Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 115407 August 28, 1995 MIGUEL P. PADERANGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

REGALADO, J.: The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on said petitioner's right to be admitted to bail. On January 28, 1990, petitioner was belatedly charged in an amended information as a coconspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City, 1 had initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large up to the present. 2 In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew him well, Roxas engaged the former's services as counsel in said case. Ironically, in the course of the preliminary investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind the massacre of the Bucag family. 3 Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a coconspirator in said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No.

96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second amended information against him. 4 Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for the prosecution.5 As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his counsel manifested that they were submitting custody over the person of their client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor opposing the application for bail and that they were submitting the same to the sound discretion of the trail judge. 6 Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the scheduled court hearings of the case. 7 The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus were the resolution and the order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse of discretion. 8 Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail contrary to the requirements of due process. Hence, this appeal. Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et al., 9 his filing of the aforesaid application for bail with the trial court effectively conferred

on the latter jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the accused and bring him within the custody of the law." Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution bound the latter, cannot legally assert any claim to a denial of procedural due process. Finally, petitioner points out that the special civil action for certiorari was filed in respondent court after an unjustifiable length of time. On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for petitioner. 1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at the trial. 10 As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary surrender. 11 As this Court has put it in a case "it would be incongruous to grant bail to one who is free." 12 The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. 13 Thus, inFeliciano vs. Pasicolan, etc., et al., 14 where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering himself, and shortly thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail. As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking his provisional release under the auspices of bail need not even wait for a formal complaint or information to be filed against him as it is available to "all persons" 15 where the offense is bailable. The rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law. 16 On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. 17in this light, the ruling, vis-avis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained. In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a

major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said ex-partemotion and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration. When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the Sandiganbayan for by her own representations in the urgentex parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively submitted to its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore, be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely by his submission to the custody of the person making the arrest. 19 The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area. It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement or placing him under guard. The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission application for bail, and until the day of the hearing thereof.

At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering custody of petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter. 20 In other words, the motion for admission to bail was filed not for the purpose or in the manner of the former practice which the law proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the application therefore be denied. 2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature 21 and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt.22 Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment 23and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, 24 is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant. 25 Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum. 26 Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. 27 If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the court's order in respect of the motion or petition is void. 28 At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal. 29 When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. 30 The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires. 31 In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the

prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable time" to oppose that application for bail. We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their appearance as collaborating government prosecutors in said criminal case. 32 It was in fact by virtue of this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as collaborating prosecutor in the previous hearing in said case. 33 Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5, 1992. Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence. When the court a quo sought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo, the latter readily answered in the affirmative. The following exchanges bear this out: PROSECUTOR ERLINDO ABEJO: I was informed to appear in this case just now Your Honor. COURT: Where is your Chief of Office? Your office received a copy of the motion as early as October 28. There is an element of urgency here. PROSECUTOR ABEJO: I am not aware of that, Your Honor, I was only informed just now. The one assigned here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I do not know about this but before I came I received an instruction from our Chief to relay to this court the stand of the office regarding the motion to admit bail. That office is neither supporting nor opposing it and we are submitting to the sound discretion of the Honorable Court.

COURT: Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter your appearance in this matter? PROSECUTOR ABEJO: Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State Prosecutor Erlindo Abejo. COURT: By that manifestation do you want the Court to understand that in effect, at least, the prosecution is dispensing with the presentation of evidence to show that the guilt of the accused is strong, the denial . . . PROSECUTOR ABEJO: I am amenable to that manifestation, Your Honor. COURT: Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for resolution by this court? PROSECUTOR ABEJO: Yes, Your Honor. COURT: Without presenting any further evidence? PROSECUTOR ABEJO:
Yes, Your Honor. 34

It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was "submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such was the position of the prosecution. 3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where the trial court has reasons to believe that the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in

the interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs.Judge Deodoro Sison, 36 the Court, citing Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to the motion of the accused, the trial court should nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter is really not contesting the bail application. No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the present, petitioner has ever committed any violation of the conditions of his bail. As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on November 6, 1992 is beside the point for, as already established, the Office of the Regional State Prosecutor was authorized to appear for the People. 4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed before it questioned before the respondent court the resolution and the omnibus order of the trial court through a special civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties which characterized the prosecution of the criminal case against petitioner. But then, the certiorari proceeding was initiated before the respondent court long after trial on the merits of the case had ensued in the court below with the active participation of prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the special civil action for certiorari should not be instituted beyond a period of the three months, 38 the same to be reckoned by taking into account the duration of time that had expired from the commission of the acts complained to annul the same. 39 ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233, promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 79269 June 5, 1991 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. The Solicitor General for petitioner. Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J.:p The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 86-48926 for Rebellion, 1 and the subsequent Order dated July 30, 1987 granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987. The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived. The following are the antecedents of this petition: In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later amended in an Amended Information 3 which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows: That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts, have, under the direction and control of said organizations'

leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the country's territory or part of it; That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . . (then follows the enumeration of specific acts committed before and after February 1986). At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his capture. 4 A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for private respondent and his co-accused was filed with this Court 5 which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person. On November 7, 1986 , private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished, 6 to which petitioner filed an Opposition 7 citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that: xxx xxx xxx Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. In his Order of March 6, 1987, 8 respondent Judge denied the motion to quash. Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail, 9which herein petitioner opposed in an Opposition filed on 27 May 1987 10 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail as evidence of his guilt is strong.

On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored. Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987. In his Order of 7 July 1987 11 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated: . . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty ofprision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present circumstances in this case, said accusedapplicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense. As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied: True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, "the existence of the government that bestows the right, the paramount interest of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a "declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those "who oppose, threathen (sic) and destroy a just and orderly society and its existing civil and political institutions." The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of light to bail. Dura est lex sed lex.

In a motion to reconsider 12 the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the wellorganized plan to overthrow the government through armed struggle and replace it with an alien system based on a foreign ideology is attained." On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; 2. He was not arrested at his residence as he had no known address; 3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address; 5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false; 6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his arrest, which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings, 14and that an arrestee may be incarcerated until trial as he presents a risk of flight; 15 and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to the community which no condition of release can dispel. 16 On 30 July 1987 respondent Judge handed down the Order 17 adverted to in the introductory portion of this decision the dispositive portion of which reads:

WHEREFORE, in the light of the foregoing considerations, the Court finds the "supplemental" motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58). In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil, 172. Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues: THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS. THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS. in support of which petitioner argues that private respondent is estopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal background, the gravity of the pending charge, and the likelihood of flight. 18 In Our resolution of 11 August 1987 19 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from

implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00. In his Comment filed on 27 August 1987, 20 private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds: I RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL. II RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL. III RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION. IV THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED. V THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS. We required the petitioner to reply to the comment of private respondent. 21 The reply was filed on 18 September 1987. 22 In Our resolution of 15 October 1987 23 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice. In their respective manifestations and motions dated 5 November 24 and 23 November 1987 25 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private respondent, which We granted in Our resolution of 19 November 1987 26 and 1 December 1987, 27 respectively. In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this petitions, 28 which he complied with by filing his Manifestation on 30 May 1990 29 wherein he manifests that he supports the petition and submits that the Order of respondent

Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge. And now on the issues presented in this case. I. Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. 30 It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides 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 prescribed 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. Section 3, Rule 114 of the Rules of Court, as amended, also provides: Bail, a matter of right: exception. All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. 31 To that extent the right is absolute. 32 And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held:

. . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection. Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. 33 But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held: The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that:
The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great! 34

Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 35 We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495:

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . . In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail. II. It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua. xxx xxx xxx This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. 36 III. We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009. On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 8648926 with the trial court, a petition for habeas corpus for herein private respondent, and his coaccused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case:

1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning. 2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ ofHabeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party of the Philippines, New People's Army and National Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any, safe conduct pass issued by competent authorities. 3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows: When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, with Solicitor General Ordoez arguing for the respondents. Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately. Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing statement made by petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required. In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise agreement that they have previously undertaken to submit. Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release.

Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on official leave. 4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows: COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest: 1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A. Ordoez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play. 2. That in the conference both counsel agreed to the following terms of agreement: a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance. b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person. 3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record. 4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning. WHEREFORE, it is prayed that the petition for habeas corpus be dismissed. 5. On 16 October 1986 We issued the following resolution: G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col. Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo

Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus but subject to the condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee,C.J., is on official leave. It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." 37 Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver. Interestingly, private respondent admits that: "Custody" has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by virtue of a lawful authority, or the "care and possession of a thing or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306) He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38 When the parties in G.R. No. 76009 stipulated that: b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-

petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. In defining bail as: . . . the security given for the release of a person in custody of the law, . . . Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 39 It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 40 Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail. But, is such waiver valid? Article 6 of the Civil Code expressly provides: Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." 41 As to what rights and privileges may be waived, the authority is settled: . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver" covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute,or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver

of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived.
While it has been stated generally that all personal rights conferred by statute and guaranteed by constitutionmay be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver. 42

In Commonwealth vs. Petrillo, 43 it was held: Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." 44 This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; 45 the right to counsel and to remain silent; 46 and the right to be heard. 47 Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(l) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states: . . . These rights cannot be waived except in writing and in the presence of counsel. This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent. WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry,

Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION A.M. No. RTJ-99-1488 June 20, 2000

JUANA MARZAN-GELACIO, complainant, vs. Judge ALIPIO V. FLORES in his capacity as Presiding Judge, Branch 20, RTC, Vigan, Ilocos Sur,respondent. DECISION YNARES_SANTIAGO, J.: Before Us is an administrative complaint for Gross Ignorance of the Law and Evident Partiality brought by Complainant Juana Marzan-Gelacio against respondent Judge Alipio V. Flores, Presiding Judge of the Regional Trial Court (RTC) of Vigan, Ilocos Sur, Branch 20. Culled from the records, the facts of the case, as summed by the Office of the Court Administrator (OCA) are as follows: Ms. Juana Marzan Gelacio filed two (2) counts of rape against Emmanuel Artajos. The said cases were docketed as Criminal Cases Nos. 4187 and 4188. It was thereafter raffled to the sala of respondent Judge Alipio Flores, RTC, Branch 20, Vigan, Ilocos Sur. On February 26, 1988, presumably after going over the records of the case and the recommendation of 1st Assistant Provincial Prosecutor Redentor Cardenas, Judge Flores concluded that the evidence of guilt was weak but made a finding of a probable cause. Consequently, he issued warrants of arrest with a recommendation of P200,000.00 bailbond in both cases. On March 16, 1998, complainant through her private prosecutor, Atty. Jessie Emmanuel A. Vizcarra, filed an Urgent Motion to Deny Bail. Two (2) months thereafter, more particularly on May 27, 1998 counsel for the accused, Atty. Salacnib Baterina filed a Petition to Reduce Bailbond with a notation: "No objection for P100,000.00 in each case by Provincial Prosecutor Jessica G. Viloria." On June 18, 1998, Judge Flores issued an order denying the "Motion to Deny Bail" filed by the Private Prosecutor stating that the proper and appropriate recourse of an aggrieved party, as in these cases, should have been to ask for a reconsideration of the granting of bail to the Provincial Prosecutor and/or appeal direct to the Secretary of Justice, being a capital offense, within the reglementary period set forth by the Rules of said Office. In the same order, the Petition to Reduce Amount of Bail was held in abeyance pending arrest and/or voluntary surrender of the accused.

Apparently, on June 22, 1998 Judge Flores issued an order granting Motion for Reduction of Bail of the accused. (No copy of Order dated June 22, 1998 was attached). On July 8, 1998 the Private Prosecution filed a Motion to Cancel Bail Bonds of the Accused with the imprimatur of Assistant Public Prosecutor Arnulfo Manzano. On July 13, 1998, Judge Alipio Flores, acting on the said motion, treated the same as a Motion for Reconsideration on the granting of bail, and granted the same. The motion to cancel bail was held in abeyance pending arrest of the accused. He likewise recalled the Orders dated June 18 and 22, 1998, which he issued and ordered the immediate arrest of the accused. On July 22, 1998, Judge Flores denied the Motion to Cancel Bailbond and reinstated his Orders dated June 18 and 22, 1998. The Order of Arrest for the accused was likewise quashed. Judge Flores in issuing this Order relied on the stand of the Public Prosecutor that in accordance with the guidelines of the Department of Justice the cases are bailable. It was in the granting of a bail in the crime of rape where complainant questions the actuation of respondent Judge. Complainant contends that respondent Judge is ignorant of the law when he granted bail without giving the prosecution a chance to prove the guilt of the accused. She claims that it is very elementary for him not to know that petition for bail must be set for hearing. On August 27, 1998, Court Administrator Alfredo L. Benipayo by way of 1st Indorsement required Judge Alipio V. Flores to answer the complaint of Ms. Juana Marzan Gelacio. Respondent Judge in his comment alleged in sum that: 1.....On or before February 26, 1998, before making a finding of probable cause and issuance of the corresponding Warrants of Arrest in the said cases and finding that 1st Assistant Provincial Prosecutor Redentor Cardenas recommended bailbonds of P200,000.00 for each of the cases, called the branch prosecutor, 3rd Assistant Provincial Prosecutor Arnulfo Manzano in his chambers after the morning session to find out whether or not the recommendation for bail was not inadvertent. The latter informed that the complainant was not able to prove all the elements of rape and under their (Fiscals) guidelines on Bailbonds, the same is bailable. Thereafter, the Fiscals Office even sent their 1997 Guidelines on Bailbonds; 2.....After a careful perusal of the records of the two (2) cases, more particularly the only evidence on record which is the affidavit of the complainant Gelacio and the resolution thereof, he (respondent) concluded that the evidence of guilt was weak but made a finding of probable cause, issued the corresponding warrant of arrest with a recommendation of P200,000.00 bailbond in both cases, both on February 26, 1998; 3.....On March 16, 1998, private complainant through private prosecutor, Atty. Jessie Emmanuel A. Vizcarra, filed an Urgent Motion to Deny Bail, and on May 27, 1998 accused through, Atty. Salacnib Baterina, filed a Petition to Reduce Bailbond with a notation for: No Objection for P100,000.00 in each case by the Provincial Prosecutor Jessica G. Viloria; 4.....Because of the inconsistent stand of the Private Prosecutor and Public Prosecutor, the Court in its order dated June 2, 1998, treated first the Motion' to Deny Bailbond by ordering the

Public Prosecutor and defense to comment/oppose the same within 10 days from receipt thereof, with the Petition to Reduce Bailbonds meantime held in abeyance. On June 18, 1998, the Court issued the order now under question. 5.....It is also noteworthy to mention that the private prosecutor on 8 July 1998 filed a Motion to Cancel Bail Bonds of the Accused, which the Court motu proprio set for hearing on July 22, 1998. In said hearing the Public Prosecution through 3rd Assistant Provincial Prosecutor Arnulfo Manzano opposed the cancellation of Bailbonds maintaining the stand of the prosecution that both offenses are bailable. 6.....He does not personally know the accused nor the private complainant, and the questioned cases had resulted in a battle royale between the private prosecution and the public prosecution with respect to the bailbond issue, in which case law and precedents dictate that the public prosecution has control and supervision over the private prosecutor, in spite of this, the Court had always given the latter the right to be heard; 7.....There can be no partiality on his part as this is the only Rape case filed in Court where the Prosecution recommended bail; 8.....The remedy of the Private Prosecution should have been to question his final order by proper proceedings to a higher court to test whether or not he gravely abused its discretion amounting to lack of jurisdiction before an administrative complaint is filed. On October 26, 1998, complainant through counsel filed her position paper refuting the allegations of respondent Judge in his comment and reiterated her former claim that respondent Judge was ignorant of the law in granting bail without any hearing. In his comment to Position Paper of Private Complainant and Rejoinder respondent Judge stressed in sum that in the finding of probable cause and issuance of the corresponding warrant of arrest, the Judge may adopt the finding of the Provincial Prosecutor. On the basis of the foregoing factual narration, the OCA in the evaluation report recommended that the respondent Judge be fined Ten Thousand (P10,000.00) Pesos for granting bail without a hearing with a warning that a repetition of the same or similar acts in the future will be dealt with more severely, reasoning that: In G.R. No. 80906 entitled "Amaya, et al. v. Ordonez", September 5, 1988, the Honorable Court ruled that: "Whatever the fiscal recommends as the amount of bail for the provisional release of an accused is only recommendatory. The Judge still retains the discretion to apply the precedents laid down by the Supreme Court regarding the reasonable nature of the bail to be required. It is not bound by the Fiscals recommendation. More binding are the decisions of the Supreme Court." In the case at bar, respondent Judge does not deny that he granted bail to a person accused of two (2) counts of rape. He however attempted to excuse himself by saying that when he inquired inside his chambers from the Prosecutor as to whether there was really a recommendation of bail for P200,000.00 for each case and he (Fiscal) answered in the affirmative, he had no choice, according to

him, but to adopt the same. Moreover, he added the Prosecutor relied on the Bail Bond Guide issued by the Department of Justice. Such an excuse is unacceptable. It only manifested his weakness and displayed his ignorance of the law and several court decisions on matters such as this. It is very elementary that felonies are defined and their corresponding penalties are found in the Revised Penal Code. Hence, respondent Judge should not have been misled by the insinuation of the Fiscal that the 1996 Bail Bond Guide clearly expresses the bail to be recommended in the crime of rape. Instead, mindful perhaps of the basic legal principles, the Revised Penal Code should have prevailed. Besides, he should have known that the Bail [Bond] Guide is addressed to the Prosecutors and their Assistants and not to the Judges. What is even more perplexing is the attitude of the Judge in asking the Prosecutor to explain his recommendation of bail. This is contrary to Rule 2.01 of Canon 2 of the Code of Judicial Conduct. In no case is a Judge allowed to engage in a legal discussion inside his chambers, of the pending incidents of a case, without the presence of the representatives of the parties. Moreover, it was patent error for him to base his order granting bail merely on the supporting affidavits attached to the information since those were merely intended to establish probable cause as a basis for the issuance of an arrest warrant, and not to control his discretion to deny or grant in (sic) bail in all situation i.e., with or without a motion from the accused and even without conducting a hearing on the matter. It is admitted that there was a recommendation of bail. But the prosecutors recommendation, although persuasive, does not necessarily bind the Court. A hearing is indispensable before a Judge can aptly (sic) said to be in a position to determine whether the evidence for the prosecution is weak or strong. And the discretion to determine whether it is weak or strong may be exercised only after the evidence is submitted to the Court at the hearing. Whether in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, as the evidence it may desire to introduce before the court may resolve the motion for bail. Besides, the Judge should have known that even when bail is a matter of right, in fixing the amount of bail, he is required to take into account a number of factors, such as the character and reputation of the accused, forfeiture of other bonds, or whether or not he is a fugitive from justice. The fact that the prosecution refuses to adduce evidence, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused. Where the prosecution does not oppose the application for bail and refuses to satisfy his burden of proof, but the court has reasons to believe that the prosecutors attitude is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of justice, must inquire from the prosecution as to the nature of his evidence to determine whether or not it is strong, it being possible that the prosecutor [may] have erred in considering it weak and therefore, in recommending bail. The foregoing findings and disquisitions of the OCA are well taken. It is imperative that judges be conversant with basic legal principles.1 Indeed, the Code of Judicial Conduct enjoins judges to "be faithful to the law and maintain professional competence."2 Respondent judge owes it to the public and to the legal profession to know the law he is supposed to apply to a given controversy.3 Indeed A judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles and [be] aware of well-settled

authoritative doctrines. He should strive for excellence exceeded only by his passion for truth, to the end that he be the personification of justice and the Rule of Law.4 Considering that the granting of bail is common in the litigation of criminal cases before trial courts, we are not the least impressed with the explanation proffered by respondent Judge in granting bail in this case. On the contrary, we are dismayed that he granted bail to an applicant charged with two (2) counts of rape merely on the basis of supporting affidavits attached to the information. The Court has not been remiss in keeping trial judges informed of the latest developments on the subject. The following duties of judges in case an application for bail is filed have been clearly and repeatedly spelled out during seminars conducted by the Philippine Judicial Academy, to wit: 1.....In all cases whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court, as amended); 2.....Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; (Sections 7 and 8, supra) 3.....Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4.....If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond (Section 19, supra). Otherwise, the petition should be denied.5 The procedural necessity of a hearing relative to the grant of bail can not be dispensed with especially in this case where the accused is charged with a capital offense. Utmost diligence is required of trial judges in granting bail especially in cases where bail is not a matter of right. Certain procedures must be followed in order that the accused would be present during trial. As a responsible judge, respondent must not be swayed by the mere representations of the parties; instead, he should look into the real and hard facts of the case. To do away with the requisite bail hearing especially in those cases where the applicant is charged with a capital offense "is to dispense with this time-tested safeguard against arbitrariness."6 It must always be remembered that imperative justice requires the proper observance of indispensable technicalities precisely designed to ensure it proper dispensation.7 In this regard, it needs be stressed that the grant or the denial of bail in capital offenses hinges on the issue of whether or not the evidence of guilt of the accused is strong and the determination of whether or not the evidence is strong is a matter of judicial discretion which remains with the judge.8 On this point, Cruz v. Yaneza9 states in no uncertain terms that in order for the judge to properly exercise his discretion, he must first conduct a hearing to determine whether the evidence of guilt is strong. As decreed in Almeron v. Sardido10 In exercising such judicial discretion, however, a judge is required to conduct a hearing wherein both the prosecution and the defense present evidence that would point to the strength or weakness of the evidence of guilt. The discretion of the judge lies solely in the appreciation and evaluation of the weight of the evidence presented during the hearing and not in the determination of whether or not the hearing itself should be held for such a hearing is considered mandatory and absolutely

indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong. Thus, when a judge grants bail to a person charged with a capital offense punishable by reclusion perpetua or life imprisonment without conducting the required hearing, he is considered guilty of ignorance or incompetence the gravity of which cannot be excused by a claim of good faith or excusable negligence. Further, in Basco v. Rapatalo, we said: Since the determination of whether or not the evidence of guilt of the accused is strong is a matter of judicial discretion, the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application of bail to the discretion of the court. Even more explicitly in Santos v. Ofilada11 We have held that admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. The prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed in determining whether the guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after the evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim, caprice and outright arbitrariness.12 xxx xxx xxx

Even the alleged failure of the prosecution to interpose an objection to the granting of bail to the accused will not justify such grant without hearing. This Court has uniformly ruled that even if the prosecution refuses to adduce evidence or fails to interpose any objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt or lack of it, against the accused. Where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the States evidence or judge the adequacy of the amount of the bail.13 Irrespective of respondent judges opinion that the evidence of guilt against the accused is not strong, the law and settled jurisprudence demand that a hearing be conducted before bail may be fixed for the temporary release of the accused, if bail is at all justified.14 Thus, although the provincial prosecutor had interposed no objection to the grant of bail to the accused, the respondent judge therein should nevertheless have set the petition for bail for hearing and diligently ascertain from the prosecution whether the latter was not in fact contesting the bail application. In addition, a hearing was also necessary for the court to take into consideration the guidelines set forth in the then Section 6, Rule 114 of the 1985 Rules of Criminal Procedure for the fixing of the amount of the bail. Only after respondent judge had satisfied himself that these requirements have been met could he then proceed to rule on whether or not to grant bail.15 Most emphatic, however, is the recent case of Go, et al. v. Judge Benjamin A. Bongolan16 where owing to the increasing frequency of incidents regarding so basic a subject in criminal procedure despite repeated reminders thereon, an exasperated Court speaking through Mr. Justice Reynato S. Puno castigated the respondent judge for granting bail in a capital offense without conducting a hearing thus:

Complaints involving irregular approval of bailbond and issuance of order of release appear to be a common offense of judges. In the 1996, case of Adapon v. Domagtay,17 this Court observed: "This is not the first time that a complaint is brought before this Court involving irregular approval of bailbond and issuance of order of release. The Court again reminds judges of lower courts of their role as the embodiment of competence, integrity and independence. This Court believes that in order to achieve justice, judges should, in all cases, diligently ascertain and conscientiously apply the law in relation to the facts of each case they hear and decide, unswayed by partisan interests, public opinion or fear of criticism. This is the least that judges can do to sustain the trust reposed on them by the public." Earlier in Paderanga v. Court of Appeals,18 this Court painstakingly reminded judges of the procedure to be followed when a motion for admission to bail is filed by the accused. It seems, however, that our reminder has fallen on barren ground. Consequently, we find it opportune to reiterate the rules: "Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after the trial would be entitled to acquittal, unless his guilt be established beyond reasonable doubt. "Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant. Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum. "Where such a hearing is set upon proper motion or petition, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the courts order in respect of (sic) the motion or petition is void. At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal. When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires.19

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xxx

xxx

A bail hearing is mandatory to give the prosecution reasonable opportunity to oppose the application by showingthat evidence of guilt is strong.20 We note that the prosecution was caught off guard in the regular hearing of May 20, 1998, when Atty. Astudillo sprang on it a Motion to Amend the Information and Fix Bail. It is true that when asked by Judge Bongolan whether the prosecution would present additional evidence, Prosecutor Gayao responded in the negative. Subsequently, however, the prosecution changed its mind when it stated in its Opposition that a resolution of the Motion for admission to bail would be premature since it has additional witnesses to present. In his Comment, Judge Bongolan contends that it is not necessary for the prosecution to present all its witnesses before he could resolve the motion for bail. The stance cannot be sustained. In Borinaga v. Tamin,21 we ruled that the prosecution must be given an opportunity to present its evidence within a reasonable time whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial. If the prosecution is denied such an opportunity, there would be a violation of procedural due process. The records show that the prosecution was supposed to present its 6th and 7th witnesses on June 4, 1998 when Judge Bongolan prematurely resolved the motion. A bail application does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements. These two rights must be balanced by a magistrate in the scale of justice, hence, the necessity for hearing to guide his exercise of discretion. We note too that Judge Bongolan fixed the bail at P50,000.00 without showing its reasonableness. In Tucay v. Domagas,22 we held that while the Provincial Prosecutor did not interpose an objection to the grant of bail, still, respondent judge should have set the petition for bail hearing for the additional reason of taking into account the guidelines for fixing the amount of bail.23 Thus, we fined the erring judge for gross ignorance of the law.
lawphi1

It must be pointed out in this regard that "[J]udicial discretion, by its very nature, involves the exercise of the judges individual opinion and the law has wisely provided that its exercise be guided by wellknown rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control.24 In other words, judicial discretion is not unbridled but must be supported by a finding of the facts relied upon to form an opinion on the issue before the court.25 In numerous cases26 we repeatedly ruled that the courts order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is strong. Indeed, the summary of evidence for the prosecution which contains the judges evaluation of the evidence may be considered as an aspect of judicial due process for both the prosecution and the defense.27 Nowhere is such summary to be found in the assailed orders of respondent judge. With clear-cut procedural guidelines on bail now incorporated in the Rules of Court, judges have been enjoined to study them well and be guided accordingly. Concededly, judges can not be faulted for honest lapses in judgment but this defense has become shopworn from overuse. To reiterate, although the Provincial Prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should have set the application or petition for bail for hearing.28 If the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions.29 For even the failure of the prosecution to interpose an objection to the grant of bail to the accused will not justify such grant without a hearing.30

As pointedly stated in Bantuas v. Pangadapun31 "[T]o grant an application for bail and fix the amount thereof without a hearing duly called for the purpose of determining whether the evidence of guilt is strong constitutes ignorance or incompetence whose grossness cannot be excused by a claim of good faith or excusable negligence.32 Furthermore, the Court has held that the failure of the judge to conduct the hearing required prior to the grant of bail in capital offenses is inexcusable and reflects gross ignorance of the law and a cavalier disregard of its requirement."33 Given the peculiar factual circumstances prevailing in this case, we find the recommended penalty of the OCA in the evaluation report appropriate. WHEREFORE, in view of all the foregoing, respondent Judge is hereby FINED Ten Thousand Pesos (P10,000.00) and STERNLY WARNED that a repetition of the same or similar infractions complained of will be dealt with more severely. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 131909 February 18, 1999 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALFREDO CABRAL, Presiding Judge, RTC, Branch 30, Camarines Sur and RODERICK ODIAMAR,respondents.

ROMERO, J.: Assailed before this Court is the August 1, 1997 decision 1 of the Court of Appeals in CA GR. No. 42318 which affirmed the March 24, 1995 and June 14, 1996 orders 2 of the lower court granting accused-respondent's Motion for Bail and denying petitioner People's Motions "to Recall and Invalidate Order of March 24, 1995" and "to Recall and/or Reconsider the Order of May 5, 1995" confirming the hospitalization of accused-respondent. Accused-respondent Roderick Odiamar was charged with rape upon the complaint of Cecille Buenafe. In a bid to secure temporary liberty, accused- respondent filed a motion praying that he be released on bail which petitioner by presenting real, documentary and testimonial evidence. The lower court, however, granted the motion for bail in an order, the dispositive portion of which reads: WHEREFORE, the evidence not being strong at the (sic) stage of the trial, this court is constrained to grant bail for the provisional liberty of the accused Roderick Odiamar in the amount of P30,000.00. (Emphasis supplied)

Believing that accused-respondent was not entitled to bail as the evidence against him was strong, the prosecution filed the two abovementioned motions which the lower court disposed of, thus: WHEREFORE, the motions dated 10 May 1995 and 15 May 1995 both filed by Atty. Romulo Tolentino, State Prosecutor, are hereby denied, for lack of merit. The above-cited orders prompted petitioner to file a petition before the Court of Appeals with prayer for temporary restraining order and preliminary injunction. The Court of Appeals denied the petition reasoning thus: We have examined in close and painstaking detail the records of this case, and find that the claim of the People that the respondent judge had over-stepped the exercise of his jurisdiction in issuing the questioned orders, is unimpressed with merit. We are not inclined to declare that there was grave abuse in respondent court's exercise of its discretion in allowing accused to obtain bail. There is grave abuse of discretion where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. We do not find this to be so in this case. Our ruling is based not only on the respect to be accorded the findings of facts of the trial court, which had the advantage (not available to Us) of having observed first-hand the quality of the autoptic preference and the documentary exhibits of the parties, as well as the demeanor of the witnesses on the stand, but is grounded on the liberal slant given by the law in favor of the accused. Differently stated, in the absence of clear, potent and compelling reasons, We are not prepared to supplant the exercise of the respondent court's discretion with that of Our own. Still convinced by the merit of its case, petitioner filed the instant petition submitting the following sole issue: WHETHER OR NOT THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED DECISION AND RESOLUTION DESPITE A SHOWING BY THE PROSECUTION THAT THERE IS STRONG EVIDENCE PROVING RESPONDENT'S GUILT FOR THE CRIME CHARGED. The above-submitted issue pertains to the orders of the lower court granting used-respondent's application for bail which it justified through its summary of the evidence presented during the hearing. Said order states, thus: Now going over the evidence adduced in conjunction with the petition for bail filed by the accused through counsel, the court believes that the evidence so far presented by the prosecution is not strong. This is so because the crime of rape is not to be presumed; consent and not physical force is the common origin of acts between man and woman. Strong evidence and indication of great weight alone support such presumption. It is the teaching of applicable doctrines that form the defense in rape prosecution. In the final analysis, it is entitled to prevail, not necessarily because the untarnished truth is on its side but merely because it can raise reasonable, not fanciful doubts. It has the right to require the complainant (sic) strong evidence and an indication of great weight (People v. Godoy, G.R. No. L-31177, July 15, 1976), and in the instant case, the reasonable doubt is on the evidence of the prosecution, more so, because the intrinsic nature of the crime, the conviction or the acquittal of the accused depends almost entirely on the credibility of the complainant (People v. Oliquino, G.R.

No. 94703, May 31, 1993). Rightly so, because in the commission of the offense of rape the facts and circumstances occuring either prior, during and subsequent thereto may provide conclusion whether they may negate the commission thereof by the accused (People v. Flores, L-6065, October 26, 1986). If they negate, they do presuppose that the evidence for the prosecution is not strong. More so, because in the instant case, the facts and circumstances showing that they do seem to negate the commission thereof were mostly brought out during the cross-examination. As such, they deserve full faith and credence because the purpose thereof is to test accuracy and truthfulness and freedom from interest and bias or the reverse (Rule 132, Sec. 6, Revised Rules of Evidence). The facts and circumstances brought up are as follow, to wit: a) That, when the offended party Cecille Buenafe rode in the jeepney then driven by the accused Roderick Odiamar in that evening of July 20, 1994 at about 8:00 o'clock from the Poblacion, Lagonoy, Camarines Sur the former knew that it was for a joy ride. In fact, she did not even offer any protest when the said jeepney proceeded to the Pilapil Beach resort at Telegrafo, San Jose, Camarines Sur instead of Sabang, same municipality, where she and Stephen Florece intended to go. And when the said jeepney was already inside that resort, Cecille even followed the accused in going down from the jeepney also without protest on her part, a fact which shows voluntariness on the part of the offended party and, therefore, to the mind of the court her claim of rape should not be received with precipitate credulity. On the contrary, an insight into the human nature is necessary (People v. Barbo, 56 SCRA 495). And it is only when the testimony is impeccable and rings true throughout where it shall be believed (People v. Tapao, G.R. No. L-41704, October 23, 1981). Rightly so, because the aphorism that evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with the common experience and observation of mankind is nowhere of moral relevance than in cases involving prosecution of rape (People v. Macatangay, 107 Phil. 188); b) That, in that resort, when the accused Roderick Odiamar and companions allegedly forced the offended party Cecille Buenafe to drink gin, the latter, at first, refused and even did not swallow it but later on voluntarily took four (4) shots there shows that there (was) no force. And as regards the claim that the accused Roderick Odiamar and companions allegedly forced the said offended party to inhale smoke, out of a small cigarette, presumably a marijuana, it becomes doubtful because the prosecution, however, failed to present any portion of that so-called small cigarette much less did it present an expert witness to show that inhaling of smoke from the said cigarette would cause dizziness. Rightly so, because administration of narcotics is covered by Art. 335, par. 2 Revised Penal Code (People v. Giduces C.A. 38 O.C. 1434 cited in the Revised Penal Code, Aquino, Vol.III, pp. 392). As such, the burden of proof rests with the prosecution but it failed to do so; c) That, in that cottage where the accused, Roderick Odiamar allegedly brought the offended party, Cecille Buenafe, the former was able to consummate the alleged offense of rape by removing the two (2)

hands of the offended party, placed them on her knee, separating them thereby freeing the said hand and consequently pushed the head of the accused but the latter was able to insert his penis when the said offended party was no longer moving and the latter became tired. Neither evidence has been presented to show that the offended party suffered an injury much less any part of her pants or blouse was torn nor evidence to show that there was an overpowering and overbearing moral influence of the accused towards the offended party (People v. Mabunga, G.R. No. 96441d, March 13, 1992) more so, because force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other (People v. Erogo, 102077 January 4, 1994); d) That, after the alleged commission of rape at about 3:00 o'clock in the early morning of July 21, 1994, the offended party, Cecille, Stephen Florece and the latter's companions all boarded the same jeepney going back to the Poblacion of Lagonoy, without the said offended party, protesting, crying or in any way showing sign of grief regarding the alleged commission of the offense of rape until the jeepney reached the house of Roderick Odiamar where the latter parked it. As in other cases, the testimony of the offended party shall not be accepted unless her sincerity and candor are free from suspicion, because the nature of the offense of rape is an accusation easy to be made, hard to be proved but harder to be defended by the party accused though innocent (People v. Francisco G.R. No. L-43789, July 15, 1981). It becomes necessary, therefore, for the courts to exercise the most painstaking care in scrutinizing the testimony of the witnesses for the prosecution (People v. Dayag, L-30619, March 29, 1974); e) That the offended party, Cecille Buenafe had herself physically examined by Dr. Josephine Decena for medical certificate dated July 27, 1994 and it states, among others, that there was a healed laceration on the hymen, her laceration might have been sustained by the said offended party, a month, six (6) months, and even a year, prior to the said examination and that the said laceration might have been caused by repeated penetration of a male sex organ probably showing that the offended party might have experienced sexual intercourse. This piece of testimony coming from an expert, such finding is binding to court (Rules of Court, Moran, op.cit,vol 5, 1963, ed. pp. 413). f) That the offended party, Cecille Buenafe accompanied by the Station Commander of Lagonoy, Camarines Sur, proceeded to Naga City and upon the suggestion of Gov. Bulaong, the said offended party submitted for medical treatment before the same physician per medical certificate dated August 1, 1994 but according to the said physician the lesions near the umbilicus were due to skin diseases but the said offended party claim they were made by the accused after the sexual acts. As such, there were contradictions on material points, it becomes of doubtful veracity (People v. Palicte 83 Phil.) and it also destroys the testimony (People v. Garcia, G.R. No. 13086, March 27, 1961). As to the fact that the said lesion was made by the accused subsequent to

the commission of the act, it is immaterial. As such, it has no probative value. The lower court concluded that the evidence of guilt was not strong. The office of the Solicitor General disagreed with the lower court. It opined that aside from failing to include some pieces of evidence in the summary, the trial also misapplied some well-established doctrines of criminal law. The Office of the Solicitor General pointed out the following circumstances duly presented in the hearing for bail: First. There was no ill motive on the part of Cecille to impute the heinous crime of rape against respondent (People v. Paragsa, 83 SCRA 105 [1978]; People v. Delovino, 247 SCRA 637 [1995]). Second. Dr. Belmonte, the psychiatrist who attended to Cecille testified that based on her psychiatric examination of the latter, Cecille manifested psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptoms. These abnormal psychological manifestations, according to Dr. Belmonte, are traceable to the rape incident (Pages 5-7, TSN, November 22, 1994.) Third. The unrebutted offer of compromise by respondent is an implied admission of guilt (People v. Flore, 239 SCRA 83 [1994]). Fourth. Cecille was threatened by a deadly weapon and rendered unconscious by intoxication and inhalation of marijuana smoke. Fifth. The fact that after the conduct of two (2) preliminary investigations, "no bail was recommended in the information" constitutes "clear and strong evidence of the guilt of (all) the accused" (Baylon v. Sison, 243 SCRA 284 [1995]. Sixth. Cecille categorically testified on re-cross examination (pages 5-7, Order) that respondent succeeded in forcibly deflowering her because she was already weak and dizzy due to the effect of the smoke and the gin. Her declarations remain unrebutted. Seventh. Cecille categorically testified that she performed acts manifesting her lament, torment and suffering due to the rape. She went to Stephen Florece, cried and complained about the incident. Instead of helping her, Florece threatened to harm her and her family. (Pages 9-13, November 17, 1994). The statements of Cecille are positive statements which, under existing jurisprudence, are stronger than the denials put forth by respondent (Batiquin v. Court of Appeals, 258 SCRA 334 [1996]). Eight. The reliance by trial court on the testimony of Dr. Decena to the effect that the lacerations suffered by Cecille "might have been sustained by the latter a month, six (6) months or even a year prior to the examination" (Page 12 (e), Order, March 24, 1995) thus implying that respondent could not have committed the crime is highly misplaced. Dr. Decena herself testified that she cannot tell "how old is an old hymenal laceration" because she cannot indicate when an old laceration was inflicted and that from the size of the vagina she "could not point the exact cause" (Pages 7-10, TSN, December

9, 1994). Nevertheless, proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime (People v. Echegaray, 257 SCRA 561 [1996]). Further, in crimes against chastity, the medical examination of the victim's genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature. (People v. Arce, 227 SCRA 406 [1993]). Ninth. With respect to the cigarette wounds, Dr, Decena positively testified that the wounds could have been '"aused by cigarette butts as alleged by the victim" (Page 6, TSN, December 9, 1994) which confirms Cecile's testimony (quoted in the Order at page 9) that respondent burned her "right side of the stomach" thrice. The above points are well taken and have impressed upon this Court the merits of the instant petition. The 1987 Constitution in Article III, Section 13 of the Bill of Rights provides: 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. (Emphasis supplied) In view of the above exception to the constitutional guarantee on bail and in accordance with its rulemaking powers, 3 the Supreme Court, in promulgating the Rules of Court, adopted the following provision:
Sec. 7. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. 4 (Emphasis suppplied)

In this case, accused-respondent was being charged with rape qualified by the use of a deadly weapon punishable by reclusion perpetua to death. 5 As such, bail is discreationary and not a matter of right. The grant or denial of an application for is, therefore, dependent on whether the evidence of guilt is strong which the lower should determine in a hearing called for the purpose. The determination of the evidence of guilt is strong, in this regard, is a matter of judicial discretion. While the lower court would never be deprived of its mandated prerogative to exercise judicial discretion, this Court would unhesitatingly reverse the trial court's findings if found to be laced with grave abuse of discretion. By judicial discretion, the law mandates the determination of whether proof is evident or the presumption of guilt is strong. 6 "Proof evident" or "Evident proof" in this connection has been held to mean clear, strong evidence which leads a well-guarded disspositionate judgment to the conclusion that the offense has been committed as charged, that accused is the guilty agent, and that he will probably be punished capitally if the law is administered. 7"Presumption great" exists when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convinsing to an unbiased judgment and excludes all reasonable probability of any other conlusion. 8 Even though there is a reasonable doubt as to the guilt of accused, if on an examination of the entire record the presumption is great that accused is guilty of a capital offense, bail should be refused. 9(Emphasis and supplied) In other words, the test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt. As such, the court is ministerially

bound to decide which circumstances and factors are present which would show evident guilt or presumption of guilt as defined above. 10 This Court has observed that the lower court's order failed to mention and include some significant factors and circumstances which, to the mind of this Court are strong, clear and convincing. First, it excluded the testimony of Dr. Belmonte about her psychiatric examination of the victim as well as her findings that the latter manifested "psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptom." 11 This particular testimony should have been considered and included in the summary as it was given by an expert witness. Second, the unrebutted offer of compromise by accused-respondent is an implied admission of guilt which should have been noted as an offer of a compromise is generally considered as admissible evidence against the party making it. 12 Aside from failing to mention those important pieces of evidence and testimonies, this Court has likewise observed that the lower court misappplied some doctrines in criminal law. First, the lower court, in its order, intoned the following doctrine that "evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with common experience and observation of mankind." According to the lower court, the credibility of the complainant is suspect because she willingly went with accused-respondent to the resort where she was allegedly raped. In the scene of the crime, complainant allegedly voluntarily drank four shots of gin. The complainant, likewise, never protested nor cried while they on their way to accused-respondent's house. Because of those findings, the court doubted the credibility of complainant and stated that the crime of rape is not to be presumed and that sexual acts between a man and a woman are presumed to be consensual. In overcoming such presumption, much depends on the credibility of the complainant. This Court cannot agree. First, there was no finding of any ill-motive on the part of complainant in filing the rape charge against accused-respondent. This should have been taken into consideration. The following rebuttal of petitioner to the findings of the lower court is more credible: It must also be stressed that Cecille testified that she was forced by respondent to drink gin with the help of his friends by holding her hair and putting the glass on her mouth (Pages 5-7, TSN, November 17, 1994). More, respondent and his friends blew smoke into her face forcing her to inhale the intoxicating smoke. Whenever she attempted to leave the place, she was forced to sit down by Odiamar and his friends (Pages 6-7, TSN, November 17, 1994). Similarly, Cecille categorically declared that she was threatened by Florece with a gun (Page 17, TSN, November 17, 1994). The requirement of force and intimidation in the crime of rape are relative and must be viewed in light of the victim's perspective and the offender's physical condition (People v. Plaza, 242 SCRA 724 [1995]). Further, physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will because of fear for life and personal safety. (People v. Ramos, 245 SCRA 405 [19951) In this case, Cecille was only fifteen (l5) years old at the time of the incident in question. At her age, it is reasonable to assume that a shot of gin rendered her tipsy. Thus, four (4) shots of gin must have rendered her dizzy, intoxicated and deprived of will or reason. The resulting weakness and dizziness which deprived Cecille of reason,

will and freedom must be viewed in light of her perception and judgment at the time of the commission of the crime, and not by any hard and fast rule because in "rape cases, submission does not necessarily imply volition." (Querido, 229 SCRA 745 [1994]) It must likewise be taken into consideration that when Cecille went with the group of accusedrespondent, she was of the impression that it was just for a joy ride. The conclusion made by the trial court that Cecille must have consented to the sexual act because she acquiesced to go with them in the first place is, therefore, bereft of any legal or factual support, if not non sequitur. That she agreed to accompany them for a joy ride does not mean that she also agreed to the bestial acts later committed against her person. Second, the lower court stated that "force and violence in the offense of rape relative terms, depending on the age, size and strength of the parties and their relation to each other." The lower court enunciated this doctrine in finding that the alleged rape was actually a consensual act since the prosecution was unable to show the complainant suffered any injury nor show any evidence that her pants or blouse was torn. Neither was there any evidence that accused-respondent exerted overpowering and overbearing moral influence over the offended party. This Court is of the impression that when the lower court invoked the above doctrine, it readily concluded that complainant agreed to the sexual act disregarding testimonies lending credence to complainant's allegation that she was threatened and intimidated as well as rendered weak and dizzy, not only by the smoke of the marijuana cigarette but also by intoxication, thereby facilitating the commission of the crime. It was not imperative for the prosecution, in order to prove the elements of force or intimidation to show that Cecille had broken limbs or that her blouse or pants were torn. Her testimony to that effect would have sufficed. Nevertheless, the prosecution still exerted efforts to corroborate Cecille's claim by presenting the physician who testified that Cecille suffered hymenal lacerations and lesions near the umbilicus area. Unfortunately, however, the lower court chose to ignore these telling pieces of evidence. In addition, the lower court doubted complainant's allegation that she was to smoke a small cigarette, presumably marijuana, due to the fact that "the prosecution failed to present any portion of that socalled small cigarette much less did it present an expert witness to show that inhaling of smoke from the said cigarette would cause the said offended party to suffer weakness and dizziness." Said ratiocination is trifling and unpersuasive. In fact, it is even misleading as complainant categorically asserted that what made her weak and dizzy were the smoke of the cigarette and the intoxicating effect of four shots of gin, not the inhalation of the smoke alone. In any case, complainant could not be expected to produce that "portion of that so-called small cigarette." Moreover, one does not need an expert witness to testify on what is common knowledge - that four shots of gin have a "weakening and dizzying" effect on the drinker, especially one as young as the fifteen-year old complainant. More disturbing than the above misapplication of criminal law doctrines is the lower court's misinterpretation of the medical findings and deliberate withholding of some testimonies which would have shown a very strong likelihood that complainant could indeed have been raped. The following pieces of evidence cited in the summary of the assailed order are indications of misleading findings: First, the lower court did not lend any credence to the medical certificate issued after complainant's physical examination. On the contrary, it interpreted it to mean that the offended party is already experienced in sexual intercourse, after the examining physician had testified that the hymenal lacerations might have been sustained a month, six months or even a year prior to the examination. Interestingly, the lower court failed to mention that Dr. Decena also testified that she cannot tell "how

old is an hymenal laceration" because she cannot indicate when an old laceration was inflicted and that from the size of the vagina she "could not point the exact cause." This Court views this apparent lapse on the part of the lower court with and agrees with petitioner, in accordance with well established jurisprudence, that proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime. Further, in against chastity, the medical examination of the victim's genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature. 13 And contrary to the theory espoused by the lower court, a hymenal laceration is not conclusive proof that one is experienced in sexual intercourse. Second, the lower court highlighted the testimony of Dr. Decena to the effect the cigarette burns indicated that the lesions near complainant's umbilicus were due to skin diseases. Notably, however, the lower court again failed to mention that Dr. Decena likewise positively testified that the wounds could have been "caused by cigarette butts as alleged by the victim" which corroborates Cecille's testimony that respondent burned her "right side of the stomach" thrice. It is thus indicative from the above observations that the lower court abuse its discretion and showed manifest bias in favor of accused-respondent in determining which circumstances are to be considered in supporting its decision as to the guilt of accused-respondent. In this regard, it must be remembered that the discretion to be exercised in granting or denying bail, according to Basco v. Rapatalo 14 "is not absolute nor beyond control. It must be sound, and exercised reasonable bounds. Judicial discretion, by its very nature, involves the exercise of the judge's individual opinion. It is because of its very nature that the law has wisely provided that its exercise be guided by well-know rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, of the discretion to be exercised in granting or denying bail said: "But discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and; but legal and regular." The fact that vital prosecution evidence and testimonies have been irregularly disregarded indicate that they have not been considered at all in arriving at the decision to grant bail. This irregularity is even more pronounced with the misapplication of the two criminal law doctrines cited to support the grant of the bail application. This Court cannot help but observe that the lower court exerted painstaking efforts to show that the evidence of guilt of accused-respondent is not strong by its non sequitur justifications, misleading or unsupported conclusions, irregular disregard of vital prosecution evidence and strained interpretation, if not misinterpretation, of criminal law doctrines. It is the view of this Court that: (1) the testimony of Dr. Decena confirming complainant's allegation that accused-respondent burned the right side of her stomach with cigarette butts, (2) the testimony of Dr. Belmonte stating that complainant exhibited psychological manifestations which are "traceable to the rape incident'', and (3) the unrebutted offer of compromise, are indications of the strength of the evidence of guilt of accused-respondent. Lending credence to petitioner's case is the fact that after the conduct of two (2) preliminary investigations, "no bail" was recommended in the information. According to Baylon v. Sison, 15 such recommendation constitutes clear and strong evidence of guilt of the accused. Aside from the apparent abuse of discretion in determining which circumstances and pieces of evidence are to be considered, the lower court also did not strictly comply with jurisprudential guidelines in the exercise of discretion. As reiterated in Carpio v. Maglalng, 16 discretion is guided by: first, the applicable provisions of the Constitution and the statutes; second, by the rules which this

Court may promulgate; and third, by those principles of equity and justice that are deemed to be part of the laws of the land. The present Constitution, as previously adverted to, provides that in crimes punishable by reclusion perpetuawhen evidence of guilt is strong, bail is not matter of right. This Court has reiterated this mandate in Section 7, Rule 14 of the Rules of Court. Recently, this Court laid down the following rules in Basco v. Judge Rapatalo 17which outlined the duties of a judge in case an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation; (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its discretion; (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution; (Emphasis supplied) (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied. Based on the above-cited procedure and requirements, after the hearing, the court's order granting or refusing bail must contain a summary of the evidence for prosecutions. 18 A summary is defined as "a comprehensive and usually brief abstract or digest of a text or statement." 19 There are two corollary reasons for the summary: First, the summary of the evidence in the order is an extension of the hearing proper, thus, a part of procedural due process wherein the evidence presented during the prior hearing is formally recognized as having been presented and most importantly, considered. The failure to include every piece of evidence in the summary presented by the prosecution in their favor during the prior hearing would be tantamount to not giving them the opportunity to be heard in said hearing, for the inference would be that they were not considered at all in weighing the evidence of guilt. Such would be a denial of due process, for due process means not only giving every contending party the opportunity to be heard but also for the Court to consider every piece of evidence presented in their favor. 20 Second, the summary of the evidence in the order is the for the basis for the judge's exercising his judicial discretion. Only after weighing the pieces of evidence as contained in the summary will the judge formulate his own conclusion as to whether the evidence of guilt against the accused is strong based on his discretion. 21 (Emphasis supplied) Based on the above-stated reasons, the summary should necessarily be a complete compilation or restatement of all the pieces of evidence presented during the hearing proper. The lower court cannot exercise judicial discretion as to what pieces of evidence should be included in the summary. While conceding that some prosecution evidence were enumerated, said enumeration was incomplete. An incomplete enumeration or selective inclusion of pieces of evidence for the prosecution in the order cannot be considered a summary, for a summary is necessarily a reasonable recital of any evidence presented by the prosecution. A "summary" that is incomplete is not a summary at all. According to Borinaga v. Tamin, 22 the absence of a summary in the order would make said order defective in form and substance. Corollarily, an order containing an incomplete "summary" would likewise be defective in form and substance which cannot be sustained or be a semblance of validity. In Carpio v. Maglalang,23 said order was considered defective and voidable. As such, the order granting or denying the application for bail may be invalidated. 24

WHEREFORE, in view of the foregoing, the decision dated August 1, 1997 and the resolution dated December 22, 1997 in CA G.R. No. 42318 are REVERSED and the order dated March 24, 1995 in Criminal Case No. T-1417 is declared void for having been issued in grave abuse of discretion. The court a quo shall immediately issue a warrant for the rearrest of Roderick Odiamar if his bail bond has been approved and thereafter, proceed with dispatch in the disposition of said case. This resolution is immediately executory. SO ORDERED.