden para deducir la
afirmacion de que una reforma tan sagrada para el pueblo de estas
Islas y a tan alto precio conseguida, debe ampararse ahora y llevarse
adelante en la misma forma en que se protegeria y defenderia el
derecho a la libertad.
"Despues sigue el periodo de la mutua colaboracion americano-filipina.
La Constitucion de los Estados Unidos y las de los diversos Estados de la
Union garantizan el derecho de la libertad y de la palabra y de la prensa
y los derechos de reunion y de peticion. Por lo tanto, no nos sorprende
encontrar consignadas en la Carta Magna de la Libertad Filipina del
Presidente McKinley, sus Instrucciones a la Segunda Comision de
Filipinas, de 7 de abril de 1900, que sientan el siguiente inviolable
principio:
"Que no se aprobara ninguna ley que coarte la libertad de la palabra o
de la prensa o de los derechos del pueblo para reunirse pacificamente y
dirigir peticiones al Gobierno para remedio de sus agravios."
"El Bill de Filipinas, o sea la Ley del Congreso de 1.° de Julio de 1902, y
la Ley Jones, o sea la Ley del Congreso de 29 de Agosto de 1916, que
por su naturaleza son leyes organicas de las Islas Filipinas, siguen
otorgando esta garantia. Las palabras entre comillas no son extrañas
para los estudiantes de derecho constitucional, porque estan calcadas
de la Primera Enmienda a la Constitucion de los Estados Unidos que el
pueblo americano pidio antes de otorgar su aprobacion a la
Constitucion.
"Mencionamos los hechos expuestos tan solo para deducir la
afirmacion, que no debe olvidarse por un solo instante, de que las
mencionadas garantias constituyen parte integrante de la Ley Organica
— La Constitucion — de las Islas Filipinas.
"Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas
no son una huera palabreria. Las palabras que alli se emplean llevan
consigo toda la jurisprudencia que es de aplicacion a los grandes casos
constitucionales de Inglaterra y America. (Kepner vs. U. S. [1904], 195
U. S., 100; Serra vs. Mortiga [1917], 214 U. S., 470.) Y ¿cuales son estos
principios? Volumen tras volumen no bastaria a dar una contestacion
adecuada. Pero entre aquellos estan los siguientes:
"Los intereses de la sociedad y la conservacion de un buen gobierno
requieren una discusion plena de los asuntos publicos. Completa
libertad de comentar los actos de los funcionarios publicos viene a ser
un escalpelo cuando se trata de la libertad de la palabra. La penetrante
incision de la tinta libra a la burocracia del absceso. Los hombres que
se dedican a la vida publica podran ser victimas de una acusacion
injusta y hostil; pero podra calmarse la herida con el balsamo que
proporciona una conciencia tranquila. El funcionario publico no debe
ser demasiado quisquilloso con respecto a los comentarios de sus actos
oficiales. Tan solo en esta forma puede exaltarse la mente y la dignidad
de los individuos. Desde luego que la critica no debe autorizar la
difamacion. Con todo, como el individuo es menos que el Estado, debe
esperarse que sobrelleve la critica en beneficio de la comunidad.
Elevandose a mayor altura que todos los funcionarios o clases de
funcionarios, que el Jefe Ejecutivo, que la Legislatura, que el Poder
Judicial — que cualesquiera o sobre todas las dependencias del
Gobierno — la opinion publica debe ser el constante manantial de la
libertad y de la democracia. (Veanse los casos perfectamente
estudiados de Wason vs. Walter, L. R. 4 Q. B., 73, Seymour vs.
Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1.)
Ahora que ya somos independientes es obvio que la republica no solo
no ha de ser menos celosa que la antigua colonia en la tenencia y
conservacion de esas libertades, sino que, por el contrario, tiene que
ser muchisimo mas activa y militante. Obrar de otra manera seria como
borrar de una plumada nuestras mas preciosas conquistas en las
jornadas mas brillantes de nuestra historia. Seria como renegar de lo
mejor de nuestro pasado: Rizal; Marcelo H. del Pilar, Bonifacio, Mabini,
Quezon, y otros padres inmortales de la patria. Seria, en una palabra,
como si de un golpe catastrofico se echara abajo la recia fabrica de la
democracia filipina que tanta sangre y tantos sacrificios ha costado a
nuestro pueblo, y en su lugar se erigiera el tinglado de una dictadura
de opera bufa, al amparo de caciquillos y despotillas que pondrian en
ridiculo el pais ante el mundo . . . Es evidente que no hemos llegado a
estas alturas, en la trabajosa ascension hacia la cumbre de nuestros
destinos, para permitir que ocurra esa tragedia.
No nos compete determinar el grado de certeza de los fraudes e
irregularidades electorales que la coalicion minoritaria trataba de
airear en el mitin en cuestion con vistas a recabar del gobierno y del
pueblo el propio y correspondiente remedio. Pudieran ser reales o
pudieran ser imaginarios, en todo o en parte. Pero de una cosa
estamos absolutamente seguros y es que la democracia no puede
sobrevivir a menos que este fundada sobre la base de un sufragio
efectivo, sincero, libre, limpio y ordenado. El colegio electoral es el
castillo, mejor todavia, el baluarte de la democracia. Suprimid eso, y la
democracia resulta una farsa.
Asi que todo lo que tienda a establecer un sufragio efectivo4 no solo no
debe ser reprimido, sino que debe ser alentado. Y para esto, en general
para la salud de la republica, no hay mejor profilaxis, no hay mejor
higiene que la critica libre, la censura desembarazada. Solamente se
pueden corregir los abusos permitiendo que se denuncien
publicamente sin trabas sin miedo.5 Esta es la mejor manera de
asegurar el imperio de la ley por encima de la violencia.
HILADO, J., dissenting:
Because the constitutional right of assembly and petition for redress of
grievances has been here invoked on behalf of petitioner, it has been
considered doubly necessary to expound at length the grounds of my
dissent. We are all ardent advocates of this right, whenever and
wherever properly exercisable. But, in considering the legal problem
here presented serenely and dispassionately, as I had to, I arrived at a
different conclusion from that of the majority.
(a) Right not absolute but subject to regulation. — It should be
recognized that this right is not absolute and is subject to reasonable
regulations. (Philippine Constitutional Law by Malcolm and Laurel, 3d
ed., p. 407; Commonwealth vs. Abrahams, 156 Mass., 57, 30 N.E. 79.)
Messers. Malcolm and Laurel say: "The right of peaceful assemblage is
not an absolute one. Assemblies are subject to reasonable
regulations."
In the above cited case of Commonwealth vs. Abrahams, which is cited
in support of the text on page 407 of the above cited work on
Philippine Constitutional Law by Malcolm and Laurel, the Supreme
Judicial Court of Massachusetts considered and decided a case
involving a regulation by the Board of Park Commissioners forbidding
all persons "to make orations, harangues, or loud outcries" in a certain
park, under penalty of $20, except upon prior consent of the board.
The defendant requested permission to deliver an oration in the park,
which was refused by the board, and thereafter entered the park, and
delivered an "oration or harangue" about ten or fifteen minutes in
length. In a criminal trial of said defendant for violating the rules
promulgated by the Board of Park Commissioners, said rules were held
valid and reasonable, and not inconsistent with article 19 of the Bill of
Rights (of the Massachusetts Constitution), providing that "the people
have a right, in an orderly and peaceable manner, to assemble to
consult upon the common good, give instructions to their
representatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done
them, and of the grievances they suffer." In that case the defendant
admitted that the people would not have the right to assemble for the
purposes specified in the public streets, and might not have such right
in the public gardens or on the common, because such an assembly
would or might be inconsistent with the public use for which these
places are held. And the Supreme Court of Massachusetts said:
CRIMINAL LAW FULL CASES
". . . . The same reasons apply to any particular park. The parks of
Boston are designed for the use of the public generally; and whether
the use of any park or a part of any park can be temporarily set aside
for the use of any portion of the public, is for the park commissioners
to decide, in the exercise of a wise discretion."
In the above-quoted case it appears from the statement of facts
preceding the opinion that within the limits of Franklin Park, there
involved, were large areas not devoted to any special purpose and not
having any shrubbery that would be injured by the gathering thereon
of a large concourse of people; that defendant's speech contained
nothing inflammatory or seditious, and was delivered in an ordinary
oratorical tone; that at the close of the oration the audience quietly
dispersed; and that no injury of any kind was done to the park. Still, it
was held that the regulation under which the Board of Park
Commissioners denied the permission to deliver said oration requested
by the defendant was valid and was not inconsistent with that
provision of the Massachusetts Bill of Rights guaranteeing to the
people the "right, in an orderly and peaceable manner, to assemble to
consult upon the common good, give instructions to their
representatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done
them, and of the grievances they suffer."
In the case at bar, the Mayor of Manila had the duty and the power,
inter alia, "to grant and refuse municipal . . . permits of all classes . . .
for any (other) good reason of general interest" (Rev. Ad. Code, section
2434 [b]-[m]; italics ours); and "to comply with and enforce and give
the necessary orders for the faithful enforcement and execution of the
laws and ordinances in effect within the jurisdiction of the city." [Ibid.,
section 2434 (b)-(a)]; and among the general powers and duties of the
Municipal Board, whose ordinances the said Mayor was at once bound
and empowered to comply with and enforce, were such as "regulate
the use of streets, . . . parks, . . . and other public places." [Ibid., section
2444 (u); italics ours.]
Another legal doctrine which should not be lost sight of is that, without
abridging the right of assembly and petition, the government may
regulate the use of places — public places — wholly within its control,
and that the state or municipality may require a permit for public
gatherings in public parks and that, while people have the right to
assemble peaceably on the highways and to parade on streets,
nevertheless the state may regulate the use of the streets by requiring
a permit (16 C. J. S., p. 642). In our government the state, through the
Charter of Manila, has conferred certain powers pertinent to the
subject under consideration upon the City Mayor, and upon the
Municipal Board. Among these is the duty and power of said Mayor "to
grant and refuse municipal . . . permits of all classes . . . for any good
reason of general interest" (italics ours), and the power and duty of the
Municipal Board "to regulate the use . . . of street, . . . parks, . . . and
other public places . . ." (italics ours), already above discussed.
Plaza Miranda in a way is a public square or plaza, and in another
sense, in view of its more frequent public use, is a public place devoted
to traffic between several streets which empty into it within the district
of Quiapo. It is a fact of common knowledge and within the judicial
notice of this Court that said plaza is one of the public places constantly
used by an usually great number of people during all hours of the day
and up to late hours of the night, both for vehicular and for pedestrian
traffic. It is one of the centers of the city where a heavy volume of
traffic during those hours converges and from which it again proceeds
in all directions; and the holding during those hours of a meeting,
assembly or rally of the size and nature of that contemplated by
petitioner and those belonging to the Coalesced Minority Parties when
the permit in question was requested from the City Mayor, must have
been expected to greatly inconvenience and interfere with the right of
the public in general to devote said plaza to the public uses for which it
has been destined since time immemorial.
The rule may perhaps be more aptly stated by saying that the right of
peaceful assembly and petition is not absolute but subject to
regulation as regards the time, place, and manner of its exercise. As to
time, it seems evident, for example, that the State, directly or through
the local government of the city or municipality, by way of regulation
of the right of free speech, may validly prohibit the delivery of
speeches on public streets near private residences between midnight
and dawn. As to place, we have the example of the instant case
involving Plaza Miranda or any other public place. And as to manner, it
is a familiar rule that the freedom of speech does not authorize the
speaker to commit slander or defamation, and that laws and
ordinances aimed at preventing such abuses are valid regulations of
the right. Among other cases which may be cited on the same point,
we have that of Hague vs. Committee on Industrial Organization, 307
U. S., 496, 83 Law. ed., 1423, cited in the majority opinion and from
which the following passage is copied from the quotation therefrom in
the said opinion:
". . . The privilege of a citizen of the United States to use the streets
and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must
be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied." (Italics ours.)
I construe this declaration of principles by the United States Supreme
Court to imply that where the regulatory action is predicated upon the
"general comfort and convenience," and is "in consonance with peace
and good order," as in the instant case, such action is regulation and
not "guise of regulation," and therefore does not abridge or deny the
right.
(b) No constitutional right to use public places under government
control, for exercise of right of assembly and petition, etc. —
Indeed, carefully analyzed, the action taken by the City Mayor was not
even a regulation of the constitutional right of assembly and petition,
or free speech, claimed by petitioner, but rather of the use of a public
place under the exclusive control of the city government for the
exercise of that right. This, I submit, is a distinction which must be
clearly maintained throughout this discussion. No political party or
section of our people has any constitutional right to freely and without
government control make use of such a public place as Plaza Miranda,
particularly if such use is a deviation from those for which said public
places have been by their nature and purpose immemorially dedicated.
In other words, the City Mayor did not attempt to have anything to do
with the holding of the "indignation rally" or the delivery of speeches
thereat on the date desired at any place over which said mayor had no
control — his action was exclusively confined to the regulation of the
use of Plaza Miranda for such a purpose and at such a time. Chief
Justice Hughes, speaking for a unanimous court in Cox vs. New
Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:
If a municipality has authority to control the uses of its public streets
for parades or processions, as it undoubtedly has, it can not be denied
authority to give consideration, without unfair discrimination, to time,
place, and manner in relation to the other proper uses of the streets.
We find it impossible to say that the limited authority conferred by the
licensing provisions of the statute in question as thus construed by the
state court contravened any constituional right. (emphasis ours).
That case was concerened with a prosecution of sixty-eigth "Jehovah's
Witnesses" in a municipal court in the State of New Hampshire for
violation of a state statute prohibiting a "parade or procession" upon a
public street without a special license. The appellants invoked the
constitutional right of free speech and press, as well as that of the
assembly. The judgment of the municipal court was affirmed by the
Supreme Court of New Hampshire and that of the latter was affirmed
by the United States Supreme Court. Among other things, the United
States Supreme Court said that the appellants were not prosecuted for
distributing leaflets, or for conveying information by placards or
otherwise, or for issuing invitations to a public meeting, or for holding a
public meeting, of for maintaining or expressing religious beliefs. Their
right to do any of these things apart from engaging in a "parade or
procession," upon a public street was not involved in the case. The
question of the validity of a statute addressed to any other sort of
conduct than that complained of was declared not to be before the
court (85 Law. ed., 1052). By analogy, I may that in the instant case the
constitutional rights of free speech, assmebly, and petition are not
before the court but merely the privilege of petitioner and the
Coalesced Minorities to exercise any or all of said rights by using Plaza
Miranda, a public place under the complete control of the city
government. In the same case of Cox vs. New Hampshire, supra, Chief
Justice Hughes, in his opinion, used the following eloquent language:
"Civil liberties, as guaranteed by the Constitution, imply the existence
of an organized society maintaining public order without which liberty
CRIMINAL LAW FULL CASES
itself would be lost in the excesses of unrestrained abuses. The
authority of a municipality to impose regulations in order to assure the
safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as
one of the means of safeguarding the good order upon which they
ultimately depend. The control of travel on the streets of cities is the
most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to
promote the public convenience in the interest of all, it can not be
disregarded by the attempted exercise of some civil right which in
other circumstances would be entitled to protectio. One would not be
justified in ignoring the familiar red lightbecause he thought it his
religious duty to disobey the municipal command or sought by that
means to direct public attention to an announcement of his opinion...."
(85 Law. ed., 1052-1053.)
In other words, when the use of public streets or places is involved,
public convenience, public safety and public order take precedence
over even particular civil rights. For if the citizen asserting the civil right
were to override the right of the general public to the use of such
streets or places, just because it is guaranteed by the constitution, it
would be hard to conceive how upon the same principle that citizen be
prevented from using the private property of his neighbor for the
exercise of the asserted right. The constitution, in guaranteeing the
right of peaceful assembly and petition, the right of free speech, etc.,
does not guarantee their exercise upon public places, any more than
upon private premises, without government regulation in both cases,
of the owners' consent in the second.
In Davis vs. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the
United States Supreme Court, in affirming the decision of the Supreme
Judicial Court of Massachusetts written by Justice Oliver Wendell
Holmes, then of the latter tribunal, quoted from said decision as
follows:
"...As representatives of the public it (legislature) may and does
excercise control over the use which the public may make of such
places (public parks and streets), and it may and does delegate more or
less of such control to the city or town immediately concerned. For the
legislature absolutely or conditionally to forbid public speaking in a
highway or public park is no more an infringement of the rights of the
member of the public than for the owner of a private house to forbid it
in his house. When no proprietary right interferes the legislature may
end the right of the public to enter upon the public place by putting an
end to the dedication to public uses. So it may take the lesser step of
limiting the public use to certain purposes. See Dill. Mun. Corp. secs.
393, 407, 651, 656, 666; Brooklyn Park Comrs. vs. Armstrong, 45 N. Y.
234, 243, 244 (6 Am. Rep. 70)....".
(c) Authorities cited.--.
I have examined the citations of authorities in the majority opinion.
Most of the cases therin cited are, I think, inapplicable to the oune
under consideration, and those which may have some application, I
believe reinforce this dissent. None of them was for mandamus to
compel the granting of a permit for holding a meeting, assembly or the
like, upon a public place within the control of the general or local
government.
The fact that a law or municipal ordinance under which a person had
been prosecuted for delivering a speech without the required permit,
for example, was declared unconstitutional or otherwise void for
delegating an unfettered or arbitrary discretion upon the lisencing
authority, thus completely failing to confer the discretion, does not
mean that such person has the right by mandamus to force said
authority to grant him the permit. If, in such case, the law or ordinance,
conferring the discretion, is unconstitutional or void,
the mandamus suit becomes entirely idle. Such a suit would involve
self-contradictory proposition, for the very idea of a permit is
something which may be granted or witheld. He who has the power to
grant permission for the doing of an act necessarily has the correlative
power to deny the permission. A "permit" which under no conditions
or circumstances and at no time can be refused needs a different
name.
Willis Cox vs. State of New Hampshire, 312 U. S., 569, was concerned
with a statute of the State of New Hampshire which was construed by
the Supreme Court of the same State as not conferring upon the
licensing board unfettered discretion to refuse the license, and was
held valid both by said Supreme Court and the Supreme Court of the
United States.
In our case, section 2434 (b)-(m) of the Revised Administrative Code
does not confer upon the Mayor of Manila an unfettered discretion to
grant or refuse the permit--his power to grant or to refuse the permit is
controlled and limited by the all important requirement of the same
section that whatever his determination, it should be "for any good
reason of general interest.".
In City of Chicago vs. Trotter, 136 Ill., 430, the Supreme Court of the
State of Illinois held that the power of City councils under the state law
to regulate the use of the public streets could not be delegated by
them, and therefore could not be delegated to the superintendent of
police. But in our case, the power of the City Mayor under the Revised
Administrative Code has not been delegated by the Municipal Board of
Manila but has been directly conferred by the State through its
legislature.
In State ex rel. Garrabad vs. Dering, 84 Wis., 585, what was involved
was a city ordinance committing to the unrestrained will of public
officer the power to determine the rights of parties under the
ordinance without anything (to guide or control his action.) In our case,
as already stated, the city mayor received his power from the State
through the Legislature which enacted the Revised Administrative
Code, and moreover, his action therein provided to be guided and
controlled by the already mentioned requirement that whether he
grants or refuses a municipal premit of any class it shall be for some
"good reason of general interest," and not as his unfettered will may
dictate.
The case of In re Fradzee, 63 Mich., 399, involved a city ordinance
declared unreasonable and void by the Supreme Court of Michigan, the
ordinance prohibiting certain uses of the public streets of the City of
Grand Rapids "without having first obtained the consent of the Mayor
or Common Council of said City." The ordinance did not prescribe any
guide, control or limitation for, of, and to, the exercise of the power
thus conferred upon the mayor or common council. The following
passage from the quotation from the decision of the Supreme Court of
Michigan made in the majority opinion would seem to reinforce the
stand taken in this dissent.
"...We must therefore construe this Charter and the powers it assumes
to grant, so far as it is not plainly unconstitutional, as only conferring
such power over the subjects referred to as will enable the city to keep
order, and suppress mischief, in accordance with the limitations and
conditions required by the rights of the people themselves, as secured
by the principles of law, which cannot be less careful of private rights
under a constitution than under the common law.
"It is quite possible that some things have a greater tendency to
produce danger and disorder in the cities than in smaller towns or in
rural places. This may justify reasonable precautionary measures, but
nothing further; and no inference can extend beyond the fair scope of
powers granted for such a purpose and no grant of absolute discretion
to suppress lawful action altogether can be granted at all...." (emphasis
ours.)
The instant case is concerned with an "indignation rally" to be held at
one of the busiest and most frequented public places in this big
cosmopolitan city, with a present population estimated to be 150 per
cent larger than its prewar population, and the public officer who was
being called upon to act on the petition for permit was the chief
executive of the city who was by reason of his office the officer most
directly responsible for the keeping and maintenance of peace and
public order for the common good. And as stated elsewhere in this
dissent, his power in the premises was not without control, limitation
or guide and, lastly, the action taken by him was not an absolute
suppression of the right claimed but was merely a postponement of
the use of a public place for the excercise of that right when popular
passions should have calmed down and public excitement cooled off
sufficiently to better insure the avoidance of public peace and order
being undermined.
CRIMINAL LAW FULL CASES
Rich vs. Mapervill, 42 Ill. Ap., 222, had to do with another city
ordinance. The court there held that when men in authority are
permitted in their discretion to excercise "power so arbitrary , liberty is
subverted, and the spirit of our free institution violated." (Emphasis
ours.) This is not our case, as the power of the Manila Mayor now
under consideration is not at all arbitrary. It was further held in that
case that where the granting of the permit is left to the unregulated
discretion of a small body of city alderman, th ordinance can not be
other than partial and discriminating in its practical operation. The case
at bar is radically different for, as already shown, the discretion of the
City Mayor here is not unregulated, for the phrase "any good reason of
general interest" is certainly an effective regulatory condition
precedent to the exercise of the power one way or the other. And just
as certainly the reasons alleged by the respondent Mayor for his action
stated in his letters dated November 15 and 17, 1947, addressed to
petitioner and in his affidavit Annex 1, seem entirely well founded and
well taken, consideration being had of his grave responsibilities as the
immediate keeper of peace and public order in the city. Elsewhere in
this dissent we quote from said documents textually.
On page 13 of the majority opinion there is aquotation of anothe
passage from the case of Cox vs. New Hampshire, supra, which says:
"As regualtion of the use of the streets for parades or processions is a
traditional exercise of control by local government, the question in a
particular case is whether that control is exerted so as not to deny or
unwarrantedly abridge the right of assembly and the opportunities for
the communication of thought and the discussion of public questions
immemorially associated with resort to public places.".
The above rule means that if the control exerted does not deny or
unwarrantedly abridge the right of assembly, such control is legally
valid. This is precisely our case, since the respondent Mayor neither
denied not unwarrantedly abridged the right asserted by petitioner
and his companions. If the postponement of the granting of the permit
should be taken as a denial of the right, then we would practically be
denying the discretion of the proper official for it would be tantamount
to compelling him to grant the permit outright, which could necessarily
mean that he can never refuse the permit, for one who cannot even
postpone the granting of such permit much less can altogether refuse
it.
Hague vs, Committee for Industrial Organization, 307 U. S. 496, 83 Law.
ed., 1423, apart from being clearly distinguishable from the instant
case as later demonstrated, contains the passage quoted on page 7 of
this dissent, which decidedly supports it. The distinction between that
case and this is that there "the ordinance deals only with the exercise
of the right of assembly for the purpose of communicating views
entertained by speakers, and is not a general measure to promote the
public convenience in the use of the streets or parks" (83 Law. ed.,
1436); while in the instant case section 2434 (b)-(m) of the Revised
Administrative Code is not solely aimed at prhibition of any particular
act for it likewise provides permission, and in both cases is expressly
aimed at promoting the "general interest." .
Cox vs. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is
equally in solid support of this dissent as appears from No. 2 of the
syllabus therein:
"A statute requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local
authorities is not an unconstitutional abridgement of the rights of
assembly or of freedom of speech and press, where, as the statute is
construed by the state courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a consideration of time, place,
and manner, of the parade or procession, with a view to conserving the
public convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or
refuse licenses, but are required to exercise their discretion free from
the improper or inappropriate consideration and from unfair
discrimination." (Emphasis ours.)
In empowering and directing the City Mayor to grant or refuse permits
"for any...good reason of general interest," the Revised Administrative
Code plainly has in view only the common good and excludes all
"improper or inappropriate considerations" and "unfair discrimination"
in the exercise of the granted discretion.
Lastly, as between Hague vs, Committee fro Industrial
Organization, supra, and Cox vs. State of New Hampshire supra, the
choice is obvious with regard to their authoritative force, when it is
considered that in the former out of the nine Justices of the United
States Supreme Court two did not take part and of the seven who dis
only two, Justices Roberts and Black, subscribed the opinion from
which the majority here quote, while in the latter (Cox vs. State of New
Hampshire) the decision was unanimous.
(d) Mandamus unavailable.--- .
Mc Quillin on Municipal Cororations, 2nd ed., Revised, Volume 6, p.
848, section 2714, expresses the rule obtaining in the United States
that the immunity from judicial control appertaining to the Office of
the Governor of the State, or to the Presidency of the United States,
does not attach to the mayoralty of a city. But on page 878, section
2728, ha has the following to say on the unavailability of mandamus to
compel the granting of licenses and permits by municipal officers:
"SEC. 2728. To compel the granting of licenses and permits.--If the
issuance of the license or permit is discretionary with the officer or
municipal board, it is clear that it cannot be compelled by mandamus.
The cases rarely, if ever, depart from this well established rule, and in
consequence in doubtful cases the judicial decisions uniformly disclose
a denial of the remedy. As already stated, the fundamental condition is
that the petition must show a clear legal right to the writ and a plain
neglect of duty on the part of the public officer to perform the act
sought to be enforced. For example, one who seeks to compel a city to
issue to him a permit for the erection of a buiding must show
compliance with all valid requirements of the building ordinances and
regulations.
"The granting of licenses or permits by municipal or other public
authorities, as mentioned, is usually regarded as a discretionary duty,
and hence, ordinarilymandamus will not lie to compel them to grant a
license or issue a permit to one claiming to be entitled thereto,
especially where it is not alleged and shown that the exercise of such
discretion was arbitrary. All the court can do is to see that the licensing
authorities have proceeded according to law. Their decision will not be
reviewed on its merits. Where, however, refusal to grant a license or to
issue a permit, as said above, is arbitrary or capricious mandamus will
lie to compel the appropriate official action...." .
To my mind, the following reasons, alleged by the respondent mayor,
negative all element of arbitrariness in his official action:
"...please be advised that upon reading the metropolitan newspapers
this morning wherein it appears that your meeting will be an
indignation rally at which all the supposed election frauds allegedly
perpetrated in many parts of the Philippines for the purpose of
overriding the popular will, will be bared before the people, this office
hereby revokes the said permit.
"It is believed that public peace and order in Manila will be undermined
at the proposed rally considering the passions have not as yet subsided
and tension remains high as an aftermath of the last political contest.
"According to the same newspapers, delegates from the provinces and
students from local universities will particpate in the said rally which, in
my opinion, would only precipitate trouble since no guarantee can be
given that only the opposition elements will be there. The moment the
crowd becomes mixed with people of different political colors which is
most likely to happen, public order is exposed to danger once the
people are incited, as they will be incited, considering the purposes for
which the meeting will be held as reported in the newspapers above
mentioned.
"...." (Mayor's letter dated November 15, 1947.)
"I have the honor to acknowledge receipt of your letter of November 7,
1947, requesting for a permit to hold a public meeting at Plaza
Miranda, Quiapo, on Saturday, November 22, 1947, for the purpose of
denouncing the alleged fraudulent manner in which the last elections
CRIMINAL LAW FULL CASES
have been conducted and the alleged nationwide flagrant violation of
the Election Law, and of seeking redress therefor. It is regretted that
for the same reasons stated in my letter of November 15, 1947, your
request can not be granted for the present. This Office has adopted the
policy of not permitting meetings of this nature which are likely to
incite the people and disrupt the peace until the results of the elections
shall have been officially announced. After this announcement,
requests similar to yours will be granted.
"...." (Mayor's letter dated November 17, 1947.)
"That according to Congressman Primicias, the meeting will be an
indignation rally for the purpose of denouncing the alleged fraudulent
manner the said elections were conducted and the nationwide falgrant
violations of the Election Law;.
"2. That it is a fact that the returns of the last elections are still being
recounted in the City of Manila in the Commission on Elections, and
pending the final announcement of the results thereof, passions,
especially on the part of the losing groups, remain bitter and high;.
"3. That allusions have been made in the metropolitan newspapers
that in the case of defeat, there will be minority resignations in
Congress, rebellion and even revolution in the country;.
"4. That I am sure that the crowd that will attend said meeting will be a
multitude of people of different and varied political sentiments;.
"5. ......
"6. That judging from the tenor of the request for permit and taking
into consideration the circumstances under which said meeting will be
held, it is safe to state that once the people are gathered thereat are
incited, there will surely be trouble between the opposing elements,
commotion will follow, and then peace and order in Manila will be
disrupted; and.
"7. That the denial of said request for permit has been made for no
other reasons except to perform my duty as Mayor of Manila to
maintain and preserve peace and order in this City.
8. That I have assured Congressman Primicias that immediately after
the election returns shall have been officially announced, the
Nacionalista Party or any party will be granted permit to hold meetings
of indignation and to denounce alleged faruds." (Annex 1, Answer.)
For these and other reasons which could be advanced in corroboration,
I am of the considered opinion that the respondent Mayor had under
the law the requisite discretion to grant or refuse the permit
requested, and therefore to revoke that which had previously been
granted, and that the reasons for such revocation alleged in his letters
dated November 15 and 17, 1947, to petitioner and in his affidavit
Annex 1 were amply sufficient to justify his last action. And be it
distinctly observed that this last action was not an absolute denial of
the permit, but a mere postponement of the time for holding the
"rally" for good reasons "of general interest" in the words of section
2434 (b)-(m) of the Revised Admninistrative Code.
TUASON, J., dissenting:
I join in Mr. Hilado's dissent and wish to add a few remarks.
As Mr. Justice Hilado says, freedom of speech, of the press, and of
peaceble assemblage, is only an incidental issue in this case. No one
will contest the proposition that the mayor or the Congress itself may
stop the petitioner and his men from meeting peacebly and venting
their grievances in a private place. The main issue rather is the extent
of the right of any group of people to use a public street or a public
plaza for a purpose other than that for which it is dedicated.
The constitutional guaranty of free speech does not prevent the
government from regulating the use of places within its control. A law
or ordinance may forbid the delivery of addresses on the public parks,
or on the streets as a valid exrcise of police power. (12 C. J., 954) Rights
of assembly and of petition are not absolute rights and are to be
construed with regard to the general law. (16 C.J.S., 640) Indeed, "the
privileges of a citizen of the United States to use the streets and parks
for the communication of views on national questions...must be
exercised in subordination to the general comfort and convenience."
(Hague vs. Committee for Industrial Organization, 307 U. S., 496, 83
Law. ed., 1433) And so long as the municpal authorities act within the
legitimate scope of their police power their discretion is not subject to
outside interference or judicial revsion or reversal (14 C. J., 931.)
The mayor did not act capriciously or arbitrarily in withholding or
postponing the permit applied for by the petitioner. His reasons were
real, based on contemporary events of public knowledge, and his
temporary refusal was reasonably calculated to avoid possible
disturbances as well as to adavance and protect the public in the
proper use of the most congested streets and public plaza in an
overcrowded city. There was reason to fear disturbances, not from the
petitioner and his men but from elements who had no connection with
the holding of the meeting but who, having gripes, might be easily
excited to violence by inflammatory harangues when nerves were on
edge. The fact that no untoward incident occurred does not prove the
judiciousness of this Court's resolution. The court is not dealing with an
isolated case; it is laying down a rule of transcendental importance and
far-reaching consequences, in the administration of cities and towns. If
nothing happened, it is well to remember that, according to
newspapers, 500 policemen were detailed to prevent possible disorder
at the gathering. It should also be borne in mind that vehicular traffic in
the vicinity of Plaza Miranda had to be suspended and vehicles had to
be rerouted, during and after the meeting. All of which entailed
enormous expense by the city and discomforts to the general public.
No individual citizen or group of citizens certainly has a right to claim
the use of a public plaza or public streets at such great expense and
sacrifice on the part of the city and of the rest of the community. Yet,
by virtue of this Court's resolution any person or group of persons
invoking political, civil or religious freedom under the constitution is at
liberty to stage a rally or parade or a religious procession, with the
mayor powerless to do anything beyond seeing to it that no two
meetings or parades were held in the same place or close to each
other. No precedent in the United States, after whose institutions ours
are modelled, approaches this Court's resolution in its disregard of the
government's authority to control public streets and to maintain peace
and order. In an infant republic where the state of peace and order is
still far from normal, where the forces of law are far from adequate to
cope with lawlessness; in a city where conditions of traffic are among
the worst if not the worst on earth, this Court sets down a principle
that outstrips its prototype in "liberality", forgetting that personal
rights can only exist in a properly regulated society. As Mr. Chief Justice
Hughes said in Cox vs. New Hampshire, 61 S. Ct., 762, "Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be
lsot in the excesses of unrestrained abuses. The authority of the
municipality to impose regulations in order to assure the safety and
convenience of the people in the use public highways has never been
regarded as inconsistent with civil liberties, but rather as one of the
means of safeguarding the good order upon which they ultimately
depend." To be logical, peddlers and merchants should be given, as a
matter of right, the freedom to use public streets and public squares to
ply their trade, for the freedom of expression and of assemblage is no
more sacred than the freedom to make a living. Yet no one has dared
make such a claim.
The cases cited in the resolution are not applicable. It will be seen that
each of these cases involved the legality of a law and municipal
ordinance. And if in some of said cases a law or an ordinance was
declared void, the grounds of invalidation were either discrimination or
lack of authority of the Legislature or the municipal council under the
state constitution or under the law to adopt the contested measure.
As applied to Manila, there are both a law and an ordiance regulating
the use of public places and the holding of meetings and parades in
such places. As long as this law and this ordinance are in force the
mayor does not only have the power but it is his sworn duty to grant or
refuse a permit according to what he believes is in consonance with
peace and order or is proper to promote the general comfort and
convenience of the inhabitants.
CRIMINAL LAW FULL CASES
The Court says that section 2434 (m) of the Revised Administrative
Code "is not a specific of substantive power independent from the
corresponding municipal ordinance which the Mayor, as Chief
Executive of the City, is required to enforceunder the same section
2434." The Court advances the opinion that because section 2444
confers upon the municipal board "the police power to regulates the
use of streets and othe public places," "It is to be presumed that the
Legislature has not, in the same breath, conferred upon the Mayor in
section 2434 (m), the same power, specially if we take into account
that its exercise may be in conflict with the exercise of the same power
by the municipal board.".
Section 2434 (m) is written in the plainest language for any casual
reader to understand, and it is presumed that it means what it says.
This provision certainly was not inserted in the city charter, which must
have been drawn with painstaking care, for nothing. And I am aware of
no constitutional provision or constitutional maxim which prohibits the
delegation by the Legislature of part of its police power affacting local
matters, directly upon the mayor instead of through the municipal
board. Nor is there incompatibilty between section 2434 (m) and
section 2444 or the ordinance enacted under the latter. At any rate,
section 2434 (m) is of special character while section 2444 is general,
so that, if there is any conflict between section 2434 (m) and the
ordinance passed under section 2444, the former is to prevail.
This Court has already set at rest the validity, meaning any scope of
section 2434 (m) in a unanimous decision with all the nine members
voting, when it sustained the mayor's refusal to grant a permit for a
public meeting on a public plaza to be followed by a parade on public
streets. (Evangelista vs. Earnshaw, 57 Phil., 255) The reference to
section 2434 (m) in that decision was not an obiter dictum as the
majority say. The sole question presented there, as we gather from the
facts disclosed, was the legality of the mayor's action, and the court
pointed to section 2434 (m) as the mayor's authority for his refusal.
The fact that the mayor could have denied the petitioner's application
under the general power to prohibit a meeting for unlawful purposes
did not make the disposition of the case on the strength of section
2434 (m) obiter dictum. An adjudication on any point within the issues
presented by the case cannot be considered a dictum; and this rule
applies as to all pertinent questions, although only incidentally
involved, which are presented and decided in the regular course of the
consideration of the case, and lead up to the final conclusion, and to
any statement in the opinion as to a matter on which the decision is
predicated. Accordingly, a point expressly decided does not lose its
value as a precedent because the disposition of the case is or might
have been on some other ground, or even though, by reason of other
points in the case, the result reached might have been the same if the
court had held, on the particular point, otherwise than it did. (1 C. J. S.
314-315.)
But the Court asserts that if the meaning of section 2434 (m) is what
this Court said in Evangelista-Earnshaw case, then section is void. I do
not think that that provision is void--at least not yet. Until it is sus errores son de suerte que nunca se prolongan, y por el espiritu de
invalidated in the proper case and in the proper manner, the mayor's atencion que despiertan en el pais, son a menudo utiles.
authority in respect of the issuance of permits is to be measured by
section 2434 (m) and by the municipal ordinance in so far as the
"En una palabra: un Gobierno libre, siempre agitado, no podria
ordinance does not conflict with the law. The validity of that provision
mantenerse, si no es por sus propias leyes capaz de corregirse."
is not challenged and is nowhere in issue. It is highly improper,
("Grandeza y decadencia de los romanos," por Montesquieu, pags. 74,
contrary to the elementary rules of practice and procedure for this
76 y 77.) .
Court to say or declare that the provision is void. Moreover, Article VIII,
section 10, of the Constitution provides that "all cases involving the
constitutionality of a treaty or a law shall be heard and decided by the
Supreme Court in banc, and no treaty or law may be declared
unconstitutional without the concurrence of two-thirds of all the
members of the court." Only seven voted in favor of the resolution.
1 El letrado Sr. D. Ramon Diokno, en representacion del recurrente, y el
Fiscal Auxiliar de Manila D. Julio Villamor, en representacion del
recurrido. G.R. No. L-34022 March 24, 1972
MANUEL MARTINEZ Y FESTIN petitioner, 
2 Los hechos confirmaron plenamente esta presuncion; el mitin
vs.
monstruo ques se celebro en la noche del 22 de Noviembre en virtud
THE HONORABLE JESUS P. MORFE OF THE COURT OF FIRST INSTANCE
de nuestra resolucion concediendo el presente recurso de mandamus--
OF MANILA, and THE CITY WARDEN OF MANILA, respondents.
el mas grande que se ghaya celebrado jamas en Manila, segun la
prensa, y al cual se calcula que assistieron unas 80,000 personas--fue
completamente pacifico y ordenado, no registrandose el menor G.R. Nos. L-34046-7 March 24, 1972
incidente desagradable. Segun los periodicos, el mitin fue un magnifico
acto de ciudadania militante y responsable, vindicatoria de la fe de
todos aquellos que jamas habian dudado de la sensatez y cultura del FERNANDO BAUTISTA, SR., petitioner, 
pueblo de Manila. vs.
HON. FRANCISCO MA. CHANCO, Presiding Judge, Court of First
Instance of Baguio and Benguet, Second Judicial District, Branch III, et
3 Madame Roland. al., respondents.
4 En Mejico el lema, la consigna political es: "Sufragio efectivo, sin Estanislao A. Fernandez, Amelito Mutuc, Reynaldo Villar, Alberto K.
reelecion." Los que conocen Mejico aseguran que, merced a esta Jamir Anacleto Badoy, Jr., Emmanuel Santos, Sedfrey Ordoñez, Antonio
consigna, la era de las convulsiones y guerras civiles en aquella Tupaz, Arturo Pacificador, Dominador F. Carillo, Antonio Borromeo,
republica ha pasado definitivamente a la historia. Augusto Cesar Espiritu, Dandy K. Tupaz and Eugene A. Tan for
petitioner Manuel Martinez Y Festin.
5 "No puedo pasar por alto una magistratura que contribuyo mucho a
sostener el Gobierno de Roma; fue la de los censores. Hacian el censo Remulla, Perez and Estrella, Fernando P. Cabato and Gaudencio N.
del pueblo, y, ademas, como la fuerza de la republica consistia en la Floresca for petitioner Fernando Bautista Sr.
disciplina, la austeridad de las costumbres y la observacion constante
de ciertos ritos, los censores corregian los abusos que la ley no habia
previsto o que el magistrado ordinario no podia castigar... Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor
General Bernardo P. Pardo, Assistant Solicitor General Rosalio A. de
Leon and Solicitor Vicente V. Mendoza for respondents Judges.
"El Gobierno de Roma fue admirable, porque desde su nacimiento, sea
por el espiritu del pueblo, la fuerza del Senado o la autoridad de ciertos
magistrados, estaba constituido de tal modo, que todo abuso de poder Kaulayao V. Faylona, Manuel Imbong, Jacobo Gonzales, Fernando P.
Camaya, Jose Tablizo, Romeo Kahayon and Tomas P. Matic, Jr. for
pudo ser siempre corregido.
respondents Pulido and Tamayo.
"El Gobierno de Inglaterra es mas sabio, porque hay un cuerpo
encargado de examinarlo continuamente y de examinarse a si mismo;  
CRIMINAL LAW FULL CASES
FERNANDO, J.:p
The question raised in these certiorari proceedings, one to which no
authoritative answer has been yielded by past decisions, is the scope to
be accorded the constitutional immunity of senators and
representatives from arrest during their attendance at the sessions of
Congress and in going to and returning from the same except in cases
of treason, felony and breach of the peace. 1 Petitioners Manuel
Martinez y Festin 2 and Fernando Bautista, Sr.,3 as delegate of the
present Constitutional Convention would invoke what they consider to
be the protection of the above constitutional provision, if considered in
connection with Article 145 of the Revised Penal Code penalizing a
public officer or employee who shall, during the sessions of Congress,
"arrest or search any member thereof, except in case such member has
committed a crime punishable under [such] Code by a penalty higher
than prision mayor." 4 For under the Constitutional Convention
Act, 5 delegates are entitled to the parliamentary immunities of a
senator or a representative. 6 Both petitioners are facing criminal
prosecutions, the information filed against petitioner Manuel Martinez
y Festin for falsification of a public document and two informations
against petitioner Fernando Bautista, Sr. for violation of the Revised
Election Code. The Solicitor General, on behalf of the respondent
Judges in the above proceedings, 7 would dispute such a contention on
the ground that the constitutional provision does not cover any
criminal prosecution being merely an exemption from arrest in civil
cases, the logical inference being that insofar as a provision of the
Revised Penal Code would expand such an immunity, it would be
unconstitutional or at the very least inoperative. A careful study of the
above constitutional provision, in the light of the proceedings of the
Constitutional Convention, adopting the then well-settled principle
under American law and of the purposes to be served by such an
immunity, persuade us that the stand taken by the Solicitor General is
correct. These certiorari proceedings cannot prosper.
The facts in both petitions for certiorari are not in dispute. Petitioner
Martinez y Festin 8 alleged that on June 10, 1971, an information
against him for falsification a public document was filed. Its basis was
his stating under oath in his certificate of candidacy for delegate to that
Constitutional Convention that he was born on June 20, 1945, when in
truth and in fact he knew that he was born on June 20, 1946. There
was on July 9, 1971, a special appearance on his part questioning the
power of respondent Judge to issue a warrant of arrest and seeking
that the information be quashed. On the same day, there was an order
from the lower court suspending the release of the warrant of arrest
until it could act on such motion to quash. Then came on July 22, 1971
an omnibus motion from him, with previous leave of court, to quash
the information, to quash the warrant of arrest, or to hold in abeyance
further proceeding in the case. It was not favorably acted on. On
August 21, 1971, respondent Judge rendered an order denying the
petitioner omnibus motion to quash. In his belief that the information
and the warrant of arrest in this case are null and void, the petitioner
did not post the required bond. He was arrested by the City Sheriff in
the afternoon of September 6, 1971. At the time of the filing of the
petition he was confined at the City Jail in the custody of respondent
City Warden of Manila. He was on his way to attend the plenary
session of the Constitutional Convention. Such arrest was against his
will and over his protest. He was arraigned on September 9, 1971.
There was at such a time a motion by petitioner to reconsider the
court's order of August 21, 1971. It was denied in open court. On the
very same day, he filed the petition for certiorari and habeas corpus,
but having been released thereafter on bail on September 11, 1971,
the petition is now in the nature solely of a certiorari proceeding. 9
As for petitioner Fernando Bautista, Sr., 10 it was alleged that he is a
duly elected and proclaimed delegate to the 1971 Constitutional
Convention. He took his oath of office and assumed the functions of
such office on June 1, 1971. He has continued since then to perform
the duties and discharge the responsibilities of a delegate. Two criminal
complaints, docketed as Criminal Cases Nos. 146(57) and 148(58), were
directly filed with the Court of First lnstance of Baguio and Benguet by
a certain Moises Maspil, a defeated delegate-aspirant who placed 15th
in the order of votes garnered against the petitioner, and his co-
accused for alleged violation of Section 51 of the Revised Penal Code in
that they gave and distributed free of charge food, drinks and
cigarettes at two public meetings, one held in Sablan and the other in
Tuba, both towns being in Province of Benguet. Respondent Presiding
Judge conducted the preliminary investigation of said criminal
complaints. Thereafter on August 7, 1971, he issued an order for the
filing of the corresponding informations. Before a warrant of arrest in
said criminal cases could be issued, petitioner in a motion of August 14,
1971 invoked the privilege of immunity from arrest and search,
pursuant to Section 15 of Republic Act No. 6132, otherwise known as
the 1971 Constitutional Convention Act, in relation to Sec. 15, Article VI
of the Constitution and Article 145 of the Revised Penal Code.
Respondent Judge, on the very same day, issued an order, holding in
abeyance the issuance of a warrant of arrest and setting the hearing of
said Motion on August 23, 1971. As scheduled on August 23, 1971,
there was a hearing on such motion. Petitioner however did not prevail
notwithstanding his vigorous insistence on his claim for immunity, a
warrant of arrest being ordered on the same day. On September 11,
1971, there was a motion to quash such order of arrest filed by
petitioner. He was unsuccessful, respondent Judge, in an order of said
date, ordering his immediate arrest. His petition for certiorari and
prohibition was filed with this Court on September 15, 1971. 11
What is thus sought by petitioners Martinez y Festin and Bautista, Sr. is
that the respective warrants of arrest issued against them be quashed
on the claim that by virtue of the parliamentary immunity they enjoy as
delegates, ultimately traceable to Section 15 of Article VI of the
Constitution as construed together with Article 145 of the Revised
Penal Code, they are immune from arrest. In the case of petitioner
Martinez y Festin, he is proceeded against for falsification of a public
document punishable by prision mayor. 12 As for petitioner Bautista, Sr.,
the penalty that could be imposed for each of the Revised Election
Code offense, of which he is charged, is not higher than prision
mayor. 13
The respondents in the above petitions were required to answer by
resolutions of this Court issued on September 10 and September 20,
1971, respectively. An answer on behalf of respondent Judge Jesus P.
Morfe in the case of petitioner Martinez y Festin was filed on
September 20, 1971 with an answer in intervention filed by respondent
Executive Sheriff of Manila and the Chief of Warrant Division likewise
filed on the same date. His petition was duly heard on September 14,
1971, Delegate Estanislao A. Fernandez vehemently pressing his claim
to immunity. Thereafter on October 29, 1971, a memorandum,
comprehensive in scope and persuasive in its analysis of the
constitutional question presented, was filed on behalf of respondent
Judge Morfe by Solicitor General Felix Q. Antonio, two Assistants
Solicitors General Bernardo P. Pardo and Rosalio A. de Leon as well as
Solicitor Vicente V. Mendoza. A memorandum on behalf of President
Diosdado Macapagal of the Constitutional Convention, who was given
permission to submit such a pleading, was submitted on March 8, 1972
by the Committee on Legal Affairs of the Constitutional Convention. 14
As for the petitions of Bautista, Sr., the answer on behalf of respondent
Judge was filed on September 29, 1971. When the matter was heard on
October 14, 1971, he appeared through counsel, Delegate Juanito R.
Remulla, while respondent Judge was represented by Assistant
Solicitor General Rosalio A. de Leon and Solicitor Vicente V. Mendoza.
With the submission, on October 30, 1971, of an able memorandum on
behalf of respondent judge, again, by the same counsel from the Office
of the Solicitor General as well as a carefully-prepared memorandum of
petitioner Bautista, Sr., on December 1, 1971, the matter was deemed
submitted for adjudication.
As noted at the outset, certiorari does not lie to quash the warrants of
arrest issued against petitioner Martinez y Festin as well as petitioner
Bautista, Sr. Their reliance on the constitutional provision which for
them should be supplemented by what was provided for in the Revised
Penal Code is futile. There is no justification then for granting their
respective pleas.
No other conclusion is allowable consistently with the plain and explicit
command of the Constitution. As is made clear in Section 15 of Article
VI, the immunity from arrest does not cover any prosecution for
treason, felony and breach of the peace. Treason exists when the
accused levies war against the Republic or adheres to its enemies
giving them aid and comfort. 15 A felony is act or omission punishable
by law. 16 Breach of the peace covers any offense whether defined by
the Revised Penal Code or any special statute. It is a well-settled
principle in public law that the public peace must be maintained and
any breach thereof renders one susceptible to prosecution. Certainly
then from the explicit language of the Constitution, even without its
controlling interpretation as shown by the debates of the
CRIMINAL LAW FULL CASES
Constitutional Convention to be hereinafter discussed, petitioners
cannot justify their claim to immunity. Nor does Article 145 of the
Revised Penal Code come to their rescue. Such a provision that took
effect in 1932 could not survive after the Constitution became
operative on November 15, 1935. As will be shown, the repugnancy
between such an expansion of the congressional immunity and the
plain command of the Constitution is too great to be overcome, even
on the assumption that the penalty to which a public officer will be
subjected in the event that he did arrest one entitled thereto for an
offense punishable by less than reclusion temporal suffices to widen its
scope. This is so considering not only the history of such a
Constitutional grant of immunity but also its basic purpose and
objective.
1. Even if the provision granting the legislative immunity of freedom
from arrest were clothed in language less clear, its history precludes
any other interpretation. As submitted to the Constitutional
Convention of 1934, the draft proposal was worded as follows: "The
Members of the National Assembly shall in all cases except treason,
open disturbance of public order, or other offense punishable by death
or imprisonment of not less than six years, be privileged from arrest
during their attendance at the sessions of the National Assembly, and
in going to and returning from the same." On December 4, 1934, upon
its being considered by the Convention, an amendment was proposed
by Delegate Aldeguer so that it would read: "The Members of the
National Assembly shall in all cases except treason, felony, and breach
of the peace, be privileged from arrest during their attendance at the
sessions of the National Assembly, and in going and returning from the
same." What was sought by him was to retain the provision of the
Philippine Autonomy Act of 1916, with phraseology identical to that
found in the American Constitution.
He defended his proposal thus: "My amendment is not new. It is the
same phrase granting parliamentary immunity to the members of the
Parliament of England. It is the same phrase granting parliamentary
immunity to members of Congress. It is the same phrase granting
parliamentary immunity to members of the various state legislators of
the Union. Now, in reading the draft proposed by the Sub-Committee
of Seven, I found out that it is a broad rule. Mr. President, the question
is not whether we should grant privilege of immunity to the members
of the National Assembly ... " 17 He was interrupted by a point of order
raised, but he was allowed to continue. He went on: "As I was saying,
Mr. President and Gentlemen of the Convention, the draft gives to the
member of the National Assembly more privileges than what the
nature of the office demands. My question is that if the members of
the Congress of the United States, if the members of the Parliament, if
the members of the various State Legislatures were able to perform
their functions as members of law-making bodies with the privileges
and immunities granted by the phrase "breach of peace." I wonder why
the members of the future National Assembly cannot perform their
duties with the same limitations and with the same privileges. Mr.
President and members the Convention, the history of parliamentary
immunity shows that it was never intended to exempt members of the
National Assembly from criminal arrest. When American sovereignty
was implanted into these Islands, a new theory of government was
implanted too. This theory of government places every man equal
before the eyes of the law. The grant of certain privileges to any set of
persons means the abrogation of this principle of equality before the
eyes of the law. Another reason, Mr. President and Members of the
Convention, is this: The State Legislature is the agent of the State. The
power or the right of the Legislature to claim privileges is based on the
right of self-preservation. The right of the State to claim privileges is
due to the fact that it has the right to carry its function without
obstacle. But we must also remember that any Legislature is but the
agent of the State. The State is the principal. Any crime committed,
whether such crime is committed by a colorum or by a gangster,
endangers the State. Giving more privileges to an agent, which is the
Legislature, at the expense of the principal, which is the State, is not a
sound policy. So that, Mr. President, and Members of the Convention,
believing that under the phrase "breach of peace", our future members
of the Assembly can very well perform the duties incumbent upon
them. I submit my amendment for the consideration of this
Convention." 18
Delegate Manuel Roxas on behalf of the sub-committee of seven did
not object. As a matter of fact, he was for such amendment. He
considered it "well-founded" and was for such immunity complying
"with the wording of the [Philippine Autonomy Act] in this
particular." 19 The Convention readily approved the amendment by
acclamation.
It does not admit of doubt therefore that the immunity from arrest is
granted by the Constitution was understood in the same sense it has in
American law, there being a similar provision in the American
Constitution. 20 Its authoritative interpretation in the United States was
supplied by the Williamson case, a 1908 decision. 21
According to the then Justice, later Chief Justice, White who penned
the opinion, "the term "treason, felony and breach of the peace," as
used in the constitutional provision relied upon, excepts from the
operation of the privilege all criminal offenses, ... " 22 He traced its
historical background thus: "A brief consideration of the subject of
parliamentary privilege in England will, we think, show the source
whence the expression "treason felony, and breach of the peace" was
drawn, and leave no doubt that the words were used in England for the
very purpose of excluding all crimes from the operation of the
parliamentary privilege, and therefore to leave that privilege to apply
only to prosecutions of a civil nature." 23 Story's treatise on the
Constitution was likewise cited, his view on the matter being quite
emphatic: "Now, as all crimes are offenses against the peace, the
phrase "breach of the peace" would seem to extend to all indictable
offenses, as well those which are in fact attended with force and
violence, as those which are only constructive breaches of the peace of
the government, inasmuch as they violate its good order." 24
As far as American constitutional law is concerned, both Burdick 25 and
Willoughby 26 could use practically identical appraising such immunity,
the former stating that it "is not now of great importance" and the
latter affirming that it "is of little importance as arrest of the person is
now almost never authorized except for crimes which fall within the
classes exempt from the priviledge." The state of the American law on
this point is aptly summarizedby Cooley: "By common parliamentary
law, the members of the legislature are privileged from arrest on civil
process during the session of that body, and for a reasonable time
before and after, to enable them to go to and return from the
same." 27 A prosecution for a criminal offense, is thus excluded from
this grant of immunity. So it should be Philippine law, if deference were
to be paid to what was explicitly agreed upon in the Constitutional
Convention.
2. Would it make a difference however in the availability of the writs
of certiorari sought by petitioners considering that Article 145 of the
Revised Penal Code would impose upon any public officer or employee
who shall, while the Congress is in regular or special session, arrest or
charge any member thereof except in case such member has
committed a crime punishable by penalty higher than prision
mayor? 28 The assumption here indulged is that the effect of the above
in the Revised Penal Code was to expand the grant of parliamentary
immunity under the Philippine Autonomy Act, although its literal
language does not go that far. It is to be remembered, however, that it
took effect on January 1, 1932 before the enforcement of the present
Constitution in 1935. Considering that both under the then organic law,
the Philippine Autonomy Act and equally so under the present
Constitution, such a more generous treatment accorded legislators
exempting them from arrest even if warranted under a penal law, the
question as to whether it did survive becomes unavoidable. It is our
opinion that the answer must be in the negative.
The Constitution is equally explicit on the following point: "All laws of
the Philippine Islands shall continue in force until the inauguration of
the Commonwealth of the Philippines; thereafter, such laws shall
remain operative, unless inconsistent with this Constitution until
amended, altered, modified, or repealed by the Congress of the
Philippines, and all references in such laws to the government or
officials of the Philippines shall be construed, in so far as applicable, to
refer to the Government and corresponding officials under this
Constitution." 29 In People v. Linsangan  30 decided in December, 1935,
barely a month after the Constitution took effect, the continued
applicability of Section 2718 of the Revised Administrative Code that
would allow the prosecution of a person who remains delinquent in the
payment of cedula tax, 31 this Court, in its opinion thru the pen of the
then Justice, later Chief Justice, Abad Santos, after setting forth that
the Constitution prohibits the imprisonment for debt on non-payment
of poll tax, 32 held: "It seems too clear to require demonstration that
section 2718 of the Revised Administrative Code is inconsistent with
section 1, clause 12, of Article III of the Constitution in that, while the
former authorizes imprisonment for non-payment of the poll or cedula
CRIMINAL LAW FULL CASES
tax, the latter forbids it. It follows that upon the inauguration of the
Government of the Commonwealth, said section 2718 of the Revised
Administrative Code became inoperative, and no judgment of
conviction can be based thereon." 33
So it was in De los Santos v. Mallare. 34 Again under the provision of the
Revised Administrative Code the President could remove at pleasure
any of the appointive officials under the Charter of the City of
Baguio. 35 Relying on such a provision, the then President Quirino
removed petitioner De los Santos who was appointed City Engineer
Baguio of on July 16, 1946, and chose in his place respondent Gil R.
Mallare. The Revised Administrative Code was a legislation that dates
back to 1917, 36 eighteen years before the Constitution prohibited any
officer or employee in the civil service being removed or suspended
except for cause as provided by law. 37 Again this Court, in the light of
aforecited provision in an opinion of Justice Tuason, held: "So, unlike
legislation that is passed in defiance of the Constitution, assertive and
menacing, the questioned part of section 2545 of the Revised
Administrative Code does not need a positive declaration of nullity by
the court to put it out of the way. To all intents and purposes, it is non-
existent, outlawed and eliminated from the statute book by the
Constitution itself by express mandate before the petitioner was
appointed." 38 In the language of the constitutional provision then that
portion of Article 145 penalizing a public official or employee who shall
while the Congress is in regular or special session arrest or search any
member thereof except in case he has committed a crime punishable
under the Revised Penal Code by a penalty higher than prision
mayor is declared inoperative.
The above conclusion reached by this Court is bolstered and fortified
by policy considerations. There is, to be sure, a full recognition of the
necessity to have members of Congress, and likewise delegates to the
Constitutional Convention, entitled to the utmost freedom to enable
them to discharge their vital responsibilities, bowing to no other force
except the dictates of their conscience. Necessarily the utmost latitude
in free speech should be accorded them. When it comes to freedom
from arrest, however, it would amount to the creation of a privileged
class, without justification in reason, if notwithstanding their liability
for a criminal offense, they would be considered immune during their
attendance in Congress and in going to and returning from the same.
There is likely to be no dissent from the proposition that a legislator or
a delegate can perform his functions efficiently and well, without the
need for any transgression of the criminal law. Should such an
unfortunate event come to pass, he is to be treated like any other
citizen considering that there is a strong public interest in seeing to it
that crime should not go unpunished. To the fear that may be
expressed that the prosecuting arm of the government might unjustly
go after legislators belonging to the minority, it suffices to answer that
precisely all the safeguards thrown around an accused by the
Constitution, solicitous of the rights of an individual, would constitute
an obstacle to such an attempt at abuse of power. The presumption of
course is that the judiciary would main independent. It is trite to say
that in each and every manifestation of judicial endeavor, such a virtue
is of the essence.
WHEREFORE, the petition for certiorari and habeas corpus by Delegate
Manuel Martinez by Festin in L-34022 and the petitions
for certiorari and prohibition by Delegate Fernando Bautista, Sr. in L-
34046 and L-34047 are hereby dismissed. Without pronouncement as
to costs.
Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo,
Villamor and Makasiar, JJ., concur.
Concepcion, C.J., concurs in the result.
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,  public authorities;
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First
Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias
"Bob," and NILO S. TAYAG alias Romy Reyes alias
"Taba,"respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
 
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-
Subversion  ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL
Act, 1 which outlaws the Communist Party of the Philippines and other
"subversive associations," and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with, becomes or remains a
member" of the Party or of any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the
Anti-Subversion Act was filed against the respondent Feliciano Co in
the Court of First Instance of Tarlac. On March 10 Judge Jose C. de
Guzman conducted a preliminary investigation and, finding a prima
facie case against Co, directed the Government prosecutors to file the
corresponding information. The twice-amended information, docketed
as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the Municipality of
Capas, Province of Tarlac, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, feloniously became an
officer and/or ranking leader of the Communist Party of the
Philippines, an outlawed and illegal organization aimed to overthrow
the Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in
the Philippines a totalitarian regime and placing the government under
the control and domination of an alien power, by being an instructor in
the Mao Tse Tung University, the training school of recruits of the New
People's Army, the military arm of the said Communist Party of the
Philippines.
That in the commission of the above offense, the following aggravating
circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with insult to
(b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford
impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill
of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed
with the same court, sharing the respondent Nilo Tayag and five others
with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly
designated by the Secretary of Justice to collaborate with the Provincial
Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled
case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA,
ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several
JOHN DOES, whose identities are still unknown, for violation of
REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:
That in or about March 1969 and for sometime prior thereto and
thereafter, in the Province of Tarlac, within the jurisdiction of this
Honorable Court, and elsewhere in the Philippines, the above-named
accused knowingly, willfully and by overt acts organized, joined and/or
remained as offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in Republic Act No.
1700; that BENJAMIN BIE and COMMANDER MELODY, in addition
thereto, knowingly, willfully and by over acts joined and/or remained
CRIMINAL LAW FULL CASES
as a member and became an officer and/or ranking leader not only of
the Communist Party of the Philippines but also of the New People's
Army, the military arm of the Communist Party of the Philippines; and
that all the above-named accused, as such officers and/or ranking
leaders of the aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then and there
knowingly, willfully and feloniously commit subversive and/or seditious
acts, by inciting, instigating and stirring the people to unite and rise
publicly and tumultuously and take up arms against the government,
and/or engage in rebellious conspiracies and riots to overthrow the
government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the
following:
1. On several occasions within the province of Tarlac, the accused
conducted meetings and/or seminars wherein the said accused
delivered speeches instigating and inciting the people to unite, rise in
arms and overthrow the Government of the Republic of the
Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among others
a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz,
Tarlac for the avowed purpose of undertaking or promoting an armed
revolution, subversive and/or seditious propaganda, conspiracies,
and/or riots and/or other illegal means to discredit and overthrow the
Government of the Republic of the Philippines and to established in the
Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together
with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the
above subversive and/or seditious activities in San Pablo City by
recruiting members for the New People's Army, and/or by instigating
and inciting the people to organize and unite for the purpose of
overthrowing the Government of the Republic of the Philippines
through armed revolution, deceit, subversion and/or other illegal
means, and establishing in the Philippines a Communist Government.
That the following aggravating circumstances attended the commission
of the offense: (a) aid of armed men or persons to insure or afford
impunity; and (b) craft, fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the
statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3)
it embraces more than one subject not expressed in the title thereof;
and (4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its
resolution of September 15, 1970, declared the statute void on the
grounds that it is a bill of attainder and that it is vague and overboard,
and dismissed the informations against the two accused. The
Government appealed. We resolved to treat its appeal as a special civil
action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of
attainder or ex port facto law shall be enacted." 2A bill of attainder is a
legislative act which inflicts punishment without trial. 3 Its essence is
the substitution of a legislative for a judicial determination of
guilt. 4 The constitutional ban against bills of attainder serves to
implement the principle of separation of powers 5 by confining
legislatures to 
rule-making 6 and thereby forestalling legislative usurpation of the
judicial function. 7 History in perspective, bills of attainder were
employed to suppress unpopular causes and political minorities, 8 and
it is against this evil that the constitutional prohibition is directed. The
singling out of a definite class, the imposition of a burden on it, and a
legislative intent, suffice to stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the
court a quo as a bill of attainder because it "tars and feathers" the
Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and
grave danger to the security of the Philippines.'" By means of the Act,
the trial court said, Congress usurped "the powers of the judge," and
assumed "judicial magistracy by pronouncing the guilt of the CCP
without any of the forms or safeguards of judicial trial." Finally,
according to the trial court, "if the only issue [to be determined] is
whether or not the accused is a knowing and voluntary member, the
law is still a bill of attainder because it has expressly created a
presumption of organizational guilt which the accused can never hope
to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it
does not specify the Communist Party of the Philippines or the
members thereof for the purpose of punishment. What it does is
simply to declare the Party to be an organized conspiracy for the
overthrow of the Government for the purposes of the prohibition,
stated in section 4, against membership in the outlawed organization.
The term "Communist Party of the Philippines" issued solely for
definitional purposes. In fact the Act applies not only to the Communist
Party of the Philippines but also to "any other organization having the
same purpose and their successors." Its focus is not on individuals but
on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S.
Federal Labor-Management Reporting and Disclosure Act of
1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and
therefore unconstitutional. Section 504 provided in its pertinent parts
as follows:
(a) No person who is or has been a member of the Communist 
Party ... shall serve —
(1) as an officer, director, trustee, member of any executive board or
similar governing body, business agent, manager, organizer, or other
employee (other than as an employee performing exclusively clerical or
custodial duties) of any labor organization.
during or for five years after the termination of his membership in the
Communist Party....
(b) Any person who willfully violates this section shall be fined not
more than $10,000 or imprisoned for not more than one year, or both.
This statute specified the Communist Party, and imposes disability and
penalties on its members. Membership in the Party, without
more, ipso facto disqualifies a person from becoming an officer or a
member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly constitutes a bill of
attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from positions
affecting interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however, Congress has
exceeded the authority granted it by the Constitution. The statute does
not set forth a generally applicable rule decreeing that any person who
commits certain acts or possesses certain characteristics (acts and
characteristics which, in Congress' view, make them likely to initiate
political strikes) shall not hold union office, and leaves to courts and
juries the job of deciding what persons have committed the specified
acts or possessed the specified characteristics. Instead, it designates in
no uncertain terms the persons who possess the feared
characteristics and therefore cannot hold union office without
incurring criminal liability — members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L
ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case
involved an appeal from an order by the Control Board ordering the
Communist Party to register as a "Communist-action organization,"
under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC
sec. 781 et seq. (1958 ed). The definition of "Communist-action
organization" which the Board is to apply is set forth in sec. 3 of the
Act:
[A]ny organization in the United States ... which (i)is substantially
directed, dominated, or controlled by the foreign government or
foreign organization controlling the world Communist movement
referred to in section 2 of this title, and(ii) operates primarily to
advance the objectives of such world Communist movement... 64 Stat
989, 50 USC sec. 782 (1958 ed.)
CRIMINAL LAW FULL CASES
A majority of the Court rejected the argument that the Act was a bill of
attainder, reasoning that sec. 3 does not specify the persons or groups
upon which the deprivations setforth in the Act are to be imposed, but
instead sets forth a general definition. Although the Board has
determined in 1953 that the Communist Party was a "Communist-
action organization," the Court found the statutory definition not to be
so narrow as to insure that the Party would always come within it:
In this proceeding the Board had found, and the Court of Appeals has
sustained its conclusion, that the Communist Party, by virtud of the
activities in which it now engages, comes within the terms of the Act. If
the Party should at anytime choose to abandon these activities, after it
is once registered pursuant to sec. 7, the Act provides adequate means
of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be
totally unnecessary to charge Communists in court, as the law alone,
without more, would suffice to secure their punishment. But the
undeniable fact is that their guilt still has to be judicially established.
The Government has yet to prove at the trial that the accused joined
the Party knowingly, willfully and by overt acts, and that they joined
the Party, knowing its subversive character and with specific intent to
further its basic objective, i.e., to overthrow the existing Government
by force deceit, and other illegal means and place the country under
the control and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless
imputed despite the requirement of proof of knowing membership in
the Party, suffice it to say that is precisely the nature of conspiracy,
which has been referred to as a "dragneet device" whereby all who
participate in the criminal covenant are liable. The contention would be
correct if the statute were construed as punishing mere membership
devoid of any specific intent to further the unlawful goals of the
Party. 13 But the statute specifically required that membership must
be knowing or active, with specific intent to further the illegal
objectives of the Party. That is what section 4 means when it requires
that membership, to be unlawful, must be shown to have been
acquired "knowingly, willfully and by overt acts." 14 The ingredient of
specific intent to pursue the unlawful goals of the Party must be shown
by "overt acts." 15 This constitutes an element of "membership" distinct
from the ingredient of guilty knowledge. The former requires proof of
direct participation in the organization's unlawful activities, while the
latter requires proof of mere adherence to the organization's illegal
objectives.
2. Even assuming, however, that the Act specifies individuals and not
activities, this feature is not enough to render it a bill of attainder. A
statute prohibiting partners or employees of securities underwriting
firms from serving as officers or employees of national banks on the
basis of a legislative finding that the persons mentioned would be
subject to the temptation to commit acts deemed inimical to the
national economy, has been declared not to be a bill of
attainder. 16 Similarly, a statute requiring every secret, oath-bound
society having a membership of at least twenty to register, and
punishing any person who becomes a member of such society which
fails to register or remains a member thereof, was declared valid even
if in its operation it was shown to apply only to the members of the Ku
Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace
Act, 18 requiring labor unions to file with the Department of Labor
affidavits of union officers "to the effect that they are not members of
the Communist Party and that they are not members of any
organization which teaches the overthrow of the Government by force
or by any illegal or unconstitutional method," was upheld by this
Court. 19
Indeed, it is only when a statute applies either to named individuals or
to easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial does it become a bill of
attainder. 20 It is upon this ground that statutes which disqualified
those who had taken part in the rebellion against the Government of
the United States during the Civil War from holding office, 21 or from
exercising their profession, 22 or which prohibited the payment of
further compensation to individuals named in the Act on the basis of a
finding that they had engages in subversive activities, 23 or which made
it a crime for a member of the Communist Party to serve as an officer
or employee of a labor union, 24 have been invalidated as bills of
attainder.
But when the judgment expressed in legislation is so universally
acknowledged to be certain as to be "judicially noticeable," the
legislature may apply its own rules, and judicial hearing is not needed
fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature
passed a law requiring every secret, oath-bound society with a
membership of at least twenty to register, and punishing any person
who joined or remained a member of such a society failing to register.
While the statute did not specify the Ku Klux Klan, in its operation the
law applied to the KKK exclusively. In sustaining the statute against the
claim that it discriminated against the Ku Klux Klan while exempting
other secret, oath-bound organizations like masonic societies and the
Knights of Columbus, the United States Supreme Court relied on
common knowledge of the nature and activities of the Ku Klux Klan.
The Court said:
The courts below recognized the principle shown in the cases just cited
and reached the conclusion that the classification was justified by a
difference between the two classes of associations shown by
experience, and that the difference consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to
personal rights and public welfare, and (b) in the absence of such a
tendency on the part of the other class. In pointing out this difference
one of the courts said of the Ku Klux Klan, the principal association in
the included class: "It is a matter of common knowledge that this
organization functions largely at night, its members disguised by hoods
and gowns and doing things calculated to strike terror into the minds
of the people;" and later said of the other class: "These organizations
and their purposes are well known, many of them having been in
existence for many years. Many of them are oath-bound and secret.
But we hear no complaint against them regarding violation of the
peace or interfering with the rights of others." Another of the courts
said: "It is a matter of common knowledge that the association or
organization of which the relator is concededly a member exercises
activities tending to the prejudice and intimidation of sundry classes of
our citizens. But the legislation is not confined to this society;" and
later said of the other class: "Labor unions have a recognized lawful
purpose. The benevolent orders mentioned in the Benevolent Orders
Law have already received legislative scrutiny and have been granted
special privileges so that the legislature may well consider them
beneficial rather than harmful agencies." The third court, after
recognizing "the potentialities of evil in secret societies," and observing
that "the danger of certain organizations has been judicially
demonstrated," — meaning in that state, — said: "Benevolent orders,
labor unions and college fraternities have existed for many years, and,
while not immune from hostile criticism, have on the whole justified
their existence."
We assume that the legislature had before it such information as was
readily available including the published report of a hearing, before a
committee of the House of Representatives of the 57th Congress
relating to the formation, purposes and activities of the Klu Klux Klan. If
so it was advised — putting aside controverted evidence — that the
order was a revival of the Ku Klux Klan of an earlier time with additional
features borrowed from the Know Nothing and the A. P. A. orders of
other periods; that its memberships was limited to native-born, gentile,
protestant whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to the
Constitution of the United States; in another exacted of its member an
oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous
ingredient in the body politic of our country and an enemy to the weal
of our national commonwealth;" that it was conducting a crusade
against Catholics, Jews, and Negroes, and stimulating hurtful religious
and race prejudices; that it was striving for political power and
assuming a sort of guardianship over the administration of local, state
and national affairs; and that at times it was taking into its own hands
the punishment of what some of its members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been the
object of continuing scrutiny by this Court. In 1932 we found the
Communist Party of the Philippines to be an illegal association. 28 In
CRIMINAL LAW FULL CASES
1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to
establish in the Philippines a communist form of government similar to
that of Soviet Russia and Red China." 29 More recently, in Lansang vs.
Garcia, 30 we noted the growth of the Communist Party of the
Philippines and the organization of Communist fronts among youth
organizations such as the Kabataang Makabayan (KM) and the
emergence of the New People's Army. After meticulously reviewing the
evidence, we said: "We entertain, therefore, no doubts about the
existence of a sizeable group of men who have publicly risen in arms to
overthrow the government and have thus been and still are engaged in
rebellion against the Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order
that it may fall within the ambit of the prohibition against bills of
attainder. It is also necessary that it must apply retroactively and reach
past conduct. This requirement follows from the nature of a bill of
attainder as a legislative adjudication of guilt. As Justice Frankfurter
observed, "frequently a bill of attainder was ... doubly objectionable
because of its ex post factofeatures. This is the historic explanation for
uniting the two mischiefs in one 
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ...
Therefore, if [a statute] is a bill of attainder it is also an ex post
facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of
attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court
upheld the validity of the Charter of the City of Los Angeles which
provided:
... [N]o person shall hold or retain or be eligible for any public office or
employment in the service of the City of Los Angeles, in any office or
department thereof, either elective or appointive, who has within five
(5) years prior to the effective date of this section advised, advocated,
or taught, or who may, after this section becomes effective, become a
member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or has within
said period of five (5) years advised, advocated, or taught the
overthrow by force or violence of the Government of the United States
of America or of the State of California.
In upholding the statute, the Court stressed the prospective application
of the Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply restrospectively for a five-
year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars
from the city's public service persons who, subsequently to its adoption
in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so.
The provisions operating thus prospectively were a reasonable
regulation to protect the municipal service by establishing an
employment qualification of loyalty to the State and the United States.
... Unlike the provisions of the charter and ordinance under which
petitioners were removed, the statute in the Lovett case did not
declare general and prospectively operative standards of qualification
and eligibility for public employment. Rather, by its terms it prohibited
any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative
background, the statutewas held to have imposed penalties without
judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby
assumed judicial magistracy, them it mustbe demonstrated that the
statute claimed to be a bill of attainderreaches past conduct and that
the penalties it imposesare inescapable. As the U.S. Supreme Court
observedwith respect to the U.S. Federal Subversive Activities
ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact
that the conduct which it regulates is describedwith such particularity
that, in probability, few organizationswill come within the statutory
terms. Legislatures may act tocurb behaviour which they regard as
harmful to the public welfare,whether that conduct is found to be
engaged in by manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the regulated
conduct, bethey many or few, can escape regulation merely by altering
thecourse of their own present activities, there can be no complaintof
an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion
Act. Section 4 thereof expressly statesthat the prohibition therein
applies only to acts committed"After the approval of this Act." Only
those who "knowingly,willfully and by overt acts affiliate themselves
with,become or remain members of the Communist Party of
thePhilippines and/or its successors or of any subversive
association"after June 20, 1957, are punished. Those whowere
members of the Party or of any other subversive associationat the time
of the enactment of the law, weregiven the opportunity of purging
themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such
renunciationshall operate to exempt such persons from
penalliability. 34 The penalties prescribed by the Act are thereforenot
inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act
that the Communist Party of the Philippinesis an organized conspiracy
for the overthrow of theGovernment is inteded not to provide the
basis for a legislativefinding of guilt of the members of the Party
butrather to justify the proscription spelled out in section 4. Freedom
of expression and freedom of association are sofundamental that they
are thought by some to occupy a"preferred position" in the hierarchy
of constitutional values. 35 Accordingly, any limitation on their exercise
mustbe justified by the existence of a substantive evil. This isthe reason
why before enacting the statute in question Congressconducted careful
investigations and then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a
political party, is in fact an organized conspiracyto overthrow the
Government of the Republic of the Philippinesnot only by force and
violence but also by deceit, subversionand other illegal means, for the
purpose of establishing in thePhilippines a totalitarian regime subject
to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of
the Philippines constitutes a clear, present andgrave danger to the
security of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion,
national in scope but international in direction,posed by the
Communist Party of the Philippines and its activities,there is urgent
need for special legislation to cope withthis continuing menace to the
freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if,
instead of making these findings in enactingthe statute, Congress
omitted to do so.
In saying that by means of the Act Congress has assumed judicial
magistracy, the trial courd failed to takeproper account of the
distinction between legislative fact and adjudicative fact. Professor
Paul Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per
cent of alcohol would raise a question of legislativefact, i.e., whether
this standard has a reasonable relationto public health, morals, and the
enforcement problem. Alaw forbidding the sale of intoxicating
beverages (assuming itis not so vague as to require supplementation by
rule-making)would raise a question of adjudicative fact, i.e., whether
thisor that beverage is intoxicating within the meaning of the
statuteand the limits on governmental action imposed by the
Constitution. Of course what we mean by fact in each case is itselfan
ultimate conclusion founded on underlying facts and oncriteria of
judgment for weighing them.
A conventional formulation is that legislative facts — those facts which
are relevant to the legislative judgment — will not be canvassed save
CRIMINAL LAW FULL CASES
to determine whether there is a rationalbasis for believing that they
exist, while adjudicativefacts — those which tie the legislative
enactment to the litigant — are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this
Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a
court functus officio." The recital of legislative findings implements this
test.
With respect to a similar statement of legislative findingsin the U.S.
Federal Subversive Activities Control Actof 1950 (that "Communist-
action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate
primarily to"advance the objectives of such world Communist
movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative
findings and reject them....They are the productof extensive
investigation by Committes of Congress over morethan a decade and a
half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly
cannot dismiss them as unfoundedirrational imaginings. ... And if we
accept them, as we mustas a not unentertainable appraisal by
Congress of the threatwhich Communist organizations pose not only to
existing governmentin the United States, but to the United States as
asovereign, independent Nation. ...we must recognize that thepower
of Congress to regulate Communist organizations of thisnature is  concerned is not constitutionally protected speech, and itwas further
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings
articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a
proposition too plain to require elaboration.Self-preservation is the
"ultimate value" of society. It surpasses and transcendes every other
value, "forif a society cannot protect its very structure from
armedinternal attack, ...no subordinate value can be protected" 40 As
Chief Justice Vinson so aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is
a 'right' to rebellion against dictatorial governmentsis without force
where the existing structure of government provides for peaceful and
orderly change. We rejectany principle of governmental helplessness in
the face of preparationfor revolution, which principle, carried to its
logical conclusion,must lead to anarchy. No one could conceive that it
isnot within the power of Congress to prohibit acts intended
tooverthrow the government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly
described in sectin 4 thereof), Congressreaffirmed its respect for the
rule that "even throughthe governmental purpose be legitimate and
substantial,that purpose cannot be pursued by means that broadly
stiflefundamental personal liberties when the end can be more
narrowly achieved." 42 The requirement of knowing membership,as
distinguished from nominalmembership, hasbeen held as a sufficient
basis for penalizing membershipin a subversive organization. 43 For, as
has been stated:
Membership in an organization renders aid and encouragement to the
organization; and when membership is acceptedor retained with
knowledge that the organization is engaged inan unlawful purpose, the
one accepting or retaining membershipwith such knowledge makes
himself a party to the unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because
section 2 merely speaks of "overthrow"of the Government and
overthrow may be achieved by peaceful means, misconceives the
function of the phrase"knowingly, willfully and by overt acts" in section
4. Section 2 is merely a legislative declaration; the definitionsof and the
penalties prescribed for the different acts prescribedare stated in
section 4 which requires that membershipin the Communist Party of
the Philippines, to be unlawful, must be acquired "knowingly, willfully
and by overt acts." Indeed, the first "whereas" clause makes clear
thatthe overthrow contemplated is "overthrow not only by forceand
violence but also be deceit, subversion and other illegalmeans." The
absence of this qualificatio in section 2 appearsto be due more to an
oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent
and other illegal means. Only in a metaphoricalsense may one speak of
peaceful overthrow ofgovernments, and certainly the law does not
speak in metaphors.In the case of the Anti-Subversion Act, the use
ofthe word "overthrow" in a metaphorical sense is hardlyconsistent
with the clearly delineated objective of the "overthrow,"namely,
"establishing in the Philippines a totalitarianregime and place [sic] the
Government under thecontrol and domination of an alien power."
What thisCourt once said in a prosecution for sedition is appropos:
"The language used by the appellant clearly imported anoverthrow of
the Government by violence, and it should beinterpreted in the plain
and obvious sense in which it wasevidently intended to be understood.
The word 'overthrow'could not have been intended as referring to an
ordinarychange by the exercise of the elective franchise. The useof the
whip [which the accused exhorted his audience to useagainst the
Constabulary], an instrument designed toleave marks on the sides of
adversaries, is inconsistentwith the mild interpretation which the
appellant wouldhave us impute to the language."45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to
overthrow the Government by force, violence orother illegal means.
Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the
Communist Party ofthe Philippines, is so indirect and so insubstantial as
to beclearly and heavily outweighed by the overriding considerationsof
national security and the preservartion of democraticinstitutions in his
country.
The membership clause of the U.S. Federal Smith Actis similar in many
respects to the membership provision ofthe Anti-Subversion Act. The
former provides:
Whoever organizes or helps or attempts to organize anysociety, group,
or assembly of persons who teach, advocate, orencourage the
overthrow or destruction of any such governmentby force or violence;
or becomes or is a member of, or affiliatedwith, any such society,
group or assembly of persons, knowingthe purpose thereof —
Shall be fined not more than $20,000 or imprisoned notmore than
twenty years, or both, and shall be ineligible for emplymentby the
United States or any department or agencythereof, for the five years
next following his conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs.
United States: 47
It was settled in Dennis that advocacy with which we arehere
established that a combination to promote suchadvocacy, albeit under
the aegis of what purports to be a politicalparty, is not such association
as is protected by the firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive
anygreater degree of protection from the guarantees of that
Amendment.
Moreover, as was held in another case, where the problemsof
accommodating the exigencies of self-preservationand the values of
liberty are as complex and intricate as inthe situation described in the
legislative findings stated inthe U.S. Federal Subversive Activities
Control Act of 1950,the legislative judgment as to how that threat may
best bemet consistently with the safeguards of personal freedomsis
not to be set aside merely because the judgment of judgeswould, in
the first instance, have chosen other methods. 48 For in truth,
legislation, "whether it restrains freedom tohire or freedom to speak, is
itself an effort at compromisebetween the claims of the social order
and individual freedom,and when the legislative compromise in either
case isbrought to the judicial test the court stands one step
removedfrom the conflict and its resolution through law." 49
CRIMINAL LAW FULL CASES
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill
which may be enacted into law shall embrace more than one subject
which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is
the last proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother person to
overthrow the Government of the Republic ofthe Philippines, or the
government of any of its political subdivisionsby force, violence, deceit,
subversion or illegal means,for the purpose of placing such
Government or political subdivisionunder the control and domination
of any lien power, shallbe punished by prision correccional to prision
mayor with allthe accessory penalties provided therefor in the same
code.
It is argued that the said proviso, in reality, punishes notonly
membership in the Communist Party of the Philippinesor similar
associations, but as well "any conspiracyby two persons to overthrow
the national or any local governmentby illegal means, even if their
intent is not to establisha totalitarian regime, burt a democratic
regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe
United States or England or Malaysia or even an anti-communistpower
like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist
Party of the Philippines and SimilarAssociations, Penalizing
Membership Therein, and forOther Purposes"), has a short title.
Section 1 providesthat "This Act shall be known as the  Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Anti-Subversion Act."Together with the main title, the short title of the
statuteunequivocally indicates that the subject matter is subversionin
general which has for its fundamental purpose the substitutionof a
foreign totalitarian regime in place of theexisting Government and not
merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents,
and need not recite the details of the Act. 51 It is a valid title if it
indicates in broad but clear termsthe nature, scope, and consequences
of the proposed lawand its operation. 52 A narrow or technical
construction isto be avoided, and the statute will be read fairly and
reasonablyin order not to thwart the legislative intent. We holdthat the
Anti-Subversion Act fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act,
we cannot overemphasize the needfor prudence and circumspection in
its enforcement, operatingas it does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the following basic
guidelines to be observed in any prosecution under the Act.The
Government, in addition to proving such circumstancesas may affect
liability, must establish the following elementsof the crime of joining
the Communist Party of the Philippinesor any other subversive
association:
(1) In the case of subversive organizations other thanthe Communist
Party of the Philippines, (a) that thepurpose of the organization is to
overthrow the presentGovernment of the Philippines and to establish
in thiscountry a totalitarian regime under the domination of aforeign
power; (b) that the accused joined such organization;and (c) that he did
so knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the
CPP continues to pursue the objectiveswhich led Congress in 1957 to
declare it to be an organizedconspiracy for the overthrow of the
Government by illegalmeans for the purpose of placing the country
under thecontrol of a foreign power; (b) that the accused joined
theCPP; and (c) that he did so willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or
remaining a member of the Communist Party ofthe Philippines or of
any other subversive association: weleave this matter to future
determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set
aside, and these two cases are herebyremanded to the court a quo for
trial on the merits. Costs de oficio.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.
 
Separate Opinions
 
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren
in the decision reached upholding thevalidity of the Anti-Subversion
Act. 1 It is to be admittedthat the learned and scholarly opinbion of
Justice Castro hasthe impress of conscientious and painstaking scrutiny
ofthe constitutional issues raised. What is more, the stressin the
concluding portion thereof on basic guidelines thatwill assure in the
trial of those prosecuted under suchAct respect for their constitutional
rights is to be commended.Nonetheless, my own reading of the
decisionscited, interpreting the bill of attainder clause  2 coupled
withthe fears, perhaps induced by a too-latitudinarian constructionof
the guarantees of freedom of belief and expression  3 as well as freedom
of association 4 as to impermissible inroadsto which they may be
exposed, compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing
concern of state safety and security shouldbe ignored. The political
branches of the governmentwould lay themselves oepn to a justifiable
indictment fornegligence had they been remiss in their obligation
tosafeguard the nation against its sworn enemies. In a simplerera,
where the overthrow of the government wasusually through the rising
up in arms, with weapons farless sophisticated than those now in
existence, there wasno constitutional issue of the magnitude that now
confrontsus. Force has to be met with force. It was as clearcutas that.
Advances in science as well as more subtlemethods of inducing
disloyalty and weakening the senseof allegiance have introduced
complexities in coping withsuch problems. There must be then, and I
am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light
that the validity of the Anti-Subversion Act isto be appraised. From ny
standpoint, and I am not presumptuousenough to claim that it is the
only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the
constitutionalcommands against bills of attainder and abridgmentof
free speech. I am comforted by the thought that evenhad my view
prevailed, all that it would mean is that anew legislation, more in
comformity to my way of thinkingto what is ordained by the
fundamental law, wouldhave to be enacted. No valid fear need be
entertained thenthat a setback would be occasioned to legitilate state
effortsto stem the tide of subversive activities, in whateverform
manifested.
2. The starting point in any inquiry as to the significanceof the bill of
attainder clause is the meaning attachedto it by the Constitutional
Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his
address on November19, 1934 as Chairman of the Committee on the
Bill of Rights quoted in the opinion of the Court: "A billof attainder is a
legislative act which inflicts punishment without judicial trial.
(Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the
Bill of Attainder was an act of Parliament by which a man was tried,
convictedand sentenced to death without a jury, without ahearing in
court, without hearing the witnesses againsthim and without regard to
CRIMINAL LAW FULL CASES
the rules of evidence. His bloodwas attainted or corrupted, rendering
him devoid of allheritable quality — of acquiring and disposing
property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the
penalty imposed was less than death, the act wasknown as a 'bill of
pains and penalties.' Bills of attainder, like ex post facto laws, were
favorite methods of Stuartoppression. Once, the name of Thomas
Jefferson was includedin a bill of attainder presented to Parliament
becauseof his reform activities." 5 Two American SupremeCourt
decision were thus in the minds of the framers.They are Cummings v.
Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative
acts, no matter whattheir form, that apply either to named individuals
or easilyascertainable members of a group in such a way as to inflicton
them punishment amounting to a deprivation ofany right, civil or
political, without judicial trial are billsof attainder prohibited by the
Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest
for refusing to take the loyalty oath requiredby the state Constitution
of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers,
and otherprofessionals must disavow that they had ever, "by act
orword," manifested a "desire" for the success of the nation'senemies
or a sympathy" with the rebels of the AmericanCivil War. If they swore
falsely, they were guilty of perjury.If they engaged in their professions
without theoath, they were criminally liable. The United States
Supreme Court condemned the provision as a bill of
attainder,identified as any legislative act inflicting punishment
withoutjudicial trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a punishment.Why such a conclusion
was unavoidable was explained inthe opinion of Justice Field thus: "A
bill of attainder isa legislative act, which inflicts punishment without a
judicialtrial. If the punishment be less than death, the actis termed a
bill of pains and penalties. Within the meaningof the Constitution, bills
of attainder include bills ofpains and penalties. In these cases the
legislative body, inaddition to its legitimate functions, exercises the
powersand office of judge; it assumes, in the language of thetextbooks,
judicial magistracy; it pronounces upon theguilt of the party, without
any of the forms or safeguardsof trial; it determines the sufficiency of
the proofs produced,whether conformable to the rules of evidence
orotherwise; and it fixes the degree of punishment in accordancewith
its own notions of the enormity of the offense. ... If the clauses of the
2d article of the Constitutionof Missouri, to which we have referred,
had in termsdeclared that Mr. Cummings was guilty, or should be
heldguilty, of having been in armed hostility to the UnitedStates, or of
having entered that state to avoid beingenrolled or drafted into the
military service of the UnitedStates, and, therefore, should be deprived
of the right topreach as a priest of the Catholic church, or to teach
inany institution of learning, there could be no question thatthe clauses
would constitute a bill of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof mentioning his name, had
declared that all priestsand clergymen within the state of Missouri
were guiltyof these acts, or should be held guilty of them, and hencebe
subjected to the like deprivation, the clause would beequally open to
objection. And further, it these clauseshad declared that all such
priests and clergymen shouldbe so held guilty, and be thus deprived,
provided they didnot, by a day designated, do certain specified acts,
theywould be no less within the inhibition of the Federal
Constitution.In all these cases there would be the legislativeenactment
creating the deprivation, without any of theordinary forms and guards
provided for the security ofthe citizen in the administration of justice
by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded
down, Ex parte Garland 11 was also decided. Thatwas a motion for leave
to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of
1860. Underthe previous rules of such Court, all that was necessarywas
that the applicant have three years practice in the statecourts to which
he belonged. In March 1865, the rule waschanged by the addition of a
clause requiring that an oathbe taken under the Congressional acts of
1862 and 1865to the effect that such candidate for admission to the
barhad never voluntarily borne arms against the UnitedStates.
Petitioner Garland could not in conscience subscribeto such an oath,
but he was able to show a presidentialpardon extended on July 15,
1865. With such actof clemency, he moved that he be allowed to
continue inpractice contending that the test oath requirement
wasunconstitutional as a bill of attainder and that at any rate,he was
pardoned. The same ruling was announced by theCourt again through
Justice Field. Thus: "In the exclusionwhich the statute adjudges, it
imposes a punishmentfor some of the acts specified which were not
punishableat the time they were committedl; and for other of the
actsit adds a new punishment to that before prescribed, andit is thus
brought within the further inhibition of the Consitutionagainst the
passage of an ex post facto law. Inthe case of Cummings v. Missouri,
just decided, ... wehave had occasion to consider at length the meaning
of abill of attainder and of an ex post facto law in the clauseof the
Constitution forbidding their passage by the states,and it is
unnecessary to repeat here what we there said.A like prohibition is
contained in the Constitution againstenactments of this kind by
Congress; and the argumentpresented in that case against certain
clauses of the Constitutionof Missouri is equally applicable to the act
ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in
United States v. Lovett, 13 decided in 1946.There it was shown that in
1943 the respondents, Lovett,Watson, and Dodd, were and had been
for several yearsworking for the government. The government
agencies,which had lawfully employed them, were fully satisfiedwith
the quality of their work and wished to keep thememployed on their
jobs. Over their protest, Congress providedin Section 304 of the Urgent
Deficiency AppropriationAct of 1943, by way of an amendment
attached to theHouse Bill, that after November 15, 1943, no salary
orcompensation should be paid respondent out of any moneythen or
thereafter appropriated except for services as jurorsor members of the
armed forces, unless they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure
of the President to reappoint the respondents, theagencies, kept all
the respondents at work on their jobs forvarying periods after
November 15, 1943, but their compensationwas discontinued after
that date. Respondentsbrought this action in the Court of Claims for
the salariesto which they felt entitled. The Ameican Supreme
Courtstated that its inquiry was thus confined to whether theaction in
the light of proper construction of the Act presenteda justificiable
controversy, and, if so, whether Section304 is a bill of attainder insofar
as the respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme
Court in an opinion by Justice Blackcategorically affirmed: "We hold
that Section 304 fallsprecisely within the category of Congressional
actionswhich the Constitution barred by providing that 'No Billof
Attainder or ex post Law shall be passed.' InCummings v. State of
Missouri, ... this Court said, 'Abill of attainder is a legislative act which
inflicts punishmentwithout a judicial trial. If the punishment be
lessthan death, the act is termed a bill of pains and penalties.Within
the meaning of the Constitution, bills of attainderinclude bills of pains
and penalties.' ... On the sameday the Cummings case was decided, the
Court, in Exparte Garland, also held invalid on the same grounds anAct
of Congress which required attorneys practicing beforethis Court to
take a similar oath. Neither of thesecases has ever been overruled.
They stand for the propositionthat legislative acts, no matter what
their form,that apply either to named individuals or to easily
ascertainablemembers of a group in such a way as to inflictpunishment
on them without a judicial trial are billsof attainder prohibited by the
Constitution. Adherenceto this principle requires invalidation of Section
304. Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a
conviction under the Labor-ManagementReporting and Disclosure Act
of 1959, making it a crimefor a member of the Communist Party to
serve as anofficer ir, except in clerical or custodial positions,
anemployee of a labor union. Respondent Brown, a longshoremanon
the San Francisco docks, and an open andavowed Communist, for more
than a quarter of a centurywas elected to the Executive Board of Local
10 of theInternational Longshoremen's and Warehousemen's Unionfor
consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961,
respondent was charged in a one-countindictment returned in a district
court of California withservicing as a member of an executive board of
a labororganization while a member of the Communist Party, inwillful
violation of the above provision. The question ofits validity under the
bill of attainder clause was thusproperly raised for adjudication. While
convicted in thelower court, the Court of Appeals for the Ninth
Circuitreversed. It was sustained by the American SupremeCourt. As
noted in the opinion by Chief Justice Warren,"the wide variation in
form, purpose and effect of ante-Constitutionbills of attainder indicates
that the properscope of the Bill of Attainder Clause, and its relevance
tocontemporary problems, must ultimately be sought by attemptingto
discern the reasons for its inclusion in theConstitution, and the evils it
CRIMINAL LAW FULL CASES
was desinged to eliminate.The best available evidence, the writings of
the architectsof our constitutional system, indicates that the Bill
ofAttainder Clause was inteded not as a narrow, technical(and
therefore soon to be outmoded) prohibition, but ratheras an
implementation of the separation of powers, ageneral safeguard
against legislative exercise of the judicialfunction, or more simply —
trial by legislature." 16 Then after referring to Cummings, Garland, and
Lovett,Chief Justice Warren continued: "Under the line of casesjust
outlined, Sec. 504 of the Labor Management Reportingand Disclosure
Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under theCommerce Clause to enact legislation
designed to keepfrom positions affecting interstate commerce persons
whomay use such positions to bring about political strikes. In Sec. 504,
however, Congress has exceeded the authoritygranted it by the
Constitution. The statute does not setforth a generally applicable rule
decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in
Congress'view, make them likely to initiate political strikes) shallnot
hold union office, and leave to courts and juries thejob of deciding
what persons have committed the specifiedacts or possessed the
specified characteristics. Instead,it designates in no uncertain terms
the personswho possess the fearec characteristics and therefore
cannothold union office without incurring criminal liability — members
of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where
the provision of the Subversive ActivitiesControl Act of 1950 requiring
the Communist Party ofthe United States to register was sustained, the
opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had
the American Communist Party been outlawed,the outcome certainly
would have been different.Thus: "The Act is not a bill of attainder. It
attaches notto specified organizations but to described activities
inwhich an organization may or may not engage. The singlingout of an
individual for legislatively prescribed punishmentconstitutes an
attainder whether the individualis called by name or described in terms
of conduct which,because it is past conduct, operates only as a
designationof particular persons. ... The Subversive Activities
ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under
the direction, domination, or controlof certain foreign powers and to
operate primarily toadvance certain objectives. This finding must be
madeafter full administrative hearing, subject to judicial reviewwhich
opens the record for the reviewing court'sdetermination whether the
administrative findings as tofact are supported by the preponderance
of the evidence.Present activity constitutes an operative element to
whichthe statute attaches legal consequences, not merely a pointof
reference for the ascertainment of particularly personsineluctably
designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive
considering what appeared to be in the mindsof the framers of the
1934 Constitutional Conventionyields for me the conclusion that the
Anti-SubversionAct falls within the ban of the bill of attainder clause.
Itshould be noted that three subsequent cases upholding theCummings
and Garland doctrine were likewise cited in theopinion of the Court.
The interpretation accorded to themby my brethren is, of course,
different but I am unable togo along with them especially in the light of
the categoricallanguage appearing in Lovett. This is not to lose sightof
the qualification that for them could deprive such aholding of its
explicit character as shown by this excerptfrom the opinion of the
Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would
be totally unnecessaryto charge communists in court, as the law
alone,without more, would suffice to secure their conviction
andpunishment. But the fact is that their guilt still has to bejudicially
estblished. The Government has yet to proveat the trial that the
accused joined the Party knowingly,willfully and by overt acts, and that
they joined the Partyknowing its subversive character and with specific
intentto further its objective, i.e., to overthrow the existing
Governmentby force, deceit, and other illegal means and placeit under
the control and domination of a foreign power. 20While not
implausible, I find difficulty in yielding acceptance.In Cummings, there
was a criminal prosecution ofthe Catholic priest who refused to take
the loyalty oath.Again in Brown, there was an indictment of the
laborleader who, judging by his membership in the CommunistParty,
did transgress the statutory provision subsequentlyfound offensive to
the bill attainder clause. If the constructionI would place on theoff-
repeated pronouncementof the American Supreme Court is correct,
then the merefact that a criminal case would have to be instituted
wouldnot save the statute. It does seem clear to me that fromthe very
title of the Anti-Subversion Act, "to outlaw the Communist Party of the
Philippines and similar associations,"not to mention other specific
provisions, the taintof invalidity is quite marked. Hence, my inability to
concurin the judgment reached as the statute not suffering fromany
fatal infirmity in view of the Constitutional prohibitionagainst bills of
attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-
Subversion Act to the intellectual libertysafeguarded by the
Constitution in terms of the free speechand free assocition
guarantees. 21 It is to be admitted thatat the time of the enactment of
Republic Act No. 1700,the threat that Communism, the Russian brand
then, didpose was a painful reality for Congressional leaders andthe
then President. Its shadow fell squarely across thelives of all.
Subversion then could neither be denied notdisparaged. There was, in
the expert opinion of those conversantwith such mattes, a danger to
out national existenceof no mean character. Nonetheless, the
remedies toward off such menace must not be repugnant to our
Constitution.We are legally precluded from acting in anyother way. The
apprehension justly felt is no warrant forthrowing to the discard
fundamental guarantees. Vigilantwe had to be, but not at the expense
of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the
right to dissent. One can differ, evenobject; one can express
dissatisfaction with things as theyare. There are timew when one not
only can but must.Such dissent can take the form of the most critical
andthe most disparaging remarks. They may give offense tothose in
authority, to those who wield powe and influence.Nevertheless, they
are entitled to constitutional protection.Insofar as the content of such
dissent is concerned, thelimits are hardly discernible. It cannot be
confined totrivial matters or to such as are devoid of too much
significance.It can reach the heart of things. Such dissentmay, for those
not so adventurous in the realm of ideas,possess a subversive tinge.
Even those who oppose a democraticform of government cannot be
silenced. This is trueespecially in centers of learning where scholars
competentin their line may, as a result of their studies, assert thata
future is bleak for the system of government now favoredby Western
democracies. There may be doubts entertainedby some as to the
lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear
thatthereby he incurs the risk of a penal sanction. That ismerely to
affirm the truth of this ringing declaration fromJefferson: "If there be
any among us who would wish todissolve this union or to change its
republican form, letthem stand undisturbed as monuments of the
safety withwhich error of opinion may be tolerated where reason isleft
free to combat it." 22 As was so well put by the philosopher,Sidney
Hook: "Without holding the right to theexpression of heresy at any
time and place to be absolute — for even the right to non-heretical
speech cannot beabsolute — it still seems wise to tolerate the
expression evenof Communist, fascist and other heresies, lest in
outlawingthem we include other kings of heresies, and deprive
ourselvesof the opportunity to acquite possibly sounder ideasthan our
own." 23
The line is to be drawn, however, where the wordsamount to an
incitement to commit the crime of seditionor rebellion. The state has
been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or
pressordained by the Constitution. It does not bar the expressionof
views affecting the very life of the state, even ifopposed to its
fundamental presuppositions. It allows, ifit does not require as a
matter of fact, that unorthodoxideas be freely ventilated and fully
heard. Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled
constitutionalprinciple "that even though the governmental
purposesbe legitimate and substantial, they cannot be pursuedby
means that broadly stifle fundamental personalliberties when the end
can be more narrowly achieved.For precision of regulation is the
touchstone in an areaso closely related to our most precious
freedoms." 24 This is so for "a governmental purpose to control or
prevent activities constitutionally subject to state regulation may notbe
achieved by means which sweep unnecessarily broadlyand thereby
invade the area of protected freedoms." 25 It isindispensable then that
CRIMINAL LAW FULL CASES
"an over breadth" in the applicabilityof the statute be avoided. If such
be the case, then theline dividing the valid from the constitutionally
infirm hasbeen crossed. That for me is the conclusion to be drawnfrom
the wording of the Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice
Black in the Communist Party casediscussed above. What is to be kept
in view is that a legislativemeasure certainly less drastic in its
treatment ofthe admittedly serious Communist problem was found
inthe opinion of this noted jurist offensive to the FirstAmendment of
the American Constitution safeguardingfree speech. Thus: "If there is
one thing certain aboutthe First Amendment it is that this Amendment
was designedto guarantee the freest interchange of ideas aboutall
public matters and that, of course, means the interchangeof all ideas,
however such ideas may be viewed inother countries and whatever
change in the existing structureof government it may be hoped that
these ideas willbring about. Now, when this country is trying to
spreadthe high ideals of democracy all over the world — ideals that are
revolutionary in many countries — seems to be aparticularly
inappropriate time to stifle First Amendmentfreedoms in this country.
The same arguments that areused to justify the outlawry of Communist
ideas here couldbe used to justify an outlawry of the ideas of
democracyin other countries." 26 Further he stated: "I believe with
theFramers of the First Amendment that the internal securityof a
nation like ours does not and cannot be made todepend upon the use
of force by Government to make allthe beliefs and opinions of the
people fit into a commonmold on any single subject. Such enforced
conformity ofthought would tend only to deprive our people of the
boldspirit of adventure and progress which has brought thisNation to
its present greatness. The creation of publicopinion by groups,
organizations, societies, clubs, and partieshas been and is a necessary
part of our democraticsociety. Such groups, like the Sons of Liberty and
theAmerican Corresponding Societies, played a large part increating
sentiment in this country that led the people ofthe Colonies to want a
nation of their own. The Father ofthe Constitution — James Madison —
said, in speakingof the Sedition Act aimed at crushing the Jefferson
Party,that had that law been in effect during the period beforethe
Revolution, the United States might well have continuedto be
'miserable colonies, groaning under a foreign yoke.'In my judgment,
this country's internal security can betterbe served by depending upon
the affection of the peoplethan by attempting to instill them with fear
and dreadof the power of Government. The Communist Party hasnever
been more than a small group in this country. Andits numbers had
been dwindling even before the Governmentbegan its campaign to
destroy the Party by force oflaw. This was because a vast majority of
the Americanpeople were against the Party's policies and
overwhelminglyrejected its candidates year after year. That is the
trueAmerican way of securing this Nation against dangerousideas. Of
course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our
Constitution which we would bewise to follow. They gave the
Government the fullest powerto prosecute overt actions in violation of
valid lawsbut withheld any power to punish people for nothing  
morethan advocacy of their views." 27
Separate Opinions
With the sentiments thus expressed uppermost in mymind and
congenial to my way of thinking, I cannot sharethe conclusion reached
FERNANDO, J., dissenting:
by my breathren as to the Anti-Subversion Act successfully meeting the
test of validity onfree speech and freedom of association grounds.
It is with regard that I find myself unable to join therest of my brethren
in the decision reached upholding thevalidity of the Anti-Subversion
4. It could be that this approach to the constitutionalquestions involved
Act. 1 It is to be admittedthat the learned and scholarly opinbion of
arises from an appraisal of the challengedstatute which for me is
Justice Castro hasthe impress of conscientious and painstaking scrutiny
susceptible of an interpretationthat it does represent a defeatist
ofthe constitutional issues raised. What is more, the stressin the
attitude on thepart of those of us, who are devotees at the shrine of
concluding portion thereof on basic guidelines thatwill assure in the
aliberal-democratic state. That certainly could not havebeen the
trial of those prosecuted under suchAct respect for their constitutional
thought of its framers; nonetheless, such an assumptionis not devoid
rights is to be commended.Nonetheless, my own reading of the
of plausibility for why resort tothis extreme measure susceptible as it is
decisionscited, interpreting the bill of attainder clause  2 coupled
to what apparentlyare not unfounded attacks on constitutional
withthe fears, perhaps induced by a too-latitudinarian constructionof
grounds?Is this not to ignore what previously was accepted as
the guarantees of freedom of belief and expression  3 as well as freedom
anobvious truth, namely that the light of liberalism sendsits shafts in
of association 4 as to impermissible inroadsto which they may be
many directions? It can illuminate, and itcan win the hearts and minds
exposed, compels a differentconclusion. Hence this dissent.
of men. It if difficult forme to accept the view then that a resort to
outlawry isindispensable, that suppression is the only answer to whatis
1. There is to be sure no thought on my part that theequally pressing
an admitted evil. There could have been a greater exposureof the
concern of state safety and security shouldbe ignored. The political
undesirability of the communist creed, itscontradictions and
branches of the governmentwould lay themselves oepn to a justifiable
arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and
indictment fornegligence had they been remiss in their obligation
its subservience tocentralized dictation that brooks no opposition. It is
tosafeguard the nation against its sworn enemies. In a simplerera,
thus,in a realistic sense, a manifestation of the fear of freethought and
where the overthrow of the government wasusually through the rising
the will to suppress it. For better, of course,is the propaganda of the
up in arms, with weapons farless sophisticated than those now in
deed. What the communists promise,this government can fulfill. It is
existence, there wasno constitutional issue of the magnitude that now
up to it then to takeremedial measures to alleviate the condition of our
confrontsus. Force has to be met with force. It was as clearcutas that.
countrymenwhose lives are in a condition of destitution andmisery. It
Advances in science as well as more subtlemethods of inducing
may not be able to change matters radically.At least, it should take
disloyalty and weakening the senseof allegiance have introduced
earnest steps in that direction.What is important for those at the
complexities in coping withsuch problems. There must be then, and I
bottom of the economicpyramid is that they are not denied the
am the firstto recognize it, a greater understanding for the
opportunity for abetter life. If they, or at least their children, cannot
governmentalresponde to situations of that character. It is inthat light
evenlook forward to that, then a constitutional regime is nothingbut a
that the validity of the Anti-Subversion Act isto be appraised. From ny
mockery and a tragic illusion. Such a response,I am optimistic enough
standpoint, and I am not presumptuousenough to claim that it is the
to believe, has the merit of thinning,if not completely eliminating, the
only perspectiveor that is the most realistic, I feel that there was an
embattled ranksand outposts of ignorance, fanaticism and error. That
insufficientappreciation of the compulsion of the
forme would be more in accordance with the basic propositionof our
constitutionalcommands against bills of attainder and abridgmentof
polity. This is not therefore to preach a doctrine of object surrender to
free speech. I am comforted by the thought that evenhad my view
the forces apparently bent on the adoption of a way of life so totally
prevailed, all that it would mean is that anew legislation, more in
opposed to the deeply felt traditions of our people. This is, for me at
comformity to my way of thinkingto what is ordained by the
least, an affirmation of the vitality of the democratic creed, with an
fundamental law, wouldhave to be enacted. No valid fear need be
expression of regret that it could not have been more impressively set
entertained thenthat a setback would be occasioned to legitilate state
forth in language worthy of the subject.
effortsto stem the tide of subversive activities, in whateverform
manifested.
It is in the light of the views above expressed that I find myself unable
to yield concurrence to the ably-written opinion of Justice Castro for
the Court sustaining the validity of the Anti-Subversion Act. 2. The starting point in any inquiry as to the significanceof the bill of
attainder clause is the meaning attachedto it by the Constitutional
Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his
CRIMINAL LAW FULL CASES
address on November19, 1934 as Chairman of the Committee on the
Bill of Rights quoted in the opinion of the Court: "A billof attainder is a
legislative act which inflicts punishment without judicial trial.
(Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the
Bill of Attainder was an act of Parliament by which a man was tried,
convictedand sentenced to death without a jury, without ahearing in
court, without hearing the witnesses againsthim and without regard to
the rules of evidence. His bloodwas attainted or corrupted, rendering
him devoid of allheritable quality — of acquiring and disposing
property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the
penalty imposed was less than death, the act wasknown as a 'bill of
pains and penalties.' Bills of attainder, like ex post facto laws, were
favorite methods of Stuartoppression. Once, the name of Thomas
Jefferson was includedin a bill of attainder presented to Parliament
becauseof his reform activities." 5 Two American SupremeCourt
decision were thus in the minds of the framers.They are Cummings v.
Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative
acts, no matter whattheir form, that apply either to named individuals
or easilyascertainable members of a group in such a way as to inflicton
them punishment amounting to a deprivation ofany right, civil or
political, without judicial trial are billsof attainder prohibited by the
Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest
for refusing to take the loyalty oath requiredby the state Constitution
of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers,
and otherprofessionals must disavow that they had ever, "by act
orword," manifested a "desire" for the success of the nation'senemies
or a sympathy" with the rebels of the AmericanCivil War. If they swore
falsely, they were guilty of perjury.If they engaged in their professions
without theoath, they were criminally liable. The United States
Supreme Court condemned the provision as a bill of
attainder,identified as any legislative act inflicting punishment
withoutjudicial trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a punishment.Why such a conclusion
was unavoidable was explained inthe opinion of Justice Field thus: "A
bill of attainder isa legislative act, which inflicts punishment without a
judicialtrial. If the punishment be less than death, the actis termed a
bill of pains and penalties. Within the meaningof the Constitution, bills
of attainder include bills ofpains and penalties. In these cases the
legislative body, inaddition to its legitimate functions, exercises the
powersand office of judge; it assumes, in the language of thetextbooks,
judicial magistracy; it pronounces upon theguilt of the party, without
any of the forms or safeguardsof trial; it determines the sufficiency of
the proofs produced,whether conformable to the rules of evidence
orotherwise; and it fixes the degree of punishment in accordancewith
its own notions of the enormity of the offense. ... If the clauses of the
2d article of the Constitutionof Missouri, to which we have referred,
had in termsdeclared that Mr. Cummings was guilty, or should be
heldguilty, of having been in armed hostility to the UnitedStates, or of
having entered that state to avoid beingenrolled or drafted into the
military service of the UnitedStates, and, therefore, should be deprived
of the right topreach as a priest of the Catholic church, or to teach
inany institution of learning, there could be no question thatthe clauses
would constitute a bill of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof mentioning his name, had
declared that all priestsand clergymen within the state of Missouri
were guiltyof these acts, or should be held guilty of them, and hencebe
subjected to the like deprivation, the clause would beequally open to
objection. And further, it these clauseshad declared that all such
priests and clergymen shouldbe so held guilty, and be thus deprived,
provided they didnot, by a day designated, do certain specified acts,
theywould be no less within the inhibition of the Federal
Constitution.In all these cases there would be the legislativeenactment
creating the deprivation, without any of theordinary forms and guards
provided for the security ofthe citizen in the administration of justice
by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded
down, Ex parte Garland 11 was also decided. Thatwas a motion for leave
to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of
1860. Underthe previous rules of such Court, all that was necessarywas
that the applicant have three years practice in the statecourts to which
he belonged. In March 1865, the rule waschanged by the addition of a
clause requiring that an oathbe taken under the Congressional acts of
1862 and 1865to the effect that such candidate for admission to the
barhad never voluntarily borne arms against the UnitedStates.
Petitioner Garland could not in conscience subscribeto such an oath,
but he was able to show a presidentialpardon extended on July 15,
1865. With such actof clemency, he moved that he be allowed to
continue inpractice contending that the test oath requirement
wasunconstitutional as a bill of attainder and that at any rate,he was
pardoned. The same ruling was announced by theCourt again through
Justice Field. Thus: "In the exclusionwhich the statute adjudges, it
imposes a punishmentfor some of the acts specified which were not
punishableat the time they were committedl; and for other of the
actsit adds a new punishment to that before prescribed, andit is thus
brought within the further inhibition of the Consitutionagainst the
passage of an ex post facto law. Inthe case of Cummings v. Missouri,
just decided, ... wehave had occasion to consider at length the meaning
of abill of attainder and of an ex post facto law in the clauseof the
Constitution forbidding their passage by the states,and it is
unnecessary to repeat here what we there said.A like prohibition is
contained in the Constitution againstenactments of this kind by
Congress; and the argumentpresented in that case against certain
clauses of the Constitutionof Missouri is equally applicable to the act
ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in
United States v. Lovett, 13 decided in 1946.There it was shown that in
1943 the respondents, Lovett,Watson, and Dodd, were and had been
for several yearsworking for the government. The government
agencies,which had lawfully employed them, were fully satisfiedwith
the quality of their work and wished to keep thememployed on their
jobs. Over their protest, Congress providedin Section 304 of the Urgent
Deficiency AppropriationAct of 1943, by way of an amendment
attached to theHouse Bill, that after November 15, 1943, no salary
orcompensation should be paid respondent out of any moneythen or
thereafter appropriated except for services as jurorsor members of the
armed forces, unless they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure
of the President to reappoint the respondents, theagencies, kept all
the respondents at work on their jobs forvarying periods after
November 15, 1943, but their compensationwas discontinued after
that date. Respondentsbrought this action in the Court of Claims for
the salariesto which they felt entitled. The Ameican Supreme
Courtstated that its inquiry was thus confined to whether theaction in
the light of proper construction of the Act presenteda justificiable
controversy, and, if so, whether Section304 is a bill of attainder insofar
as the respondents wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme
Court in an opinion by Justice Blackcategorically affirmed: "We hold
that Section 304 fallsprecisely within the category of Congressional
actionswhich the Constitution barred by providing that 'No Billof
Attainder or ex post Law shall be passed.' InCummings v. State of
Missouri, ... this Court said, 'Abill of attainder is a legislative act which
inflicts punishmentwithout a judicial trial. If the punishment be
lessthan death, the act is termed a bill of pains and penalties.Within
the meaning of the Constitution, bills of attainderinclude bills of pains
and penalties.' ... On the sameday the Cummings case was decided, the
Court, in Exparte Garland, also held invalid on the same grounds anAct
of Congress which required attorneys practicing beforethis Court to
take a similar oath. Neither of thesecases has ever been overruled.
They stand for the propositionthat legislative acts, no matter what
their form,that apply either to named individuals or to easily
ascertainablemembers of a group in such a way as to inflictpunishment
on them without a judicial trial are billsof attainder prohibited by the
Constitution. Adherenceto this principle requires invalidation of Section
304. Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a
conviction under the Labor-ManagementReporting and Disclosure Act
of 1959, making it a crimefor a member of the Communist Party to
serve as anofficer ir, except in clerical or custodial positions,
anemployee of a labor union. Respondent Brown, a longshoremanon
the San Francisco docks, and an open andavowed Communist, for more
than a quarter of a centurywas elected to the Executive Board of Local
10 of theInternational Longshoremen's and Warehousemen's Unionfor
consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961,
respondent was charged in a one-countindictment returned in a district
court of California withservicing as a member of an executive board of
a labororganization while a member of the Communist Party, inwillful
violation of the above provision. The question ofits validity under the
bill of attainder clause was thusproperly raised for adjudication. While
CRIMINAL LAW FULL CASES
convicted in thelower court, the Court of Appeals for the Ninth
Circuitreversed. It was sustained by the American SupremeCourt. As
noted in the opinion by Chief Justice Warren,"the wide variation in
form, purpose and effect of ante-Constitutionbills of attainder indicates
that the properscope of the Bill of Attainder Clause, and its relevance
tocontemporary problems, must ultimately be sought by attemptingto
discern the reasons for its inclusion in theConstitution, and the evils it
was desinged to eliminate.The best available evidence, the writings of
the architectsof our constitutional system, indicates that the Bill
ofAttainder Clause was inteded not as a narrow, technical(and
therefore soon to be outmoded) prohibition, but ratheras an
implementation of the separation of powers, ageneral safeguard
against legislative exercise of the judicialfunction, or more simply —
trial by legislature." 16 Then after referring to Cummings, Garland, and
Lovett,Chief Justice Warren continued: "Under the line of casesjust
outlined, Sec. 504 of the Labor Management Reportingand Disclosure
Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under theCommerce Clause to enact legislation
designed to keepfrom positions affecting interstate commerce persons
whomay use such positions to bring about political strikes. In Sec. 504,
however, Congress has exceeded the authoritygranted it by the
Constitution. The statute does not setforth a generally applicable rule
decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in
Congress'view, make them likely to initiate political strikes) shallnot
hold union office, and leave to courts and juries thejob of deciding
what persons have committed the specifiedacts or possessed the
specified characteristics. Instead,it designates in no uncertain terms
the personswho possess the fearec characteristics and therefore
cannothold union office without incurring criminal liability — members
of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where
the provision of the Subversive ActivitiesControl Act of 1950 requiring
the Communist Party ofthe United States to register was sustained, the
opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had
the American Communist Party been outlawed,the outcome certainly
would have been different.Thus: "The Act is not a bill of attainder. It
attaches notto specified organizations but to described activities
inwhich an organization may or may not engage. The singlingout of an
individual for legislatively prescribed punishmentconstitutes an
attainder whether the individualis called by name or described in terms
of conduct which,because it is past conduct, operates only as a
designationof particular persons. ... The Subversive Activities
ControlAct is not of that king. It requires the registrationonly of
organizations which, after the date of the Act,are found to be under
the direction, domination, or controlof certain foreign powers and to
operate primarily toadvance certain objectives. This finding must be
madeafter full administrative hearing, subject to judicial reviewwhich
opens the record for the reviewing court'sdetermination whether the
administrative findings as tofact are supported by the preponderance
of the evidence.Present activity constitutes an operative element to
whichthe statute attaches legal consequences, not merely a pointof
reference for the ascertainment of particularly personsineluctably
designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive
considering what appeared to be in the mindsof the framers of the
1934 Constitutional Conventionyields for me the conclusion that the
Anti-SubversionAct falls within the ban of the bill of attainder clause.
Itshould be noted that three subsequent cases upholding theCummings
and Garland doctrine were likewise cited in theopinion of the Court.
The interpretation accorded to themby my brethren is, of course,
different but I am unable togo along with them especially in the light of
the categoricallanguage appearing in Lovett. This is not to lose sightof
the qualification that for them could deprive such aholding of its
explicit character as shown by this excerptfrom the opinion of the
Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would
be totally unnecessaryto charge communists in court, as the law
alone,without more, would suffice to secure their conviction
andpunishment. But the fact is that their guilt still has to bejudicially
estblished. The Government has yet to proveat the trial that the
accused joined the Party knowingly,willfully and by overt acts, and that
they joined the Partyknowing its subversive character and with specific
intentto further its objective, i.e., to overthrow the existing
Governmentby force, deceit, and other illegal means and placeit under
the control and domination of a foreign power. 20While not
implausible, I find difficulty in yielding acceptance.In Cummings, there
was a criminal prosecution ofthe Catholic priest who refused to take
the loyalty oath.Again in Brown, there was an indictment of the
laborleader who, judging by his membership in the CommunistParty,
did transgress the statutory provision subsequentlyfound offensive to
the bill attainder clause. If the constructionI would place on theoff-
repeated pronouncementof the American Supreme Court is correct,
then the merefact that a criminal case would have to be instituted
wouldnot save the statute. It does seem clear to me that fromthe very
title of the Anti-Subversion Act, "to outlaw the Communist Party of the
Philippines and similar associations,"not to mention other specific
provisions, the taintof invalidity is quite marked. Hence, my inability to
concurin the judgment reached as the statute not suffering fromany
fatal infirmity in view of the Constitutional prohibitionagainst bills of
attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-
Subversion Act to the intellectual libertysafeguarded by the
Constitution in terms of the free speechand free assocition
guarantees. 21 It is to be admitted thatat the time of the enactment of
Republic Act No. 1700,the threat that Communism, the Russian brand
then, didpose was a painful reality for Congressional leaders andthe
then President. Its shadow fell squarely across thelives of all.
Subversion then could neither be denied notdisparaged. There was, in
the expert opinion of those conversantwith such mattes, a danger to
out national existenceof no mean character. Nonetheless, the
remedies toward off such menace must not be repugnant to our
Constitution.We are legally precluded from acting in anyother way. The
apprehension justly felt is no warrant forthrowing to the discard
fundamental guarantees. Vigilantwe had to be, but not at the expense
of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the
right to dissent. One can differ, evenobject; one can express
dissatisfaction with things as theyare. There are timew when one not
only can but must.Such dissent can take the form of the most critical
andthe most disparaging remarks. They may give offense tothose in
authority, to those who wield powe and influence.Nevertheless, they
are entitled to constitutional protection.Insofar as the content of such
dissent is concerned, thelimits are hardly discernible. It cannot be
confined totrivial matters or to such as are devoid of too much
significance.It can reach the heart of things. Such dissentmay, for those
not so adventurous in the realm of ideas,possess a subversive tinge.
Even those who oppose a democraticform of government cannot be
silenced. This is trueespecially in centers of learning where scholars
competentin their line may, as a result of their studies, assert thata
future is bleak for the system of government now favoredby Western
democracies. There may be doubts entertainedby some as to the
lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear
thatthereby he incurs the risk of a penal sanction. That ismerely to
affirm the truth of this ringing declaration fromJefferson: "If there be
any among us who would wish todissolve this union or to change its
republican form, letthem stand undisturbed as monuments of the
safety withwhich error of opinion may be tolerated where reason isleft
free to combat it." 22 As was so well put by the philosopher,Sidney
Hook: "Without holding the right to theexpression of heresy at any
time and place to be absolute — for even the right to non-heretical
speech cannot beabsolute — it still seems wise to tolerate the
expression evenof Communist, fascist and other heresies, lest in
outlawingthem we include other kings of heresies, and deprive
ourselvesof the opportunity to acquite possibly sounder ideasthan our
own." 23
The line is to be drawn, however, where the wordsamount to an
incitement to commit the crime of seditionor rebellion. The state has
been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or
pressordained by the Constitution. It does not bar the expressionof
views affecting the very life of the state, even ifopposed to its
fundamental presuppositions. It allows, ifit does not require as a
matter of fact, that unorthodoxideas be freely ventilated and fully
heard. Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled
constitutionalprinciple "that even though the governmental
purposesbe legitimate and substantial, they cannot be pursuedby
means that broadly stifle fundamental personalliberties when the end
can be more narrowly achieved.For precision of regulation is the
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touchstone in an areaso closely related to our most precious course that is not the way to protect the Nationagainst actions of It is in the light of the views above expressed that I find myself unable
freedoms." 24 This is so for "a governmental purpose to control or violence and treason. The Foundersdrew a distinction in our to yield concurrence to the ably-written opinion of Justice Castro for
prevent activities constitutionally subject to state regulation may notbe Constitution which we would bewise to follow. They gave the the Court sustaining the validity of the Anti-Subversion Act.
achieved by means which sweep unnecessarily broadlyand thereby Government the fullest powerto prosecute overt actions in violation of
invade the area of protected freedoms." 25 It isindispensable then that valid lawsbut withheld any power to punish people for nothing
"an over breadth" in the applicabilityof the statute be avoided. If such morethan advocacy of their views." 27
be the case, then theline dividing the valid from the constitutionally
infirm hasbeen crossed. That for me is the conclusion to be drawnfrom
With the sentiments thus expressed uppermost in mymind and
the wording of the Anti-Subversion Act.
congenial to my way of thinking, I cannot sharethe conclusion reached
by my breathren as to the Anti-Subversion Act successfully meeting the
There is to my mind support for the stand I take inthe dissent of Justice test of validity onfree speech and freedom of association grounds.
Black in the Communist Party casediscussed above. What is to be kept
in view is that a legislativemeasure certainly less drastic in its
4. It could be that this approach to the constitutionalquestions involved
treatment ofthe admittedly serious Communist problem was found
arises from an appraisal of the challengedstatute which for me is
inthe opinion of this noted jurist offensive to the FirstAmendment of
susceptible of an interpretationthat it does represent a defeatist
the American Constitution safeguardingfree speech. Thus: "If there is
attitude on thepart of those of us, who are devotees at the shrine of
one thing certain aboutthe First Amendment it is that this Amendment
aliberal-democratic state. That certainly could not havebeen the
was designedto guarantee the freest interchange of ideas aboutall
thought of its framers; nonetheless, such an assumptionis not devoid
public matters and that, of course, means the interchangeof all ideas,
of plausibility for why resort tothis extreme measure susceptible as it is
however such ideas may be viewed inother countries and whatever
to what apparentlyare not unfounded attacks on constitutional
change in the existing structureof government it may be hoped that
grounds?Is this not to ignore what previously was accepted as
these ideas willbring about. Now, when this country is trying to
anobvious truth, namely that the light of liberalism sendsits shafts in
spreadthe high ideals of democracy all over the world — ideals that are
many directions? It can illuminate, and itcan win the hearts and minds
revolutionary in many countries — seems to be aparticularly
of men. It if difficult forme to accept the view then that a resort to
inappropriate time to stifle First Amendmentfreedoms in this country.
outlawry isindispensable, that suppression is the only answer to whatis
The same arguments that areused to justify the outlawry of Communist
an admitted evil. There could have been a greater exposureof the
ideas here couldbe used to justify an outlawry of the ideas of
undesirability of the communist creed, itscontradictions and
democracyin other countries." 26 Further he stated: "I believe with
arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and
theFramers of the First Amendment that the internal securityof a
its subservience tocentralized dictation that brooks no opposition. It is
nation like ours does not and cannot be made todepend upon the use
thus,in a realistic sense, a manifestation of the fear of freethought and
of force by Government to make allthe beliefs and opinions of the
the will to suppress it. For better, of course,is the propaganda of the
people fit into a commonmold on any single subject. Such enforced
deed. What the communists promise,this government can fulfill. It is
conformity ofthought would tend only to deprive our people of the
up to it then to takeremedial measures to alleviate the condition of our
boldspirit of adventure and progress which has brought thisNation to
countrymenwhose lives are in a condition of destitution andmisery. It
its present greatness. The creation of publicopinion by groups,
may not be able to change matters radically.At least, it should take
organizations, societies, clubs, and partieshas been and is a necessary
earnest steps in that direction.What is important for those at the
part of our democraticsociety. Such groups, like the Sons of Liberty and
bottom of the economicpyramid is that they are not denied the
theAmerican Corresponding Societies, played a large part increating
opportunity for abetter life. If they, or at least their children, cannot
sentiment in this country that led the people ofthe Colonies to want a
evenlook forward to that, then a constitutional regime is nothingbut a
nation of their own. The Father ofthe Constitution — James Madison —
mockery and a tragic illusion. Such a response,I am optimistic enough
said, in speakingof the Sedition Act aimed at crushing the Jefferson
to believe, has the merit of thinning,if not completely eliminating, the
Party,that had that law been in effect during the period beforethe
embattled ranksand outposts of ignorance, fanaticism and error. That
Revolution, the United States might well have continuedto be
forme would be more in accordance with the basic propositionof our
'miserable colonies, groaning under a foreign yoke.'In my judgment,
polity. This is not therefore to preach a doctrine of object surrender to
this country's internal security can betterbe served by depending upon
the forces apparently bent on the adoption of a way of life so totally
the affection of the peoplethan by attempting to instill them with fear
opposed to the deeply felt traditions of our people. This is, for me at
and dreadof the power of Government. The Communist Party hasnever
least, an affirmation of the vitality of the democratic creed, with an
been more than a small group in this country. Andits numbers had
expression of regret that it could not have been more impressively set
been dwindling even before the Governmentbegan its campaign to
forth in language worthy of the subject.
destroy the Party by force oflaw. This was because a vast majority of
the Americanpeople were against the Party's policies and
overwhelminglyrejected its candidates year after year. That is the
trueAmerican way of securing this Nation against dangerousideas. Of
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