G.R. No.

L-409

January 30, 1947

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition for habeas corpus filed by
Anastacio Laurel and based on a theory that a Filipino citizen who adhered to the enemy giving the latter aid and
comfort during the Japanese occupation cannot be prosecuted for the crime of treason defined and penalized by
article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of the legitimate government in the
Philippines and, consequently, the correlative allegiance of Filipino citizens thereto was then suspended; and (2) that
there was a change of sovereignty over these Islands upon the proclamation of the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and permanent
allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and that this
absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a
foreigner owes to the government or sovereign of the territory wherein he resides, so long as he remains there, in
return for the protection he receives, and which consists in the obedience to the laws of the government or sovereign.
(Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State Webster Report to the President of the United States in
the case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their
legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the sovereignty of
the government or sovereign de jure is not transferred thereby to the occupier, as we have held in the cases of Co Kim
Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not
transferred to the occupant it must necessarily remain vested in the legitimate government; that the sovereignty vested
in the titular government (which is the supreme power which governs a body politic or society which constitute the
state) must be distinguished from the exercise of the rights inherent thereto, and may be destroyed, or severed and
transferred to another, but it cannot be suspended because the existence of sovereignty cannot be suspended without
putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension; that
what may be suspended is the exercise of the rights of sovereignty with the control and government of the territory
occupied by the enemy passes temporarily to the occupant; that the subsistence of the sovereignty of the legitimate
government in a territory occupied by the military forces of the enemy during the war, "although the former is in fact
prevented from exercising the supremacy over them" is one of the "rules of international law of our times"; (II
Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52 of
Hague Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not suspended and subsists
during the enemy occupation, the allegiance of the inhabitants to their legitimate government or sovereign subsists,
and therefore there is no such thing as suspended allegiance, the basic theory on which the whole fabric of the
petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United State was suspended in Castine, set forth in the
decision in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our decision in
the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection
with the question, not of sovereignty, but of the existence of a government de facto therein and its power to promulgate
rules and laws in the occupied territory, must have been based, either on the theory adopted subsequently in the
Hague Convention of 1907, that the military occupation of an enemy territory does not transfer the sovereignty to the
occupant; that, in the first case, the word "sovereignty" used therein should be construed to mean the exercise of the
rights of sovereignty, because as this remains vested in the legitimate government and is not transferred to the
occupier, it cannot be suspended without putting it out of existence or divesting said government thereof; and that in
the second case, that is, if the said conclusion or doctrine refers to the suspension of the sovereignty itself, it has

become obsolete after the adoption of the Hague Regulations in 1907, and therefore it can not be applied to the
present case;
Considering that even adopting the words "temporarily allegiance," repudiated by Oppenheim and other publicists, as
descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward the military
government established over them, such allegiance may, at most, be considered similar to the temporary allegiance
which a foreigner owes to the government or sovereign of the territory wherein he resides in return for the protection
he receives as above described, and does not do away with the absolute and permanent allegiance which the citizen
residing in a foreign country owes to his own government or sovereign; that just as a citizen or subject of a
government or sovereign may be prosecuted for and convicted of treason committed in a foreign country, in the same
way an inhabitant of a territory occupied by the military forces of the enemy may commit treason against his own
legitimate government or sovereign if he adheres to the enemies of the latter by giving them aid and comfort; and that
if the allegiance of a citizen or subject to his government or sovereign is nothing more than obedience to its laws in
return for the protection he receives, it would necessarily follow that a citizen who resides in a foreign country or state
would, on one hand, ipso facto acquire the citizenship thereof since he has enforce public order and regulate the
social and commercial life, in return for the protection he receives, and would, on the other hand, lose his original
citizenship, because he would not be bound to obey most of the laws of his own government or sovereign, and would
not receive, while in a foreign country, the protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the legitimate
government in the territory occupied by the enemy military forces, because the authority of the legitimate power to
govern has passed into the hands of the occupant (Article 43, Hague Regulations), the political laws which prescribe
the reciprocal rights, duties and obligation of government and citizens, are suspended or in abeyance during military
occupation (Co Kim cham vs. Valdez Tan Keh and dizon, supra), for the only reason that as they exclusively bear
relation to the ousted legitimate government, they are inoperative or not applicable to the government established by
the occupant; that the crimes against national security, such as treason and espionage; inciting to war,
correspondence with hostile country, flight to enemy's country, as well as those against public order, such as rebellion,
sedition, and disloyalty, illegal possession of firearms, which are of political complexion because they bear relation to,
and are penalized by our Revised Penal Code as crimes against the legitimate government, are also suspended or
become inapplicable as against the occupant, because they can not be committed against the latter
(Peralta vs.Director of Prisons, supra); and that, while the offenses against public order to be preserved by the
legitimate government were inapplicable as offenses against the invader for the reason above stated, unless adopted
by him, were also inoperative as against the ousted government for the latter was not responsible for the preservation
of the public order in the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to treason
committed against the national security of the legitimate government, because the inhabitants of the occupied territory
were still bound by their allegiance to the latter during the enemy occupation;
Considering that, although the military occupant is enjoined to respect or continue in force, unless absolutely
prevented by the circumstances, those laws that enforce public order and regulate the social and commercial life of
the country, he has, nevertheless, all the powers of de facto government and may, at his pleasure, either change the
existing laws or make new ones when the exigencies of the military service demand such action, that is, when it is
necessary for the occupier to do so for the control of the country and the protection of his army, subject to the
restrictions or limitations imposed by the Hague Regulations, the usages established by civilized nations, the laws of
humanity and the requirements of public conscience (Peralta vs. Director of Prisons, supra; 1940 United States Rules
of Land Warfare 76, 77); and that, consequently, all acts of the military occupant dictated within these limitations are
obligatory upon the inhabitants of the territory, who are bound to obey them, and the laws of the legitimate government
which have not been adopted, as well and those which, though continued in force, are in conflict with such laws and
orders of the occupier, shall be considered as suspended or not in force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or
subject to his government or sovereign does not demand from him a positive action, but only passive attitude or
forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a corollary
of the preceding consideration, to repeal or suspend the operation of the law of treason, essential for the preservation
of the allegiance owed by the inhabitants to their legitimate government, or compel them to adhere and give aid and
comfort to him; because it is evident that such action is not demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and protection of his army, and because it is tantamount to
practically transfer temporarily to the occupant their allegiance to the titular government or sovereign; and that,
therefore, if an inhabitant of the occupied territory were compelled illegally by the military occupant, through force,

threat or intimidation, to give him aid and comfort, the former may lawfully resist and die if necessary as a hero, or
submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences
for small and weak nations or states, and would be repugnant to the laws of humanity and requirements of public
conscience, for it would allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory to
fight against their own government without the latter incurring the risk of being prosecuted for treason, and even
compel those who are not aid them in their military operation against the resisting enemy forces in order to completely
subdue and conquer the whole nation, and thus deprive them all of their own independence or sovereignty such
theory would sanction the action of invaders in forcing the people of a free and sovereign country to be a party in the
nefarious task of depriving themselves of their own freedom and independence and repressing the exercise by them of
their own sovereignty; in other words, to commit a political suicide;
(2) Considering that the crime of treason against the government of the Philippines defined and penalized in article
114 of the Penal Code, though originally intended to be a crime against said government as then organized by
authority of the sovereign people of the United States, exercised through their authorized representative, the Congress
and the President of the United States, was made, upon the establishment of the Commonwealth Government in
1935, a crime against the Government of the Philippines established by authority of the people of the Philippines, in
whom the sovereignty resides according to section 1, Article II, of the Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which provides that "All laws of the Philippine Islands . . . shall remain
operative, unless inconsistent with this Constitution . . . and all references in such laws to the Government or officials
of the Philippine Islands, shall be construed, in so far as applicable, to refer to the Government and corresponding
officials under this constitution;
Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute but subject
to certain limitations imposed in the Independence Act and incorporated as Ordinance appended to our Constitution,
was recognized not only by the Legislative Department or Congress of the United States in approving the
Independence Law above quoted and the Constitution of the Philippines, which contains the declaration that
"Sovereignty resides in the people and all government authority emanates from them" (section 1, Article II), but also by
the Executive Department of the United States; that the late President Roosevelt in one of his messages to Congress
said, among others, "As I stated on August 12, 1943, the United States in practice regards the Philippines as having
now the status as a government of other independent nations in fact all the attributes of complete and respected
nationhood" (Congressional Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by the Supreme Court
of the United States in many cases, among them in the case of Jones vs. United States (137 U.S., 202; 34 Law. ed.,
691, 696) that the question of sovereignty is "a purely political question, the determination of which by the legislative
and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and
subjects of the country.
Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending the final and
complete withdrawal of the sovereignty of the United States "All citizens of the Philippines shall owe allegiance to the
United States", was one of the few limitations of the sovereignty of the Filipino people retained by the United States,
but these limitations do not away or are not inconsistent with said sovereignty, in the same way that the people of each
State of the Union preserves its own sovereignty although limited by that of the United States conferred upon the latter
by the States; that just as to reason may be committed against the Federal as well as against the State Government,
in the same way treason may have been committed during the Japanese occupation against the sovereignty of the
United States as well as against the sovereignty of the Philippine Commonwealth; and that the change of our form of
government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of
treason committed during the Commonwealth, because it is an offense against the same government and the same
sovereign people, for Article XVIII of our Constitution provides that "The government established by this constitution
shall be known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of
the United States and the proclamation of Philippine independence, the Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines";
This Court resolves, without prejudice to write later on a more extended opinion, to deny the petitioner's petition, as it
is hereby denied, for the reasons above set forth and for others to be stated in the said opinion, without prejudice to
concurring opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. justice
Perfecto concurs in a separate opinion.

Separate Opinions
PERFECTO, J., concurring:
Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While there is peace, there
are no traitors. Treason may be incubated when peace reigns. Treasonable acts may actually be perpetrated during
peace, but there are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a measure of self-defense and self-preservation. The
law of treason is an emergency measure. It remains dormant until the emergency arises. But as soon as war starts, it
is relentlessly put into effect. Any lukewarm attitude in its enforcement will only be consistent with nationalharakiri. All
war efforts would be of no avail if they should be allowed to be sabotaged by fifth columnists, by citizens who have
sold their country out to the enemy, or any other kind of traitors, and this would certainly be the case if he law cannot
be enforced under the theory of suspension.
Petitioner's thesis that allegiance to our government was suspended during enemy occupation is advanced in support
of the proposition that, since allegiance is identical with obedience to law, during the enemy occupation, the laws of the
Commonwealth were suspended. Article 114 of the Revised Penal Code, the law punishing treason, under the theory,
was one of the laws obedience to which was also suspended.
Allegiance has been defined as the obligation for fidelity and obedience which the individual owes to his government
or his sovereign in return for the protection which he receives.
"Allegiance", as the return is generally used, means fealty or fidelity to the government of which the person is either a
citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208.
"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty of obedience of a subject to the
sovereign, under whose protection he is." United States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed.,
890.
Allegiance is that duty which is due from every citizen to the state, a political duty binding on him who enjoys the
protection of the Commonwealth, to render service and fealty to the federal government. It is that duty which is
reciprocal to the right of protection, arising from the political relations between the government and the citizen.
Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.
By "allegiance" is meant the obligation to fidelity and obedience which the individual owes to the government under
which he lives, or to his sovereign, in return for the protection which he receives. It may be an absolute and permanent
obligation, or it may be a qualified and temporary one. A citizen or subject owes an absolute and permanent allegiance
to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen
or subject of another government or sovereign, and an alien while domiciled in a country owes it a temporary
allegiance, which is continuous during his residence. Carlisle vs. United States, 83 U.S. (16 Wall.), 147, 154; 21 Law
ed., 426.
"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the subject to the King, in return for that
protection which the King affords the subject. Allegiance, both expressed and implied, is of two sorts, the one natural,
the other local, the former being perpetual, the latter temporary. Natural allegiance is such as is due from all men born
within the King's dominions immediately upon their birth, for immediately upon their birth they are under the King's
protection. Natural allegiance is perpetual, and for this reason, evidently founded on the nature of government.
Allegiance is a debt due from the subject upon an implied contract with the prince that so long as the one affords
protection the other will demean himself faithfully. Natural-born subjects have a great variety of rights which they

acquire by being born within the King's liegance, which can never be forfeited but by their own misbehaviour; but the
rights of aliens are much more circumscribed, being acquired only by residence, and lost whenever they remove. If an
alien could acquire a permanent property in lands, he must owe an allegiance equally permanent to the King, which
would probably be inconsistent with that which he owes his natural liege lord; besides, that thereby the nation might, in
time, be subject to foreign influence and feel many other inconveniences." Indians within the state are not aliens, but
citizens owing allegiance to the government of a state, for they receive protection from the government and are subject
to its laws. They are born in allegiance to the government of the state. Jackson vs. Goodell, 20 Johns., 188, 911. (3
Words and Phrases, Permanent ed., 226-227.)
Allegiance. Fealty or fidelity to the government of which the person is either a citizen or subject; the duty which is
due from every citizen to the state; a political duty, binding on him who enjoys the protection of the commonwealth, to
render service and fealty to the federal government; the obligation of fidelity and obedience which the individual owes
to the government or to the sovereign under which he lives in return for the protection he receives; that duty is
reciprocal to the right of protection he receives; that duty which is reciprocal to the right of protection, arising from the
political relations between the government and the citizen.
Classification. Allegiance is of four kinds, namely: (1) Natural allegiance that which arises by nature and birth; (2)
acquired allegiance that arising through some circumstance or act other than birth, namely, by denization or
naturalization; (3) local allegiance-- that arising from residence simply within the country, for however short a time; and
(4) legal allegiance that arising from oath, taken usually at the town or leet, for, by the common law, the oath of
allegiance might be tendered to every one upon attaining the age of twelve years. (3 C.J.S., p.885.)
Allegiance. the obligation of fidelity and obedience which the individual owes to the government under which he
lives, or to his sovereign in return for the protection he receives. 15 R.C.L., 140. (Ballentine Law Dictionary, p. 68.).
"Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to his state the obligation of
obedience and support which he owes to it. The state is the political person to whom this liege fealty is due. Its
substance is the aggregate of persons owing this allegiance. The machinery through which it operates is its
government. The persons who operate this machinery constitute its magistracy. The rules of conduct which the state
utters or enforces are its law, and manifest its will. This will, viewed as legally supreme, is its sovereignty. (W.W.
Willoughby, Citizenship and Allegiance in Constitutional and International Law, 1 American Journal of International
Law, p. 915.).
The obligations flowing from the relation of a state and its nationals are reciprocal in character. This principle had been
aptly stated by the Supreme Court of the United States in its opinion in the case of Luriavs. United States:
Citizenship is membership in a political society and implies a duty of allegiance on the part of the member and a duty
protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. (3
Hackworth, Digest of International Law, 1942 ed., p.6.)
Allegiance. The tie which binds the citizen to the government, in return for the protection which the government
affords him. The duty which the subject owes to the sovereign, correlative with the protection received.
It is a comparatively modern corruption of ligeance (ligeantia), which is derived from liege (ligius), meaning absolute or
unqualified. It signified originally liege fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev., 47.
xxx

xxx

The above quotations express ideas that do not fit exactly into the Philippine pattern in view of the revolutionary
insertion in our Constitution of the fundamental principle that "sovereignty resides in the people and all government
authority emanates from them." (Section 1, Article II.) The authorities above quoted, judges and juridical publicists
define allegiance with the idea that sovereignty resides somewhere else, on symbols or subjects other than the people
themselves. Although it is possible that they had already discovered that the people and only the people are the true
sovereign, their minds were not yet free from the shackles of the tradition that the powers of sovereignty have been
exercised by princes and monarchs, by sultans and emperors, by absolute and tyrannical rules whose ideology was
best expressed in the famous words of one of the kings of France: "L'etat c'est moi," or such other persons or group of
persons posing as the government, as an entity different and in opposition to the people themselves. Although
democracy has been known ever since old Greece, and modern democracies in the people, nowhere is such principle
more imperative than in the pronouncement embodied in the fundamental law of our people.
To those who think that sovereignty is an attribute of government, and not of the people, there may be some
plausibility in the proposition that sovereignty was suspended during the enemy occupation, with the consequence that
allegiance must also have been suspended, because our government stopped to function in the country. But the idea
cannot have any place under our Constitution. If sovereignty is an essential attribute of our people, according to the
basic philosophy of Philippine democracy, it could not have been suspended during the enemy occupation.
Sovereignty is the very life of our people, and there is no such thing as "suspended life." There is no possible middle
situation between life and death. Sovereignty is the very essence of the personality and existence of our people. Can
anyone imagine the possibility of "suspended personality" or "suspended existence" of a people? In no time during
enemy occupation have the Filipino people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is incompatible with our Constitution.
There is similarity in characteristics between allegiance to the sovereign and a wife's loyalty to her husband. Because
some external and insurmountable force precludes the husband from exercising his marital powers, functions, and
duties and the wife is thereby deprived of the benefits of his protection, may the wife invoke the theory of suspended
loyalty and may she freely share her bed with the assailant of their home? After giving aid and comfort to the assailant
and allowing him to enjoy her charms during the former's stay in the invaded home, may the wife allege as defense for
her adultery the principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is unacceptable. We have
already decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante) that the Constitution of the Republic is
the same as that of the Commonwealth. The advent of independence had the effect of changing the name of our
Government and the withdrawal by the United States of her power to exercise functions of sovereignty in the
Philippines. Such facts did not change the sovereignty of the Filipino people. That sovereignty, following our
constitutional philosophy, has existed ever since our people began to exist. It has been recognized by the United
States of America, at least since 1935, when President Roosevelt approved our Constitution. By such act, President
Roosevelt, as spokesman of the American people, accepted and recognized the principle that sovereignty resides in
the people that is, that Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long before the proclamation of independence on July 4,
1946. Since the early part of the Pacific war, President Quezon had been sitting as representative of a sovereign
people in the Allied War Council, and in June, 1945, the same Filipino people took part outstanding and brilliant, it
may be added in the drafting and adoption of the charter of the United Nations, the unmistakable forerunner of the
future democratic federal constitution of the world government envisioned by all those who adhere to the principle of
unity of all mankind, the early realization of which is anxiously desired by all who want to be spared the sufferings,
misery and disaster of another war.

xxx

Allegiance may be an absolute and permanent obligation, or it may be a qualified and temporary one; the citizen or
subject owes the former to his government or sovereign, until by some act he distinctly renounces it, whilst the alien
domiciled in the country owes a temporary and local allegiance continuing during such residence. (Carlisle vs. United
States, 16 Wall. [U.S.], 154; 21 Law. ed., 426. (1 Bouvier's Law Dictionary, p. 179.).

Under our Constitution, the power to suspend laws is of legislative nature and is lodged in Congress. Sometimes it is
delegated to the Chief Executive, such as the power granted by the Election Code to the President to suspend the
election in certain districts and areas for strong reasons, such as when there is rebellion, or a public calamity, but it
has never been exercised by tribunals. The Supreme Court has the power to declare null and void all laws violative of
the Constitution, but it has no power, authority, or jurisdiction to suspend or declare suspended any valid law, such as
the one on treason which petitioner wants to be included among the laws of the Commonwealth which, by his theory of
suspended allegiance and suspended sovereignty, he claims have been suspended during the Japanese occupation.

Suppose President Quezon and his government, instead of going from Corregidor to Australia, and later to
Washington, had fled to the mountains of Luzon, and a group of Filipino renegades should have killed them to serve
the interests of the Japanese imperial forces. By petitioner's theory, those renegades cannot be prosecuted for treason
or for rebellion or sedition, as the laws punishing them were suspended. Such absurd result betrays the untenability of
the theory.
"The defense of the State is a prime duty of Government, and in the fulfillment of that duty all citizens may be required
by law to render personal, military or civil service." Thus, section 2 of Article II of the Constitution provides: That duty of
defense becomes more imperative in time of war and when the country is invaded by an aggressor nation. How can it
be fulfilled if the allegiance of the citizens to the sovereign people is suspended during enemy occupation? The
framers of the Constitution surely did not entertain even for the moment the absurdity that when the allegiance of the
citizens to the sovereign people is more needed in the defense of the survival of the state, the same should be
suspended, and that upon such suspension those who may be required to render personal, military or civil service
may claim exemption from the indispensable duty of serving their country in distress.
Petitioner advances the theory that protection in the consideration of allegiance. He argues that the Commonwealth
Government having been incapacitated during enemy occupation to protect the citizens, the latter were relieved of
their allegiance to said government. The proposition is untenable. Allegiance to the sovereign is an indispensable bond
for the existence of society. If that bond is dissolved, society has to disintegrate. Whether or not the existence of the
latter is the result of the social compact mentioned by Roseau, there can be no question that organized society would
be dissolved if it is not united by the cohesive power of the citizen's allegiance. Of course, the citizens are entitled to
the protection of their government, but whether or not that government fulfills that duty, is immaterial to the need of
maintaning the loyalty and fidelity of allegiance, in the same way that the physical forces of attraction should be kept
unhampered if the life of an individual should continue, irrespective of the ability or inability of his mind to choose the
most effective measures of personal protection.
After declaring that all legislative, executive, and judicial processes had during and under the Japanese regime,
whether executed by the Japanese themselves or by Filipino officers of the puppet government they had set up, are
null and void, as we have done in our opinions in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113),
in Peralta vs. Director of Prison (75, Phil., 285), and in several other cases where the same question has been
mentioned, we cannot consistently accept petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were null and void, and as we cannot imagine the
existence of organized society, such as the one constituted by the Filipino people, without laws of the Commonwealth
were the ones in effect during the occupation and the only ones that could claim obedience from our citizens.
Petitioner would want us to accept the thesis that during the occupation we owed allegiance to the enemy. To give way
to that paradoxical and disconcerting allegiance, it is suggested that we accept that our allegiance to our legitimate
government was suspended. Petitioner's proposition has to fall by its own weight, because of its glaring absurdities.
Allegiance, like its synonyms, loyalty and fidelity, is based on feelings of attraction, love, sympathy, admiration,
respect, veneration, gratitude, amity, understanding, friendliness. These are the feelings or some of the feelings that
bind us to our own people, and are the natural roots of the duty of allegiance we owe them. The enemy only provokes
repelling and repulsive feelings hate, anger, vexation, chagrin, mortification, resentment, contempt, spitefulness.
The natural incompatibility of political, social and ethical ideologies between our people and the Japanese, making
impossible the existence of any feeling of attraction between them, aside from the initial fact that the Japanese
invaded our country as our enemy, was aggravated by the morbid complexities of haughtiness, braggadocio and
beastly brutality of the Nippon soldiers and officers in their dealings with even the most inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our face, offer him the other to be further slapped, may
appear to be divinely charitable, but to make them a reality, it is necessary to change human nature. Political actions,
legal rules and judicial decisions deal with human relations, taking man as he is, not as he should be. To love the
enemy is not natural. As long as human pyschology remains as it is, the enemy shall always be hated. Is it possible to
conceive an allegiance based on hatred?
The Japanese, having waged against us an illegal war condemned by prevailing principles of international law, could
not have established in our country any government that can be legally recognized as de facto. They came as bandits

and ruffians, and it is inconceivable that banditry and ruffianism can claim any duty of allegiance even a temporary
one from a decent people.
One of the implications of petitioner's theory, as intimated somewhere, is that the citizens, in case of invasion, are free
to do anything not forbidden by the Hague Conventions. Anybody will notice immediately that the result will be the
doom of small nations and peoples, by whetting the covetousness of strong powers prone on imperialistic practices. In
the imminence of invasion, weak-hearted soldiers of the smaller nations will readily throw away their arms to rally
behind the paladium of the invaders.
Two of the three great departments of our Government have already rejected petitioner's theory since September 25,
1945, the day when Commonwealth Act No. 682 took effect. By said act, creating the People's Court to try and decide
all cases of crime against national security "committed between December 8, 1941 and September 2, 1945," (section
2), the legislative and executive departments have jointly declared that during the period above mentioned, including
the time of Japanese occupation, all laws punishing crimes against national security, including article 114 of the
Revised Penal Code, punishing treason, had remained in full effect and should be enforced.
That no one raised a voice in protest against the enactment of said act and that no one, at the time the act was being
considered by the Senate and the House of Representatives, ever dared to expose the uselessness of creating a
People's Court to try crime which, as claimed by petitioner, could not have been committed as the laws punishing them
have been suspended, is a historical fact of which the Supreme Court may take judicial notice. This fact shows
universal and unanimous agreement of our people that the laws of the Commonwealth were not suspended and that
the theory of suspended allegiance is just an afterthought provoked by a desperate effort to help quash the pending
treason cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it is based on generally accepted principles of
international law, although this argument becomes futile by petitioner's admission that the theory is advantageous to
strong powers but harmful to small and weak nations, thus hinting that the latter cannot accept it by heart. Suppose we
accept at face value the premise that the theories, urged by petitioner, of suspended allegiance and suspended
sovereignty are based on generally accepted principles of international law. As the latter forms part of our laws by
virtue of the provisions of section 3 of Article II of the Constitution, it seems that there is no alternative but to accept the
theory. But the theory has the effect of suspending the laws, especially those political in nature. There is no law more
political in nature than the Constitution of the Philippines. The result is an inverted reproduction of the Greek myth of
Saturn devouring his own children. Here, under petitioner's theory, the offspring devours its parent.
Can we conceive of an instance in which the Constitution was suspended even for a moment?
There is conclusive evidence that the legislature, as policy-determining agency of government, even since the Pacific
war started on December 7, 1941, intimated that it would not accept the idea that our laws should be suspended
during enemy occupation. It must be remembered that in the middle of December, 1941, when Manila and other parts
of the archipelago were under constant bombing by Japanese aircraft and enemy forces had already set foot
somewhere in the Philippines, the Second National Assembly passed Commonwealth Act No. 671, which came into
effect on December 16, 1941. When we approved said act, we started from the premise that all our laws shall continue
in effect during the emergency, and in said act we even went to the extent of authorizing the President "to continue in
force laws and appropriations which would lapse or otherwise become inoperative," (section 2, [d]), and also to
"promulgate such rules and regulations as he may deem necessary to carry out the national policy," (section 2), that
"the existence of war between the United States and other countries of Europe and Asia, which involves the
Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting
emergency." (Section 1.) To give emphasis to the intimation, we provided that the rules and regulations provided "shall
be in force and effect until the Congress of the Philippines shall otherwise provide," foreseeing the possibility that
Congress may not meet as scheduled as a result of the emergency, including invasion and occupation by the enemy.
Everybody was then convinced that we did not have available the necessary means of repelling effectivity the enemy
invasion.
Maybe it is not out of place to consider that the acceptance of petitioner's theory of suspended allegiance will cause a
great injustice to those who, although innocent, are now under indictment for treason and other crimes involving
disloyalty to their country, because their cases will be dismissed without the opportunity for them to revindicate

themselves. Having been acquitted upon a mere legal technicality which appears to us to be wrong, history will
indiscriminality classify them with the other accused who were really traitors to their country. Our conscience revolts
against the idea of allowing the innocent ones to go down in the memory of future generations with the infamous
stigma of having betrayed their own people. They should not be deprived of the opportunity to show through the due
process of law that they are free from all blame and that, if they were really patriots, they acted as such during the
critical period of test.

the nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement
of disputes only by pacific means, and condemned recourse to war for the solution of international controversies.

HILADO, J., concurring:

This Pact constitutes only one reversal of the viewpoint that all war is legal and has brought international law into
harmony with the common sense of mankind that unjustifiable war is a crime.

I concur in the result reached in the majority opinion to the effect that during the so-called Japanese occupation of the
Philippines (which was nothing more than the occupation of Manila and certain other specific regions of the Islands
which constituted the minor area of the Archipelago) the allegiance of the citizens of this country to their legitimate
government and to the United States was not suspended, as well as the ruling that during the same period there was
no change of sovereignty here; but my reasons are different and I proceed to set them forth:
I. SUSPENDED ALLEGIANCE.
(a) Before the horror and atrocities of World War I, which were multiplied more than a hundred-fold in World War II, the
nations had evolved certain rules and principles which came to be known as International Law, governing their conduct
with each other and toward their respective citizens and inhabitants, in the armed forces or civilian life, in time of
peace or in time of war. During the ages which preceded that first world conflict the civilized governments had no
realization of the potential excesses of which "men's inhumanity to man" could be capable. Up to that time war was, at
least under certain conditions, considered as sufficiently justified, and the nations had not on that account, proscribed
nor renounced it as an instrument of national policy, or as a means of settling international disputes. It is not for us now
to dwell upon the reasons accounting for this historical fact. Suffice it to recognize its existence in history.
But when in World War I civilized humanity saw that war could be, as it actually was, employed for entirely different
reasons and from entirely different motives, compared to previous wars, and the instruments and methods of warfare
had been so materially changed as not only to involve the contending armed forces on well defined battlefields or
areas, on land, in the sea, and in the air, but to spread death and destruction to the innocent civilian populations and to
their properties, not only in the countries engaged in the conflict but also in neutral ones, no less than 61 civilized
nations and governments, among them Japan, had to formulate and solemnly subscribe to the now famous BriandKellogg Pact in the year 1928. As said by Justice Jackson of the United States Supreme Court, as chief counsel for
the United States in the prosecution of "Axis war criminals," in his report to President Truman of June 7, 1945:
International law is not capable of development by legislation, for there is no continuously sitting international
legislature. Innovations and revisions in international law are brought about by the action of governments designed to
meet a change circumstances. It grows, as did the common law, through decisions reached from time to time in
adopting settled principles to new situations.
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After the shock to civilization of the war of 1914-1918, however, a marked reversion to the earlier and sounder
doctrines of international law took place. By the time the Nazis came to power it was thoroughly established that
launching an aggressive war or the institution of war by treachery was illegal and that the defense of legitimate warfare
was no longer available to those who engaged in such an enterprise. It is high time that we act on the juridical principle
that aggressive war-making is illegal and criminal.
The re-establishment of the principle of justifiable war is traceable in many steps. One of the most significant is the
Briand-Kellogg Pact of 1928 by which Germany, Italy, and Japan, in common with the United States and practically all

Unless this Pact altered the legal status of wars of aggression, it has no meaning at all and comes close to being an
act of deception. In 1932 Mr. Henry L. Stimson, as United States Secretary of State, gave voice to the American
concept of its effect. He said, "war between nations was renounced by the signatories of the Briand-Kellogg Treaty.
This means that it has become illegal throughout practically the entire world. It is no longer to be the source and
subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations
revolve. It is an illegal thing. . . . By that very act we have made obsolete many legal precedents and have given the
legal profession the task of re-examining many of its Codes and treaties.

Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924 for the Pacific Settlement
of International Disputes, signed by the representatives of forty-eight governments, which declared that "a war of
aggression constitutes .. an International crime. . . .
The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of forty-eight
member-nations, including Germany, declared that a war of aggression constitutes aninternational crime. At the Sixth
Pan-American Conference of 1928, the twenty-one American Republics unanimously adopted a resolution stating that
"war of aggression constitutes an international crime against the human species."
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We therefore propose to change that a war of aggression is a crime, and that modern international law has abolished
the defense that those who incite or wage it are engaged in legitimate business. Thus may the forces of the law be
mobilized on the side of peace. ("U.S.A. An American Review," published by the United States Office of War
Information, Vol. 2, No. 10; emphasis supplied.).
When Justice Jackson speaks of "a marked reversion to the earlier and sounder doctrines of international law" and
"the re-establishment of the principle of justifiable war," he has in mind no other than "the doctrine taught by Grotius,
the father of international law, that there is a distinction between the just and the unjust war the war of defense and
the war of aggression" to which he alludes in an earlier paragraph of the same report.
In the paragraph of said report immediately preceding the one last above mentioned Justice Jackson says that
"international law as taught in the 19th and the early part of the 20th century generally declared that war-making was
not illegal and no crime at law." But, as he says in one of the paragraphs hereinabove quoted from that report, the
Briand-Kellogg Pact constitutes a reversal of the view-point that all war is legal and has brought international law into
harmony with the common sense of mankind that unjustifiable war is a crime. Then he mentions as other reversals
of the same viewpoint, the Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, declaring that
a war of aggression constitutes an international crime; the 8th assembly of the League of Nations in 1927, declaring
that a war of aggression constitutes an international crime; and the 6th Pan-American conference of 1928, which
unanimously adopted a resolution stating that war of aggression constitutes an international crime against the human
species: which enumeration, he says, is not an attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first, against the United States, and later, in rapid
succession, against other allied nations, was a war of aggression and utterly unjustifiable. More aggressive still, and
more unjustifiable, as admitted on all sides, was its attack against the Philippines and its consequent invasion and
occupation of certain areas thereof.
Some of the rules and principles of international law which have been cited for petitioner herein in support of his theory
of suspended allegiance, have been evolved and accepted during those periods of the history of nations when all war

was considered legal, as stated by Justice Jackson, and the others have reference to military occupation in the course
of really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the aggressive war which threw the
entire Pacific area into a seething cauldron from the last month of 1941 of the first week of September, 1945, expressly
agreed to outlaw, proscribe and renounce war as an instrument of national policy, and bound herself to seek the
settlement of her disputes with other nations only by pacific means. Thus she expressly gave her consent to that
modification of the then existing rules and principles of international law governing the matter. With the modification, all
the signatories to the pact necessarily accepted and bound themselves to abide by all its implications, among them the
outlawing, prescription and renunciation of military occupation of another nation's territory in the course of a war thus
outlawed, proscribed and renounced. This is only one way of saving that the rules and principles of international law
therefore existing on the subject of military occupation were automatically abrogated and rendered ineffective in all
future cases of war coming under the ban and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression constitutes an international crime; if such a war is an
international crime against the human species: a nation which occupies a foreign territory in the course of such a war
cannot possibly, under any principle of natural or positive law, acquire or posses any legitimate power or right growing
out or incident to such occupation. Concretely, Japan in criminally invading the Philippines and occupying certain
portions of its territory during the Pacific war, could not have nor exercise, in the legal sense and only this sense
should we speak here with respect to this country and its citizens, any more than could a burglar breaking through a
man's house pretends to have or to exercise any legal power or right within that house with respect either to the
person of the owner or to his property. To recognize in the first instance any legal power or right on the part of the
invader, and in the second any legal power or right on the part of the burglar, the same as in case of a military
occupant in the course of a justifiable war, would be nothing short of legalizing the crime itself. It would be the most
monstrous and unpardonable contradiction to prosecute, condemn and hang the appropriately called war criminals of
Germany, Italy, and Japan, and at the same time recognize any lawfulness in their occupation invaded. And let it not
be forgotten that the Philippines is a member of the United Nations who have instituted and conducted the so-called
war crimes trials. Neither should we lose sight of the further fact that this government has a representative in the
international commission currently trying the Japanese war criminals in Tokyo. These facts leave no room for doubt
that this government is in entire accord with the other United Nations in considering the Pacific war started by Japan
as a crime. Not only this, but this country had six years before the outbreak of the Pacific war already renounced war
as an instrument of national policy (Constitution, Article II, section 2), thus in consequence adopting the doctrine of the
Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong and improper for this Court to apply to the occupation
by Japan of certain areas of the Philippines during that war the rules and principles of international law which might be
applicable to a military occupation occurring in the course of a justifiable war. How can this Court recognize any
lawfulness or validity in that occupation when our own government has sent a representative to said international
commission in Tokyo trying the Japanese "war criminals" precisely for the "crimes against humanity and peace"
committed by them during World War II of which said occupation was but part and parcel? In such circumstances how
could such occupation produce no less an effect than the suspension of the allegiance of our people to their country
and government?
(b) But even in the hypothesis and not more than a mere hypothesis that when Japan occupied the City of
Manila and certain other areas of the Philippines she was engaged in a justifiable war, still the theory of suspended
allegiance would not hold good. The continuance of the allegiance owed to a notion by its citizens is one of those high
privileges of citizenship which the law of nations denies to the occupant the power to interfere with.
. . . His (of occupant) rights are not, however, commensurate with his power. He is thus forbidden to take certain
measures which he may be able to apply, and that irrespective of their efficacy. The restrictions imposed upon him are
in theory designed to protect the individual in the enjoyment of some highly important privileges. These concern his
allegiance to the de jure sovereign, his family honor and domestic relations, religious convictions, personal service,
and connection with or residence in the occupied territory.
The Hague Regulations declare that the occupant is forbidden to compel the inhabitants to swear allegiance to the
hostile power. . . . (III Hyde, International Law, 2d revised ed., pp. 1898-1899.)

. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since the authority of the occupant
is not sovereignty, the inhabitants owe no temporary allegiance to him. . . . (II Oppenheim, International Law, pp. 341344.)
The occupant's lack of the authority to exact an oath of allegiance from the inhabitants of the occupied territory is but a
corollary of the continuance of their allegiance to their own lawful sovereign. This allegiance does not consist merely in
obedience to the laws of the lawful sovereign, but more essentially consists in loyalty or fealty to him. In the same
volume and pages of Oppenheim's work above cited, after the passage to the effect that the inhabitants of the
occupied territory owe no temporary allegiance to the occupant it is said that "On the other hand, he may compel them
to take an oath sometimes called an 'oath of neutrality' . . . willingly to submit to his 'legitimate commands.'
Since, naturally, such "legitimate commands" include the occupant's laws, it follows that said occupant, where the rule
is applicable, has the right to compel the inhabitants to take an oath of obedience to his laws; and since according to
the same rule, he cannot exact from the inhabitants an oath of obedience to his laws; and since, according to the
same rule, he cannot exact from the inhabitants an oath of allegiance, it follows that obedience to his laws, which he
can exact from them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last degree. To say that when the one's country is unable
to afford him in its protection, he ceases to be bound to it by the sacred ties of allegiance, is to advocate the doctrine
that precisely when his country is in such distress, and therefore most needs his loyalty, he is absolved from the
loyalty. Love of country should be something permanent and lasting, ending only in death; loyalty should be its worth
offspring. The outward manifestation of one or the other may for a time be prevented or thwarted by the irresistible
action of the occupant; but this should not in the least extinguish nor obliterate the invisible feelings, and promptings of
the spirit. And beyond the unavoidable consequences of the enemy's irresistible pressure, those invisible feelings and
promptings of the spirit of the people should never allow them to act, to speak, nor even to think a whit contrary to their
love and loyalty to the Fatherland. For them, indicted, to face their country and say to it that, because when it was
overrun and vanquished by the barbarous invader and, in consequence was disabled from affording them protection,
they were released from their sacred obligation of allegiance and loyalty, and could therefore freely adhere to its
enemy, giving him aid and comfort, incurring no criminal responsibility therefor, would only tend to aggravate their
crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty resides in the people and all government authority
emanates from them." The Filipino people are the self-same people before and after Philippine Independence,
proclaimed on July 4, 1946. During the life of the Commonwealth sovereignty resided in them under the Constitution;
after the proclamation of independence that sovereignty remained with them under the very same fundamental law.
Article XVIII of the said Constitution stipulates that the government established thereby shall be known as the
Commonwealth of the Philippines; and that upon the final and complete withdrawal of the sovereignty of the United
States and the proclamation of Philippine independence, "The Commonwealth of the Philippines shall thenceforth be
known as the Republic of the Philippines." Under this provision the Government of the Philippines immediately prior to
independence was essentially to be the identical government thereafter only the name of that government was to
be changed.
Both before and after the adoption of the Philippine Constitution the people of the Philippines were and are always the
plaintiff in all criminal prosecutions, the case being entitled: "The People of the Philippines vs. (the defendant or
defendants)." This was already true in prosecutions under the Revised Penal Code containing the law of treason. "The
Government of the Philippines" spoken of in article 114 of said Code merely represents the people of the Philippines.
Said code was continued, along with the other laws, by Article XVI, section 2, of the Constitution which constitutional
provision further directs that "all references in such laws to the Government or officials of the Philippine Islands shall
be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution"
of course, meaning the Commonwealth of the Philippines before, and the Republic of the Philippines after,
independence (Article XVIII). Under both governments sovereignty resided and resides in the people (Article II, section
1). Said sovereignty was never transferred from that people they are the same people who preserve it to this day.
There has never been any change in its respect.
If one committed treason againsts the People of the Philippines before July 4, 1946, he continues to be criminally
liable for the crime to the same people now. And if, following the literal wording of the Revised Penal Code, as

continued by the Constitution, that accused owed allegiance upon the commission of the crime to the "Government of
the Philippines," in the textual words of the Constitution (Article XVI, section 2, and XVIII) that was the same
government which after independence became known as the "Republic of the Philippines." The most that can be said
is that the sovereignty of the people became complete and absolute after independence that they became,
politically, fully of age, to use a metaphor. But if the responsibility for a crime against a minor is not extinguished by the
mere fact of his becoming of age, why should the responsibility for the crime of treason committed against the Filipino
people when they were not fully politically independent be extinguished after they acquire this status? The offended
party continues to be the same only his status has changed.

PARAS, J., dissenting:

During the long period of Japanese occupation, all the political laws of the Philippines were suspended. This is full
harmony with the generally accepted principles of the international law adopted by our Constitution(Article II, section 3)
as a part of the law of the Nation. Accordingly, we have on more than one occasion already stated that "laws of a
political nature or affecting political relations, . . . are considered as suspended or in abeyance during the military
occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113, 124), and that the rule "that laws of political
nature or affecting political relations are considered suspended or in abeyance during the military occupation, is
intended for the governing of the civil inhabitants of the occupied territory." (Ruffy vs. Chief of Staff, Philippine Army,
75, Phil., 875, 881.)
The principle is recognized by the United States of America, which admits that the occupant will naturally suspends all
laws of a political nature and all laws which affect the welfare and safety of his command, such action to be made
known to the inhabitants.(United States Rules of Land Welfare, 1940, Article 287.) As allegiance to the United States is
an essential element in the crime of treason under article 114 of the Revised Penal Code, and in view of its position in
our political structure prior to the independence of the Philippines, the rule as interpreted and practiced in the United
States necessarily has a binding force and effect in the Philippines, to the exclusion of any other construction followed
elsewhere, such as may be inferred, rightly or wrongly, from the isolated cases 1 brought to our attention, which,
moreover, have entirely different factual bases.
Corresponding notice was given by the Japanese occupying army, first, in the proclamation of its Commander in chief
of January 2, 1942, to the effect that as a "result of the Japanese Military operations, the sovereignty of the United
States of America over the Philippines has completely disappeared and the Army hereby proclaims the Military
Administration under martial law over the district occupied by the Army;" secondly, in Order No. 3 of the said
Commander in Chief of February 20, 1942, providing that "activities of the administrative organs and judicial courts in
the Philippines shall be based upon the existing statutes, orders, ordinances and customs until further orders provided
that they are not inconsistent with the present circumstances under the Japanese Military Administration;" and, thirdly,
in the explanation to Order No. 3 reminding that "all laws and regulations of the Philippines has been suspended since
Japanese occupation," and excepting the application of "laws and regulations which are not proper act under the
present situation of the Japanese Military Administration," especially those "provided with some political purposes."
The suspension of the political law during enemy occupation is logical, wise and humane. The latter phase outweighs
all other aspects of the principle aimed more or less at promoting the necessarily selfish motives and purposes of a
military occupant. It thus consoling to note that the powers instrumental in the crystallization of the Hague Conventions
of 1907 did not forget to declare that they were "animated by the desire to serve . . . the interest of the humanity and
the over progressive needs of civilization," and that "in case not included in the Regulations adopted by them, the
inhabitants and the belligerents remain under the protection and the rule of the principles of international law, as they
result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public
conscience." These saving statements come to the aid of the inhabitants in the occupied territory in a situation
wherein, even before the belligerent occupant "takes a further step and by appropriate affirmative action undertakes to
acquire the right of sovereignty for himself, . . . the occupant is likely to regard to himself as clothed with freedom to
endeavor to impregnate the people who inhabit the area concerned with his own political ideology, and to make that
endeavor successful by various forms of pressure exerted upon enemy officials who are permitted to retain the
exercise of normal governmental functions." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p. 1879.)

The inhabitants of the occupied territory should necessarily be bound to the sole authority of the invading power,
whose interest and requirements are naturally in conflict with those of the displaced government, if it is legitimate for
the military occupant to demand and enforce from the inhabitants such obedience as may be necessary for the
security of his forces, for the maintenance of law and order, and for the proper administration of the country (United
States Rules of Land Warfare, 1940, article 297), and to demand all kinds of services "of such a nature as not to
involve the population in the obligation of taking part in military operations against their own country" (Hague
Regulations, article 52);and if, as we have in effect said, by the surrender the inhabitants pass under a temporary
allegiance to the government of the occupant and are bound by such laws, and such only, as it chooses to recognize
and impose, and the belligerent occupant `is totally independent of the constitution and the laws of the territory, since
occupation is an aim of warfare, and the maintenance and safety of his forces, and the purpose of war, stand in the
foreground of his interest and must be promoted under all circumstances or conditions." (Peralta vs. Director of
Prisons, 75 Phil., 285, 295), citing United States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim, International Law,
Vol. II. Sixth Edition, Revised, 1944,p. 432.)
He would be a bigot who cannot or would refuse to see the cruel result if the people in an occupied territory were
required to obey two antagonistic and opposite powers. To emphasize our point, we would adopt the argument, in a
reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358), contained in the following
passage:
To have bound those of our people who constituted the great majority who never submitted to the Japanese
oppressors, by the laws, regulations, processes and other acts of those two puppet governments, would not only have
been utterly unjust and downright illegal, but would have placed them in the absurd and impossible condition of being
simultaneously submitted to two mutually hostile governments, with their respective constitutional and legislative
enactments and institutions on the one hand bound to continue owing allegiance to the United States and the
Commonwealth Government, and, on the other, to owe allegiance, if only temporary, to Japan.
The only sensible purpose of the treason law which is of political complexion and taken out of the territorial law and
penalized as a new offense committed against the belligerent occupant, incident to a state of war and necessary for
the control of the occupant (Alcantara vs. Director of Prisons, 75 Phil., 494), must be the preservation of the nation,
certainly not its destruction or extermination. And yet the latter is unwittingly wished by those who are fond of the
theory that what is suspended is merely the exercise of sovereignty by the de juregovernment or the latter's authority
to impose penal sanctions or that, otherwise stated, the suspension refers only to the military occupant. If this were to
be the only effect, the rule would be a meaningless and superfluous optical illusion, since it is obvious that the fleeing
or displaced government cannot, even if it should want, physically assert its authority in a territory actually beyond its
reach, and that the occupant, on the other hand, will not take the absurd step of prosecuting and punishing the
inhabitants for adhering to and aiding it. If we were to believe the opponents of the rule in question, we have to accept
the absurd proposition that the guerrillas can all be prosecuted with illegal possession of firearms. It should be borne in
the mind that "the possession by the belligerent occupant of the right to control, maintain or modify the laws that are to
obtain within the occupied area is an exclusive one. The territorial sovereign driven therefrom, can not compete with it
on an even plane. Thus, if the latter attempt interference, its action is a mere manifestation of belligerent effort to
weaken the enemy. It has no bearing upon the legal quality of what the occupant exacts, while it retains control. Thus,
if the absent territorial sovereign, through some quasi-legislative decree, forbids its nationals to comply with what the
occupant has ordained obedience to such command within the occupied territory would not safeguard the individual
from the prosecution by the occupant." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant to prosecute and punish the inhabitants for "war
treason" or "war crimes," as an incident of the state of war and necessity for the control of the occupied territory and
the protection of the army of the occupant, against which prosecution and punishment such inhabitants cannot
obviously be protected by their native sovereign, it is hard to understand how we can justly rule that they may at the
same time be prosecuted and punished for an act penalized by the Revised Penal Code, but already taken out of the
territorial law and penalized as a new offense committed against the belligerent occupant.
In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution of the Commonwealth Government
was suspended during the occupation of the Philippines by the Japanese forces or the belligerent occupant at regular
war with the United States," and the meaning of the term "suspended" is very plainly expressed in the following
passage (page 298):

No objection can be set up to the legality of its provisions in the light of the precepts of our Commonwealth
Constitution relating to the rights of the accused under that Constitution, because the latter was not in force during the
period of the Japanese military occupation, as we have already stated. Nor may said Constitution be applied upon its
revival at the time of the re-occupation of the Philippines by the virtue of the priciple of postliminium, because "a
constitution should operate prospectively only, unless the words employed show a clear intention that it should have a
retrospective effect," (Cooley's Constitutional Limitations, seventh edition, page 97, and a case quoted and cited in the
foot-note), especially as regards laws of procedure applied to cases already terminated completely.
In much the same way, we should hold that no treason could have been committed during the Japanese military
occupation against the United States or the Commonwealth Government, because article 114 of the Revised Penal
Code was not then in force. Nor may this penal provision be applied upon its revival at the time of the reoccupation of
the Philippines by virtue of the principle of postliminium, because of the constitutional inhibition against any ex post
facto law and because, under article 22 of the Revised Penal Code, criminal laws shall have a retroactive effect only in
so far as they favor the accused. Why did we refuse to enforce the Constitution, more essential to sovereignty than
article 114 of the Revised Penal Code in the aforesaid of Peralta vs. Director of Prisons if, as alleged by the majority,
the suspension was good only as to the military occupant?
The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our position. As analyzed and
described in United States vs. Reiter (27 Fed. Cas., 773), that case "was decided by the Supreme Court of the United
States the court of highest human authority on that subject and as the decision was against the United States,
and in favor of the authority of Great Britain, its enemy in the war, and was made shortly after the occurrence of the
war out of which it grew; and while no department of this Government was inclined to magnify the rights of Great
Britain or disparage those of its own government, there can be no suspicion of bias in the mind of the court in favor of
the conclusion at which it arrived, and no doubt that the law seemed to the court to warrant and demand such a
decision. That case grew out of the war of 1812, between the United States and Great Britain. It appeared that in
September, 1814, the British forces had taken the port of Castine, in the State of Maine, and held it in military
occupation; and that while it was so held, foreign goods, by the laws of the United States subject to duty, had been
introduced into that port without paying duties to the United States. At the close of the war the place by treaty restored
to the United States, and after that was done Government of the United States sought to recover from the persons so
introducing the goods there while in possession of the British, the duties to which by the laws of the United States,
they would have been liable. The claim of the United States was that its laws were properly in force there, although the
place was at the time held by the British forces in hostility to the United States, and the laws, therefore, could not at
the time be enforced there; and that a court of the United States (the power of that government there having since
been restored) was bound so to decide. But this illusion of the prosecuting officer there was dispelled by the court in
the most summary manner. Mr. Justice Story, that great luminary of the American bench, being the organ of the court
in delivering its opinion, said: 'The single question is whether goods imported into Castine during its occupation by the
enemy are liable to the duties imposed by the revenue laws upon goods imported into the United States.. We are all of
opinion that the claim for duties cannot be sustained. . . . The sovereignty of the United States over the territory was,
of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory
upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a
temporary allegiance of the British Government, and were bound by such laws, and such only, as it chose to recognize
and impose. From the nature of the case no other laws could be obligatory upon them. . . . Castine was therefore,
during this period, as far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by
the inhabitants were subjects to such duties only as the British Government chose to require. Such goods were in no
correct sense imported into the Unites States.' The court then proceeded to say, that the case is the same as if the
port of Castine had been foreign territory, ceded by treaty to the United States, and the goods had been imported there
previous to its cession. In this case they say there would be no pretense to say that American duties could be
demanded; and upon principles of public or municipal law, the cases are not distinguishable. They add at the
conclusion of the opinion: 'The authorities cited at the bar would, if there were any doubt, be decisive of the question.
But we think it too clear to require any aid from authority.' Does this case leave room for a doubt whether a country
held as this was in armed belligerents occupation, is to be governed by him who holds it, and by him alone? Does it
not so decide in terms as plain as can be stated? It is asserted by the Supreme Court of the United States with entire
unanimity, the great and venerated Marshall presiding, and the erudite and accomplished Story delivering the opinion
of the court, that such is the law, and it is so adjudged in this case. Nay, more: it is even adjudged that no other laws
could be obligatory; that such country, so held, is for the purpose of the application of the law off its former government
to be deemed foreign territory, and that goods imported there (and by parity of reasoning other acts done there) are in
no correct sense done within the territory of its former sovereign, the United States."

But it is alleged by the majority that the sovereignty spoken of in the decision of the United States vs. Rice should be
construed to refer to the exercise of sovereignty, and that, if sovereignty itself was meant, the doctrine has become
obsolete after the adoption of the Hague Regulations in 1907. In answer, we may state that sovereignty can have any
important significance only when it may be exercised; and, to our way of thinking, it is immaterial whether the thing
held in abeyance is the sovereignty itself or its exercise, because the point cannot nullify, vary, or otherwise vitiate the
plain meaning of the doctrinal words "the laws of the United States could no longer be rightfully enforced there, or be
obligatory upon the inhabitants who remained and submitted to the conquerors." We cannot accept the theory of the
majority, without in effect violating the rule of international law, hereinabove adverted to, that the possession by the
belligerent occupant of the right to control, maintain or modify the laws that are to obtain within the occupied area is an
exclusive one, and that the territorial sovereign driven therefrom cannot compete with it on an even plane. Neither may
the doctrine in the United States vs. Rice be said to have become obsolete, without repudiating the actual rule
prescribed and followed by the United States, allowing the military occupant to suspend all laws of a political nature
and even require public officials and inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940,
article 309). In fact, it is a recognized doctrine of American Constitutional Law that mere conquest or military
occupation of a territory of another State does not operate to annex such territory to occupying State, but that the
inhabitants of the occupied district, no longer receiving the protection of their native State, for the time being owe no
allegiance to it, and, being under the control and protection of the victorious power, owe to that power fealty and
obedience. (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)
The majority have resorted to distinctions, more apparent than real, if not immaterial, in trying to argue that the law of
treason was obligatory on the Filipinos during the Japanese occupation. Thus it is insisted that a citizen or subject
owes not a qualified and temporary, but an absolute and permanent allegiance, and that "temporary allegiance" to the
military occupant may be likened to the temporary allegiance which a foreigner owes to the government or sovereign
to the territory wherein he resides in return for the protection he receives therefrom. The comparison is most
unfortunate. Said foreigner is in the territory of a power not hostile to or in actual war with his own government; he is in
the territory of a power which has not suspended, under the rules of international law, the laws of political nature of his
own government; and the protections received by him from that friendly or neutral power is real, not the kind of
protection which the inhabitants of an occupied territory can expect from a belligerent army. "It is but reasonable that
States, when they concede to other States the right to exercise jurisdiction over such of their own nationals as are
within the territorial limits of such other States, should insist that States should provide system of law and of courts,
and in actual practice, so administer them, as to furnish substantial legal justice to alien residents. This does not mean
that a State must or should extend to aliens within its borders all the civil, or much less, all the political rights or
privileges which it grants to its own citizens; but it does mean that aliens must or should be given adequate opportunity
to have such legal rights as are granted to them by the local law impartially and judicially determined, and, when thus
determined, protected." (Willoughby, The Fundamental Concepts of Public Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be prosecuted for and convicted of treason committed in a
foreign country or, in the language of article 114 of the Revised Penal Code, "elsewhere," a territory other than one
under belligerent occupation must have been contemplated. This would make sense, because treason is a crime "the
direct or indirect purpose of which is the delivery, in whole or in part, of the country to a foreign power, or to pave the
way for the enemy to obtain dominion over the national territory" (Albert, The Revised Penal Code, citing 3 Groizard,
14); and, very evidently, a territory already under occupation can no longer be "delivered."
The majority likewise argue that the theory of suspended sovereignty or allegiance will enable the military occupant to
legally recruit the inhabitants to fight against their own government, without said inhabitants being liable for treason.
This argument is not correct, because the suspension does not exempt the occupant from complying with the Hague
Regulations (article 52) that allows it to demand all kinds of services provided that they do not involve the population
"in the obligation of taking part military operations against their own country." Neither does the suspension prevent the
inhabitants from assuming a passive attitude, much less from dying and becoming heroes if compelled by the
occupant to fight against their own country. Any imperfection in the present state of international law should be
corrected by such world agency as the United Nations organizations.
It is of common knowledge that even with the alleged cooperation imputed to the collaborators, an alarming number of
Filipinos were killed or otherwise tortured by the ruthless, or we may say savage, Japanese Army. Which leads to the
conclusion that if the Filipinos did not obey the Japanese commands and feign cooperation, there would not be any
Filipino nation that could have been liberated. Assuming that the entire population could go to and live in the
mountains, or otherwise fight as guerrillas after the formal surrender of our and the American regular fighting forces,
they would have faced certain annihilation by the Japanese, considering that the latter's military strength at the time

and the long period during which they were left military unmolested by America. In this connection, we hate to make
reference to the atomic bomb as a possible means of destruction.
If a substantial number of guerrillas were able to survive and ultimately help in the liberation of the Philippines, it was
because the feigned cooperation of their countrymen enabled them to get food and other aid necessary in the
resistance movement. If they were able to survive, it was because they could camouflage themselves in the midst of
the civilian population in cities and towns. It is easy to argue now that the people could have merely followed their
ordinary pursuits of life or otherwise be indifferent to the occupant. The fundamental defect of this line of thought is that
the Japanese assumed to be so stupid and dumb as not to notice any such attitude. During belligerent occupation,
"the outstanding fact to be reckoned with is the sharp opposition between the inhabitants of the occupied areas and
the hostile military force exercising control over them. At heart they remain at war with each other. Fear for their own
safety may not serve to deter the inhabitants from taking advantage of opportunities to interfere with the safety and
success of the occupant, and in so doing they may arouse its passions and cause to take vengeance in cruel fashion.
Again, even when it is untainted by such conduct, the occupant as a means of attaining ultimate success in its major
conflict may, under plea of military necessity, and regardless of conventional or customary prohibitions, proceed to
utilize the inhabitants within its grip as a convenient means of military achievement." (Hyde, International Law, Vol. III,
Second Revised Edition [1945], p. 1912.) It should be stressed that the Japanese occupation was not a matter of a
few months; it extended over a little more than three years. Said occupation was a fact, in spite of the "presence of
guerrilla bands in barrios and mountains, and even in towns of the Philippines whenever these towns were left by
Japanese garrisons or by the detachments of troops sent on patrol to those places." (Co Kim Cham vs. Valdez Tan
Keh and Dizon, 75 Phil., 371, 373.) The law of nations accepts belligerent occupation as a fact to be reckoned with,
regardless of the merits of the occupant's cause. (Hyde, International Law, Second Revised Edition [1945], Vol. III, p.
1879.)
Those who contend or fear that the doctrine herein adhere to will lead to an over-production of traitors, have a wrong
and low conception of the psychology and patriotism of their countrymen. Patriots are such after their birth in the first
place, and no amount of laws or judicial decisions can make or unmake them. On the other hand, the Filipinos are not
so base as to be insensitive to the thought that the real traitor is cursed everywhere and in all ages. Our patriots who
fought and died during the last war, and the brave guerrillas who have survived, were undoubtedly motivated by their
inborn love of country, and not by such a thing as the treason law. The Filipino people as a whole, passively opposed
the Japanese regime, not out of fear of a treason statute but because they preferred and will prefer the democratic and
civilized way of life and American altruism to Japanese barbaric and totalitarian designs. Of course, there are those
who might at heart have been pro-Japanese; but they met and will unavoidably meet the necessary consequences.
The regular soldiers faced the risks of warfare; the spies and informers subjected themselves to the perils of military
operations, likely received summary liquidation or punishments from the guerrillas and the parties injured by their acts,
and may be prosecuted as war spies by the military authorities of the returning sovereign; those who committed other
common crimes, directly or through the Japanese army, may be prosecuted under the municipal law, and under this
group even the spies and informers, Makapili or otherwise, are included, for they can be made answerable for any act
offensive to person or property; the buy-and-sell opportunists have the war profits tax to reckon with. We cannot close
our eyes to the conspicuous fact that, in the majority of cases, those responsible for the death of, or injury to, any
Filipino or American at the hands of the Japanese, were prompted more by personal motives than by a desire to levy
war against the United States or to adhere to the occupant. The alleged spies and informers found in the Japanese
occupation the royal road to vengeance against personal or political enemies. The recent amnesty granted to the
guerrillas for acts, otherwise criminal, committed in the furtherance of their resistance movement has in a way
legalized the penal sanctions imposed by them upon the real traitors.
It is only from a realistic, practical and common-sense point of view, and by remembering that the obedience and
cooperation of the Filipinos were effected while the Japanese were in complete control and occupation of the
Philippines, when their mere physical presence implied force and pressure and not after the American forces of
liberation had restored the Philippine Government that we will come to realize that, apart from any rule of
international law, it was necessary to release the Filipinos temporarily from the old political tie in the sense indicated
herein. Otherwise, one is prone to dismiss the reason for such cooperation and obedience. If there were those who did
not in any wise cooperate or obey, they can be counted by the fingers, and let their names adorn the pages of
Philippine history. Essentially, however, everybody who took advantage, to any extent and degree, of the peace and
order prevailing during the occupation, for the safety and survival of himself and his family, gave aid and comfort to the
enemy.

Our great liberator himself, General Douglas MacArthur, had considered the laws of the Philippines ineffective during
the occupation, and restored to their full vigor and force only after the liberation. Thus, in his proclamation of October
23, 1944, he ordained that "the laws now existing on the statute books of the Commonwealth of the Philippines . . . are
in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and
control," and that "all laws . . . of any other government in the Philippines than that of the said Commonwealth are null
and void and without legal effect in areas of the Philippines free of enemy occupation and control." Repeating what we
have said in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "it is to be presumed that General
Douglas MacArthur, who was acting as an agent or a representative of the Government and the President of the
United States, constitutional Commander-in-Chief of the United States Army, did not intend to act against the
principles of the law of nations asserted by the Supreme Court of the United States from the early period of its
existence, applied by the President of the United States, and later embodied in the Hague Conventions of 1907."
The prohibition in the Hague Conventions (Article 45) against "any pressure on the population to take oath to the
hostile power," was inserted for the moral protection and benefit of the inhabitants, and does not necessarily carry the
implication that the latter continue to be bound to the political laws of the displaced government. The United States, a
signatory to the Hague Conventions, has made the point clear, by admitting that the military occupant can suspend all
the laws of a political nature and even require public officials and the inhabitants to take an oath of fidelity (United
States Rules of Land Warfare, 1940, article 309), and as already stated, it is a doctrine of American Constitutional Law
that the inhabitants, no longer receiving the protection of their native state, for the time being owe no allegiance to it,
and, being under the control and protection of the victorious power, owe to that power fealty and obedience. Indeed,
what is prohibited is the application of force by the occupant, from which it is fair to deduce that the Conventions do
not altogether outlaw voluntary submission by the population. The only strong reason for this is undoubtedly the desire
of the authors of the Conventions to give as much freedom and allowance to the inhabitants as are necessary for their
survival. This is wise and humane, because the people should be in a better position to know what will save them
during the military occupation than any exile government.
"Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against the use of judicial
process for non judicial ends, and attacked cynics who "see no reason why courts, just like other agencies, should not
be policy weapons. If we want to shoot Germans as a matter of policy, let it be done as such, said he, but don't hide
the deed behind a court. If you are determined to execute a man in any case there is no occasion for a trial; the word
yields no respect for courts that are merely organized to convict." Mussoloni may have got his just desserts, but
nobody supposes he got a fair trial. . . . Let us bear that in mind as we go about punishing criminals. There are enough
laws on the books to convict guilty Nazis without risking the prestige of our legal system. It is far, far better that some
guilty men escape than that the idea of law be endangered. In the long run the idea of law is our best defense against
Nazism in all its forms." These passages were taken from the editorial appearing in the Life, May 28, 1945, page 34,
and convey ideas worthy of some reflection.
If the Filipinos in fact committed any errors in feigning cooperation and obedience during the Japanese military
occupation, they were at most borrowing the famous and significant words of President Roxas errors of the mind
and not of the heart. We advisedly said "feigning" not as an admission of the fallacy of the theory of suspended
allegiance or sovereignty, but as an affirmation that the Filipinos, contrary to their outward attitude, had always
remained loyal by feeling and conscience to their country.
Assuming that article 114 of the Revised Penal Code was in force during the Japanese military occupation, the present
Republic of the Philippines has no right to prosecute treason committed against the former sovereignty existing during
the Commonwealth Government which was none other than the sovereignty of the United States. This court has
already held that, upon a change of sovereignty, the provisions of the Penal Code having to do with such subjects as
treason, rebellion and sedition are no longer in force (People vs. Perfecto, 43 Phil., 887). It is true that, as contended
by the majority, section 1 of Article II of the Constitution of the Philippines provides that "sovereignty resides in the
people," but this did not make the Commonwealth Government or the Filipino people sovereign, because said
declaration of principle, prior to the independence of the Philippines, was subervient to and controlled by the
Ordinance appended to the Constitution under which, in addition to its many provisions essentially destructive of the
concept of sovereignty, it is expressly made clear that the sovereignty of the United States over the Philippines had not
then been withdrawn. The framers of the Constitution had to make said declaration of principle because the document
was ultimately intended for the independent Philippines. Otherwise, the Preamble should not have announced that one
of the purposes of the Constitution is to secure to the Filipino people and their posterity the "blessings of
independence." No one, we suppose, will dare allege that the Philippines was an independent country under the
Commonwealth Government.

The Commonwealth Government might have been more autonomous than that existing under the Jones Law, but its
non-sovereign status nevertheless remained unaltered; and what was enjoyed was the exercise of sovereignty over
the Philippines continued to be complete.
The exercise of Sovereignty May be Delegated. It has already been seen that the exercise of sovereignty is
conceived of as delegated by a State to the various organs which, collectively, constitute the Government. For
practical political reasons which can be easily appreciated, it is desirable that the public policies of a State should be
formulated and executed by governmental agencies of its own creation and which are not subject to the control of
other States. There is, however, nothing in a nature of sovereignty or of State life which prevents one State from
entrusting the exercise of certain powers to the governmental agencies of another State. Theoretically, indeed, a
sovereign State may go to any extent in the delegation of the exercise of its power to the governmental agencies of
other States, those governmental agencies thus becoming quoad hoc parts of the governmental machinery of the
State whose sovereignty is exercised. At the same time these agencies do not cease to be Instrumentalities for the
expression of the will of the State by which they were originally created.
By this allegation the agent State is authorized to express the will of the delegating State, and the legal hypothesis is
that this State possesses the legal competence again to draw to itself the exercise, through organs of its own creation,
of the powers it has granted. Thus, States may concede to colonies almost complete autonomy of government and
reserve to themselves a right of control of so slight and so negative a character as to make its exercise a rare and
improbable occurence; yet, so long as such right of control is recognized to exist, and the autonomy of the colonies is
conceded to be founded upon a grant and the continuing consent of the mother countries the sovereignty of those
mother countries over them is complete and they are to be considered as possessing only administrative autonomy
and not political independence. Again, as will be more fully discussed in a later chapter, in the so-called Confederate
or Composite State, the cooperating States may yield to the central Government the exercise of almost all of their
powers of Government and yet retain their several sovereignties. Or, on the other hand, a State may, without parting
with its sovereignty of lessening its territorial application, yield to the governing organs of particular areas such an
amplitude of powers as to create of them bodies-politic endowed with almost all of the characteristics of independent
States. In all States, indeed, when of any considerable size, efficiency of administration demands that certain
autonomous powers of local self-government be granted to particular districts. (Willoughby, The Fundamental
Concepts of Public Law [1931], pp. 74, 75.).
The majority have drawn an analogy between the Commonwealth Government and the States of the American Union
which, it is alleged, preserve their own sovereignty although limited by the United States. This is not true for it has
been authoritatively stated that the Constituent States have no sovereignty of their own, that such autonomous powers
as they now possess are had and exercised by the express will or by the constitutional forbearance of the national
sovereignty, and that the sovereignty of the United States and the non-sovereign status of the individual States is no
longer contested.
It is therefore plain that the constituent States have no sovereignty of their own, and that such autonomous powers as
they now possess are had and exercised by the express will or by the constitutional forbearance of the national
sovereignty. The Supreme Court of the United States has held that, even when selecting members for the national
legislature, or electing the President, or ratifying proposed amendments to the federal constitution, the States act, ad
hoc, as agents of the National Government. (Willoughby, the Fundamental Concepts of Public Law [1931], p.250.)
This is the situation at the present time. The sovereignty of the United States and the non-sovereign status of the
individual States is no longer contested. (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and
the proclamation of Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the
Republic of the Philippines." From this, the deduction is made that the Government under the Republic of the
Philippines and under the Commonwealth is the same. We cannot agree. While the Commonwealth Government
possessed administrative autonomy and exercised the sovereignty delegated by the United States and did not cease
to be an instrumentality of the latter (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75), the
Republic of the Philippines is an independent State not receiving its power or sovereignty from the United States.
Treason committed against the United States or against its instrumentality, the Commonwealth Government, which
exercised, but did not possess, sovereignty (id., p. 49), is therefore not treason against the sovereign and independent

Republic of the Philippines. Article XVIII was inserted in order, merely, to make the Constitution applicable to the
Republic.
Reliance is also placed on section 2 of the Constitution which provides that all laws of the Philippines Islands shall
remain operative, unless inconsistent therewith, until amended, altered, modified or repealed by the Congress of the
Philippines, and on section 3 which is to the effect that all cases pending in courts shall be heard, tried, and
determined under the laws then in force, thereby insinuating that these constitutional provisions authorize the Republic
of the Philippines to enforce article 114 of the Revised Penal Code. The error is obvious. The latter article can remain
operative under the present regime if it is not inconsistent with the Constitution. The fact remains, however, that said
penal provision is fundamentally incompatible with the Constitution, in that those liable for treason thereunder should
owe allegiance to the United States or the government of the Philippines, the latter being, as we have already pointed
out, a mere instrumentality of the former, whereas under the Constitution of the present Republic, the citizens of the
Philippines do not and are not required to owe allegiance to the United States. To contend that article 114 must be
deemed to have been modified in the sense that allegiance to the United States is deleted, and, as thus modified,
should be applied to prior acts, would be to sanction the enactment and application of an ex post facto law.
In reply to the contention of the respondent that the Supreme Court of the United States has held in the case of
Bradford vs. Chase National Bank (24 Fed. Supp., 38), that the Philippines had a sovereign status, though with
restrictions, it is sufficient to state that said case must be taken in the light of a subsequent decision of the same court
in Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in May, 1937, wherein it was affirmed that the
sovereignty of the United States over the Philippines had not been withdrawn, with the result that the earlier case only
be interpreted to refer to the exercise of sovereignty by the Philippines as delegated by the mother country, the United
States.
No conclusiveness may be conceded to the statement of President Roosevelt on August 12, 1943, that "the United
States in practice regards the Philippines as having now the status as a government of other independent nations--in
fact all the attributes of complete and respected nationhood," since said statement was not meant as having
accelerated the date, much less as a formal proclamation of, the Philippine Independence as contemplated in the
Tydings-McDuffie Law, it appearing that (1) no less also than the President of the United States had to issue the
proclamation of July 4, 1946, withdrawing the sovereignty of the United States and recognizing Philippine
Independence; (2) it was General MacArthur, and not President Osmea who was with him, that proclaimed on
October 23, 1944, the restoration of the Commonwealth Government; (3) the Philippines was not given official
participation in the signing of the Japanese surrender; (4) the United States Congress, and not the Commonwealth
Government, extended the tenure of office of the President and Vice-President of the Philippines.
The suggestion that as treason may be committed against the Federal as well as against the State Government, in the
same way treason may have been committed against the sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth, is immaterial because, as we have already explained, treason against
either is not and cannot be treason against the new and different sovereignty of the Republic of the Philippines.
[G.R. No. 148965. February 26, 2002]
JOSE JINGGOY E. ESTRADA, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF
THE PHILIPPINES and OFFICE OF THE OMBUDSMAN, respondents.
DECISION
PUNO, J.:
A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is the
submission of the petitioner who invokes the equal protection clause of the Constitution in his bid to be excluded from
the charge of plunder filed against him by the respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of
the Republic of the Philippines, five criminal complaints against the former President and members of his family, his
associates, friends and conspirators were filed with the respondent Office of the Ombudsman.
On April 4, 2001, the respondent Ombudsman issued a Joint Resolution [1] finding probable cause warranting the filing
with the Sandiganbayan of several criminal Informations against the former President and the other respondents
therein. One of the Informations was for the crime of plunder under Republic Act No. 7080 and among the respondents
was herein petitioner Jose Jinggoy Estrada, then mayor of San Juan, Metro Manila.

The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was
assigned to respondent Third Division of the Sandiganbayan. The arraignment of the accused was set on July 10,
2001 and no bail for petitioners provisional liberty was fixed.
On April 24, 2001, petitioner filed a Motion to Quash or Suspend the Amended Information on the ground that the
Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that it charged more than one offense. Respondent
Ombudsman opposed the motion.
On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his co-accused. On its basis,
petitioner and his co-accused were placed in custody of the law.
On April 30, 2001, petitioner filed a Very Urgent Omnibus Motion [2] alleging that: (1) no probable cause exists to put
him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not
in a series or combination of overt or criminal acts as required in R.A. No. 7080; and (2) he is entitled to bail as a
matter of right. Petitioner prayed that he be excluded from the Amended Information and be discharged from
custody. In the alternative, petitioner also prayed that he be allowed to post bail in an amount to be fixed by
respondent court.[3]
On June 28, 2001, petitioner filed a Motion to Resolve Mayor Jose Jinggoy Estradas Motion To Fix Bail On Grounds
That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information
Do Not Make Out A Non-Bailable Offense As To Him. [4]
On July 3, 2001, petitioner filed a Motion to Strike Out So-Called Entry of Appearance, To Direct Ombudsman To
Explain Why He Attributes Impropriety To The Defense And To Resolve Pending Incidents. [5]
On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioners Motion to Quash and Suspend
and Very Urgent Omnibus Motion.[6] Petitioners alternative prayer to post bail was set for hearing after arraignment
of all accused. The court held:
WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO
QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose Jinggoy Estrada; (2) MOTION TO QUASH dated
June 7, 2001 filed by accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information dated
18 April 2001) dated June 26, 2001 filed by accused Edward S. Serapio.
Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose Jinggoy Estrada, his VERY
URGENT OMNIBUS MOTION, praying that he be: (1) dropped from the information for plunder for want of probable
cause and (2) discharged from custody immediately which is based on the same grounds mentioned in this MOTION
TO QUASH AND SUSPEND is hereby DENIED. Let his alternative prayer in said OMNIBUS MOTION that he be
allowed to post bail be SET for hearing together with the petition for bail of accused Edward S. Serapio scheduled for
July 10, 2001, at 2:00 oclock in the afternoon after the arraignment of all the accused. [7]
The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution. Respondent court denied the
motion and proceeded to arraign petitioner. Petitioner refused to make his plea prompting respondent court to enter a
plea of not guilty for him.[8]
Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of jurisdiction in:
1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and denying him the
equal protection of the laws;
2) not holding that the Plunder Law does not provide complete and sufficient standards;
3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with
whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious results in the denial of substantive due process;
4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts to cruel
and unusual punishment totally in defiance of the principle of proportionality. [9]
We shall resolve the arguments of petitioner in seriatim.
I.
Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the equal
protection of the laws.[10]
The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-Plunder Law, has been
settled in the case of Estrada v. Sandiganbayan.[11] We take off from the Amended Information which charged

petitioner, together with former President Joseph E. Estrada, Atty. Edward Serapio, Charlie Atong Ang, Yolanda T.
Ricaforte and others, with the crime of plunder as follows:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. ASIONG SALONGA AND a.k.a
JOSE VELARDE, together with Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T.
Ricaforte, Alma Alfaro, JOHN DOE a.k.a.Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his coaccused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES
AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES
OR MEANS, described as follows:
(a)
by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS,
FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF
PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose
Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b)
by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY,
for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS [P130,000,000.00], more or less, representing a portion of the TWO HUNDRED MILLION
PESOS [P200,000,000] tobacco excise tax share allocated for the Province of Ilocor Sur under R.A. No.
7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE
a.k.a.Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN
DOES AND JANE DOES;
(c)
by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS, and the
Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50]
AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND
FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE
BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY
SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY
OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS
OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [P189,700,000.00], MORE OR LESS,
FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK
UNDER THE ACCOUNT NAME JOSE VELARDE;
(d)
by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS,
OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.

Manila for Quezon City, Philippines, 18 April 2001[12]

Petitioners contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the premise
that the Amended Information charged him with only one act or one offense which cannot constitute plunder. He then
assails the denial of his right to bail.
Petitioners premise is patently false. A careful examination of the Amended Information will show that it is divided into
three (3) parts: (1) the first paragraph charges former President Joseph E. Estrada with the crime of plunder together
with petitioner Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the
second paragraph spells out in general terms how the accused conspired in committing the crime of plunder; and (3)
the following four sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the crime of plunder
pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused who committed each act.
Pertinent to the case at bar is the predicate act alleged in sub-paragraph (a) of the Amended Information which
is of receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount
of P545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit
x x x. In this sub-paragraph (a), petitioner, in conspiracy with former President Estrada, is charged with the act of
receiving or collecting money from illegal gambling amounting to P545 million. Contrary to petitioners posture, the
allegation is that he received or collected money from illegal gambling on several instances. The phrase on
several instances means the petitioner committed the predicate act in series. To insist that the Amended
Information charged the petitioner with the commission of only one act or offense despite the phrase several
instances is to indulge in a twisted, nay, pretzel interpretation.
It matters little that sub-paragraph (a) did not utilize the exact words combination or series as they appear in R.A.
No. 7080. For in Estrada v. Sandiganbayan,[13] we held that where these two terms are to be taken in their popular,
not technical, meaning, the word series is synonymous with the clause on several instances. Series refers to a
repetition of the same predicate act in any of the items in Section 1 (d) of the law. The word combination
contemplates the commission of at least any two different predicate acts in any of said items. Plainly, sub-paragraph
(a) of the Amended Information charges petitioner with plunder committed by a series of the same predicate
act under Section 1 (d) (2) of the law.
Similarly misleading is petitioners stand that in the Ombudsman Resolution of April 4, 2001 finding probable cause to
charge him with plunder together with the other accused, he was alleged to have received only the sum of P2 million,
which amount is way below the minimum of P50 million required under R.A. No. 7080. The submission is not borne
out by the April 4, 2001 Resolution of the Ombudsman, recommending the filing of charges against petitioner and his
co-accused, which in pertinent part reads:
x x x
xxx
xxx
Respondent Jose Jinggoy Estrada, the present Mayor of San Juan, Metro Manila, appears to have also surreptitious
collection of protection money from jueteng operations in Bulacan. This is gleaned from the statements of Gov.
Singson himself and the fact that Mayor Estrada, on at least two occasions, turned over to a certain Emma Lim, an
emissary of the respondent governor, jueteng haul totalling P2 million, i.e., P1 million in January, 2000 and another P1
million in February, 2000. An alleged listahan of jueteng recipients listed him as one Jingle Bell, as affirmed by
Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]. [14]
Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was
delivered to petitioner as jueteng haul on at least two occasions.The P2 million is, therefore, not the entire
sum with which petitioner is specifically charged. This is further confirmed by the conclusion of the Ombudsman that:
x x x
xxx
xxx
It is clear that Joseph Ejercito Estrada, in confabulation with Jose Jinggoy Estrada, Atty. Edward Serapio and Yolanda
Ricaforte, demanded and received, as bribe money, the aggregate sum of P545 million from jueteng collections of the
operators thereof, channeled thru Gov. Luis Chavit Singson, in exchange for protection from arrest or interference by
law enforcers; x x x.[15]
To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any probable
cause against him for plunder. The respondent Sandiganbayan itself has found probable cause against the petitioner
for which reason it issued a warrant of arrest against him. Petitioner then underwent arraignment and is now on
trial. The time to assail the finding of probable cause by the Ombudsman has long passed. The issue cannot be
resurrected in this petition.
II.
Next, petitioner contends that the plunder law does not provide sufficient and complete standards to guide the courts
in dealing with accused alleged to have contributed to the offense. [16] Thus, he posits the following questions:
For example, in an Information for plunder which cites at least ten criminal acts, what penalty do we impose on one
who is clearly involved in only one such criminal act? Is it reclusion perpetua? Or should it be a lesser penalty? What

if another accused is shown to have participated in three of the ten specifications, what would be the penalty
imposable, compared to one who may have been involved in five or seven of the specifications? The law does not
provide the standard or specify the penalties and the courts are left to guess. In other words, the courts are called to
say what the law is rather than to apply what the lawmaker is supposed to have intended. [17]
Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged with only
one act or offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to (d) of the
Amended Information, ergo, the penalty imposable on him ought to be different from reclusion perpetua to death. R.A.
No. 7080, he bewails, is cloudy on the imposable penalty on an accused similarly situated as he is. Petitioner,
however, overlooks that the second paragraph of the Amended Information charges him to have conspired with former
President Estrada in committing the crime of plunder. His alleged participation consists in the commission of the
predicate acts specified in sub-paragraph (a) of the Amended Information. If these allegations are proven, the penalty
of petitioner cannot be unclear. It will be no different from that of the former President for in conspiracy, the act of one
is the act of the other. The imposable penalty is provided in Section 2 of R.A. No. 7080, viz:
Section 2. Any public officer who, by himself or in connivance with the members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate
amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as
provided by the Revised Penal Code, shall be considered by the court.
III.
Petitioner also faults the respondent Sandiganbayan for sustaining the charge against petitioner for alleged offenses
and with alleged conspirators, with which and with whom he is not even remotely connected contrary to the dictum
that criminal liability is personal, not vicarious results in the denial of substantive due process. [18]
The Solicitor General argues, on the other hand, that petitioner is charged not only with the predicate act in subparagraph (a) but also with the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted as a
principal and as co-conspirator of the former President. This is purportedly clear from the first and second paragraphs
of the Amended Information.[19]
For better focus, there is a need to examine again the allegations of the Amended Information vis--vis the provisions
of R.A. No. 7080.
The Amended Information, in its first two paragraphs, charges petitioner and his other co-accused with the crime of
plunder. The first paragraph names all the accused, while the second paragraph describes in general how plunder
was committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail
the predicate acts that constitute the crime and name in particular the co-conspirators of former President
Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the
items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on
several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and
expressly names petitioner as one of those who conspired with former President Estrada in committing the
offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of
R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the
tobacco excise tax share allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the
enumeration in Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead names other
conspirators of the former President. Sub-paragraph (c) alleged two predicate acts - that of ordering the Government
Service Insurance System (GSIS) and the Social Security System (SSS) to purchase shares of stock of Belle
Corporation, and collecting or receiving commissions from such purchase from the Belle Corporation which became
part of the deposit in the Jose Velarde account at the Equitable-PCI Bank. These two predicate acts fall under items
[2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance
with John Does and Jane Does. Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly
enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the
same under his account name Jose Velarde at the Equitable-PCI Bank. This act corresponds to the offense under
item [6] in the enumeration of Section 1 (d) of R.A. No. 7080.
From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs
(a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass,
accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. As the Amended
Information is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with
each other to enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity,

petitioner cannot be penalized for the conspiracy entered into by the other accused with the former President as
related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that
petitioner can be held accountable only for the predicate acts he allegedly committed as related in sub-paragraph (a)
of the Amended Information which were allegedly done in conspiracy with the former President whose design was to
amass ill-gotten wealth amounting to more than P4 billion.
We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate
acts alleged in sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate
Informations. A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly
of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where
charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government
prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly
committed by the former President to acquire illegal wealth. [20] They also found that under the then existing laws
such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved
different transactions, different time and different personalities. Every transaction constituted a separate crime and
required a separate case and the over-all conspiracy had to be broken down into several criminal and graft
charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and
independent cases were filed against practically the same accused before the Sandiganbayan.[21] R.A. No. 7080 or
the Anti-Plunder Law[22] was enacted precisely to address this procedural problem. This is pellucid in the Explanatory
Note to Senate Bill No. 733, viz:
Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use
of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and
secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states
and territorial units. The acts and/or omissions sought to be penalized do not involve simple cases of
malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire nation
resulting in material damage to the national economy. The above-described crime does not yet exist in Philippine
statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the
depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting
influence of power.
There is no denying the fact that the plunder of an entire nation resulting in material damage to the national economy
is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may
be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a
commonalityto help the former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d)
in the Amended Information alleged the different participation of each accused in the conspiracy. The gravamen of
the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal gambling,
that each misappropriated a portion of the tobacco excise tax, that each accused ordered the GSIS and SSS to
purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself
from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to
participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or
for former President Estrada.
In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two
structures: (1) the so-called wheel or circle conspiracy, in which there is a single person or group (the hub) dealing
individually with two or more other persons or groups (the spokes); and (2) the chain conspiracy, usually involving
the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much
the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and
retailer, and then retailer and consumer.[23]
From a reading of the Amended Information, the case at bar appears similar to a wheel conspiracy. The hub is
former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the common
goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.
IV.
Some of our distinguished colleagues would dismiss the charge against the petitioner on the ground that the allegation
of conspiracy in the Amended Information is too general. The fear is even expressed that it could serve as a net to
ensnare the innocent. Their dissents appear to be inspired by American law and jurisprudence.
We should not confuse our law on conspiracy with conspiracy in American criminal law and in common
law. Under Philippine law, conspiracy should be understood on two levels. As a general rule, conspiracy is
not a crime in our jurisdiction. It is punished as a crime only when the law fixes a penalty for its commission
such as in conspiracy to commit treason, rebellion and sedition. In contrast, under American criminal law, the
agreement or conspiracy itself is the gravamen of the offense. [24] The essence of conspiracy is the combination of
two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself
criminal or unlawful, by criminal or unlawful means.[25] Its elements are: agreement to accomplish an illegal objective,

coupled with one or more overt acts in furtherance of the illegal purpose; and requisite intent necessary to commit the
underlying substantive offense.[26]
A study of the United States Code ought to be instructive. It principally punishes two (2) crimes of
conspiracy[27] conspiracy to commit any offense or to defraud the United States, and conspiracy to impede or injure
officer. Conspiracy to commit offense or to defraud the United States is penalized under 18 U.S.C. Sec. 371,[28] as
follows:
Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to
commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or
for any purpose, and one or more of such persons to any act to effect the object of the conspiracy, each shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz:
Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or District
conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust or place of
confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of
the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his
person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful
discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his
official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or
both.
Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the United States; and (2)
conspiracy to defraud the United States or any agency thereof. The conspiracy to commit any offense against
the United States refers to an act made a crime by federal laws. [29] It refers to an act punished by statute.
[30]
Undoubtedly, Section 371 runs the whole gamut of U.S. Federal laws, whether criminal or regulatory.
[31]
These laws cover criminal offenses such as perjury, white slave traffic, racketeering, gambling, arson, murder, theft,
bank robbery, etc. and also include customs violations, counterfeiting of currency, copyright violations, mail fraud,
lotteries, violations of antitrust laws and laws governing interstate commerce and other areas of federal regulation.
[32]
Section 371 penalizes the conspiracy to commit any of these substantive offenses. The offense of
conspiracy is generally separate and distinct from the substantive offense, [33] hence, the court rulings that
acquittal on the substantive count does not foreclose prosecution and conviction for related conspiracy. [34]
The conspiracy to defraud the government refers primarily to cheating the United States out of property or money. It
also covers interference with or obstruction of its lawful governmental functions by deceit, craft or trickery, or at least
by means that are dishonest.[35] It comprehends defrauding the United States in any manner whatever, whether the
fraud be declared criminal or not. [36]
The basic difference in the concept of conspiracy notwithstanding, a study of the American case law
on how conspiracy should be alleged will reveal that it is not necessary for the indictment to include
particularities of time, place, circumstances or causes, in stating the manner and means of effecting the
object of the conspiracy. Such specificity of detail falls within the scope of a bill of particulars. [37] An indictment for
conspiracy is sufficient where it alleges: (1) the agreement; (2) the offense-object toward which the agreement was
directed; and (3) the overt acts performed in furtherance of the agreement. [38] To allege that the defendants conspired
is, at least, to state that they agreed to do the matters which are set forth as the substance of their conspiracy. To
allege a conspiracy is to allege an agreement. [39] The gist of the crime of conspiracy is unlawful agreement, and
where conspiracy is charged, it is not necessary to set out the criminal object with as great a certainty as is
required in cases where such object is charged as a substantive offense. [40]
In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal
with cases challenging Informations alleging conspiracy on the ground that they lack particularities of time,
place, circumstances or causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the
Information as a mode of committing a crime or it may be alleged as constitutive of the crime itself. When
conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the Information charging the
offense is governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure. It requires that the
information for this crime must contain the following averments:
Sec. 6. Sufficiency of complaint or information.- A complaint or information is sufficient if it states the name of the
accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the approximate date of the commission of the offense; and the place
where the offense was committed.

When the offense was committed by more than one person, all of them shall be included in the complaint or
information.
The complaint or information to be sufficient must state the name of the accused, designate the offense given by
statute, state the acts or omissions constituting the offense, the name of the offended party, the approximate date
of the commission of the offense and the place where the offense was committed.
Our rulings have long settled the issue on how the acts or omissions constituting the offense should be made in order
to meet the standard of sufficiency. Thus, the offense must be designated by its name given by statute or by reference
to the section or subsection of the statute punishing it. [41] The information must also state the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances. [42] The acts or omissions complained
of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper judgment. [43] No information for a crime will be
sufficient if it does not accurately and clearly allege the elements of the crime charged. [44] Every element of the offense
must be stated in the information.[45] What facts and circumstances are necessary to be included therein must be
determined by reference to the definitions and essentials of the specified crimes. [46] The requirement of alleging the
elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to
enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of
the facts that constitute the offense.[47]
To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime
must be set forth in the complaint or information. For example, the crime of conspiracy to commit treason is
committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to
adhere to the enemies and to give them aid or comfort, and decide to commit it. [48] The elements of this crime are: (1)
that the offender owes allegiance to the Government of the Philippines; (2) that there is a war in which the Philippines
is involved; (3) that the offender and other person or persons come to an agreement to: (a) levy war against the
government, or (b) adhere to the enemies, to give them aid and comfort; and (4) that the offender and other person or
persons decide to carry out the agreement. These elements must be alleged in the information.
The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in
itself but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its
particularities in the Information because conspiracy is not the gravamen of the offense charged. The conspiracy
is significant only because it changes the criminal liability of all the accused in the conspiracy and makes them
answerable as co-principals regardless of the degree of their participation in the crime. [49] The liability of the
conspirators is collective and each participant will be equally responsible for the acts of others, [50] for the act of one is
the act of all.[51] In People v. Quitlong,[52] we ruled on how conspiracy as the mode of committing the
offense should be alleged in the Information, viz:
x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and
circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly
prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused
persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or
objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or
one that would impute criminal liability to an accused for the act of another or others, is indispensable in
order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the
other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the
individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all
the others (People v. Ilano, 313 SCRA 442). Verily, an accused must know from the information whether he faces a
criminal responsibility not only for his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details
thereof, like the part that each of the parties therein have performed, the evidence proving the common
design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it
necessary to describe conspiracy with the same degree of particularity required in describing a substantive
offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the
offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a
manner that can enable a person of common understanding to know what is intended, and with such
precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the
same facts. It is said, generally, that an indictment may be held sufficient if it follows the words of the statute and
reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following
the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or
alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them (15A
C.J.S. 842-844).

xxx
xxx
xxx
x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit
the felony and forthwith to actually pursue it. Verily, the information must state that the accused have
confederated to commit the crime or that there has been a community of design, a unity of purpose or an
agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of
the words conspired or confederated or the phrase acting in conspiracy, must aptly appear in the
information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime,
the unity of purpose or the community of design among the accused must be conveyed such as either by the
use of the term conspire or its derivatives and synonyms or by allegations of basic facts constituting the
conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can
aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may
be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not
necessarily be shown by direct proof but may beinferred from shown acts and conduct of the accused.
xxx
xxx
x x x.
Again, following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the
commission of an offense in either of the following manner: (1) by use of the word conspire, or its derivatives or
synonyms, such as confederate, connive, collude, etc;[53] or (2) by allegations of basic facts constituting the conspiracy
in a manner that a person of common understanding would know what is intended, and with such precision as would
enable the accused to competently enter a plea to a subsequent indictment based on the same facts. [54]
The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may
be required to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement,
a common purpose or design, a concerted action or concurrence of sentiments to commit the felony and actually
pursue it.[55] A statement of this evidence is not necessary in the information.
In the case at bar, the second paragraph of the Amended Information alleged in general terms how the
accused committed the crime of plunder. It used the words in connivance/conspiracy with his co-accused.
Following the ruling in Quitlong, these words are sufficient to allege the conspiracy of the accused with the former
President in committing the crime of plunder.
V.
We now come to petitioners plea for bail. On August 14, 2002, during the pendency of the instant petition before this
Court, petitioner filed with respondent Sandiganbayan an Urgent Second Motion for Bail for Medical Reasons.
Petitioner prayed that he be allowed to post bail due to his serious medical condition which is life-threatening to him if
he goes back to his place of detention. The motion was opposed by respondent Ombudsman to which petitioner
replied.
For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted hearings on the motion
for bail. Dr. Roberto V. Anastacio, a cardiologist of the MakatiMedical Center, testified as sole witness for petitioner.
On December 18, 2001, petitioner filed with the Supreme Court an Urgent Motion for Early/Immediate Resolution of
Jose Jinggoy Estradas Petition for Bail on Medical/Humanitarian Considerations. Petitioner reiterated the motion for
bail he earlier filed with respondent Sandiganbayan. [56]
On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for resolution and
requiring said court to make a report, not later than 8:30 in the morning of December 21, 2001.
On December 21, 2001, respondent court submitted its Report. Attached to the Report was its Resolution
dated December 20, 2001 denying petitioners motion for bail for lack of factual basis. [57] Basing its finding on the
earlier testimony of Dr. Anastacio, the Sandiganbayan found that petitioner failed to submit sufficient evidence to
convince the court that the medical condition of the accused requires that he be confined at home and for that purpose
that he be allowed to post bail.[58]
The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty
of reclusion perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life
imprisonment are non-bailable when the evidence of guilt is strong, to wit:
Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person
charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted
to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. [59]
Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987
Constitution which reads:
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided

by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not
the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein both
the prosecution and the defense are afforded sufficient opportunity to present their respective evidence. The burden
of proof lies with the prosecution to show strong evidence of guilt. [60]
This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary hearing that should be
conducted by the Sandiganbayan. The hearings on which respondent court based its Resolution of December 20,
2001 involved the reception of medical evidence only and which evidence was given in September 2001, five months
ago. The records do not show that evidence on petitioners guilt was presented before the lower court.
Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the evidence
of petitioners guilt is strong as to warrant the granting of bail to petitioner.
IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted without or
in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.
SO ORDERED.

G.R. No. 129306

March 14, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
JAMES PATANO Y MARCAIDA, RAMIL MADRIAGA Y LAGONOY AND ROSENDO MADRIAGA Y
BANAAG,appellants.

Kidnap victim Vicente Uy testified as follows -- On March 25, 1996, at around 10:30 in the evening, he was along
Wilson St., San Juan, Metro Manila, on his way home driving his Nissan Sentra when a black Pajero bumped his car
on the left door, driver's side. Both he and the driver of the Pajero got off their respective vehicles. When he told the
driver that they have to call a police officer, he was told that the passengers inside the Pajero were police officers. He
was asked to look inside the Pajero. When he did so, the driver suddenly pushed him inside the vehicle while the four
other passengers grabbed him. He was blindfolded and his feet and hands were tied. After traveling for about 30
minutes, the vehicle stopped and he was transferred to the baggage compartment of another vehicle. An object was
placed on top of him and he was told that it was an armalite. They traveled again for 30 minutes, after which, he was
moved, placed on a "hard object" and covered with "something". He was asked if he has ten million pesos
(P10,000,000.00) to which he replied in the negative. They bargained for a while until the ransom money was pegged
at five million pesos (P5,000,000.00). They asked for his telephone number which he gave. After some hours, Uy felt
somebody lifting him up, telling him that he was already safe, removing his blindfold and untying him. His daughter
Lucy Ngo then entered the room. He was asked if he wanted to go to the hospital but he declined. 2
On cross-examination, Uy stated that when his blindfold was removed, he saw two handcuffed men. He pointed to
appellant Rosendo Madriaga who was in the courtroom, but Uy declared that he is not certain that Rosendo was the
one he had seen handcuffed because the one he saw was wearing a moustache and Rosendo does not have one. 3
Chief Inspector Gilbert Cruz, in-charge of operations of the Presidential Anti-Crime Commission's (PACC) Task Force
Habagat, testified as follows -- On March 27, 1996, his superior, Supt. Calinisan instructed him to proceed to the
residence of Uy as the former received a call from Lucy telling him that there was someone in the house of Virginia
Avelita, Uy's common-law wife, who claims to know the location of the victim. He went to the house of Lucy and they
agreed that he will pose as the family's lawyer. They then went to the house of Virginia. There, he was introduced to
appellant Ramil Madriaga who told them that Uy was under the custody of the Antipolo police because he was
arrested for swimming without authority at the Villa Cristina Resort (resort for brevity), Antipolo, Rizal, now Antipolo
City. Upon his instructions, verification was made by a certain Chief Insp. Quidato 4 who had gone to the resort and
learned that the information was false. Together with Lucy and appellant Ramil, Maj. Cruz proceeded to the resort.
Upon reaching the resort, Ramil "dashed" towards cottage no. 2 but Maj. Cruz stopped Ramil. In front of the cottage
was a certain Richard Dimal to whom Cruz identified himself as a police officer. He found appellant Rosendo and
victim Uy inside the cottage. Dimal and appellant Rosendo were then arrested, handcuffed and brought to the
headquarters where they identified a certain Oswaldo Banaag as the "tipster" of the group. 5

AUSTRIA-MARTINEZ, J.:
For automatic review is the decision dated April 30, 1997, rendered by the Regional Trial Court of Pasig City, Branch
262 in Criminal Case No. 110089-H convicting appellants James Patano, Ramil Madriaga and Rosendo Madriaga of
the crime of Kidnapping for Ransom and imposing upon them the supreme penalty of death.
The Amended Information, dated May 15, 1996, charged appellants James Patano, Ramil Madriaga and Rosendo
Madriaga as well as Oswaldo Banaag, Manolo Babac, Allan Duarte and Jose Doe, with the crime of Kidnapping for
Ransom, committed as follows:
That on or about March 25, 1996, in Mandaluyong City, and within the jurisdiction of this Honorable Court,
the aforenamed accused grouping themselves together, conspiring, confederating and mutually helping
one another, did then and there willfully, unlawfully and feloniously detain/kidnap and/otherwise deprived
VICENTE UY Y CHUA (NGO LIT POON) of his liberty for the purpose of extorting ransom, as in fact
demand therefore in the amount of TEN MILLION (P10,000,000.00) PESOS had been made by the abovenamed accused, while detaining said victim in Antipolo, Rizal, until his rescue on March 27, 1996.
CONTRARY TO LAW.1
All three appellants together with Oswaldo Banaag pleaded not guilty to the crime as charged. Their other co-accused
Manolo Babac, Allan Duarte and Jose Doe remain at large. Trial ensued.
The prosecution presented six witnesses.

Lucy Ngo's testimony is as follows -- In the morning of March 26, 1996, she received a call from Virginia Avelita telling
her that a certain Ramil Madriaga was at her place with information regarding the whereabouts of her father Vicente
Uy, also known as Ngo Lip Poon. She called Maj. Gilbert Cruz and together, they went to Virginia's house. There, they
met appellant Ramil who informed them that he received a beeper message from his cousin, appellant Rosendo,
telling him that the Antipolo police picked up their group and Uy was recovered. Maj. Cruz then instructed Maj. Winnie
Quidato to check with the Antipolo police if there was really an arrest made on that day and it was learned that there
was none. Maj. Cruz instructed Quidato to proceed to the resort which they also did together with Lucy's uncles and
aunts. At the resort, appellant Ramil got off the car and talked to Maj. Cruz who instructed Ramil: "(O)kay but slowly,
do not run or make any move." Halfway towards his cousin, appellant Ramil ran and met appellant Rosendo. Maj.
Cruz then ran, followed by his staff. Lucy and her companions were left waiting in the car until Quidato returned and
told her that her father is safe, and they proceeded to the cottage. Appellant Ramil approached Lucy and asked her
not to include his cousin Rosendo in the case because of Ramil's help in the rescue of her father. 6
Richard Dimal who was arrested by Maj. Cruz on March 27, 1996, testified as follows -- In the evening of March 25,
1996, he was renting some VHS tapes at the Star Gazer video shop located at Pasig City where he saw his friend
Nadel Francisco. They chatted until 12 o'clock midnight. Appellant Ramil passed by in his white Toyota Corolla car
between 12 o'clock and 1 o'clock in the morning of March 26, 1996 and invited Dimal "to go around" to which the latter
acceded. They went to the house of Dimal at Cainta, Rizal. Dimal saw a black Nissan Patrol parked in front of his
house. Appellant Ramil then called up a passenger of the Nissan Patrol on his mobile phone and told the latter, "we
can't do it here, we must find a darker place." Then they proceeded to Taytay, Rizal and stopped behind its new
market. Appellant Ramil alighted from the car and went to the Nissan Patrol. Thereafter, Dimal saw them put
something inside the trunk of the car of Ramil. They left Taytay, Rizal and roamed around, with the Nissan Patrol tailing
them. When they reached Bulacan, they stopped and Ramil talked to the passengers of the Nissan Patrol. Ramil
returned to his car and told Dimal that they will go to Antipolo, Rizal. Upon reaching Antipolo, the passengers of the
Nissan Patrol transferred to the car of Ramil. They left the Nissan Patrol behind. Dimal identified Manolo Babac as the
driver of the Nissan Patrol and both appellants Rosendo Madriaga and James Patano as well as the two co-accused

who are still at-large, Alan Duarte and Jose Doe, as its passengers. When they reached the resort located in Antipolo,
Rizal, between 5 o'clock and 6 o'clock in the morning (March 26, 1996), appellant Ramil opened the trunk of his car.
Jose and appellant Patano lifted a person out of the trunk and brought him inside cottage no. 2. Dimal asked appellant
Ramil if he could go home but Ramil said that they will all leave together. Ramil and Duarte then left the place. Dimal,
appellants Rosendo and Patano, and Jose were left inside the cottage. They all went to sleep. When Dimal woke up, it
was between 12 o'clock and 1 o'clock in the afternoon (March 26, 1996). He went to the resort's restaurant and stayed
there for about 30 minutes. When he went back to the cottage, the others were not there anymore. While waiting for
Ramil and the others to come back, he took his dinner between 7 o'clock and 8 o'clock in the evening of "March 26,
1996" and he laid down up to "1 o'clock early morning" of "March 27, 1996". When he went out of the cottage to call up
somebody because he was confused having been left alone, appellant Rosendo arrived together with Jose. Jose left
again at 6 o'clock in the morning (March 27, 1996) leaving Dimal and appellant Rosendo inside the cottage. They took
their lunch in front of the cottage and waited until "around 3 o'clock to 4 o'clock in the afternoon" when appellant Ramil
arrived with several companions who he later learned to be the kin of Uy and some police officers. Dimal and appellant
Rosendo were left inside the cottage together with some police officers to wait for their (Dimal's and Rosendo's) other
companions. At 7 o'clock in the evening, appellant Patano arrived. They stayed in the resort until the afternoon of the
next day and they were brought by the policemen to Camp Crame. 7
On cross-examination, Dimal admitted that he was arrested that afternoon of March 27; that he was wearing a
moustache at the time of the arrest and that he was the one who fed victim Uy.8
Virginia "Virgie" Avelita, Uy's common-law wife, corroborated the testimony of Lucy and Maj. Cruz regarding appellant
Ramil's contact with her. Virginia further testified that appellant Ramil related to her the whole kidnapping scenario;
that Ramil informed her that the kidnappers were demanding one hundred thousand pesos (P100,000.00) ransom;
that Oswaldo Banaag is the gang's tipster; and that Ramil requested her not to involve his cousin Rosendo. 9
The last witness for the prosecution, Chief Inspector Winnie Quidato, Chief of the Intelligence and Operation Division
of the Task Force Habagat, corroborated some portions of the testimony of Maj. Cruz on the episode at the resort. He
also testified that appellant Patano arrived at the resort at around 9 o'clock to 10 o'clock in the evening of March 27,
1996 bringing with him one thousand pesos (P1,000.00) as payment for the cottage rental. 10
The defense presented five witnesses.
First to be presented was accused Oswaldo Banaag, family driver of a certain Beverly Tan. He denied any complicity
in the crime. Banaag testified that: he was arrested in White Plains, Quezon City, on March 29, 1996 by Maj. Cruz and
was brought to Camp Crame; it was only when he was transferred to a detention cell that he met his co-accused;
although he knew victim Uy, he thought that he was being charged with the killing of his employer, Reynaldo Tan; he
was surprised when he learned that he was being implicated in the kidnapping of Uy.11
Nadel Francisco, a college student taking up Management course, testified that at "around 4 o'clock to 5 o'clock in the
afternoon" of March 25, 1996, Richard Dimal visited him at his house at de Castro, Pasig City. They chatted for about
one hour. Dimal invited him to go swimming in Villa Cristina Resort but he declined because he has an examination
the following day. Francisco belied Dimal's statement that they were together until 12 o'clock midnight as he was
already asleep in his house at that time. He further stated that he did not see appellant Ramil Madriaga on said
day.12 On cross-examination, Francisco admitted that appellant Ramil's girlfriend asked him to testify but he clarified
that he was testifying not because of such request, but because of the subpoena issued to him. 13
Appellant Rosendo Madriaga testified thus -- At around 8 o'clock in the evening of March 25, 1996, Richard Dimal,
together with a certain Nestor, went to his house and invited him for a swim in Antipolo, Rizal, as it was Nestor's
birthday. They arrived at Villa Cristina Resort at around 10 o'clock in the evening and rented a "cottage table" near the
pool. While he and Nestor were swimming, he saw Dimal talk to some men and then go upstairs. Later, he noticed that
Nestor was no longer around. Afterwards, Dimal came back and invited him to drink. They went to a veranda and
there, he saw Nestor drinking Fundador with the same men he previously saw talking to Dimal. Appellant Rosendo
recalls the names of two of the men as Allan and Bong. At around 4 o'clock in the morning (March 26, 1996), Dimal
confided to him that they were going to actually stand guard over a person. Dimal pulled him towards a room where
Rosendo saw a person with bound feet and hands lying on his belly on the floor. When Rosendo told Dimal that he
wanted to leave, he was told that Bong's group had men posted at the gate and he might be killed if he left. Scared, he

stayed inside the room. Per instructions of Dimal, Rosendo burned all the things belonging to the captive but Rosendo
kept a PLDT bill. When Dimal had gone asleep, Rosendo went to the resort's canteen and called the number of
Virginia Avelita reflected on the PLDT bill but the person answering the phone hung up on him several times. He then
called up his cousin, appellant Ramil Madriaga, and asked for his help. Ramil initially didn't want to intervene but
eventually agreed to help him. He gave the number on the phone bill and appellant Ramil assured him that he will
contact such person. He then went back to the veranda where he slept. The next day (March 27, 1996), between 3
o'clock and 4 o'clock in the afternoon, he heard somebody calling his name, and saw appellant Ramil who was with
several armed men, running towards him. Dimal then ran and threw a gun near the trees. 14
Appellant Rosendo further testified that he saw appellant James Patano for the first time in the afternoon of March 28
on board a van at the resort,15 while he saw Oswaldo Banaag for the first time at the PACC office. 16 Rosendo avers
that Dimal implicated him because the latter thinks he was the one who caused his arrest. 17 Further, Rosendo testified
that in the room where he, Patano and Dimal were brought by Maj. Cruz, victim Uy only pointed to Dimal as the one
who kidnapped him.18
Appellant James Patano recounted that: on March 28, 1996, after having gone for a swim, Maj. Quidato arrested him
while he was urinating in one of the corners in the resort; he was brought inside a comfort room in one of the cottages
where he was asked if he knew Dimal or appellant Rosendo; when he was brought out of the room, he was already
unconscious as he was mauled and a plastic bag was placed on his head; he regained consciousness inside a
vehicle; from the resort, he was brought to the PACC office; at the PACC office, Dimal's kin, particularly Dimal's sister
Arlene and her husband Willie Pangan, asked him to testify against the Madriagas, but he turned them down; and he
was also asked to sign an affidavit but he likewise refused. Patano further denied knowing his co-accused in the
case.19
Appellant Ramil Madriaga asserts his innocence of the crime charged. He testified as follows -- In the early morning of
March 26, 1996, his cousin Rosendo called him up asking for his help. Rosendo told Ramil that he was in the resort
and was unexpectedly mixed up in a kidnapping; that he could not get out of the resort because there were "look-outs"
posted in the area. Rosendo gave Ramil a name and a number written in a PLDT bill. Appellant Ramil was hesitant
because the results of the Bar examinations were coming out that day; but nevertheless, he went to see a certain Lt.
Capitulo in Camp Aguinaldo and told him about his cousin's predicament. 20 The next day, March 27, 1996, Ramil went
to see Virginia Avelita, the name given by appellant Rosendo written on the PLDT bill. He showed her his school I.D.
and asked her if she knows anybody who is missing, and the latter replied, "si Vicente ko." He was then made to talk
over the phone to Vicente Uy's daughter, who asked him to wait. Virginia, meanwhile, told him that she was going out.
After an hour, Virginia, Lucy, three old women, their driver, PACC operatives and Maj. Cruz arrived. After a short
conversation, they left for the resort, leaving Virginia behind. He asked the latter to look after his white Toyota Corolla
car which he left in her residence. Upon reaching the resort, they were approached by Maj. Quidato who asked him
questions. He got off the car when he saw his cousin Rosendo near the pool with Dimal. He pointed the two to Maj.
Cruz who instructed his men to scatter. He then started walking towards his cousin, and when appellant Rosendo saw
him, he told the latter, "mga kasama natin ito, huwag kang matakot." When he got to Rosendo, he pulled him and they
leaned on the wall for fear that they might get shot. Dimal ran upstairs while Rosendo pointed to the place where Uy
was being kept. They went inside the cottage and Ramil removed the plaster bindings on Uy.21
The trial court convicted appellants James Patano, Ramil Madriaga and Rosendo Madriaga of the crime of Kidnapping
for Ransom, but acquitted their co-accused Oswaldo Banaag.
The dispositive portion of the assailed decision, reads:
WHEREFORE, judgment is hereby rendered as follows:
1. With respect to the Criminal Case No. 110090, on the ground of insufficiency of evidence, all the
accused are ACQUITTED.
2. With respect to Criminal Case No. 110089-H, on the ground of insufficiency of evidence, accused
OSWALDO P. BANAAG is hereby ACQUITTED. The jail warden of Mandaluyong City is hereby directed to
immediately release his person unless there are other legal grounds to justify his continued detention.

However, with respect to accused ROSENDO B. MADRIAGA, JAMES M. PATANO, and RAMIL L.
MADRIAGA, judgment is hereby rendered finding them GUILTY beyond reasonable doubt of the crime of
kidnapping and serious illegal detention defined and penalized under Article 267 of the Revised Penal
Code. Accordingly, said accused are hereby sentenced to suffer the penalty of death, as provided for under
said Article 267 of the Revised Penal Code, to suffer the appropriate accessory penalties consequent
thereto, and to proportionally pay the costs.
SO ORDERED.22
Appellants insist that they are innocent of the crime of Kidnapping for Ransom, arguing that:
I THE TRIAL COURT ERRED GROSSLY IN CONVICTING ACCUSED-APPELLANTS WITHOUT BEING
IDENTIFIED AS THE ABDUCTORS/KIDNAPPERS OR CULPRITS OF THE ALLEGED KIDNAPPING.
II THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS SOLELY ON THE BASIS OF
THE LONE AND UNCORROBORATED TESTIMONY OF THE CO-CONSPIRATOR.23
Bearing in mind that it devolves upon the State to establish by proof all the essential elements of the crime with which
appellants are charged and to establish beyond reasonable doubt that they are guilty of said crime, 24 the Court, after a
meticulous examination of the evidence of the prosecution, finds that appellants James Patano, Ramil Madriaga and
Rosendo Madriaga should have been acquitted by the trial court. The prosecution failed to overthrow the constitutional
presumption of innocence in favor of appellants. It failed to adduce the quantum of proof necessary to convict them.
In convicting appellants, the trial court gave great weight and evidentiary value to the uncorroborated testimony of
prosecution witness Richard Dimal on appellants' alleged participation in the crime. It stated that Dimal's testimony is
"direct, straightforward and spontaneous" thus justifying the conclusion that appellants acted in concert in carrying into
effect the kidnapping of Vicente Uy. The trial court totally disregarded appellants' testimonies on the ground that they
failed to support their versions of the incident.
It is well settled that the testimony of a single witness is sufficient to support a conviction so long as it is clear,
straightforward and worthy of evidence by the trial court.25 It is likewise a settled doctrine that when it comes to
credibility of witnesses, the findings of a trial court on such matter will not be disturbed unless the lower court
overlooked, ignored, misapprehended, or misinterpreted certain facts or circumstances which are so material such as
to affect the outcome of the case.26
Although the trial court described the testimony of Dimal as "direct, straightforward and spontaneous", it should not
automatically endow outright probative weight to his testimony or its veracity, to the exclusion of the testimonies of
other witnesses. Many witnesses can give testimonies that are blatant lies, even if they appeared poker-faced and did
not bat their eyelashes.
After a careful scrutiny of the testimony of prosecution witness Dimal, the Court finds that the trial court failed to
consider some significant facts and circumstances which affect his credibility. His version of the incident is so
incredible that a complete reversal of the findings of the trial court is warranted.
To begin with, Dimal testified that he was with Nadel Francisco on the night of the kidnapping when appellant Ramil
passed by and invited him "to go around".27 Dimal likewise declared in his Sworn Statement dated April 1, 1996 that he
was with Francisco when appellant Ramil Madriaga invited him at around 12 o'clock midnight, viz.:
SAGOT - 13. Noong ganap na ika-pito ng gabi ng Marso 25, 1996, ako ay nagpunta sa Star Gazer
Video Shop sa Azucena Street, De Castro, Pasig upang mag-arkila ng VHS tapes. Mayamaya ay nagkita
kami doon ng kaibigan ko na si NADEL FRANCISCO at nagkuwentuhan kami doon sa tapat ng nasabing
video shop hanggang bandang alas-dose ng hatinggabi. Habang nagkukuwentuhan kami ay napadaan
sa harapan namin si kuya Amel na lulan ng isang kotse at niyaya niya akong sumama sa kanya at
sinabing mayroon daw kaming happenings.28 (Emphasis Ours)

But defense witness Francisco categorically denied Dimal's assertions. While he admitted that he saw Dimal that day,
he testified that they merely chatted for only about one and a half (1 ) hours and parted ways at around 5:30 o'clock
in the afternoon. Francisco testified thus:
Q
You said you talked with Richard Dimal for one hour, more or less, will you tell this Honorable Court
what time did Richard and you started to talk?
A

Approximately 4:00 o'clock in the afternoon, sir.

It lasted around 5:30 o'clock?

Yes, sir.

What subject matter did you talk with Richard Dimal?

I cannot remember anymore, we just chat about the lives of our friends, sir.

Who among your friends were talked about?

I cannot remember anymore, sir.

Before you and Ricard Dimal parted ways, what did Dimal tell you, if any?

He invited me to go with him for swimming, sir.

Will you tell this Honorable Court what place he is going to have swimming?

Villa Cristina, sir.

Q
Tell this Honorable Court what was your reaction to the invitation of Ricahrd Dimal to go with him at
Villa Cristina?
A

I did not go with him, sir.

Why?

I have an examination on the following day, sir.

Q
I am showing to you a statement of Mr. Ricard Dimal attached to the records of this case found on
page 64 consisting of 6 pages, on page 65 or the second page of the statement of Richard Dimal, question
#13 and the answer thereto, I'm reading it to you and please listen. "Maaari bang ikuwento mo dito kung
paano ka nadamay sa nasabing kaso? And the answer, "Noong ganap na ika-pito ng gabi ng Marso 25,
1996, ako ay nagpunta sa Star GazarVideo Shop sa Azucena St., De Castro, Pasig upang mag-arkila ng
VHS tapes. Mayamaya ay nagkita kami doon ng kaibigan ko na si Nedel Francisco at nagkuwentuhan
kami sa tapat ng nasabing video shop hanggang bandang alas-dose ng hatinggabi. Habang
nagkukuwentuhan kami ay napadaan sa harapan namin si Kuya Amel na lulan ng isang kotse at niyaya
niya akong sumama sa kanya at sinabing mayroon day kaming happenings". Did you hear what I read?
A

Yes, sir.

Did you understand what I read?

Yes, sir.

What can you say about what I have read which is the statement of Richard Dimal?

I do not know about that alleged happening, sir.

On that date, around 12:00 o'clock midnight, where were you?

I was already sleeping during that time, sir.

Q
During your conversation with Richard Dimal from 4:00 to 5:30 o'clock in the afternoon of March 25,
1996, tell this Honorable Court whether you saw Kuya Amel?
A

I did not see him that day, sir.29

The trial court chose to ignore Francisco's testimony. It did not explain in its decision why it opted not to consider his
testimony, why it relied on the testimony of Dimal despite Francisco's explicit testimony that he and Dimal talked only
up to 5:30 o'clock in the afternoon and that it is not true that he saw Ramil with his car around midnight or at any time
of that day. The Court is confounded why the trial court entirely overlooked or disregarded the testimony of Francisco
who is a disinterested witness and had nothing to gain from belying Dimal's claim. Dimal regards Francisco as his
friend;30 and Francisco considers Dimal as a closer friend of his than Ramil's. 31 Thus, when Francisco repudiated
Dimal's testimony, there was no reason for him to discredit Dimal except to tell the truth. The credibility of Dimal is
thereby eroded. There is no reason for the trial court to discredit the testimony of Francisco. One may assert that while
it may be true that after Francisco and Dimal parted ways at 5:30 o'clock in the afternoon, it could have happened that
Dimal and appellant Ramil had met at midnight. But this posture could not be upheld because of the testimony of
Dimal himself that Francisco was present when Ramil invited him to roam around at about midnight, which could not
be believed because Francisco was, in fact, not present. In effect, from the start, Dimal is shown to be concocting his
version of the kidnapping incident.
Furthermore, the trial court erred in accepting Dimal's testimony as gospel truth considering that his account of the
events that transpired is replete with incredible happenings that should not have been accepted by the trial court as
part of ordinary human experience and common sense. For example, Dimal testified that he went with Ramil upon the
invitation of the latter and they went to his (Dimal's) house located at No. 046 Blk. I, PFCI Brgy. San Andres, Cainta,
Rizal;32 that through a cellular phone, Ramil told the passengers of the Nissan Patrol parked in front of Dimal's house
that they could not do what they have to do in that place and that they have to find a darker place. 33 Why then did
Ramil have to meet the passengers of the Nissan Patrol in front of Dimal's house when the place is not suitable to his
(Ramil's) plans in the first place? Why did Ramil have to go to Dimal's house when he could have used the cellular to
tell them the place where he thought would be a better place to meet them? There is nothing in Dimal's testimony to
explain said incongruities.
In addition, Dimal testified that they went to Taytay, Rizal and stopped behind the new market place where Dimal saw
something transferred from the Nissan Patrol to the trunk of the Toyota Corolla of Ramil; 34 that thereafter, from Taytay,
Rizal, they roamed around and then went to Bulacan with the Nissan Patrol still tailing Ramil's car; that upon reaching
Bulacan, Ramil alighted from his car and talked with the passengers of the Nissan Patrol; that Ramil went back to his
car and told Dimal that they will go to Antipolo, Rizal; that upon reaching Antipolo, the passengers of the Nissan Patrol
transferred to Ramil's car35 and then they proceeded to Villa Cristina Resort in Antipolo, Rizal. From Taytay, Rizal, why
do they have to roam around, go to Bulacan and then back to Rizal? From past midnight to 6 o'clock in the morning,
why did Dimal, Ramil and the passengers of the Nissan Patrol have to go around killing time when the final destination
of all of them together is the resort in Antipolo, Rizal? Why did the Nissan Patrol have to tail them all the while from
Taytay, Rizal to Bulacan after the victim was transferred to the car of Ramil only to go to Antipolo, Rizal, a nearby town
of Taytay, Rizal? Said acts are so preposterous that no amount of stretching of imagination could bring the same within
the realm of human understanding.

The test to determine the value of the testimony of a witness is whether such is in conformity with knowledge and
consistent with the experience of mankind; whatever is repugnant to these standards becomes incredible and lies
outside of judicial cognizance.36 Further, absent any other evidence to explain or corroborate such implausible
actuations, the trial court committed a reversible error in considering the testimony of Dimal credible enough to sustain
a conviction of all appellants. Evidence to be believed must not only come from the mouth of a credible witness but
must also be credible in itself.37
It may be posited that in the commission of the crime of kidnapping with ransom, the culprits usually adopt and pursue
unfamiliar schemes or strategies not only to avoid easy detection or monitoring of their movements, but to confuse the
police authorities, the victim and the family of the victims; that the incredible happenings narrated by Dimal only
highlight his knowledge of the details of the facts surrounding the kidnapping for ransom. This may be so if the
credibility of Dimal on the fact that he and Ramil had met that night of the kidnapping is beyond question.
In any event, if a set of facts admits of two interpretations, then the one consistent with the presumption of innocence
and in favor of the accused should prevail. 38
The trial court declared that "there was never any positive identification made on any of the accused, and that the
prosecution presented evidence which are circumstantial in nature to support the charge."39
It is a hornbook doctrine that conspiracy must be proved by positive and convincing evidence. The prosecution
miserably fell short of this requirement.
The trial court explicitly declared that the prosecution witness is not a co-conspirator and therefore his testimony may
be taken in evidence against all the appellants without running counter to Section 30, Rule 130 of the Rules of Court. 40
The court a quo seriously erred in this aspect. Based on Dimal's sworn statement, marked as Exhibit "A", 41 and his
testimony, Dimal admitted and confessed as to his participation. 42
In addition, the following manifestation of Atty. Marcelino Arias, to wit:
Atty. Arias Before the prosecution starts the direct examination, as per record, I learned that his Richard
Dimal is one of the suspects and he was arrested in all these cases but he was not included as one of the
suspects, I want to put that on record, as far as the record is concern, he is one of those who allegedly
took the victim, he confessed by means of an affidavit, now he is a witness and not one of the accused,
your Honor.
Court Everything you have said will be put on record, and for your own information defense counsel, that
is the prerogative of the prosecution and no longer of the defense.
Atty. Arias Considering that I noticed that the prosecution is in possession of an Affidavit of this witness
which was not included in the records of this case, may I ask to be furnished of this affidavit.
Fiscal Abesamis The purpose of the testimony of Richard Dimal is to show the circumstances before,
during and after the kidnapping of Mr. Vicente Uy, to show the conspiracy acts of the accused in this case
of said kidnapping and to identify some evidence and thereafter to identify the accused in this case. With
the permission of this Honorable Court. 43
was not refuted by the prosecution.
Section 30, Rule 130 of the Rules of Court provides:

SECTION 30. Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy
and during its existence, may be given in evidence against the co-conspirator after the conspiracy is
shown by evidence other than such act of declaration.
Thus, conspiracy must be proven by evidence other than the testimony of Dimal.
Proof of conspiracy need not rest on direct evidence as the felonious covenant itself may be inferred from the conduct
of the parties before, during, and after the commission of the crime disclosing a common understanding between them
relative to its commission.44
In its assessment, the trial court declared that the evidence for the prosecution is purely circumstantial, 45 on which
basis it ruled that appellants conspired in perpetrating the crime of kidnapping with ransom.
For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with the
hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and
with every other rational hypothesis except that of guilt. 46 The following elements must concur: (1) there must be more
than one circumstance; (2) the facts on which the inference of guilt is based must be proved; and (3) the combination
of all the circumstances is such as to produce a conviction beyond reasonable doubt. 47
In the present case, the totality of the pieces of circumstantial evidence presented by the prosecution is not sufficient
to establish the guilt of appellants. Not one of the prosecution witnesses saw the actual abduction. Witness Dimal
admitted during cross-examination that he did not see appellants actually kidnap or abduct Uy, viz.:
Q

You know that you never saw Ramil kidnapped Vicente Uy?

No, sir.

You never saw your Kuya Sendong kidnapped kidnapped (sic) Mr. Uy?

Yes, sir.

You never saw Oswaldo Banaag kidnapped Mr. Uy?

No. sir.

You never saw James Patano kidnapped Mr. Uy?

No, sir.

Never did you see Mr. Ramil Madriaga kidnapped Mr. Uy?

Yes, sir.48

There could not be any misinterpretation in the meaning of the above testimonies. If the testimony of Dimal is taken in
its entirety, it mainly revolved around events that allegedly occurred after the abduction was already consummated. As
such, one would readily conclude that Dimal did not really see the act of kidnapping and therefore, he did not see any
of the appellants perform the actual act of kidnapping. Besides, the trial court itself declared that "there was never any
positive identification made on any of the accused." 49

Further, the prosecution evidence failed to sufficiently prove overt acts on the part of appellants that will convincingly
show their direct participation or complicity in the kidnapping.
In the case of appellant James Patano, he was condemned to death for his presence in the resort. The trial court held
that since appellant Patano failed to corroborate his excuse that he was just there for a swim with friends, then, the
same must be ignored.50 The Court disagrees. If at all, what the prosecution was able to establish is that appellant
Patano knocked on the door of cottage no. 2, and Maj. Quidato heard him say: "(P)are kaibigan ninyo ito, dala ko ang
pera".51 Such alleged statement by Patano, even if true, is equivocal and ambiguous. He did not state for what
purpose the money is to be used. No probative weight may be given to the testimony of Maj. Quidato that the amount
of one thousand pesos (P1,000.00) is for the payment of the cottage because it is a mere conclusion on his part based
on his bare claim that the security guard and the official of the resort were preventing the victim from leaving because
the cottage has not been paid yet. Quidato did not testify that he heard appellant Patano say that the alleged money
he had with him was for the rental of the cottage. In other words, even if appellant Patano really brought money to the
cottage, the prosecution failed to connect the participation of Patano in the commission of the crime of Kidnapping for
Ransom. Absent any other proof of overt act necessary or essential to the perpetration of the kidnapping, Patano's
alleged presence and utterance cannot be a valid basis for his conviction. The Court cannot accept the trial court's
sweeping conclusion against Patano. The mere presence of appellant Patano at the resort after the commission of the
crime does not imply conspiracy. Mere knowledge, acquiescence to or agreement to cooperate, is not enough to
constitute one as a party to a conspiracy, absent any active participation in the commission of the crime, with a view to
the furtherance of the common design and purpose.52 Conspiracy transcends companionship.53 Neither can the Court
rely on the uncorroborated testimony of Dimal whose testimony at the outset had been found not to be credible. The
failure of appellant Patano to present the friends he was with is not sufficient to support a finding of guilt beyond
reasonable doubt. An accused should be found guilty on the basis of the strength of prosecution evidence and not on
the weakness of the defense.54
Settled is the rule that conviction should rest on the strength of the evidence of the prosecution and not on the
weakness of the defense. The identity of the offender, like the crime itself, must be proved beyond reasonable doubt.
Even though appellant Patano invokes the inherently weak defense of denial, such defense nonetheless acquired
commensurate strength in the instant case where no positive and proper identification has been made by the
prosecution witnesses of the offender, as the prosecution still has the onus probandi in establishing the guilt of the
accused. The weakness of the defense does not relieve the prosecution of this responsibility. Besides, the Court has
held that the testimony of witness Dimal is not credible and not worthy of belief. There is reasonable doubt as to his
guilt or participation in the commission of the crime of Kidnapping for Ransom. The doubt should therefore be resolved
in favor of appellant James Patano. 55
As regards appellant Ramil Madriaga, the trial court refused to accept his testimony and found his claim that he was
responsible for the rescue of Uy to be "beyond ordinary human comprehension deserving of no evidentiary
value".56 Instead, it banked on the suspicions entertained by the police operatives that appellant Ramil's actuations
during the rescue were suspect, and that the latter failed to present Lts. Capitulo and Lim, often referred to by him in
his testimony.57 The Court does not agree. Mere suspicion, speculation, relationship, association and companionship
do not prove conspiracy.58
The Court scrutinized the testimony of appellant Ramil Madriaga and there is nothing therein which is beyond ordinary
understanding or which indicates any suspicious behavior on his part that would create doubt on his account of what
really transpired. In fact, appellant Ramil exhibited candor and sincerity when he admitted that he was initially
ambivalent in helping out his cousin Rosendo because of fear and of the fact that the results of the Bar examinations
were coming out that day.59 Also, the victim's daughter, Lucy Ngo, did not sense any suspicious behavior on the part of
appellant Ramil, and she testified that she even believed that the latter was trying to help them, thus:
Q

Will you tell us what do you mean by that?

'Nagmamagandang loob is parang tumutulong siya,' sir.

xxx

Q
The man who was 'nagmamagandang loob'. Are you referring to Ramil Madriaga as the one who
was 'nagmamagandang loob'?
A

He is the one who was 'nagmamagandang loob'. Yes, sir.

Q
Even before, you knew Ramil Madriaga was incarcerated and one of the accused in this case, were
you surprised to know that Ramil Madriaga who according to you 'nagmamagandang loob' is now one of
the accused in this case?
A

The failure of appellant Ramil to present Lts. Capitulo and Lim does not denigrate the credibility of his own testimony.
As stated above, the prosecution must rely on the strength of its own evidence and not on the weakness of that of the
defense.

Yes, sir.60

It cannot be denied that appellant Ramil played a major part in the rescue of Vicente Uy. The testimonies of Lucy Ngo,
Virginia Avelita and Maj. Cruz all show that it was through the information given by appellant Ramil that they were able
to locate Vicente Uy. If it were really true that appellant Ramil was one of the conspirators of the crime of Kidnapping
for Ransom, it is absolutely incredible that Ramil would openly go to the house of the victim's common-law wife and
place himself at the risk of being identified as one of the conspirators when he could have accomplished the same
purpose by other means at the same time protect himself from being identified by witnesses. Neither did Virginia
Avelita nor Lucy Ngo testify that Ramil asked for ransom. What then could be the motive of Ramil in going to the
house of Avelita if not to help his cousin out of his predicament? Whatever suspicions the police operatives entertained
were pure speculations, insufficient to warrant the conclusion that appellant Ramil participated in the kidnapping. The
required quantum of evidence is proof beyond reasonable doubt. 61 "The sea of suspicion has no shore, and the court
that embarks upon it is without rudder or compass." 62
The testimonies of prosecution witnesses Maj. Cruz, Virginia Avelita and Chief Inspector Quidato were all based on
what appellant Ramil had purportedly told them. The veracity of what they claimed was told them by Ramil is highly
dubious in view of the testimony of prosecution witness Lucy Ngo, daughter of the victim, affirming that appellant
Ramil was the one who was "nagmamagandang-loob" and who told them about the kidnapping of her father and
where he could be found.
The Court went over the testimonies of prosecution witnesses Cruz, Avelita and Quidato and it found that certain
portions thereof were tailored to suit the charges against appellants.
Both Cruz and Quidato testified that appellant Ramil rushed to the cottage as soon as they arrived at the resort and
that they found appellant Rosendo inside the cottage with victim Uy, giving the impression that appellant Ramil knew
exactly where the victim was and, therefore, appellants Ramil and Rosendo were two of the kidnappers. 63 However,
Lucy Ngo contradicted their testimonies. Lucy, instead, confirmed the testimonies of appellants Ramil and Rosendo
that the latter was outside the cottage and that Ramil rushed to Rosendo only after getting instructions from Maj.
Cruz.64
The Court is likewise wary of the testimony of Virginia Avelita insinuating appellant Ramil's complicity for knowing the
details of the crime. If it were true that she suspected Ramil, then there was utterly no reason for her to tell Lucy Ngo
when she called up the latter that there was a certain person who was offering his assistance ("nagmamagandangloob") in locating Uy.65 Instead, she would have forewarned Ngo about appellant Ramil.

Thus, the Court finds that the prosecution evidence lacks that degree of conclusiveness required to convict appellant
Ramil Madriaga.
With regard to appellant Rosendo Madriaga, the Court also finds that there is no sufficient evidence proving beyond
reasonable doubt that he was involved in the kidnapping of Vicente Uy. As with appellant Patano, there is lack of
adequate evidence of conspiracy insofar as appellant Rosendo is concerned. No proof was adduced by the
prosecution to show that Rosendo knew about the kidnapping and that he had actively participated in its execution.
When victim Uy identified Rosendo in the courtroom as the person he saw handcuffed after his blindfold was removed,
Uy admitted that he was not sure of Rosendo's identity as the latter is without a moustache. The testimony of
prosecution witness Dimal in this regard is quite revealing. Dimal admitted that he was the one who fed the victim and
that he was wearing a moustache at the time of his arrest on March 27, 1996. 67
Appellant Rosendo testified that he called up his cousin Ramil and asked for his help as he got unintentionally mixed
up in a kidnapping.68 Appellant Rosendo convincingly explained that he could not do anything because he was
afraid.69 Such is not far-fetched or improbable. The Court is cognizant of the fact that fear is an effective anesthetic that
can paralyze one into inaction. Rosendo's failure to report his predicament with the police is not anindicium or positive
proof that he actively took part in the crime and, therefore, it could not be a valid basis for a finding of guilt for the
crime of kidnapping for ransom. What is clear is that appellant Rosendo called up his cousin, appellant Ramil, for help
because he was in a predicament over which he had no control.
All told, while the crime of Kidnapping for Ransom has been proven, appellants' participation therein had not been
adequately proven beyond reasonable doubt. Hence, all three appellants must be acquitted.
WHEREFORE, the decision of the Regional Trial Court of Pasig City, Branch 262 in Criminal Case No. 110089-H
convicting appellants JAMES PATANO y MARCAIDA, RAMIL MADRIAGA y LAGONOY and ROSENDO MADRIAGA is
REVERSED and SET ASIDE, and another is hereby rendered ACQUITTING them of the crime of Kidnapping for
Ransom as charged for failure of the prosecution to prove their guilt beyond reasonable doubt.
The Director of the Bureau of Corrections is directed to cause the immediate release of appellants, unless they are
being lawfully held for another cause, and to inform this Court of the date of their release or the ground for their
continued confinement, within five (5) days from notice of this decision.
The Director of the National Bureau of Investigation and the Director- General of the Philippine National Police are
directed to cause the arrest of accused Manolo Babac and Allan Duarte who have remained-at-large as well as other
persons who appear criminally responsible for herein subject crime. The prosecution must exert more diligent efforts
next time.
Costs de oficio.
SO ORDERED.

Consequently, the Court cannot give much weight to the testimonies of these prosecution witnesses as they suffer
from infirmities.
Besides, it is a settled rule that the testimony of a witness who merely recites what someone else has told him,
whether orally or in writing is hearsay and has no probative value 66 under Section 36, Rule 130 of the Rules of Court.
Neither could the same be validly regarded as an exception to the hearsay rule considering that the details testified to
by said witnesses were directly refuted by appellant Ramil when he testified in court and asserted the fact that
appellant Ramil merely went to Avelita's house to tell her of the location of her common-law husband, Vicente Uy, and
to help his cousin, co-appellant Rosendo; which fact is confirmed by prosecution witness Lucy Ngo.

April 25, 1950

G.R. No. L-2232
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AGATON MARTIN (alias BORONG-BORONG), defendant-appellant.

Jorge V. Jazmines for appellant.

Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor General Ruperto Kapunan, Jr. for appellee.
REYES, J.:
Appellant was charged with treason on thirty-eight counts but, after trial, was found guilty by the People's Court on
only seven counts (nos. 1, 6, 7, 11, 12, 18, and 30), and sentenced to life imprisonment, P10,000 fine, and costs. From
this sentence he appealed.
As contended by the attorney de oficio and admitted by the Solicitor General, count 1 has not been proved.
Court 6 refers to the arrest, torture, and killing of Teofilo Torres, a guerrilla suspect. To prove this count, the
Government presented three witnesses, namely: Felipa Bernal, Gregorio Reyes, and Anastacio Cruz. The first testified
that at about 2 o'clock in the morning of July 9, 1944, a Japanese captain and several Filipinos, among them Cirilo
Tuason and the appellant herein, went up her house in barrio Maybuga, Pasig, Rizal, and lined up all the men (the
three brothers Leodegario, Gregorio, and Teofilo, all surnamed Torres). Cirilo Tuason then pointed to Teofilo Torres as
a guerrilla, whereupon the Japanese captain tied his hands. Teofilo Torres was taken away by the appellant and his
companions and has not been heard from since then. Anastacio Cruz who was himself arrested on the same day, but
in a different house and by a different person, testified that he knew Teofilo Torres was arrested as a guerrilla suspect
but that he saw him only when we was already downstairs with Cirilo Tuason and his companions; that he and Teofilo
Torres were taken to the garrison of the Military Police in Pasig, that while there he heard Teofilo Torres being
maltreated in the adjoining room and he afterwards saw him with his face battered. Gregorio Reyes, who lived in the
adjoining house and was himself arrested on the same occasion, declared that Teofilo Torres was arrested by several
persons, among them the appellant herein, and that he saw Teofilo Torres being tired by the Makapilis and the military
police as he was being led to the street.
It is contended that with the above evidence, appellant was not shown to have done anything in connection with the
arrest of Teofilo Torres; that no two witnesses testified on the same overt act. While it appears that appellant was not
the one who pointed to Teofilo Torres as a guerrilla suspect and tied his hands, there is no denying the fact that made
the arrest and can not therefore escape responsibility in the absence of any exculpatory evidence.
Count 7 refers to the arrest of Guillermo Salandanan and is supported by the testimony of Antonio Santos (mother of
the victim), Olivia Natividad, and Arcadia Cruz. According to this testimony the arrest took place in the afternoon of
August 11, 1944, in barrio Pinagbuhatan, Pasig, Rizal, in front of the house of Olivia Natividad and was effected by a
group of armed men led by the appellant. Asked by Antonio Santos why they were arresting her son Guillermo
Salandanan, appellant informed her that it was because her son was a guerrilla. After his arrest, Guillermo
Salandanan was never heard from.
The defense contends that the proof on this count does not established collaboration with the enemy, for it does not
show that appellant was accompanied by any Japanese or that the person arrested by him was surrendered to the
Japanese. But the fact that Salandanan was arrested because of his guerrilla activities clearly shows that appellant
was acting for or collaborating with the enemy, and the insinuation that the said arrest may have been due to rivalry
between guerrilla units has no basis in fact as there is no evidence that appellant was identified with any guerrilla unit.
Counts 11 and 12 refers to the arrest of Miguel Castillo, Candido Cruz, and one Takio. The arrest of these individuals
on November 21, 1944, in barrio Ugong, Pasig, Rizal, by appellant and several companions was testified to by Leona
Natividad and Rita Pascual. But there is no evidence as to the reason for the arrest other than what may be inferred
from Rita's testimony that those apprehended were made to lug the bananas, oranges, and sugar cane which
appellant and his and his companions had gathered in the place. Their hands were not even tied as in other cases.
We therefore have to agree with counsel de oficio that proof on these counts does not establish collaboration with the
enemy.
Count No. 18 refers to the zoning of Tipas, Pasig, Rizal, for the purpose of apprehending guerrilla suspects. Several
witnesses testified that the said zoning was staged on December 1, 1944, and some of them claimed having seen
appellant there. They did not, however, mention any act of direct participation on the part of appellant, and much less
have two witnesses testified on the same overt act. The evidence is obviously insufficient to hold appellant guilty on
this count.

Count No. 30 refers to the arrest of Ernesto Buenviaje and is supported by the testimony of Mercedes Mendiola,
Alfonso Benito, and Patricio Benito. Mercedes Mendiola was the wife of Ernesto Buenviaje and she testified that on
December 30, 1944, her husband, who was a guerrilla, came down from the mountains to visit her in Sagad, Pasig,
Rizal; that informed that he was being sought by appellant for his guerrilla activities, he took her to the house of their
cousin, Zacarias, in sitio Caniuguan, Maybuga, Pasig, Rizal; that hardly had they arrived at said house when
appellant and his companions, including members of the military police, came upon them, arrested her husband and
then tied and took him away. Thereafter, her husband was never heard from.
This testimony was corroborated by Alfonso Benito and Patricio Benito, who did not witness the actual arrest but later
saw Ernesto Buenviaje with hands tied pass in front of their house in the custody of appellant and several companions
who were armed.
The defense finds contradiction between the testimony of Mercedes Mendiola, who said that the arrest took place at
about 5:30 in the afternoon and the declaration of the two corroborating witnesses who said that they saw Ernesto
Buenviaje being led by his captors already on the following morning. It should be noted, however, that both of these
witnesses declared that they did not see the actual arrest, although one of them said that he heard about it. What they
did see was something that happened after the arrest and which therefore did not have to coincide in point of time with
the actual arrest. It would appear that counsel merely surmised that from the house of Zacarias, where Buenviaje was
arrested at about 5:30 in the afternoon, he was immediately let in front of the house of these two witnesses when there
is no proof at all that he was not taken to some other place before that. As the Solicitor General observes, it is quite
within the realm of possibility for Buenviaje's captors to have been detained for some reason or other in that
neighborhood and that they did not leave until early the following morning when Alfonso Benito and Patricio Benito
saw then pass by. Our conclusion is that this count has been sufficiently proven.
It should be stated in conclusion that, in connection with the counts of which we find appellant guilty, his defense
of alibi has nothing to support it except the doubtful testimony of his prisonmates, which certainly can not prevail over
that of the witnesses for the prosecution who saw him commit the different treasonous acts attributed to him and by
whom he was clearly identified.
And lastly, as to the contention that the prosecution has failed to establish appellant's Filipino citizenship as an
essential element in the crime of treason imputed to him, it appears that the prosecution did present appellant's prison
record, which sets out his personal circumstances, with the testimony of the chief of the identification section of the
Bureau of Prisons that all the personal data contained in said record were supplied by appellant himself, and that
although he was not the one who prepared said record, he, however, verified its contents after it was prepared. Said
record shows appellant to be a Filipino citizen, and we think it is sufficient proof of that fact in the absence of any
evidence to the contrary.
Wherefore, we find appellant guilty of treason on counts 6, 7, and 30 but not on counts 1, 11, 12, and 18. This,
however, necessitates no change in the sentenced imposed below, which is in accordance with law, so that the same
is hereby affirmed, with costs against the appellant.

May 23, 1951

G.R. No. L-2998
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOAQUIN FLAVIER, defendant-appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for plaintiff and appellee.
Ignacio Lugtu for defendant and appellant.
PARAS, C. J.:

This an appeal taken by the defendant, Joaquin Flavier, for a judgment of the Court of First Instance of Quezon,
finding him guilty of treason and sentencing him to life imprisonment, with legal accessories, and to pay a fine of
P15,000. The information contained ten counts, but the appellant was found guilty of only counts 1, 2, 7, 8, and 10.
Count No. 1 accuses the appellant of having given aid to the Japanese Imperial Forces by serving as an officer to the
United Nippon Organization, established to counter act the guerrilla movement and the American liberation forces
Lopez Tayabas. Under, Count No. 2, the appellant is charged with having killed three guerrillas known as Monosea,
Talavera and Ramos, in Lopez, Tayabas. Count alleges that the appellant arrested Florentino Salumbides in his house
in Lopez, Tayabas, on suspicion of being a guerilla spy, the said Florentino Salumbides having been taken to the
Japanese garrison and detained therein for a period of twenty-two days. Count 8 refers to the apprehension by the
appellant of Gerudio Villanesa in his house in Lopez, Tayabas. On suspicion of being a guerilla, and his house in
Lopez, Tayabas, on suspicion of being a guerilla, and his torture by the appellant in the Japanese garrison. Count 10
alleges that the appellant arrested Aniceto Iglesia on suspicion of being a guerilla in barrio Dalangan, Lopez, Tayabas,
he having been brought to the Japanese garrison.
Counsel for appellant argues that appellants citizenship was not duly proven and that none of the overt acts charged
against him and of which he was convicted by the trial court is supported by the evidence. Appellants Filipino
citizenship is, however, satisfactorily shown by the official record in the Bureau of Prisons, Exhibit "A", which was
admitted in evidence without who have known the appellant to have been born in the Philippines of Filipino parents.
Appellant's pretense that he did not know whether his parents were Filipinos, is absurd, if not unbelievable, he being a
high school graduate and having been a high school teacher and a candidate for municipal vice-president and senator.
The case of Jose Tan Chiong vs. Secretary of Labor, G.R. No. 47616, invoked by the appellant in support of his
contention that mere birth in the Philippines is not sufficient to confer Filipino citizenship, is not applicable, for the
reason that said case involved and alien born of an alien father and Filipino mother.
We agree with counsel for the appellant that count No. 1 was not duly proven. But we are convince that appellant
conviction on the other counts is well founded. The evidence for the prosecution, with reference to count 2, is to the
effect that in an encounter between a number of guerrillas and the enemy forces in the town of Lopez, three guerrillas
members, namely Monosea, Talavera and Ramos, were killed. Florentino Salumbides, Epifanio Ardiente, Felipe
Cargan, Francisco Caldecara and Lorenzo Ambas, testified about the encounter, in which the appellant fought on the
side of the enemy. It is true that there is no direct proof that the appellant actually killed the three guerrillas, but said
facts does not exculpate him from criminal liability resulting from his participation on the enemy's side.
With reference to the arrest of Florentino Salumbides as charged in account No. 7, two prosecution witnesses,
Florentino Salumbides himself and his brother Dominador Salumbides, testified. The appellant claims that it was
Lamberto San Juan who actually arrested Florentino Salumbides, as shown in the transcript. As the two Salumbides
brothers have known the appellant since boyhood, it is unlikely that they could have mistaken the appellant for
another; and the appearance of the name of San Juan in the transcript must have been an obvious clerical error,
especially in view of the alleged denial of San Juan that he ordered the arrest and subsequent release of Florentino
Salumbides.
The arrest of Gerundio Villanisa by the appellant is confirmed by Gerundio Villanisa himself and Santiago Surbano.
Appellant defense against this count No. 8 is that while he was present at the time of the arrest, it was Lamberto San
Juan who actually made the arrest. Appellants allegation is not again sufficient to exculpate him from criminal liability,
as he acted knowingly in conjunction with Lamberto San Juan. Neither is there merit in appellants pretense that
Villanisa was arrested because of crime, and not because of his guerilla activities, since the crime imputed to Villanisa
consisted in the hold-up of the Japanese trucks.
The arrest and subsequent torture of Aniceto Iglesia by order of the appellant, as charged in count 10, is testified to by
Aniceto Iglesia himself and David Villapane. There is no point in appellants contention that, according to David
Villapane himself, the latter was arrested by the "companions of Profirio Jimenez" and not by the appellant, because
the appellant was a companion of Profirio Jimenez and the overt act charged in count 10 is the arrest and torture of
Aniceto Iglesia, not of David Villapane. Aniceto Iglesia and David Villapane both testified that the appellant was
present when Aniceto was arrested and it was the appellant who ordered their captives to be hog-tied and tortured in
the garrison.
The appealed judgment being in accordance with the facts and the law, the same is hereby affirmed with costs. So
ordered.
May 23, 1951
G.R. No. L-2956
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ELEUTERIO ICARO, defendant-appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Ramon Avancea for plaintiff and appellee.
Jose P. Parentela for defendant and appellant.
PARAS, C. J.:
This is an appeal by the defendant, Eleuterio Icaro, from a judgment of the Court of First Instance of Laguna, finding
him guilty of treason and sentencing him to life imprisonment, with the accessory penalties provided by law, and to pay
the fine of P10,000 plus the costs.
In a nutshell, the facts upon which the appellant was convicted by the trial court are stated in the appealed decision as
follows: "The evidence clearly shows that, during the latter part of 1944, and early in 1945, while the United States of
America, the Philippines, and the Allied nations were at war with the Japanese Empire, defendant herein, Eleuterio
Icaro, a Filipino citizen, owing faith and allegiance to both America and the Commonwealth of the Philippines, openly
adhered to the enemy, and gave it aid and comfort. Armed with a rifle, and in company with other Filipinos and
Japanese soldiers, also armed, he took part in raids against guerrilla suspects, and in their arrest. Among these
arrested, because of their underground activities, by the defendant and his companions, were Norberto Ungkiatco, on
December 23, 1944, Emilio Biscocho, Santiago Nipal, Victor Vergara, Valentin Vergara and Vicente Ele, on January
15, 1945. With the exception of Emilio Biscocho, none of the other persons mentioned above has been seen again."
The brief for the appellant stresses the criticism that the evidence for the prosecution utterly fails to prove appellant's
guilt in conformity with the two-witness rule required in treason cases. We find, however, from an examination of the
record that the arrest on December 23, 1944, of Norberto Ungkiatco in the municipality of Calauan, province of
Laguna, by the appellant in company with Japanese soldiers and other Filipinos, on suspicion of being a guerilla, was
testified to by prosecution witnesses Norberto Ungkiatco and Matias Mendoza. With respect to the arrest on January
3, 1945, by the appellant in company with Japanese soldiers and other Filipinos, of Emilio Biscocho, Santiago Nipal,
Victor Vergara, Valentin Vergara and Vicente Ele, on suspicion of being guerrillas, prosecution witnesses Emilio
Biscocho, Anselmo Maranan and Tranquilino Martinez testified substantially in unison. The arrest on January 15,
1945, by the appellant accompanied by Japanese soldiers and other Filipino, all armed, of Andres Ramos, a guerilla
suspect, is confirmed by prosecution witnesses Aurora Azucena and Crispin Aniceta.
We have no reason to doubt the truthfulness of the prosecution witnesses who are appellant's townmates. The only
explanation given by appellant why all the prosecution witnesses incriminated him is that they concentrated in him
their hatred against his "compadre" Roman Amatorious. It is improbable that said witnesses would have done so,
especially because of the lapse of time between the date of the commission of the crime and the date of the trial. In
the ordinary course of things, the fact that said witnesses testified in the way they died during the trial is fairly safe
indication that they telling the truth being impelled undoubtedly by a desire to let justice take its course, and undeterred
by any impulse to forget and to forgive as a result of the passage of time. The defense that the appellant and his family
moved from Calauan to Santa Maria, Laguna, where they presided continuously until June 15, 1945, cannot prevail
over the positive testimony of the prosecution witnesses. Much less can his denial of the imputations by eyewitnesses
be given credit.
The trial courts found that there is no direct and conclusive proof that the appellant was a Makapili, and this finding is
assailed by the Solicitor General on the ground that while there is no documentary evidence to show that appellant
had joined the Makapili organization, the witnesses for the prosecution are unanimous in alleging that appellant was in
fact a Makapili. The point becomes unnecessary, since adherence to the enemy may be inferred from the over acts of
the treason committed by the appellant, consisting in the arrest of persons suspected of being guerrillas who, with the
exception of Emilio Biscocho, were never seen again, especially because the appellant was armed and in company
with armed Japanese soldiers and other Filipinos.
Wherefore, the appealed judgment is affirmed with costs. So ordered.
November 10, 1950
G.R. No. L-1678
THE PEOPLE OF THE PHILIPPINES, plaintiff -appellee,
vs.
ELEUTERIO CAA, defendant-appellant.
Antonio Montilla for appellant.
Assistant Solicitor General Manuel P. Barcelona and Office of the Solicitor Jose G. Bautista for appellee.
MONTEMAYOR, J.:

The appellant Eleuterio Caa was charged in the People's Court with treason under seven counts. After trial, he was
sentence to fifteen (15) years of reclusion temporal, with the accessories of the law, to pay a fine of P5,000, plus costs.
This is relatively an old case. The reason for the delay in the determination of appeal is that it was first received in the
court and later, because of the penalty imposed which apparently had jurisdiction over it. However, said court because
according to its resolution the case to the opinion that the penalty applicable is reclusion perpetua.
For purpose of reference, we are reproducing the first five counts under which the People Court found the appellant
guilty:
1. That said accused, Eleuterio Caa , with intent to give aid and comfort to the enemy, wilfully , feloniously and
treasonably acted and served as puppet Mayor of the Japanese in the municipality of Abuyog, Leyte, Philippines, and
from June to October, 1942, and from November, 1943, to August, 1944, and as such puppet Mayor he willfully,
feloniously and treasonably performed the following acts:
(a) That he forced the people of Abuyog including government employees to dig trenches and foxholes and build
stables for the Japanese Armed Forces;
(b) That he told the people of Abuyog that the Americans would not return to the Philippine and that he was not afraid
of the Filipino soldiers and guerrillas because the Japanese Armed Forces were behind him;
(c) That the people of Abulog must obey his orders and tell the guerrillas and their relatives to surrender; and
(d) That he provided the Japanese soldiers with houses to live and ejected the Filipino civilians of Abuyog out of their
houses to give room to the Japanese.
2. That the herein accused, Eleuterio Caa, with intent to give aid and or comfort to give aid and or comfort to the
enemy during his incumbency as puppet Mayor of Abuyog, Leyte, Philippines, especially in November, 1943, February
and May, 1944, wilfully, feloniously, treasonably led, guided and accompanied Japanese patrols to the barrios of
Abuyog to apprehend guerrilla suspects and their supports and also to locate hideouts.
3. That during the months of April and May, 1944, the herein accused, Eleuterio Caa, with intent to give aid and/or
comfort to the enemy, and taking advantage of his position as puppet Municipal Mayor of Abuyog, Leyte did then there
wilfully, feloniously and treasonably force the people to harvest palay in the outlying farms and did confiscate the palay
taken therefrom giving part of it to Japanese soldier.
4. That the herein accused, Eleuterio Caa, with intent to give aid and or comfort to the enemy, during the time of the
his incumbency as puppet Municipal Mayor of Abuyog, Leyte, did then and there lead, guide and accompany patrols
composed patrols composed of Japanese and Constabulary soldiers patrols to the barrios of Himara, Mahapalag,
Union, Ogis, Mahayahay, Polahongon all in the Layog District, and in the barrios of Bayabas, Dingle, Combos, Laray,
Taleque, Habadyang, sitio Malasiga, sitio Maitum, parts of the Barrio Anglad, of the all of Hogasaan District, which
patrols machine gunned and burned the houses in the abovementioned places.
5. That sometime during the month of July, 1944, the herein accused , Eleuterio Caa, with intent to give aid and /or
comfort to enemy, during his incumbency as puppet Mayor of Abuyog, Leyte wilfully, feloniously and treasonably
informed the Japanese garrison of Abuyog as a guerrilla suspect, was the father-law of the guerrilla lieutenant named
Nicolas Camintoy, and due to this information, said Basilio Pacatan was investigated, imprisoned and tortured by the
Japanese soldiers for a period of over thirty days.
In the open court the accused admitted that he was and had always been a Filipino citizen.
The following facts are not disputed. In the last elections helds before the last World (Pacific ) War, Pedro Gallego and
defendant Eleuterio Caa were elected Mayor and Vice Mayor respectively, for the town of Abuyog, Leyte. When the
Japanese forces went to Abuyog in June, 1942, they found the town without a Mayor because Gallego served as town
chief executive only to May, 1942, after which he went to the mountains and joined the guerrilla forces as a Mayor. The
appellant being the vice mayor elect, was designated acting mayor by the provincial governor and he acted as such
form June to October, 1942, when the Japanese garrison was removed form the town. Again, he acted as Mayor form
November, 1943 when another Japanese garrison was stationed there, until August, 1944, when the garrison was
withdrawn. The acts of treason of which he was accused were supposedly committed during his incumbency as Acting
Mayor of Abuyog.
Under the first count, we find from the evidence that the defendant really recruited laborers to dig trenches, foxholes
and air raids shelters around the Japanese garrison and in some streets, and to build stables for the Japanese cavalry
horses. It has also been established that the accused had intervened in the Japanese soldiers and officers stationed in
the town, although there is evidence to the effect that rent was paid by said Japanese forces for the use of the houses.

It was also proven that in the poblacion of Abuyog as well as in some barrios, such as Malagikay, Anlag and San
Roque he called people to meetings where he made speeches in the Visayan dialect, telling the people that the real
government was the one established and sponsored by the Japanese; that the Americans, will never come back to the
Philippine because they were afraid of the Japanese forces who where stronger; that they must pay their taxes for the
support of the Japanese sponsored government; and that he (defendant) was note afraid of the guerrillas because the
Japanese Army was behind him.
Considering the fact that the accused was then acting as mayor of his under orders of the Japanese garrison
commander, there is every reason to believe that defendants act in recruiting laborers for the construction of the
trenches, foxholes. air raid shelters and stables for the use of the Japanese forces was in obedience to the wishes and
orders of the Japanese commander. The same thing may be said of the commandeering of private houses. It is a
matter of public knowledge, of which we may take judicial notice, that during the occupation, not infrequently, the
enemy forces restored labor to fill in their military needs and also commandered indiscriminately private houses not
only for their accommodation but even for their civilian agencies, and that in such cases then services or intervention
of the executive of the town were availed of, voluntarily or otherwise. Furthermore, we agree with the Solicitor General
that these acts of collaboration, including his making speeches during the meeting is called by him, endorsing the
Japanese regime may be considered as political in nature are covered by Amnesty Proclamation No. 51 of the
January 1, 1948, which he now invokes (People vs. Alvero, 86 Phil., 58). We may therefore discard count No. 1.
Under counts 2 and 4, is the following evidence:
Bonifacio Laher, barrio lieutenant of Anlag, Abuyog stated that on February 2, 1944, a Japanese patrol of about 80
soldiers arrived at his barrio, headed by the defendant Caa who was armed with a revolver. Caa called a meeting
which about 60 residents attend. The accused made a speech in the Visayan dialect and asked the people about the
whereabouts of Mayor Gallego and Captain Landia of the guerrillas, saying that if they ever came with their forces, the
resident should report the matter to him or to the Japanese government was the real government. The patrol spent the
night in the barrio and the witness as lieutenant of the barrio was ordered by the accused to return the following
morning to accompany the patrol. The next day, February 3rd. Laher a accompanied the accused and the Japanese
troops to the mountains. On reaching sitio Malasiga, The patrol passed by the houses of Gonzalo Ablanque and
Rosendo Fortaleza, and the latter was called from his house and made to join the patrol to the house of Daniel Bolero
where the soldiers ate pineapples and papaya. The defendant asked Bolero who were the owners of the two houses
they had passed and on being informed that they belonged to Ablanque and Fortaleza, appellant exclaimed: "These
are the houses where the guerrillas used to live." Thereafter, the defendant conversed with Capt. Mikawa who
commanded the patrol, after which Mikawa called two Japanese soldiers and ordered them to burn the houses of
Ablanque and Fortaleza. At the time said two houses contained agricultural products of different kinds, including
furniture and household goods. According to Fortaleza, he pleaded with the defendant not to burn his house, but the
accused paid no attention to him and the two houses were burned to the ground.
Laureano Pacia, a captain of the guerrillas told the court that on February 3rd, a Japanese patrol of about 80 soldiers
headed by the accused who was then armed with a revolver, arrived at the barrio of Anlag. The next day the patrol
went to the barrio of Malagikay. Pacia followed the patrol at a safe distance in order to observe as per instructions of
his superiors. He saw that in Malagikay the Japanese soldiers shot pigs and chickens for food. The defendant called
the people to attend a meeting in front of the barrio school building at which meeting he spoke and asked about the
guerrillas , particularly Major Gallego and Captain Landia. He urged his hearers to fight them (the guerrillas) if they
ever came and to report their presence to the poblacion. After the defendant, a lieutenant of the Philippine
Constabulary also spoke.
About these doings of defendant and the Japanese patrol in Malagikay, Pacia was corroborated by Major Gallego who
was with Pacia observing what was happening and listening to the speeches, particularly that of the defendant.
Major Gallego in his testimony also told the People's Court that on May 27, 1944, he saw the defendant Caa armed
with a revolver at the head of a Japanese patrol composed of about 80 soldiers in the barrio of San Roque, Abuyog.
They shots pigs and chickens for food and in the afternoon. The school bell and assembled the people , and at the
meeting the defendant made a speech in the Visayan dialect, asking the people if there were any guerrillas in the
vicinity, telling them that if they (guerrillas) came. The people should not give them food so that they would starve, and
to report their presence to them town so that the Japanese forces could come and catch them. He urged the people to
help the government, the real government sponsored by the Japanese, and not wait for the Americans go will never
come back. With sarcasm he told the people that if they were still interested in the Americans, they had better swim
across the Pacific Ocean to get to them in America. At the time that the accused spoke, there were no Japanese
around him. In his testimony about the arrival of the Japanese patrol in San Roque and the speech of the appellant,
Gallego was corroborated by Felix Balga who added that the defendant in his speech said that to show that the
government sponsored by the Japanese was the true government he (defendant) was accompanying the Japanese
patrol.
Pelagio Elmeda stated to court that on February 2, 1944. He was at his post at barrio Bayabas on duty as captain of
the Volunteer Guards attached to the guerrillas under orders of Captain Landia. On that date, he saw a Japanese

patrol of about 80 soldiers headed by the accused pass by the said barrio of Bayabas, apparently the same patrol that
later went to the barrio of Anlag and still later to the barrio of Malagikay on February 4th. The accused was then
carrying a revolver. When the patrol saw no people in the said barrio the soldiers burned all the five houses in the
vicinity. The owners of said houses were then in the mountains, having evacuated thereto because of the fear of the
Japanese.
Under the court 3, Filomeno Tupa and Marcial Costen testified to the effect that the defendant as Mayor asked the
people in the poblacion of Abuyog belonging to the neighborhood associations to go to the farms and under the
protection of Japanese soldiers, harvest palay therefrom: that one-half of the harvest was given to the harvester; one
fourth to the municipality and the remaining one-forth to the Japanese garrison to feed its cavalry forces. The evidence
on this point, however, further shows that almost invariably, the owners of these lands had evacuated to the mountains
and that said owners were afraid to harvest their own palay for fear of the Japanese soldiers who might suspect them
of harvesting said palay to give to the guerrillas who frequented the farms. Their is reason to believe who frequented
the farms. There is reason to believe and conclude from the evidence that these harvests of palays directed by the
defendant were not made with the intention of aiding the enemy but rather to avoid loss or prevent the ripe palay form
rotting in the fields and to utilized the harvest to aid the people. As already stated , one-half of the harvest was given to
the people who effected the harvest and one-fourth was given to the municipality, said portion according to the
uncontradicted evidence for the defense having been utilized to feed the indigent people, and that a portion of it was
sent to the capital (Tacloban) presumably. For the same purpose of aiding the poor in the province.
It will be remembered that during the occupation there was no importation of rice in order to make up for the
deficiency, our production being insufficient for the needs of the population, and that if the palay crop belonging to
those who had evacuated to the mountains were not harvested the critical food situation would have worsened. It is
not difficult to see that members of the neighborhood associations living in the poblacion of Abuyog and needing rice
for their consumption, may have even suggested to the defendant to harvest the palay in the outlying districts under
the protection of the Japanese soldiers against the guerrillas. Among the farms where palay was then growing and
ready for harvest there must have been some which belonged to these very members of neighborhood association
living in the poblacion who, fearing that the guerrillas would interfere with the harvest of their own palay, asked for
protection from the Japanese Forces.
As to the one fourth portion of the harvest given to the Japanese garrison, undoubtedly, said portion was given
pursuant to the wishes and orders of said garrison for its needs and also in return for the protection services rendered
by its solders during the harvest. We find that under the circumstances the defendant cannot be held liable under this
count No. 3.
Under count 5, Basilio Pacatan, 69 years of age, stated in court that on June 1, 1944, a Japanese patrol composed of
about 44 soldiers headed by the defendant who was then armed with a revolver came to the barrio of Quarry, Abuyog
and found him pasturing his carabao. Some of the soldiers in the patrol caught him, tied his hands behind his back and
then took him to the main body of the patrol where the defendant was. He was asked about Capt. Landia and Capt.
Nicolas Camintoy, his (Pacatan's) son in law, both of the guerrillas. He told them that when Col. Kangleon passed by
that place he took some of the resident with him, presumably including Camintoy. The defendant Caa told Pacatan
that until his son-in law Nicolas, surrendered he (Pacatan) will be kept as a hostage. After being slapped and kicked by
the Japanese soldiers he was taken to the garrison in the poblacion and imprisoned there for a month and a half. As
regards his arrest and his arrest and his being tied and taken to the poblacion, Pacatan was corroborated by his
stepson Pio Balida who stated that in the Japanese patrol there were four Filipinos, among them the defendant Caa.
He said that he saw all this because at the time he was with his step father Pacatan altho at some distance from him.
In connection with the imprisonment of Basilio Pacatan in the Japanese garrison in the poblacion of Abuyog, Filomeno
Tupa and Maricel Costen in their testimonies said that the accused had once stated within their hearing that he would
oppose the release of Basilio Pacatan unless his son in law , Nicolas Camintoy, a captain in the guerrilla first
surrendered and that when a delegation composed of leaders of neighborhood association went to petition the
Japanese captain for release of Pactan, saying that he was a good man, the defendant who was present voiced
objection to the release his (Pacatan's) guerrilla son-in-law , Nicolas Camintoy. first surrendered as a result of which
Pacatan's release was refused by the Japanese officer. It was further stated that the defendant enjoyed the confidence
of the Japanese officers, in proof of which , he had previously obtained the release of three prisoners, C. Tan, Barcelo
and Briones who had sons in the guerrilla forces and who promised to have said surrender to the Japanese.
In his defense, the appellant with his witnesses tried prove that although he accompanied the Japanese patrols in their
reconnaissance trips to the barrios, he did so not of his own free will but under compulsion by the Japanese officer of
the garrison . He also said that he acted merely as interpreter of Japanese officer who spoke at the meetings held in
the barrios. The People's Court did not believed this claim of the defendant and we find nothing in the record to
warrant correcting and disturbing this mental attitude and action of the People's Court. There is ample evidence to
show that when appellant spoke in the barrios as head of Japanese patrols, he did not act as a mere interpreter but
that he made his own speeches. Many times there were no Japanese around when he spoke because the members of
the patrol were either going around the barrio or the house evidently checking up and looking for guerrillas, or doing
things looking toward their accommodation and shelter for the night or preparing their meals from the pigs and

chickens they had previously shot. And the vehemence or apparent sincerity of the accused in his speeches wherein
he urged the people to support the municipal government which he head, to support the presence of guerrillas in the
barrios and to abandon all hope of the return of the Americans because they were afraid of the Japanese soldiers,
sufficiently shows that he went with the patrols voluntarily and of his own free will. He was really determined to
suppressed the guerrilla movement in his locality as may be inferred from his speeches but also from his strong
opposition to the release from the garrison of Basilio Pacatan unless the latter's son-in-law first surrendered. His action
telling the Japanese officer of the patrol in the sitio of Malasiga that the houses of Ablanque and Fortaleza had been
occupied by the guerrillas. Followed by his private conference with said Japanese officer after which said two house
were set on fire and burned to the ground despite the pleas of Fortaleza with him, fortifies this belief and finding.
Considering all the evidence submitted, we agree with the People's Court and Solicitor General that appellant is guilty
under counts 2,4 and 5. Ordinarily, in the penalty should be imposed in its medium degree, namely, reclusion
perpetua as opined by the Court of Appeals. However, taking a broad view of the case, we are inclined to impose a
lighter penalty as did the People Court. We must bear in mind that treason is not considered and punished according
to the presence or absence of aggravating and mitigating circumstances provided for in Revised Penal Code. It is a
very serious crime committed during war by one who, forgetting his loyalty and oath of allegiance to his own country,
aids the enemy and gives it aid and comfort. The amount or degrees of said aid or comfort given the enemy as well as
the separate and distinct acts of treason committed by the accused, rather than the circumstances aggravating or
mitigating attending its commission. determine of the penalty to be imposed. This court as rule, has imposed the death
penalty upon treason indicates proven not only to have aided the enemy but also while giving such aid, to have either
tortured or killed their own countrymen, and even then, only when the necessary number of votes was secured. Where
the necessary number of votes could not be obtained even when the defendant was guilty of killing or torturing his own
countrymen, the penalty imposed has beenreclusion perpetua. Where the acts of treason by a defendant in a treason
case, consist in acting as a spy for the Japanese, as a result of which guerrillas or suspects tortured or killed by the
Japanese forces themselves without any direct participation by the defendant, the punishment imposed has invariably
been reclusion perpetua. That is to say, the penalty for treason in its medium period. And when the acts proven
against an accused has been acting as informer and spy for the enemy resulting merely in the temporary confinement
of guerrillas suspects, we have imposed the penalty in its minimum, namely, reclusion temporal. In other words, we
have punished the commission of treason on the basis of the seriousness of the treasonable acts, and of the presence
or absence of atrocities on the victim, rather the presence of atrocities on the victims, rather than on the presence or
absence of aggravating or mitigating circumstances. Here there has been no killing, not even torture of prisoners, at
least not on the part of appellant. The People's Court may have been imbued with this same attitude and viewpoint
when it imposed an imprisonment of 15 years without making any reference to the existence of aggravating or
mitigating circumstances. We might add that the fact that the appellant has been in jail since the beginning of a liberal
and benign view of his case.
Finding no reversible error in the decision appealed from, the same is hereby affirmed, with costs against appellant .

On the question of the applicability of the aggravating circumstances which impelled the court against its sentiment to
give the defendant the extreme penalty we only have to refer to People vs. Racaza (82 Phil., 623) in which this
question was discussed and decided. There we said:

March 2, 1949
G.R. No. L-433
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GAUDENCIO ROBLE, defendant-appellant.
Gonzalo D. David for appellant.
Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los Angeles for appellee.
TUASON, J.:
Charged with treason on three counts, the defendant pleaded guilty and was sentenced to death by the First Division
of the People's Court sitting in Tacloban, Leyte. The correctness of the penalty is the sole question put in issue in this
appeal.
The information alleges:
1. On or about March 20, 1944, in the municipality of Dalaguete, province of Cebu, Philippines with the purpose of
giving and with the intent to give aid and comfort to the enemy and her military forces said accused being a member of
the Philippines Constabulary did then and there wilfully unlawfully, feloniously and treasonably lead guide and
accompany 10 other member of the pro-Japanese constabulary all armed like the accused and did apprehend and
arrest Paulino Osorio for having helped the guerrillas and of being the Father of two guerrilla men; that the herein
accused after maltreating said Paulino Osorio did detain him in the municipal jail of Dalaguete; that in the same date
the accused and his companions did apprehend Melchor Campomanes and 7 other person who were also tortured for
being guerrillas supporters and sympathizers and the accused herein with his firearm did shoot Melchor Campomanes
killing him instantly;
2. Sometime during the month of March 1944 in the municipality of Dalaguete Province of Cebu, Philippines with the
purpose of giving and with the intent to give aid and comfort to the enemy and her military forces said accused being a
soldier of the Philippines Constabulary did then and there wilfully, feloniously and treasonably lead guide and
accompany a patrol of 13 constabulary soldiers and did arrest and apprehend Fortunato Linares for being guerrillas
and or guerrilla supporters; that said accused did tie and torture the aforesaid person and cut a portion of their ears,
the tortures being so severe especially with respect to Antolin Rodriguez who effectively died as a result of said
tortures administered by the accused.
3. On or about May 18, 1944, in Cebu City Philippines with the purpose of giving and with the intent to give aid and
comfort to the enemy and her military forces, said accused being a soldier of the Philippines Constabulary did then
and there wilfully, unlawfully feloniously and treasonable accompany a group of Constabulary soldiers all armed, to
Mambaling and other parts of Cebu City and did apprehend Eleuterio Padilla, a former USAFFE soldier for being a
guerrilla, and there herein accused and his companions did tie and torture said Eleuterio Padilla detain him at the
Constabulary Headquarters for several days after which he was taken out and mercilessly killed on May 26, 1944 by
said accused.
The court held that the facts alleged in the information is a complex crime of treason with murders with the result that
the penalty provided for the most serious offense was to be imposed on its maximum degree. Viewing the case from
the standpoint of modifying circumstances the court believed that the same result obtained. It opined that the killing
were murders qualified by treachery and aggravated by the circumstances of evident premeditation superior strength
cruelty and an armed band.
We think this is error. The torture and murders set forth in the information are merged in and formed part of treason.
They were in this case the overt acts which besides traitorous intention supplied a vital ingredient in the crime.
Emotional or intellectual attachment and sympathy with the foe unaccompanied by the giving of aid and comfort is not
treason. The defendant would not be guilty of treason if he had not committed the atrocities in question.

The trial court found the aggravating circumstances of evident premeditation superior strength treachery and
employment of means for adding ignominy to the natural effects of the crime.
The first three circumstances are by their nature inherent in the offense of treason and may not taken to aggravate the
penalty. Adherence and the giving of aid and comfort to the enemy is in many cases as in this a long continued
process requiring for the successful consummation of the traitor's purpose, fixed, reflective and persistent
determination and planning.
So are superior strength and treachery included in the crime of treason. Treachery is merged in superior strength; and
to overcome the opposition and wipe out resistance movements which was Racaza's purpose in collaboration with the
enemy the use of a large force and equipment was necessary. The enemy to whom the accused adhered was itself
the personification of brute superior force and it was this superior force which enabled him to overrun the country and
for a time subdue its inhabitants by his brutal rule. The law does not expect the enemy and its adherents to meet their
foes only on even terms according to he romantic traditions of chivalry.
But the law does abhor inhumanity and the abuse of strength to commit acts unnecessary to the commission of
treason. There is no incompatibility between treason and decent, human treatment of prisoners, Rapes, wanton
robbery for personal grain and other forms of cruelties are condemned and the perpetration of these will be regarded
as aggravating circumstances of ignominy and of deliberately augmenting unnecessary wrong to the main criminal
objective under paragraphs 17 and 21 of Article 14 of the Revised Penal Code. The atrocities above mentioned of
which the appellant is beyond doubt guilty fall within the terms of the above paragraphs.
For the very reason that premeditation treachery and use of superior strength are absorbed inn treason characterized
by killings, the killing themselves and other accompanying crime should be taken into consideration for measuring the
degree and gravity of criminal responsibility irrespective of the manner in which they were committed. Were not this
the rule treason the highest crime known to law would confer on its perpetrator advantage that are denied simple
murderer. To avoid such incongruity and injustice the penalty in treason will be adapted within the range provided in
the Revised Penal Code to the danger and harm and to which the culprit has exposed his country and his people and
to the wrongs and injuries that resulted from his deeds. The letter and pervading spirit of the Revised Penal
Code adjust penalties to the perversity of the mind that conceived and carried the crime into execution. Where the
system of graduating penalties by the prescribed standards is inapplicable as in the case of homicides connection with
treason the method of analogies to fit the punishment with the enormity of the offense may be summoned to the
service of justice and consistency and in the furtherance of the law's aims.
Considering all the facts and circumstances of the case we believe that the appellants spontaneous plea of guilty is
sufficient to entitle him to a penalty below the maximum. The appealed decision is therefore modified and the sentence
reduced to reclusion perpetua with the legal accessories and costs.
January 23, 1948

G.R. No. L-985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DIONISIO AGONCILLO, defendant-appellant.

Wherefore, the appealed judgment is reversed and the appellant acquitted with costsde oficio. So ordered.
G.R. No. L-2318

Macario Nicolas for appellant.

Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Federico V. Sian for appellee.

March 31, 1950

PARAS, J.:

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEOFILO PAAR (alias TEOFILO PAJAR, alias BEN PAJAR), defendant-appellant.

This is an appeal from the judgment of the People's Court finding the appellant, Dionisio Agoncillo, guilty of treason
and sentencing him to suffer fifteen years ofreclusion temporal and to pay a fine of two thousand pesos and the costs.

Padilla, Carlos and Fernando for appellant.

Office of the Solicitor General Felix Angelo and Assistant Solicitor General Ruperto Kapunan, Jr., for appellee.

According to the information, from February, 1944, to March, 1945, in Cebu City and its environs, the appellant (1) "did
consistently and continuously traffic in war materials and sold them to the enemy," and (2) "did join and serve the
enemy as informer, agent, and spy." The People's Court held that the second count was not proven, and the appealed
judgment of conviction is predicated solely on the first count.

TORRES, J.:

Under the theory of the prosecution, appellant's adherence to the enemy is inferable from the following alleged facts:
(a) In the afternoon of September 20, 1944, while the appellant was taking a bath in the house of his neighbor Rufina
Cepeda, the latter's cousin (Olimpio Do), who knew how to read Chinese, examined appellant's clothes and found
therein appellant's identification card written in Japanese and Chinese characters tending to show that the appellant
was a Japanese undercover. (b) In January 1945, after a trip to Bohol, Rufina Cepeda told the appellant that there
were guerrillas in Bohol and that Japanese notes were no longer accepted in said place. In the evening of the next
day, Rufina Cepeda was arrested by the Japanese and their undercovers and asked about things she saw in Bohol.
Rufina was detained for three days. After her release, the appellant came to her house and got some chickens for the
consumption of the Japanese who arrested her. A Japanese also used to sleep once in a while in appellant's house.
Upon the other hand, appellant's alleged overt acts of giving aid and comfort to the enemy are summarized in the brief
for Government as follows: In the middle of April, 1944, the appellant sold about 300 kilos of alum crystals, at three
pesos a kilo, to the Keribo, a construction company operated by the Japanese Army. Two or three weeks thereafter, he
sold to the same entity some 100 pieces of water pipes, the price of which was not known. About the third week of
December, 1944, the appellant was seen on Jones Avenue helping push a handcart full of truck and auto tires,
batteries and spare parts into the intermediate and high school premises then used by the Japanese Army as a motor
pool.
Regardless of the writer's view on suspension of political laws and change of sovereignty as heretofore expressed, the
Court is of the opinion that the overt acts imputed to the appellant have not been duly proven. With respect to the sale
of 300 kilos of alum crystals, the testimony of the prosecution witness Lorenzo Barria to the effect that the price was
P3 a kilo, is not corroborated by any other witness. With respect to the alleged sale of 100 pieces of water pipes,
counsel for the appellee admits that the price thereof was not known. An essential part of the overt act charged in the
information was therefore lacking. No pretense was made that the appellant donated the articles in question. The
alleged delivery of truck and auto tires, batteries and spare parts can be disregarded. The only detail that may at most
be considered established by the prosecution refers to the fact that the appellant helped in pushing a handcart loaded
with such articles, and the evidence is even uncertain in one respect, namely that the cart was brought either to the
intermediate school premises or the high school building. Indeed it was acknowledged by the lower court that the
witnesses for the Government did not know how the appellant disposed of the articles loaded in the cart.
Even supposing, however, that the appellant had really sold for a definite price alum crystals and water pipes, the
same did not per se constitute treason. As said articles or materials were not exclusively for war purposes, their sale
did not necessarily carry an intention on the part of the vendor to adhere to the enemy. The theory of the prosecution is
that the sale was treasonable in view of the other proven acts showing appellant's adherence to the enemy. It appears,
however, that the alleged acts of adherence performed by the appellant took place after the overt act in question. It is
not unlikely that at the time the appellant made the sale, his motive was purely personal gain, uninfluenced by any
benefit inuring to the enemy. Where two probabilities arise from the evidence, the one compatible with the presumption
of innocence will be adopted. (People vs. Agpangan, G.R. No. L-778, October 10, 1947.)

This is an appeal from a judgment of the now defunct People's Court which found Teofilo Paar guilty of treason and
sentenced him to the penalty of reclusion perpetua, and to pay a fine of P10,000 and the costs. The defendant of the
fifteen counts, and the prosecution presented evidence to support only the allegations made in the first, fourth, seventh
and eight counts.
From our study of the evidence, we find that as regards the first count, it has been established by the prosecution, and
the defense did not deny, that between October, 1944, and February, 1945, Teofilo Paar worked for the Japanese
Kempei Tai as an undercover man. In fact, the appellant himself, by his testimony, and that of his witness Juan S.
Alano, admitted that he affiliated himself with the Military Police of Baguio. The government witness have, during that
period of time, seen him parading in the streets of Baguio with members of the Kempei Tai, dressed in their uniform
and carrying a .45 caliber pistol.
It is claimed by appellant that he entered the service of the Kempei Tai without the intent of betraying his country and
his people, and that even if he were responsible for or participated in the arrest of civilians on suspicion of
underground activities, he can not be held liable for treason in view of the absence of the essential elements of
adherence. The record, however, shows that his overt acts evidenced his adherence to the enemy, and even in the
absence of either proof, the very act of giving information to the enemy, constitutes not only giving aid and comfort, but
also show adherence to the enemy. It clearly appears that Teofilo Paar joined the Kempei Tai or Japanese Military
Police, whose main purpose was to obtain information and other necessary data to suppress the resistance
movement. This is treasonous adherence which constitutes a violation of article 114 of the Revised Penal Code.
Much emphasis is given by appellant on the allegation that Teofilo Paar joined the Kempei Tai upon the advise of one
Major Laconico of the underground movement. Apart from the fact that he never mentioned Major Laconico to the CIC
(Counter Intelligence Corps of the USAFFE) when he was being investigated by said organization, if he was really
made to join the Kempei Tai in obedience to instructions of Major Laconico and in furtherance of the resistance
movement his direct participation in the activities of the Kempei Tai, for whom he was acting as agent or undercover
man, having been observed by the witnesses for the prosecution, completely negatives his exculpatory explanations.
It stands to reason that, if appellant was really "plated" by Major Laconico in the City of Baguio, as an observer, to
further the resistance movement, he had many other means to accomplish his alleged mission of helping the
guerrillas. But his close association with the Kempei Tai, that most hated organization of the Japanese invader, his
participation in the arrest of several persons who were subsequently deprived of their freedom and tortured on
suspicion that they were sympathetic with the underground forces, far from convincing us the that he joined the
Japanese Military Police for a worthy patriotic purpose, strengthens our belief that he deliberately, for sordid motives,
entered the service of the Kempei Tai, because he thought that Japan would win the last war. .
To substantiate count No. 41, the prosecution, through the testimony of Patricia Guerrero, a waitress in the City Lunch
Restaurant in Baguio, proved that in the morning of October 3, 1944, while she was dressing up, she heard a knock on
the door of her room on the upper floor of the Mayo Building. Before opening the door, she peeped through the
window and saw the accused standing beside a car. When Patricia opened the door of her room she met two
members of the Japanese Military Police who ordered her to dress up because she was to be taken to their

headquarters. She went with the two Japanese, but when she reached the car, the accused was no longer around.
She was investigated and maltreated by the Japanese who wanted to get information about the resistance movement.

Appellant is, therefore, sentenced to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, with
the accessories of the law. Thus, modified, the judgment appealed from is otherwise affirmed, costs.

As they could not get anything from her, she was made to work as washer-woman in the garrison, until she was
released sometime on December 20, 1944. The testimony of Patricia Guerrero was, to a certain extent, corroborated
by Carlitos Costales.

Moran, C.J., Ozaeta, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

It is noted, however, that Carlitos Costales did not corroborate the statement of Patricia Guerrero that she saw the
appellant standing beside a car parked in front of the house and which brought the two Japanese members of the
Military Police who arrested Patricia. it appears, therefore, that while the evidence of the prosecution regarding this
count establishes the adherence of the appellant to the enemy, it fails to prove the same overt act as required by law.
Three witnesses were put on the stand by the prosecution in support of count No. 7. In December, 1944, Melquiades
Valdez, assistant sanitary inspector in Baguio, was making an inspection around the market accompanied by Dr.
Emilio Reyes. While they were conversing, Teofilo Paar approached the group and inquired for Melquiades Valdez.
The latter identified himself and par told Dr. Reyes that he was taking Valdez to the military police for questioning. The
accused conducted Valdez to the Kempei Tai, and upon arrival the names of Valdez and one Antonio Romero and
handed it ton the Japanese guard, saying: here are Valdez and Romero." Valdez was investigated and tortured on the
charge of listening to radio broadcasts from San Francisco and spreading the new heard by him.
Regarding the eight count, it appears at about noon of December 30, 1944, while Dr. Irineo Solano was in the house of
Felisa Caliao, his niece, named Maria Taverna, informed him that a Filipino and a Japanese were waiting for him.
Solano met the visitors, the accused and a Japanese. In answer to defendant's query, if he was Irineo Solano, the
latter identified himself and the accused told him that he was to go with the Japanese officer. Doctor Solano was
conducted to the Japanese officer. Doctor Solano was conducted to the Japanese Military Police headquarters and
once in the garrison, the accused left the group. Investigated on account of his guerrillaactivities and his pro-American
propaganda work, the doctor was maltreated and was not released until January 14, 1945.
The testimony of Doctor Solano was corroborated by that of Felisa Caliao regarding the fact that on December 30,
1944, while the doctor was in her house, Solano was taken by a Filipino who happened to be this appellant; she
further said that Paar called for doctor Solano and took him to the car where a Japanese officer was waiting.
The evidence is a very clear from the testimonies of Melquiades Valdez and Dr. Emilio Reyes, that the former was
arrested and brought to the headquarters of the military police by Teofilo Paar who delivered him to the Japanese
garrison. Soon after the accused delivered Melquiades Valdez to Kempei Tai, he was investigated for disseminating
news broadcasted by the San Francisco station known as KGEI. The testimonies of Valdez and Dr. Reyes are
corroborated by a third witness Antonio Romero, who substantially told the court his observations in connection with
the arrest of Melquiades Valdez.
The testimony of Doctor Solano, corroborated by that of Felisa Caliao, established that the appellant was responsible
for the arrest of the doctor. The appellant alleged that he could not have participated in the arrest of Melquiades
Valdez and Dr. Irineo Solano, because he didn't know either of them. But it seems to us that his mere denial cannot
only by the victim of this treasonable acts but also by Dr. Emilio Reyes and Felisa Caliao.
Discarding count No. 4 because, as already stated, the evidence presented by the prosecution does not apply with the
two-witness rule required by article 114 of the Revised Penal Code, we are satisfied that this appellant who, by his
own admission is a Filipino's Court for the crime of treason, not only because of his adherence to the enemy but also
on the account of his having committed treasonable overt acts resulting from his having directly participated in the
arrest, detention and torture of the persons mentioned elsewhere in this decision.
The People's Court sentenced him to reclusion perpetua, but from our careful considerations of the facts, it seems to
us that, inasmuch as the treasonable acts committed by this appellant have not resulted in the killing of the persons
arrested by the Kempei Tai, through his intervention, the ends of justice will be served if this culprit is sentenced to a
lesser term of imprisonment.

July 30, 1947

G.R. No. L-430
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO M. ABAD (alias PAQUITO), defendant-appellant.
Alejo Labrador for appellant.
Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los Angeles for appellee.
PERFECTO, J.:
In a decision penned by Judge Angel S. Gamboa, concurred in by Judges Jose Bernabe and Emilio Rilloraza, all of
them of the People's Court, accused Francisco Abad was found guilty of the complex crime of treason with homicide
and sentenced to death, to pay a fine of P15,000, to indemnify the heirs of Osias Salvador in the amount of P2,000,
and to pay costs.
The information charges appellant of the crime of treason as defined and penalized under article 114 of the Revised
Penal Code by giving aid and comfort to the Empire of Japan and the Japanese Imperial Forces during the period
comprised between December 24, 1943, and September 26, 1944, as follows:
1. That on or about the 24th day of December, 1943, in the municipality and province aforesaid, Francisco Abad
(alias Paquito) the accused herein, serving as an informer and spy of the Japanese Army, did then and there, join
participate in a raid conducted by about fifteen Japanese soldiers of the Military Police at the house of Magno Ibarra,
and did then and there apprehended the said Magno Ibarra, charging him of possession of a revolver which had been
previously surrendered by Magno Ibarra to the Japanese that Magno Ibarra still had the revolver, the latter was
confined in the Japanese garrison.
2. That on or about March 11, 1944, in the same municipality and province aforesaid, the said Francisco Abad
(alias Paquito), as such informer of the Japanese Army, wilfully, unlawfully, feloniously and treasonably, for more than
two months, of one Mr. Francisco, whose first name is still unknown, for having remarked that the Americans would
soon return many places in the Philippines had already been retaken.
3. That on or about September 28, 1944, in the municipality of Camiling, Province of Tarlac, the herein accused, as
such informer of the Japanese Army, did then and there wilfully, unlawfully, feloniously and treasonably force, coerce,
and compel Osias Salvador and his two brothers Epifanio Salvador and Liberto Salvador to go, as they did to go to the
Japanese garrison where the said Osias Salvador and his two brothers, at the instance of the herein accused in his
presence, were tortured as guerrilla suspects, and although Epifanio and Liberto Salvador managed later to escape
from imprisonment, the said Osias Salvador was unable to do so and died from the tortures and injuries inflicted upon
him.
4. That on or about November 12, 1844 and on the occasion of a stage show held in the said municipality of Camiling,
Province of Tarlac, the herein accused, taking advantage of his connection and influence as informer and spy of the
Japanese Army, did then and there unlawfully, wilfully and feloniously hand over one Francisco Donato to the
Japanese soldiers who slapped and kicked the said Francisco Donato, for an incident in which the accused was
entirely to blame in that the said accused annoyed Flora Esteban, wife of Francisco Donato, by throwing sugar cane
butts at her.

The lower court found the accused guilty on the first three counts.
Nine errors are assigned in appellant's brief.
The first question raised by appellant is that the lower court erred in finding the accused guilty on the first count,
notwithstanding the fact only one witness testified to the overt act alleged therein.
Two witnesses were called by the prosecution to prove the first count, Magno Ibarra and his wife, Isabel. The latter
testified that when appellant, accompanied by his brother and Japanese soldiers, went to their home, demanding the
surrender of a revolver of her husband, the husband was out supervising the harvest of their palay, and the latter
happened to learn of the incident by information from the wife. Magno could not, therefore, corroborate his wife as to
the latter's testimony concerning appellant's coming to their house.

when appellant went at night to the auditorium to have Francisco arrested by the Japanese soldiers accompanying
him and his brother Mariano. But the natural relationship between the two incidents makes unnecessary any evidence
as to appellant's conduct and actions during the intervening period. Besides, it is not alleged in the information that it
was appellant who denounced Francisco to the Japanese for the afternoon statements in question, and even if we
should disregard any connection between the afternoon incident in which appellant heard Francisco's statements and
the incident in which Francisco was arrested, and, furthermore, even if we go to the extent of disregarding completely
the first incident, the fact that appellant caused the arrest of Francisco at the auditorium night dance, by pointing him
as the man sought for to the Japanese soldiers who accompanied him and his brother Mariano, in itself alone is
sufficient to find him guilty of adherence to the Japanese enemies and of giving them aid in the attainment of their was
purposes, among them the suppression of American or anti-Japanese propaganda.
Upon this our conclusion, appellant's insistence that there were well-known Japanese spies, instead of him, who must
have given the tip to the Japanese as to Francisco's statements, is of no consequence.

The testimony of Magno Ibarra as to what happened to him in the garrison, where he was told by appellant to produce
his revolver, is not corroborated by his wife nor by anybody else.

The next question raised by appellant is the third count of the information upon which the appellant's brief dealt in
three assignment of errors, 3, 4, and 5.

The Solicitor General advances the theory that where the overt act is simple, continuous and composite, made up of,
or proved by several circumstances, and passing through stages, it is not necessary that there should be two
witnesses to each circumstance at each stage. The theory is not well taken. The two-witness rule must be adhered to
as to each and everyone of all the external manifestations of the overt act in issue. Appellant's going to the Ibarra
house, in search of the revolver, is a single overt act, distinct and independent from appellant's overt act in requiring
Magno Ibarra, when the latter went to the garrison, to produce his revolver. Although both overt acts are inter-related. it
would be too much to strain the imagination if they should be identified as a single act or even as different
manifestations, phases, or stage of the same overt act. The searching of the revolver in the Ibarra house is one thing
and the requiring to produce the revolver in the garrison, another. Although both acts may logically be presumed to
have answered the same purpose, that of confiscating Ibarra's revolver, the singleness of purpose is not enough to
make one of two acts.

Liberato Salvador testified that in 1944 he was a member of Major Ramsey's Guerrilla, which he joined on March 5,
1942, he having been formerly in the Recruiting Division of the Philippine Army. On September 28, 1944, he went to
Camiling with his brother Osias to find out the strength of the Japanese garrison stationed there, and to said effect "we
brought along with us five gallons of coconut oil just pretending to sell it in the public market in order that we cannot be
detected by the spies of our enemy, the Japanese." Then they saw the accused "who was about five meters away
from us." Felix Abad asked for a ride back to Mangatarem. While Osias was talking with Felix, the accused "winked his
eye and then, immediately, Magdalera drew his revolver and pointed at me. He winked with a motion indicating that I
was to be captures. My brother Osias approached me. We were asked to raise our hands." Because Liberato
protested that he was not making any trouble and at first did not raise his hands, Magdalera said: "No you are a
member of the guerrillas, you are fighting against the Japanese." Then Epifanio Salvador approached his brother
Liberato and told him: "Raise your hands because he is a spy of the Japanese," referring to Cristoper Magdalera.
Then Felix Abad suggested to Magdalera that the Salvador brothers be brought to the Japanese garrison, 25 meters
away from the market. The incident took place at about 3 o'clock in the afternoon. At the garrison "we were tied up
against the wall of the building. At about 6 o'clock in the afternoon were given water to drink (about five or six gallons)
and maltreated. They hung me and tied in the wrist with the rope around my neck. They hung me with my toes barely
touching the floor. Then they boxed me and beat me with a baseball bat until I was unconscious. I did not regain
consciousness until they stuck a lighted cigarette in my face at about 8 o'clock already in the evening."

The lower court erred consequently in not pronouncing that the first count of the information was not proven.
Whether accused caused the arrest and incarceration of Fausto Francisco, as alleged in the second count of the
information, is the next question raised in appellant's brief.
In the afternoon of March 10, 1944, while conversing with a group of about ten persons, Francisco, who had just
arrived from Manila, stated that the Americans were coming nearer to the Philippines and, on noticing a Japanese
plane flying over them, added that in the very near future they will see American planes flying over the Philippines. The
accused was among those present in the group. Jose Tamurrada and Adriano Reyes were also among them. At night
of the same day Francisco attended the dance held in the auditorium of Palimbo, Camiling, on the occasion of the
barrio fiesta. A group of Japanese soldiers, accompanied by appellant and his brother Mariano, arrived. Appellant
pointed at Francisco saying, "That is the man;" whereupon, Francisco was arrested and was imprisoned for almost two
and a half months, during which time he was subjected to torture and made to undergo hard labor for being an
American propagandist. These facts were testified by several witnesses for the prosecution.
Appellant, who has resorted to an alibi as defense, made an almost exhaustive analysis of the declarations of the
witnesses for the prosecution in a forceful effort to discredit them. A careful reading of said declarations leads us to the
conclusion that they deserved credibility and by them it was proved beyond all reasonable doubt that appellant was
present in the group which in the afternoon heard Fausto Francisco make statements in favor of the Americans and
that he caused the arrest of Francisco in the auditorium by appointing him to the Japanese soldiers who arrived with
him at the place.
Among the arguments in appellant's brief relating to the second count in question, the one in which appellant alleges
that no one has ever heard that, after the afternoon statements of Fausto Francisco, appellant went to the Japanese
garrison and informed the Japanese soldiers thereof, appears to be stronger. In fact, there is no evidence as to what
the appellant did during the time intervening between when appellant heard Francisco's afternoon statements and

When he regained consciousness, he heard his brothers shouting for help and groaning. Witness was about six
meters away from them, but he has not seen them being tortured because "we were brought again to the porch and
tied our neck in the same way they tied us before, with our hands tied at the back. At about 4 o'clock in the morning of
the 29th, my brother Epifanio Salvador, who was sitting side by side with Osias Salvador, who was sitting side by side
with Osias Salvador, was able to untie his rope and then, all of a sudden Epifanio left us. The sentry who was just
sitting in front of us with a rifle at fixed bayonet was sleeping. When the sentry was awakened he asked: "`Where is
your brother Epifanio Salvador?' I answered the sentry: `I do not know.' Then, at first he was planning to release us to
look for our brother Epifanio. We consented to be released, but the sentry changed his mind and got another big rope
with which he whipped us again right and left. Then they went to our house, the house of Epifanio, and looked for him.
And when they were not able to locate him they got my sister-in-law Inocencia Manson de Salvador and she was also
questioned as to where was my brother Epifanio, and tied up her hands as they have done to us. After that, Osias
Salvador and myself were brought to the room just behind the one we were tied up and they got an electric wire and
tied us again, but putting on a bench and the bench was too short that the legs of my brother Osias was on top. We
were tied and then rolled with the wire from my head up to the head of my brother, aside from tying us from neck to
leg. We talked, my brother and I, to escape if we can. After ten minutes, a Japanese entered the garrison and he had a
bamboo with which whenever we asked for water and food they beat us. They question us: `Where is the machine gun
you are hiding? You are hiding six machine guns and automatic rifles; where are the rifles and revolvers? Where are
the Americans now?' That was done to us many times. At about 5 o'clock in the afternoon one of the Japanese came
to us and cut our hair and said: `Kayo dalawa patay mamayang gabi.' We answered: `Ngayon na.' The Japanese said:
`No, tonight.' Then in my struggle to remove the rope around my leg I was able to untie it without my knowledge. One
of the Japanese entered to find out what we were doing, but he did not inspect me and left again. Although my hands
were bleeding, with my courage to live still I grabbed the electric wire and cut it trough continuously doing this (witness
showing the act of twisting something with his fingers), and unbound myself. When the sentry entered, I allowed the

electric wire to be placed as it was. Then it was 6 o'clock (on September 29) from the bells of the church. My brother
Osias said: `I can not escape, I am weak. My face is bleeding. I cannot walk. If you are untied, the thing for you is to
live, if you can run for your life. Never mind for me. If I am dead, never mind. Now we are fighting our common enemy,
the Japanese. I want you to find out what will be the result of this war.' Then he kicked me, because I was untied
already up to the knee. I tried to remove the rope at his back, but he said: 'No, I can not run.' And he shouted: 'You
better run for your life.' Then I saw one Japanese that heard that, and I jumped outside and when I fell to the ground I
saw another Japanese watching and shouting words that I can not understand. I just ran. Between the municipal
building and the street there was a barbed wire fence and jumped it over and then passed to the rear of the municipal
building, passing between the house of Mr. Javier and the Treasurer's and then to the bank of the river. I passed under
the bamboo groves and I went to the house of my friend (Gregorio Javier) and I was able to go up and then fell down
weak." Osias was the commanding officer of the guerrilla unit in which Liberato was a second lieutenant and Epifanio,
a volunteer without grade. Since then Liberato did not see Osias any more, but he was able to locate Epifanio in
Bayambang, Pangasinan.
The testimony of Liberato Salvador was substantially corroborated by Epifanio Salvador on all what happened from
the afternoon of September 28,1944, when they were arrested in the market place up to about 4 o'clock in the morning
of September 29, when Epifanio was able to untie himself and escape from the Japanese garrison, passing in front of
a sleeping sentry two meters away from where the Salvador brothers were tied.
Augusto Antonio testified that the accused told him that Osias Salvador was killed, bayoneted by a Japanese soldier,
behind the elementary school building, near the closet, where the corpse was later buried. The information was given
by the accuse in 1945 when the Japanese were still ruling.
Appellant endeavors to discredit Liberato and Epifanio Salvador's testimonies by trying to show the improbability for
Liberato to have seen the accused making signs to Cristoper Magdalera for their arrest on the basis of the relative
positions of witness and appellant and that Epifanio "apparently" was away and came near the place where Liberato
was being arrested only after Magdalera for their arrest on the basis of the relative positions of witness and appellant
and that Epifanio "apparently" was away and came near the place where Liberato was being arrested only after
Magdalera had pointed his pistol at his back.
The fact that, while he was going southwest, he had seen the accused in the northeast making the sign to Magdalera,
is satisfactorily explained by Liberato by saying that "because a man wanted to by the Japanese begins to observe
everything," and he had to observe "because I knew they were making signs," and at that time the accused was "in the
left side," and with respect to Epifanio, appellant's surmise that he was "apparently away" appears to without basis if it
is recalled that it was Epifanio who advised Liberato to hold up his hands, when Liberato was refusing to do it, by
saying, in allusion to Magdalera, "he is a Japanese spy."
Appellant maintains also that it must have been Felix Abad whom the witnesses for the prosecution saw winking his
eyes at Magdalera for the latter to arrest the Salvador brothers and not Francisco Abad. But the theory cannot be
maintained upon the positive and unequivocal testimonies of Liberto and Epifanio pointing the accused as the one who
made the sign. Appellant's insistence to put the blame on Felix Abad, by trying to show that it was he and not the
accused who made the sign, even if accepted, will not relieve appellant of all responsibility, because, according to the
witnesses for the prosecution, he went along with his brothers Mariano and Felix and Cristoper Magdalera in bringing
the Salvador brothers to the Japanese garrison where they were delivered by the accused himself, and it was
Francisco Abad who told the Japanese "that we were guerrillas."
In the sixth assignment of error appellant complains that the lower court admitted evidence of supposed treasonable
acts of appellant but which are not specifically alleged in any of the counts of the information.
Appellant points specifically to the testimony of Agustin de la Cruz, to the effect that in the moth of October, 1944, at
around 11 o'clock, while witness and others were around a gambling table, appellant came unnoticed with six
Japanese soldiers and demanded of those in the gathering the information of the whereabouts of Lt. Riparip and Sgt.
Juan Asuncion, both of the guerrilla army, and that sometime in November, 1944, on the occasion of the shooting of
Eustaquio Domingo, the accused was in the Japanese garrison while the Japanese soldiers proceeded to the site of
the shooting, gathered all the males found thereabouts, bringing one of them, Benjamin Aremajo, to the garrison to be
later dragged to the plaza where he was beaten up, facts which were declared proven by the lower court.

The assignment is well taken as the above facts are not alleged in any of the four counts of the information. The fact
that accused is described therein as an informer is not enough, because the description is a conclusion made by the
author of the information based on the facts specifically alleged in the four counts. The information alleged that the
accused "adhered to and served as an informer of the enemy, . . . giving them aid and comfort in the following manner,
to wit:", and then follow the four counts.
Furthermore, even if the word "informer" in the information should justify the admission of the evidence in question, the
lower court erred in finding the facts proved when the testimony of Agustin de la Cruz about them has not been
corroborated by any other witness, thus violating the two-witness rule in treason cases.
Appellant assigned as the seventh error of the trial court in finding him as an informer "on mere assertions of
witnesses to that effect without supporting treasonable acts and in making findings of fact not supported by any
evidence at all" and makes the complaint, specifically, in relation with the following pronouncement in the appealed
decision:
. . . The accused acted and served as an informer and spy for and in the aid of the Japanese army in Camiling,
directing his espionage activities or detecting and gathering informations about the activities of members of the guerilla
organizations, of persons maintaining or providing for the support thereof and of persons possessing firearms or in any
other manner connected with the underground resistance movements against the Japanese and spying on the
movements of those persons who cherish the return to the Philippines of the Americans, . . .. Proofs adduced by the
prosecution of the fact that the accused had been acting as an informer and spy for and in the aid of the Japanese are
highly convincing. One after another the various witnesses for the prosecution has pointed his accusing finger at the
accused to have been an informer and spy of the Japanese army. . .
The pronouncement appears to be based on the testimonies of Publio Dumaual, Rafael Guillermo, and Agustin de la
Cruz, each one of whom testified about facts not alleged in any of the counts of the information, and their testimonies
on said facts appear not to be corroborated by another witness, as required by the two-witness rule. The assignment
of error is well taken.
Appellant complains in his eight assignment of error that the court failed to take into account two mitigating
circumstances: the fact that the Abad family was persecuted by guerrillas, the persecution ending in the killing of Lino
Abad Pine and Antonio Abad, father and brother, respectively, of the accused, and, appellant's age.
On September 26, 1942, a group of around thirty guerrillas took the Abad family to the barrio of Ketegan. On October
17, Lino Abad Pine and Antonio Abad were brought to the schoolhouse, and from that time on they were never seen
alive again. On January, 1943, the family was released minus the above mentioned two members, and they
proceeded to Camiling where Mariano Abad, the eldest son, was living, as explained by his widowed mother, "to whom
I could look after the support inasmuch as he is my living eldest son. He was with the Japs because that was the last
resort for him to do inasmuch as if he did not do that he would have been killed by the guerrillas."
These facts cannot be considered to mitigate appellant's guilt as they are not of a similar nature or analogous to those
mentioned in article 13 of the Revised Penal Code.
Appellant's age can be considered. He was born on October 20, 1924, and when he committed the acts alleged in
counts two and three, the latter on September 28, 1944, he was not yet 20 years old. The fact that his eldest brother,
Mariano, was the liaison officer of the Japanese and another elder brother, Felix, was also in the service of the
Japanese, coupled by the fact that, as stated by his widowed mother, the accused had to depend on Mariano for his
support, the same as the other members of the family, are circumstances from which, in view of appellant's immature
age, did not allow him the freedom of initiative and action which should be expected of a person who is aware of the
full consequences and responsibility for his acts. The circumstances of this case justify crediting appellant with a
mitigating circumstance of similar nature to that of number 2 of article 13 of the Revised Penal Code.
Although we hold appellant as one of those responsible for the arrest of the Salvador brothers, we do not agree with
the lower court in finding him responsible also for the death of Osias Salvador, as according to the evidence, it was the
escape of Epifanio, and later the escape of Liberato, which must have enraged the Japanese to the extent of killing

Osias Salvador, who, were not so weak, had the same chance as his brothers to escape. If his brothers did not
escape, there is no ground to presume that Osias would have been killed by the Japanese if we take into
consideration that, after almost two and a half months of confinement, the Japanese allowed Fausto Francisco to be
released. There is absolutely no evidence that appellant was present or had anything to do with the killing of Osias
Salvador.

That as a member of the Makapili, a military organization established and designed to assist and aid militarily the
Japanese Imperial forces in the Philippines in the said enemy's war efforts and operations against the United States
and the Philippines, the herein accused bore arm and joined and assisted the Japanese Military Forces and the
Makapili Army in armed conflicts and engagements against the United States armed forces and the Guerrillas of the
Philippine Commonwealth in the Municipalities of San Leonardo and Gapan, Province of Nueva Ecija, and in the
mountains of Luzon, Philippines, sometime between January and April, 1945. Contrary to Law.

Upon the conclusion we arrived at, it is not necessary to deal with the ninth assignment of error in appellant's brief.
Finding the accused guilty of the crime of treason as punished by article 114 of theRevised Penal Code with the
attendance of one mitigating circumstance, as provided in number 2 of article 64 of the Revised Penal Code, with the
modification of the lower court's decision, we sentence him to 14 years, 8 months, and 1 day of reclusion temporaland
to pay a fine of P5,000 and the costs.
Moran, C.J., Feria, Pablo, Hilado, Padilla, and Tuason, JJ., concur.
PARAS, J.:
I reserve my vote. The decision in the Laurel case is not as yet final.
Separate Opinions
BRIONES, M., disidente:
Creo que el apelante debe ser absuelt, por duda razonable. Parecia pesar una maldicion sobre la familia del acusado:
perseguidos por los guerilleros, algunos de sus miembros perecieron en manos de estos. El cargo mas grave contra
el acusado es el relacionado con la muerte de Osias Salvador. Pues bien; me parece que las pruebas acerca de este
cargo no justifican la condena.
G.R. No. L-477

June 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
APOLINARIO ADRIANO, defendant-appellant.
Remedios P. Nufable for appellant.
Assistant Solicitor General Kapunan, Jr., and Solicitor Lacson for appellee.
TUASON, J.:
This is an appeal from a judgment of conviction for treason by the People's Court sentencing the accused to life
imprisonment, P10,000 fine, and the costs.
The information charged:
That between January and April, 1945 or thereabout, during the occupation of the Philippines by the Japanese
Imperial Forces, in the Province of Nueva Ecija and in the mountains in the Island of Luzon, Philippines, and within the
jurisdiction of this Court, the above-named accused, Apolinario Adriano, who is not a foreigner, but a Filipino citizen
owing allegiance to the United States and the Commonwealth of the Philippines, in violation of said allegiance, did
then and there willfully, criminally and treasonably adhere to the Military Forces of Japan in the Philippines, against
which the Philippines and the United States were then at war, giving the said enemy aid and comfort in the manner as
follows:

The prosecution did not introduce any evidence to substantiate any of the facts alleged except that of defendant's
having joined the Makapili organization. What the People's Court found is that the accused participated with Japanese
soldiers in certain raids and in confiscation of personal property. The court below, however, said these acts had not
been established by the testimony of two witnesses, and so regarded them merely as evidence of adherence to the
enemy. But the court did find established under the two-witness rule, so we infer, "that the accused and other
Makapilis had their headquarters in the enemy garrison at Gapan, Nueva Ecija; that the accused was in Makapili
military uniform; that he was armed with rifle; and that he drilled with other Makapilis under a Japanese instructor; . . .
that during the same period, the accused in Makapili military uniform and with a rifle, performed duties as sentry at the
Japanese garrison and Makapili headquarters in Gapan, Nueva Ecija;" "that upon the liberation of Gapan, Nueva
Ecija, by the American forces, the accused and other Makapilis retreated to the mountains with the enemy;" and that
"the accused, rifle in hand, later surrendered to the Americans."
Even the findings of the court recited above in quotations are not borne out by the proof of two witnesses. No two of
the prosecution witnesses testified to a single one of the various acts of treason imputed by them to the appellant.
Those who gave evidence that the accused took part in raids and seizure of personal property, and performed sentry
duties and military drills, referred to acts allegedly committed on different dates without any two witnesses coinciding in
any one specified deed. There is only one item on which the witnesses agree: it is that the defendant was a Makapili
and was seen by them in Makapili uniform carrying arms. Yet, again, on this point it cannot be said that one witness is
corroborated by another if corroboration means that two witnesses have seen the accused doing at least one
particular thing, it a routine military chore, or just walking or eating.
We take it that the mere fact of having joined a Makapili organization is evidence of both adherence to the enemy and
giving him aid and comfort. Unless forced upon one against his will, membership in the Makapili organization imports
treasonable intent, considering the purposes for which the organization was created, which, according to the evidence,
were "to accomplish the fulfillment of the obligations assumed by the Philippines in the Pact of Alliance with the Empire
of Japan;" "to shed blood and sacrifice the lives of our people in order to eradicate Anglo-Saxon influence in East
Asia;" "to collaborate unreservedly and unstintedly with the Imperial Japanese Army and Navy in the Philippines;" and
"to fight the common enemies." Adherence, unlike overt acts, need not be proved by the oaths of two witnesses.
Criminal intent and knowledge may be gather from the testimony of one witness, or from the nature of the act itself, or
from the circumstances surrounding the act. (Cramer vs. U.S., 65 Sup. Ct., 918.)
At the same time, being a Makapili is in itself constitutive of an overt act. It is not necessary, except for the purpose of
increasing the punishment, that the defendant actually went to battle or committed nefarious acts against his country
or countrymen. The crime of treason was committed if he placed himself at the enemy's call to fight side by side with
him when the opportune time came even though an opportunity never presented itself. Such membership by its very
nature gave the enemy aid and comfort. The enemy derived psychological comfort in the knowledge that he had on his
side nationals of the country with which his was at war. It furnished the enemy aid in that his cause was advanced, his
forces augmented, and his courage was enhanced by the knowledge that he could count on men such as the accused
and his kind who were ready to strike at their own people. The principal effect of it was no difference from that of
enlisting in the invader's army.
But membership as a Makapili, as an overt act, must be established by the deposition of two witnesses. Does the
evidence in the present case meet this statutory test? Is two-witness requirement fulfilled by the testimony of one
witness who saw the appellant in Makapili uniform bearing a gun one day, another witness another day, and so forth?
The Philippine law on treason is of Anglo-American origin and so we have to look for guidance from American sources
on its meaning and scope. Judicial interpretation has been placed on the two-witness principle by American courts,
and authoritative text writers have commented on it. We cull from American materials the following excerpts which
appear to carry the stamp of authority.

Wharton's Criminal Evidence, Vol. 3, section 1396, p. 2282, says:

The judgment is reversed and the appellant acquitted with costs charged de oficio.

In England the original Statute of Edward, although requiring both witnesses to be to the same overt act, was held to
mean that there might be one witness to an overt act and another witness to another overt act of the same species of
treason; and, in one case it has been intimated that the same construction might apply in this country. But, as Mr.
Wigmore so succinctly observes: "The opportunity of detecting the falsity of the testimony, by sequestering the two
witnesses and exposing their variance in details, is wholly destroyed by permitting them to speak to different acts." The
rule as adopted in this country by all the constitutional provisions, both state and Federal, properly requires that two
witnesses shall testify to the same overt act. This also is now the rule in England.

Moran, C.J., Feria, Pablo, Perfecto, Bengzon, Briones, Hontiveros, and Padilla, JJ., concur.
Paras, J., concurs in the result.

More to the point is this statement from VII Wigmore on Evidence, 3d ed., section 2038, p. 271:
Each of the witnesses must testify to the whole of the overt act; or, if it is separable, there must be two witnesses to
each part of the overt act.
Learned Hand, J., in United States vs. Robinson (D.C.S.D., N.Y., 259 Fed., 685), expressed the same idea: "It is
necessary to produce two direct witnesses to the whole overt act. It may be possible to piece bits together of the overt
act; but, if so, each bit must have the support of two oaths; . . .." (Copied as footnote in Wigmore on Evidence, ante.)
And in the recent case of Cramer vs. United States (65 Sup. Ct., 918), decide during the recent World War, the
Federal Supreme Court lays down this doctrine: "The very minimum function that an overt act must perform in a
treason prosecution is that it shows sufficient action by the accused, in its setting, to sustain a finding that the accused
actually gave aid and comfort to the enemy. Every act, movement, deed, and word of the defendant charged to
constitute treason must be supported by the testimony of two witnesses."
In the light of these decisions and opinions we have to set aside the judgment of the trial court. To the possible
objection that the reasoning by which we have reached this conclusion savors of sophism, we have only to say that
the authors of the constitutional provision of which our treason law is a copy purposely made conviction for treason
difficult, the rule "severely restrictive." This provision is so exacting and so uncompromising in regard to the amount of
evidence that where two or more witnesses give oaths to an overt act and only one of them is believed by the court or
jury, the defendant, it has been said and held, is entitled to discharge, regardless of any moral conviction of the
culprit's guilt as gauged and tested by the ordinary and natural methods, with which we are familiar, of finding the truth.
Natural inferences, however strong or conclusive, flowing from other testimony of a most trustworthy witness or from
other sources are unavailing as a substitute for the needed corroboration in the form of direct testimony of another
eyewitness to the same overt act.
The United States Supreme Court saw the obstacles placed in the path of the prosecution by a literal interpretation of
the rule of two witnesses but said that the founders of the American government fully realized the difficulties and went
ahead not merely in spite but because of the objections. (Cramer vs. United States, ante.) More, the rule, it is said,
attracted the members of the Constitutional Convention "as one of the few doctrines of Evidence entitled to be
guaranteed against legislative change." (Wigmore on Evidence, ante, section 2039, p. 272, citing Madison's Journal of
the Federal Convention, Scott's ed., II, 564, 566.) Mr. Justice Jackson, who delivered the majority opinion in the
celebrated Cramer case, said: "It is not difficult to find grounds upon which to quarrel with this Constitutional provision.
Perhaps the farmers placed rather more reliance on direct testimony than modern researchers in psychology warrant.
Or it may be considered that such a quantitative measure of proof, such a mechanical calibration of evidence is a
crude device at best or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to
conviction. Certainly the treason rule, whether wisely or not, is severely restrictive." It must be remembered, however,
that the Constitutional Convention was warned by James Wilson that "'Treason may sometimes be practiced in such a
manner, as to render proof extremely difficult as in a traitorous correspondence with an enemy.' The provision was
adopted not merely in spite of the difficulties it put in the way of prosecution but because of them. And it was not by
whim or by accident, but because one of the most venerated of that venerated group considered that "prosecutions for
treason were generally virulent.'"
Such is the clear meaning of the two-witness provision of the American Constitution. By extension, the lawmakers who
introduced that provision into the Philippine statute books must be understood to have intended that the law should
operate with the same inflexibility and rigidity as the American forefathers meant.

Separate Opinions
HILADO, J., dissenting:
Being unable to bring myself agree with the majority upon the application of the two-witness rule herein, I am
constrained to dissent.
As I see it, being a member of the Makapili during the Japanese occupation of those areas of the Philippines referred
to in the information, was one single, continuous, and indivisible overt act of the present accused whereby he gave aid
and comfort to the Japanese invaders. That membership was one and the same from the moment he entered the
organization till he was captured. The fact that he was seen on a certain day by one of the state witnesses being a
member of the Makapili, and was seen by another state witness but on a different day being a member of the same
organization, does not mean that his membership on the first day was different or independent from his membership
on the other day it was the selfsame membership all the way through. A contrary construction would entail the
consequence that the instant defendant, if we are to believe the allegations and proofs of the prosecution, became or
was a member of the Makapili as many times as there were days from the first to the last.
T.E. Holland defined "acts" in jurisprudence as follows:
Jurisprudence is concerned only with outward acts. An "act" may therefore be defined . . . as "a determination of will,
producing an effect in the sensible world". The effect may be negative, in which case the act is properly described as a
"forbearance". The essential elements of such an act are there, viz., an exercise of the will, an accompanying state of
consciousness, a manifestation of the will. (Webster's New International Dictionary, 2d ed., unabridged, p. 25.)
There can, therefore, be no question that being a member of the Makapili was an overt act of the accused. And the
fact that no two witnesses saw him being such a member on any single day or on the selfsame occasion does not, in
my humble opinion, work against the singleness of the act, nor does the fact that no two witnesses have testified to
that same overt act being done on the same day or occasion argue against holding the two-witness rule having been
complied with.
My view is that, the act being single, continuous and indivisible, at least two witnesses have testified thereto
notwithstanding the fact that one saw it on one day and the other on another day.
June 28, 1949
G.R. No. L-1006
THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,
vs.
FILEMON ESCLETO, defendant-appellant.
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Augusto M. Luciano for appellee.
TUASON, J.:

The appellant, Filemon Escleto, was charged in the former People's Court with treason on three counts, namely:
1. That during the period of Japanese military occupation of the Philippines, in the municipality of Lopez, Province of
Tayabas, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, Filemon Escleto,
with intent to give aid or comfort to Imperial Japanese Forces in the Philippines, then enemies of the United States and
of the Commonwealth of the Philippines, did wilfully, unlawfully, feloniously and treasonably collaborate, associate and
fraternize with the Imperial Japanese Forces, going out with them in patrols in search of guerrillas and guerrilla
hideouts, and of persons aiding or in sympathy with the resistance movements in the Philippines; bearing arms against
the American and guerrilla forces in the furtherance of the war efforts of the Imperial Japanese Forces against the
United States and the Commonwealth of the Philippines, and mounting guard and performing guard duty for the
Imperial Japanese Forces in their garrison in the municipality of Lopez, Province of Tayabas, Philippines.
2. That during the period of Japanese military occupation of the Philippines, in the municipality of Lopez, Province of
Tayabas, Philippines, and within the jurisdiction of the Honorable Court, the above named accused, Filemon Escleto,
with intent to give aid or comfort to the Imperial Japanese Forces in the Philippines, then enemies of the United States
and of the Commonwealth of the Philippines, did wilfully, unlawfully, feloniously and treasonably accompany, join, and
go out on patrols with Japanese soldiers in and around the municipality of Lopez, Province of Tayabas, in search of
guerrillas and guerrilla hideouts, and of persons aiding or in sympathy with the resistance movement in the Philippines.
3. That on or about the 18th day of March, 1944, in the municipality of Lopez, Province of Tayabas, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, Filemon Escleto, with intent to give aid or
comfort to the Imperial Japanese Forces in the Philippines, then enemies of the United States and of the
Commonwealth of the Philippines, did wilfully, unlawfully, feloniously and treasonably arrest and/or cause to be
arrested one Antonio Conducto as a guerrilla and did turn him over and deliver to the Japanese military authorities in
their garrison, since which time, that is, since the said 18th day of March, 1944, nothing has been heard from said
Antonio Conducto and is considered by his family to have been killed by the Japanese military authorities.
The court found "no concrete evidence as to defendant's membership in the U. N. or Makapili organization nor on what
the patrols he accompanied actually did once they were out of town", and so was, "constrained to rule that the
evidence of the prosecution fails to establish, in connection with counts 1 and 2, any true overt act of treason." We
may add that no two witnesses coincided in any specific act of the defendant. The People's Court, believed, however,
"that the same evidence is sufficient to prove beyond question defendant's adherence to the enemy."
As to the 3rd count, the opinion of the People's Court was that it had been fully substantiated.
The record shows that on or about, March 11, 1944, Japanese patrol composed of seventeen men and one officer was
ambushed and totally liquidated by guerrillas in barrio Bibito, Lopez, Province of Tayabas, now Quezon. As a result,
some of inhabitants of Bibito and neighboring barrios, numbering several hundred, were arrested and others were
ordered to report at the poblacion. Among the latter were Antonio Conducto, a guerrilla and former USAFFE,
Conducto's wife, parents and other relatives.
Sinforosa Mortero, 40 years old, testified that on March 18, 1944, at about 5 o'clock in the afternoon, obedience to the
Japanese order, she and the rest of her family went to the town from barrio Danlagan. Still in Danlagan, in front of
Filemon Escleto's house, Escleto told them to stop and took down their names. With her were her daughter-in-law,
Patricia Araya, her son Antonio Conductor, and three grandchildren. After writing their names, Escleto conducted them
to the PC garrison in the poblacion where they were questioned by some whose name she did not know. This man
asked her if she heard gunshots and she said yes but did not know where they were. The next day they were allowed
to go home with many others, but Antonio Conducto was not released. Since then she had not seen her son. On
cross-examination she said that when Escleto took down their names Antonio Conducto asked the accused if anything
would happen to him and his family, and Escleto answered, "Nothing will happen to you because I am to accompany
you in going to town."
Patricia Araya declared that before reaching the town, Filemon Escleto stopped her, her mother-in-law, her husband,
her three children, her brother-in-law and the latter's wife and took down their names; that after taking their names
Escleto and the Philippine Constabulary soldier took them to the PC garrison; that her husband asked Escleto what

would happen to him and his family, and Escleto said "nothing" and assured Conducto that he and his family would
soon be allowed to go home; that Escleto presented them to a PC and she heard him tell the latter, "This is Antonio
Conducto who has firearm;" that afterward they were sent upstairs and she did not know what happened to her
husband.
The foregoing evidence fails to support the lower court's findings. It will readily be seen from a cursory examination
thereof that the only point on which the two witnesses, Patricia Araya and Sinforosa Mortero, agree is that the accused
took down the names of Conducto and of the witnesses, among others, and came along with them to the town.
Granting the veracity of this statement, it does not warrant the inference that the defendant betrayed Conducto or had
the intention of doing so. What he allegedly did was compatible with the hypothesis that, being lieutenant of his barrio,
he thought it convenient as part of his duty to make a list of the people under his jurisdiction who heeded the Japanese
order.
It was not necessary for the defendant to write Conducto's name in order to report on him. The two men appeared to
be from the same barrio, Escleto knew Conducto intimately, and the latter was on his way to town to present himself. If
the accused had a treasonable intent against Conducto, he could have furnished his name and identity to the enemy
by word of mouth. This step would have the added advantage of concealing the defendant's traitorous action from his
town mates and of not appraising Conducto of what was in store for him, knowledge of which might impel Conducto to
escape.
That the list was not used for the purpose assumed by the prosecution is best demonstrated by the fact that it
included, according to witnesses, Conducto's wife and parents and many others who were discharged the next day.
The fact that, according to the evidence of the prosecution, spies wearing masks were utilized in the screening of
guerrillas adds to the doubt that the defendant had a hand in Conducto's misfortune.
In short, Escleto's making note of persons who went to the poblacion as evidence of overt act is weak, vague and
uncertain.
The only evidence against the appellant that might be considered direct and damaging is Patricia Araya's testimony
that Escleto told a Philippine Constabulary soldier, "This is Antonio Conducto who has firearm." But the prosecution did
not elaborate on this testimony, nor was any other witness made to corroborate it although Patricia Araya was with her
husband, parents and relatives who would have heard the statement if the defendant had uttered it.
Leaving aside the question of Patricia's veracity, the failure to corroborate her testimony just mentioned makes it
ineffective and unavailing as proof of an overt act of treason. In a juridical sense, this testimony is inoperative as a
corroboration of the defendant's taking down of the name of Conducto and others, or vice-versa. It has been seen that
the testimony was not shown to have been made for a treasonable purpose nor did it necessarily have that implication.
This process of evaluating evidence might sound like a play of words but, as we have said in People vs. Adriano (44
Off. Gaz., 4300)[[1]] the authors of the two-witness provision in the American Constitution, from which the Philippine
treason law was taken, purposely made it "severely restrictive" and conviction for treason difficult. In that case we
adverted to the following authorities, among others:
Each of the witnesses must testify to the whole overt act; or if it is separable, there must be two witnesses to each part
of the overt act. (VII Wigmore on Evidence, 3rd ed., Sec. 2038, p. 271.)
It is necessary to produce two direct witnesses to the whole overt act. It may be possible to piece bits together of the
same overt act; but, if so, each bit must have the support of two oaths;. . . . (Opinion of Judge Learned Hand quoted
as footnote in Wigmore on Evidence, ante.)
The very minimum function that an overt act must perform in a treason prosecution is that it show sufficient action by
the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy.
Every action, movement, deed, and word of the defendant charged to constitute treason must be supported by the
testimony of two witnesses. (Cramer vs. U.S. of A., 65 S. Ct., 918; 89 Law. ed., 1441.)

"It is not difficult to find grounds upon which to quarrel with this Constitutional provision. Perhaps the framers placed
rather more reliance on direct testimony than modern researches in psychology warrant. Or it may be considered that
such a quantitative measure of proof, such a mechanical calibration of evidence is a crude device at best or that its
protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule,
whether wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional Convention was
warned by James Wilson that "Treason may sometimes be practiced in such a manner, as to render proof extremely
difficult-as in a traitorous correspondence with an Enemy." The provision was adopted not merely in spite of the
difficulties it put in the way of prosecution but because of them. And it was not by whim or by accident, but because
one of the most venerated of that venerated group considered that "prosecution for treason were generally virulent."
(Cramer vs. U.S. of A., supra.)

WILLARD, J. :

The decision of the People's Court will be and the same is reversed with the costs de oficio.

The defendant has been convicted of the crime of treason as defined in Act No. 292, section 1, and sentenced to
death.

Moran, C.J., Ozaeta, Paras, Feria, Bengzon, Montemayor and Reyes, JJ., concur.
Moran, C.J., Mr. Justice Pablo voted to reverse.

It was proved that he was a soldier in the Constabulary stationed at Imus, in the Province of Cavite; that on October
13, 1902, he deserted and was captured on October 27, 1902. When he was captured he stated to the inspector,
according to the latters testimony, that he had given the arms which he took with him to his general, Montalon. Upon
his person was found a commission, making him a second lieutenant, signed by Montalon and dated October 14. The
only witness to the finding of this commission was the inspector. There was evidence that, in October, Montalon was in
armed rebellion against the Government and that there had been engagements in that month between his troops and
the forces of the Constabulary.
Section 9 of the act of Congress of March 8, 1902, is as follows:jgc:chanrobles.com.ph
"SEC. 9. That no person in the Philippine Islands shall, under the authority of the United States, be convicted of
treason by any tribunal, civil or military, unless on the testimony of two witnesses to the same overt act, or on
confession in open court."cralaw virtua1aw library
Passing for the present the testimony of the defendant at the trial, there was no other evidence in the case to show
that he had ever joined the forces of Montalon, except the testimony of the inspector as to the confession made when
he was captured and the commission as second lieutenant found upon his person. Under the act of Congress there
can be no conviction, unless two witnesses testify to the same overt act of treason. There is no such testimony in this
case. The evidence of the Government related exclusively to the desertion of the defendant and his capture.

THE UNITED STATES, Complainant-Appellee, v. SIMEON MAGTIBAY, Defendant-Appellant.

Enrique Barrera for Appellant.
Solicitor-General Araneta for Appellee.
SYLLABUS
1. CRIMINAL LAW; TREASON; CONFESSION. The confession in open court, upon which a defendant may be
convicted of treason under section 9 of the act of Congress of March 8, 1902, is a confession of guilt. The section can
not be extended so as to include admissions of fact, from which his guilt may be inferred, made by-the defendant in
giving his testimony after a plea of not guilty.
2. ID.; ID.; EVIDENCE. The testimony of one witness to a confession made by the defendant, to the effect that he
had joined the insurrectionary forces, and to the finding upon his person of a commission making him a lieutenant in
such forces, is insufficient to support a conviction for the crime of treason, as such conviction can only be had upon
the testimony of at least two witnesses to the same overt act of treason.

The act of Congress provides that there may be a conviction upon a confession in open court. The defendant testified
as a witness in his own behalf at the trial. He denied that he had deserted, but claimed that he had been carried off by
force by soldiers of Montalon and taken to the latters camp. He promised to serve them, and they made him a
lieutenant and gave him a revolver. He remained with them two weeks, but he says that it was against his will and that
he had no opportunity to escape, except the time when he was captured. This was not a confession within the
meaning of the said section 9. The confession there mentioned means a confession of guilt. The section can not be
extended so as to include admissions of facts made by him in giving his testimony after a plea of not guilty, from which
admissions his guilt can be inferred. The evidence required by the act of Congress does not appear in this case.
It is unnecessary to consider the point made by the defendants counsel that, in view of the official proclamations,
there existed no state of insurrection or war in Cavite in October, 1902.
The judgment is reversed and the defendant acquitted only of the crime charged in this complaint, with the costs de
oficio, and without prejudice to the presentation of complaints for the other crimes of which the evidence in this case
indicates that the defendant may be guilty.
Arellano, C.J., Torres, Cooper, Mapa, McDonough and Johnson, JJ., concur.
G.R. No. L-369

DECISION

March 13, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARMELITO VICTORIA, defendant-appellant.

Luis Atienza Bijis for appellant.

Assistant Solicitor General Kapunan, Jr. and Solicitor Bautista for appellee.
PERFECTO, J.:
Sentenced to the supreme penalty of death and to pay a fine of twenty thousand pesos and costs, Carmelito Victoria
comes to us to seek for the reversal of the decision of the People's Court.

5. That on or about March 9, 1944, at about 5 o'clock in the morning, the accused then acting as an informer of the
Japanese Kempei Tai, with intent to aid said enemy, did wilfully, feloniously and treasonably cause the Japanese
Military police to arrest and apprehended Antonio San Agustin, a guerrilla officer, who was thereupon brought to Fort
Santiago and there torture and unlawfully detained up to September 20, 1944.
6. That on or about June, 1944, the accused accompanied by an armed group of undercover operatives, for the
purpose of giving and with intent to give said enemy aid and comfort, went to the house of Melecio Labalan, Sr., and
arrested and brought him to the Japanese garrison in Lucena, Tayabas, where he was tortured on the charge of being
a guerrilla.

He is accused of treason in an information which reads as follows:

The undersigned Special Prosecutor accuses Carmelito Victoria alias Carlito Victoria, Carling Victoria, Carlos Victoria
of the crime of treason under article 114 of the Revised Penal Code committed as follows:
That during the period compromised between March, 1942 to December, 1944, more specifically on or about the dates
hereinbelow mentioned, in the different places hereunder stated, and within the jurisdiction of this Honorable Court,
the said accussed not being a foreigner but a Filipino citizen owing allegiance to the United States and the
Commonwealth of the Philippines, in violation of his said duty of allegiance, wilfully, unlawfully, feloniously and
treasonably did knowingly adhere to their enemy, the Empire of Japan and the Imperial Japanese Forces in the
Philippines, with which the United States and the Commonwealth of the Philippines were then at war, giving to said
enemy aid and/or comfort, in the following manner, to wit:
1. That on or about October 6, 1944, the accused, a member of the Intelligence Unit attached to the Kempei Tai in
Lucena, Tayabas, for the purpose of giving and with the intent to give said enemy aid and comfort, joined an armed
enemy patrol composed of about eight spies and a Japanese soldier, which went to the house of Federico Unson in
the barrio of Malaking Labak Bocohan, Lucena, Tayabas, and accused Federico Unson of hiding guerrillas; that said
patrol was arresting said Federico Unson when some guerrillas appeared and killed one of the spies and the patrol
left; that said accused directed several men in the patrol in picking up the dead spy and carrying him away; and that, in
the afternoon of the same day, the same party of spies, including the accused and eight members of the Japanese
Military Police, went again to the house of Federico Unson and did feloniously, willfully, unlawfully and treasonably
arrest him, together with Isaias Perez and Ruben Godoy, who happened to be at the house; that with their hands
bound, the three were tortured and then taken along by said patrol after setting fire on the house of Federico Unson
and that of Isaias Perez were found lying nearby with numerous bayonet wounds; and that Ruben Godoy was taken to
the Japanese garrison in Lucena, Tayabas, and there killed.
2. That on or about December 21, 1944, the accused, accompanied by other Japanese spies, Pedro Raviera, Jose
Bondoc, Jacinto Pineda, Alberto Calawit, Bernardo Santiago, and others who were all armed, for the purpose of giving
and with the intent to give said enemy aid and comfort, went to the house of Jose Unson, in Lucena, Tayabas, and
arrested said Jose Unson and brought him to the Japanese garrison on the charge that he had a short wave radio;
that he was furnishing radio information to the guerrillas and at the same time supporting them; that said Unson was
released on the same day, but on the next day he was again arrested and brought to the Japanese garrison at
Lucena, Tayabas; that said Jose Unson never returned.
3. That on or about February 10, 1945, the accused, in company with Jacinto Pineda, Leonardo Coronel, Jose
Bondoc, Abelardo Calawit, and Pedro Raviera, all members of the Intelligence Unit of the Kempei Tai, were all
armed, for the purpose of giving and with the intent to give said enemy aid and comfort, went to the house of
Felixberto Romulo in San Pablo, Laguna, placed him under arrest as a guerrilla suspect, and turned him over to the
Japanese Military Police who on that occasion were concealing themselves near the house of Romulo; and that, since
the arrest of said Romulo, nothing was heard of him.
4. That on or about December 21, 1944, at about 5 o'clock in the morning, the accused, accompanied by two
Japanese Military Police and two undercover operatives, for the purpose of giving and with the intent to give said
enemy aid and comfort, went to the house of Hermogenes Calauag in Lucena, Tayabas, and apprehended said
Hermogenes Calauag; that said two Japanese Military Police and the accused conducted a search of the house and
afterwards brought Calauag to the Japanese garrison where he was subjected to inhuman torture on the charge being
pro-American and adviser of the Hunters ROTC Guerrillas.

7. That on or about February, 1945, the accused, a member of the Ganap, a pro-Japanese party, wilfully, unlawfully,
feloniously and treasonably joined the Makapili organization designed to support the Imperial Japanese Forces in
levying war against their enemies; that he took military training from the Japanese and bore arms and joined the
enemy forces as a Makapili soldier, taking orders from the Japanese; that he participated in the raid and burning of the
barrio of Bautista, San Pablo, Laguna, upon orders of the Japanese; that he carried ammunitions and foodstuffs for
the Japanese Army from Bautista to the mountains of Susong Dalaga and Mt. Malipuo, Laguna; that he performed
sentry duty for the Japanese Army in Mount Malipuo, where he was stationed with Japanese and other Makapili
soldiers.
That the commission of the above-mentioned acts was attended by the aggravating circumstances of treachery, the
aid of armed persons to insure or afford impunity, and deliberately augmenting the crimes by causing other wrongs not
necessary in the commission thereof.
Upon the testimonies of Mrs. Federico Unson, Jr. and Dolores Kalakasan, the lower court found that the mutilated
corpses of Federico Unson, Jr. and of Isaias Perez were found rotting in the vicinity of the houses of the victims which
were burned and looted by the same hands, on the day following the arrest, effected by the accused in the company of
a Japanese soldier and several spies of the enemy. The body of Unson which was still tied to a tree showed that it had
been disemboweled by several bayonet thrusts and the corpse of Perez appeared ankleless and mutilated. Ruben
Godoy, who was arrested at the same times as Unson and Perez, since he was imprisoned in the garrison of the
Japanese kempei, was never heard of. Appellant's testimony to the fact that, although admitting his presence in the
previous morning raid, he did not come along with party that conducted the afternoon raid in which the actual arrest of
Unson, Perez and Godoy took place, was not given by the lower court enough weight to prevail over that of the
prosecuting witnesses, thus finding the accused guilty on the first count.
With respect to the second count, the lower court states that the accused admitted having taken part in the raid of the
house of Jose Unson and in the latter's arrest, but claims that he tried to save Unson, only the latter was accepted by
the lower court, in view of appellant's behaviour as recalled by witnesses Mercedes Unson, Alejandro Unson, and
Eugenio Ramon Unson. The last that was seen of Jose Unson, was his skull as exhumed in a school yard in Lukban,
several months after the arrest, the exhumation having been effected with the aid of those who claimed to have seen
how his life was ended. These facts relate to the second count.
With respect to the third count, upon the declarations of Elena Romulo and Enriqueta Alviar, the lower court found that
on February 10, 1945, in the company of Japanese kempei and Filipino spies, the accused raided the house of
Felixberto Romulo in San Pablo and arrested him as alleged guerrilla. The accused simply alleged in his defense the
alibi that on said date he was in Gagalagin, Manila.
In regard to the fourth count, the accused alleged that he was merely asked by the Japanese kempei to accompany
them in the raid on Hermogenes Caluag's house and admitted that he was present throughout the investigation and
torture of Caluag who, according to the accused himself, was tied suspended in the air for fully twenty minutes, but the
lower court did not accept this defense, considering it rather as corroborative of the facts alleged in the information and
proved by the witnesses for the prosecution.
Appellant's participation in the arrest of Melecio Labalan, alleged in the sixth count, according to the lower court, has
been abundantly established, disbelieving appellant's feigned ignorance of the arrest because appellant himself

testified that he promised to see what he could do about Labalan and accepted three chickens from the latter's wife
which he gave to the interpreter at the kempei office.
Counts five and seven were not proven.
Upon the record, it appears that the lower court's conclusions on the overt acts alleged in counts one, two, three, four,
and six of the information are fully supported by the evidence. A perusal of appellant's brief alone, in taken. It is highly
significant that, although appellant's brief compromises one hundred thirty printed pages, it failed completely to point
out any specific error in the conclusions of fact of the lower court, counsel limiting himself into raising legal questions,
maintaining that the penalty imposed is unjustified, and that the acts committed by the accused do not constitute
treason but ordinary crimes against the victimized persons.

The majority are of the opinion that these circumstances should be considered as aggravating, while the undersigned
maintains that in appellant's case, the circumstances in question are essential elements of the treason he has
committed. The crime is of such a nature that it may be committed by one single act, by a series of acts, or by several
series thereof, not only in a single time, but in different times, it being a continuous crimes as was held by this Court
in Guinto vs. Veluz (77 Phil., 801), so much so that there are some accused of treason for just one count and there are
others for several counts, their number not changing the nature of the offense committed.
For all the foregoing, there being no unanimity of all the members of this Court in the imposition of the death penalty,
the People's Court's decision is modified, and appellant is sentenced to reclusion perpetua and to pay a fine of
P15,000 and costs.
Moran, C.J., Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ., concur.

Admitting that appellant's conduct during the Japanese occupation has not been impeccable, counsel wants us to
consider what the accused did in behalf of the guerrillas in mitigation of his criminal responsibility, and that the purpose
of a penalty, not being to satisfy public vengeance, but to attain the correction of the guilty person, such purpose will
not be attained with appellant's death as decreed by the lower court.
Appellant tried to show in his testimony that he was not a spy; that he joined the Japanese in their raids only because
he was forced to do so; that in the instances he had to go to the Japanese garrison he did it either in obedience to a
summon of his friend Captain Yuki or to intercede in behalf of some prisoners; that he remained in Lucena heeding the
advice of Sor Constancia, who appealed to him not to go to the mountains so he may continue helping those who
were detained by the Japanese; and that in October 1943, he was arrested by the Japanese for aiding the guerrillas,
and that he was released only after he had been made to promise to indicate who the guerrillas were but,
notwithstanding the involuntary promise exacted from him, he did not cause the arrest of any guerrilla. Even if we
accept this testimony of appellant it cannot overthrow the clear, positive, and straightforward declarations of the
witnesses, for the prosecution. Appellant's claim that he, too, was a guerrilla, had helped the resistance movement,
and in fact, succeeded in interceding for some Filipino prisoners, does not relieve him from criminal responsibility for
the acts he had committed as alleged in the counts in the information which were declared proven by the People's
Court.
The performance of righteous action, no matter how meritorious they may be, is not, as correctly stated by the Solicitor
General, a justifying, exempting, or mitigating circumstance in the commission of wrongs, and although appellant had
saved the lives of a thousand and one persons, if he had caused the killing of a single human being to give aid and
comfort to the enemy, he is, nonetheless, a traitor. It was already said that: "For whosoever shall keep the whole law,
and yet offend in one point, he is guilty of all" (James 2:10).
We do not find any merit in appellant's allegations that the acts committed by him are not punishable as treason and
that the People's Court who tried him had no jurisdiction, they being merely upshots of the wrong theory of suspended
allegiance and sovereignty.
Although this Court is unanimous in finding appellant guilty of treason as found by the lower court, there is
disagreement as to the penalty that should be imposed, because, while nine of the ten members taking part in the
decision of this case voted for the affirmance of the death penalty imposed by the lower court, the writer of this opinion
takes the position that the penalty the accused deserves is that of reclusion perpetua, the medium penalty provided by
law.
The Solicitor General recommends the imposition of the supreme penalty of death in view of the presence of the
aggravating circumstances alleged in the information as follows:
That the commission of the above-mentioned acts was attended by the aggravating circumstances of treachery, the
aid of armed persons to insure or afford impunity, and deliberately augmenting the crimes by causing other wrongs not
necessary in the commission thereof.

Separate Opinions
FERIA, J., concurring:
I concur with the majority (except Mr. Justice Perfecto) that find the appellant guilty of the crime of treason as alleged
in the information, that is, with two aggravating circumstances. Among the atrocities committed by the appellant and
companions stand, in bold relief, those testified to by Mrs. Federico Unson, Jr., and Dolores Calacasan and related in
the same decision of this Court, to the effect that Federico Unson, Jr., was crucified against and tied to a tree, and
then disemboweled with bayonet thrusts; and that Isaias Perez's body was mutilated with his ankles severed from the
trunk and thrown around the place where the crime was committed. And I dissent from the dissenting vote of the writer
of the decision, Mr. Justice Perfecto, which prevented the imposition by this Court of the death penalty imposed upon
the appellant by the lower court.
The killing of the victim was unquestionably attended by treachery, that is, by means, method or forms in the execution
thereof which tend directly to insure its execution without risk to the offender arising from the defense which the
offended party might make, and by a deliberate augment of the wrong done by the offense by causing other wrongs
not necessary for its commission. But the writer of the opinion says:
The majority are of the opinion that these circumstances should be considered as aggravating, while the undersigned
maintains that in appellant's case, the circumstances in question are essential elements of the treason he has
committed. The crime is of such a nature that it may be committed by one single act, by a series of acts, or by several
series thereof, not only in a single time, but in different times, it being a continuous crime as was held by this Court
in Guinto vs. Veluz (77 Phil., 801), so much so that there are some accused of treason for just one count and there are
others for several counts, their number not changing the nature of the offense committed.
The reason or ground on which the dissenter bases his conclusion that the aggravating circumstances above specified
cannot be taken into consideration in the present case, is clearly wrong. Said aggravating circumstances have nothing
to do with the integral elements of the crime of treason as charged and committed by the appellant. The fact that the
crime of treason may be committed by a single overt act or a series of overt acts, committed at one and the same time
or at different times, does not, by any means, make those circumstances essential elements of the offense committed
by the appellant. Said circumstances were not even inherent in or included by the law in defining the crime of treason.
The words "treason" as defined and penalized in the Revised Penal Code is completely different and independent
from "treachery" as an aggravating circumstance provided for in the same Code.
The crime of treason is committed by a citizen, not by merely adhering to the enemy and giving the latter aid and
comfort in abstract, but by committing one or more overt acts which constitute aid and comfort to the enemy to which
the traitor adheres; and evidently, the commission of such overt act as the killing of the victim in aid of the enemy may

be attended by the aggravating circumstances above specified, for they were not necessary in order to give aid and
comfort to the enemy. Of course, if one of the aggravating circumstances provided by law is inherent or included in the
overt acts charged as in aid or comfort of the enemy, it cannot be taken into consideration as aggravating
circumstance attending the commission of that particular crime of treason.

PARAS, J., concurring and dissenting:

I concur partly in the result. The information and the evidence sufficiently make out at least a case of murder, qualified
by treachery. Appellant had committed other atrocities for which he could correspondingly be convicted under the
information and evidence of record. As spy, he may also be tried in a military tribunal and, if found guilty, sentenced
accordingly. While he might be guilty of a violation of article 114 of the Revised Penal Code, I hold, in conformity with
my dissenting opinion in Laurel vs. Misa (77 Phil., 856), that said legal provisions was not in force at the time of the
commission of the crime. The penalty of reclusion perpetua is in accordance with the law, but the provision regarding
payment of a fine should be eliminated and the appellant sentenced to indemnify in the proper amount the heirs of the
victim.
December 31, 1947
G.R. No. L-895
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSE LUIS GODINEZ, defendant-appellant.
Cardenas and Casal for appellant.
Assistant Solicitor General Manuel P. Barcelona and Acting Solicitor Pedro Ocampo for appellee.
BENGZON, J.:
Prosecuted and tried for treason, the accused-appellant Jose Luis Godinez was found guilty by the Fifth Division of the
People's Court, Judge F.V. Borromeo dissenting.
He was a shipmaster in the Philippines coastwise trade before the Pacific War. After the Japanese invasion, from May,
1942 to June, 1943, he rendered services to the Japanese Navy, as pilot in the Port of Cebu, bringing their ships into
harbor and otherwise performing work connected with navigation. He was paid monthly salaries. After a period of rest
due to ill health, he was again engaged by the Japanese Army to do the same chores from May, 1943 to October,
1944, at varying rates of compensation.

prosecution should have attested that appellant had a valid excuse or that he could eluded the wrath of the masters.
Furthermore, the mere fact that some Filipinos were brave enough to refuse and were lucky enough to be let alone is
no conclusive reason to hold that in truth there was no danger in denying the conqueror's demands. There were
persons put to death or maltreated for so refusing, and that was known at the time, as admitted on the stand by the
people's witness Francisco Garcia. Again, it may be that such marine officers were not pressed by the Japanese
precisely because the herein accused and others (Eduardo Gonzales, Marcelo Ayesa) had consented to render
pilotage service. Those who refused to cooperate, in the fact of danger, were patriotic citizens; but it does not follow
that the faintheart, who gave in, were traitors. On this subject the statement of President Osmea in November 1944,
may be quoted:
. . . Not all public officials could take to the hills to carry on the heroic struggle. Some had to remain in their posts to
maintain a semblance of government, to protect the population from the oppressor to the extent possible by human
ingenuity and to comfort the people in their misery. Had their services not been available, the Japanese would either
have themselves governed directly and completely or utilized unscrupulous Filipino followers capable of any treason to
their people. The result would have been calamitous and the injuries inflicted to our body politic beyond cure.
The problem under consideration must be solved with justice and dignity. Every case should examined impartially and
decided on it own merits. Persons holding public office during enemy occupation, for the most part, fall within three
categories; those prompted by a desire to protect the people, those actuated by fear of enemy reprisals, and those
motivated by disloyalty to our government and cause. The motives which caused the retention of the office and
conduct while in office, rather than the sole fact of its occupation, will be the criteria upon which such persons will be
judged. (Official Gazette, Vol. 41, No. 1, p. 102.)
It is now undisputed that the mere governmental work under the Japanese
regime and pilotage service may be considered in the same light [[1]] does not constitute per se indictable
disloyalty.
It is contended, however, that appellant's help to the Japanese together with criminal intention to betray render him
guilty of treason. Proof of this traitorous intent is made to consist of five circumstances described in the brief of the
Solicitor General as follows:
(1) During the year 1943, accused often went to the coffee shop of S. P. Banis and during the discussion between
Banis and appellant, the latter always showed his pro-Japanese sentiments. On one occasion, during November,
1943, Banis told him about the expected arrival of the Americans, and the appellant exclaimed that Banis was crazy in
believing that the Americans were coming back to the Philippines, because according to the appellant, the American
forces would never back to these Islands (testimony of S. P. Banis, p. 10, t.s.n., Lopez).
(2) Sometime in July, 1942, Capt. Canuto Obosa was in Cebu City for a few days. He saw the appellant inside his own
automobile which carried a Japanese flag and on his left arm, appellant was wearing a band with Japanese characters
(testimony of Capt. Canuto Obosa, pp. 1-2, t.s.n., Lopez).

The prosecution's case rests on such acts of cooperation interpreted in the light of incidents, hereafter mentioned
which, it is argued, demonstrate treasonable adherence to the enemy, making defendant guilty as charged.

(3) When the Japanese landed in Cebu City on April 11, 1942, the accused with two other persons went up a
Japanese ship anchored alongside the Pier, presented his respects to the Japanese officer in charge of the boat,
handed to him a revolver which was examined by said Japanese officer. The appellant showed how the firearm
worked by firing the pistol (testimony of Antonio Yee, pp. 14-15, t.s.n., Lopez).

In his defense the accused swore that he had to serve the Japanese because he was required by them to do so, that
he could not give any valid excuses, that if he made any false statements he would be caught, and killed; and that
even if he could escape, the many members of his immediate family would be left to their ruthless ill-will.

(4) From April 1942 to October, 1944, the appellant had a Japanese flag placed on the door of his house situated at D.
Jakosalem Street, Cebu City about a foot wide and about two feet long and on the left side of the door was a piece of
board with Japanese Characters written on it (testimony of Antonio Yee, p. 15, t.s.n., Lopez.)

The majority of the trial judges discounted this explanation saying, in effect, that the danger to the accused was not
imminent, because other merchant marine officers, like Captain Obosa and Joaquin Alex succeeded in evading
service to the Japanese and were not molested. It was not demonstrated, however, that these seamen were
surrounded by the same circumstances of herein indictee, as to family members, means of evasion, personal relations
or conditions, etc., all of which necessarily affected any decision to serve or not to serve. To clinch its case the

(5) During the middle of September, 1944, when American planes were dropping bombs in Cebu City, the appellant
who was in the lawn of his house said, more or less, the following:

"Those sons of the bitches of Americans (referring to the American aviators) are the gangsters of the United States;
they are drunk, they will go down". (Testimony of William del Villar, p. 7, t.s.n., Dizon.)
I. On the first point, the accused denied having stated the Americans could never come back, admitting, however,
having expressed the belief that it was not easy for them to return, in view of the successive victories of the Imperial
hordes at that time. Even if appellant had uttered the words attributed to him, it is doubtful whether they exhibited
adherence to the foe, unless it is shown that he wanted, or rejoiced in the inability to return of the American forces. But
it is hard to believe appellant wished the defeat of our allies, because he had two sons in the guerrilla forces. And if he
ever made the remark, it was probably as one of those arm-chair strategists dishing out war opinions on the basis of
doctored news fed by the propaganda machine to the local newspapers and broadcasting stations. The man was
sadly in error; he underestimated the publicity corps of the Japanese Army; but should he be jailed for it?
II. The second point has no merit. Although there was proof about a Nippon flag fluttering on the automobile the
appellant rode, no evidence was adduced that the car belonged to him.
III. On the third point the appellant swore that when the Japanese arrived in Cebu, they arrested him, and when they
found, after investigation, that he was a marine officer they ordered him to report the next day to the Port Surveyor,
bringing any firearms he had in his possession; that he did as directed and surrendered his pistol. His version is
entirely credible. Those who were in Manila during the first days of January, 1942, remember identical directives of the
Military Commander. And if surrender of the firearm meant treasonable collaboration, thousands of Manila residents
would be traitors too.
IV. About the display of the Rising Sun. The witness of the prosecution had to admit that after the fall of Cebu City the
Japanese issued orders requiring every resident to hoist a Japanese flag in their houses and that refusal to obey
meant death. Naturally, compliance with this decree should not be chalked against appellant, a resident therein.
V. The accused denied having made the insulting statements imputed to him by William de Villar against American
aviators that raided Cebu, and proved that said witness bore a grudge against him that probably colored the testimony.
Anyway, his counsel, pleading in extenuation, submitted some endorsable comments upholding the proposition of one
undergoing the nerve-racking experience of aerial bombardments, for caustic remarks spoken in private motivated by
his apprehension for the safety of his family and his own.
After considering all matters, the Court reaches the conclusion that defendant's disloyal heart or treacherous mind has
not been established beyond reasonable doubt. He is absolved, with costs de oficio.
March 29, 1949
G.R. No. L-456
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CUCUFATE ADLAWAN, defendant-appellant.
C. de la Victoria & Ramon Duterte and Sotto & Sotto for appellant.
First Assistance Solicitor General Jose B.L. Reyes and Solicitor Jose B. Jimenez for appellee.
REYES, J.:
We are called upon in this case to review the sentence of death and a fine of P20,000 imposed by the People's Court
upon the appellants who was charged with treason but convicted of what the said court terms "complex crime of crime
of treason with murder robbery and rape."
The convicted is based on defendants plea of guilty to a complaint which as amended contains the following counts:

1. That on or about and during the period comprised between March 1943 and May 3, 1945 in the city of Cebu.
Philippines and within the Jurisdiction of this court the accused Cucufate Adlawan adhering to the enemy the Empire
of Japan and its Imperial Japanese forces with treasonable intent to give as he did give aid and comfort to said enemy
did then and there wilfully unlawfully feloniously and treasonably join and become a member of the so-called
Philippines Constabulary, an enemy-sponsored military organization knowing fully well that the aims and purposes of
said organization are among other to extend every aid and cooperation with said enemy in the prosecution of her war
efforts against the United States of America and the Commonwealth of the Philippines and during the period aforesaid
as a member of said enemy-sponsored Philippines Constabulary the said accused further adhering to the enemy with
treasonable intent to give as he did give aid and comfort to them did go out on numerous patrol in company with
Japanese soldier in search of guerrilla and other elements and other elements resisting said enemy in the Philippines.
2. That on our about and during the period comprised between December 1, 1943 and May 3, 1945, and the City of
Cebu Philippines and within the Jurisdiction of this court the accused Cucufate Adlawan adhering to the enemy the
Empire of Japan and the Imperial Forces with treasonable to give as he did give aid and comfort to said enemy in
violation of his allegiance and fidelity to the United States of America and the Commonwealth of the Philippines did
then and there willfully unlawfully feloniously and treasonably join the Japanese Military Police otherwise known as the
Kempei-tai under the command of a T. Yushida, performing the function and duties of an informer spy and chief
undercover man of the Cebu district of said military police and did during the period aforesaid in various places in the
Province of Cebu Philippines and within the jurisdiction of this Court in furtherance of his adherence to said enemy
with treasonable intent to give as he did give and comfort aid and comfort to them did in company with other member
of the Japanese Military Police go out on patrols to apprehend guerrilla as they did apprehend capture and torture
guerrillas loot civilians and otherwise commit acts of atrocities in furtherance of the hostile design of the enemy and to
weaken the cause of the United States of America in the Philippines.
3. That sometime in June 1944 in various places in the Province of Bohol Philippines and within the jurisdiction of this
Court the accused Cucufate Adlawan adhering to the enemy the Empire of Japan and the Imperial Japanese Forces
with treasonable intent to give as he did give aid and comfort to said enemy in his capacity as a member of the enemysponsored constabulary attached to the Japanese Military Police and a guide of the Japanese Army Jointly and in
cooperation with soldier of the Japanese Imperial Army did then and there wilfully unlawfully feloniously and
treasonably conduct and carry out a so-called mopping up operation for the purpose of suppressing guerrillas and
other element engaged in resistance against said enemy and as a result thereof ten guerrillas were killed.
4. That on or about during the period comprised between September 1944 and November 1944 in the City of Cebu
Philippines and within the Jurisdiction of this Court the accused Cucufate Adlawan adhering to the enemy the Empire
of Japan and the Imperial Japanese Forces with treasonable intent to give as he did give aid and comfort to said
enemy did then and there wilfully unlawfully feloniously and treasonably help in the a construction of air raid shelters
for the protection of Japanese soldier against allied air raids and did help in the acquisition of as he did acquire food
supplies for the enemy in preparation against the expected landing of America forces.
5. That on or about August 18, 1944 in the municipality of Minglanilla province of Cebu Philippines the accused
Cucufate Adlawan adhering the enemy the Empire of Japan and the Imperial Japanese Forces with treasonable intent
to give as he did aid and comfort to the said enemy in company with Japanese Military soldier of the Japanese Military
Police and other Filipino enemy spies did then and there wilfully unlawfully feloniously and treasonably arrest maltreat
and otherwise torture Primitivo Cansancio in an effort to force the latter to disclose the whereabouts of Lt. Antonio
Karedo a guerrilla officer to cause said Primitivo Cansancio to confess his guerrilla activities.
6. That on or about December 7, 1944 in the municipality of Minglanilla Province of Cebu Philippines and within the
jurisdiction of this Court Empire of Japan and the Imperial Japanese forces with treasonable intent to give as he did
give aid and comfort to said enemy in company with a patrol of Japanese soldier s of the Japanese Military Police and
other enemy spices and informers did then and there willfully, unlawfully, feloniously and treasonably apprehend and
arrest Francisco Larrobia and did kick said Francisco Larrobia strike him on the face and head with a pistol and
subsequently bayoneting and killing said Francisco Larrobia on the suspicion that he was a guerrilla.
7. That on or about September 6, 1944 in the municipality of Talisay province of Cebu, Philippines and within the
Jurisdiction of this court the accused Cucufate Adlawan adhering to the enemy the Empire of Japan and its Imperial
Japanese Forces with treasonable intent to give as he did give aid and comfort to the said enemy in his capacity as
chief undercover man for the Japanese Military Police Cebu District in company with Japanese soldier and Santiago

Bernaba another Japanese spy did then and there willfully unlawfully feloniously and treasonably arrest Numariano
Bellesa on suspicion of being a guerrilla thereafter taking said Numeriano Bellesa to Inayawan Cebu City and thereat
herein accused did investigate said Numeriano Bellesa about the latter's firearms in order to help said enemy in
gathering up arms in gathering up arms in furtherance of their hostile design and did strike said Numeriano Bellesa on
the face and body and otherwise maltreat him in the course of said investigation.

guerrilla activities, and when said Basilia Arong denied knowledge of their whereabouts, herein accused did said
Basilia Arong by her arms, strip her of her clothing, severely beat her and otherwise torture her, finally forcing said
Basilia Arong to sign a letter addressed to her aforesaid husband, Pedro Arong asking the latter to report top the
Japanese Kempei-Tai headquarters and when said Pedro C. Arong did report to said headquarters in compliance of
said letter, he not been seen ever since.

8. That on or about August 18, 1944 in Sitio Tubod municipality of Minglanilla Province of Cebu Philippines and within
the jurisdiction of this court the accused Cucufate Adlawan adhering to the enemy the Empire of Japan and its imperial
Forces with treasonable intent to give as he did give aid he did give aid and comfort to said enemy acting in his
capacity as chief undercover man informer and spy of the Japanese Military Police Cebu District and in company with
Japanese soldier of the Japanese Military Police did then and there wilfully, feloniously and treasonably apprehend
and arrest Cipriano Trazona and did investigate the latter as to the whereabouts of guerrillas especially Nicolas
Adlawan food procurement officer of the guerrilla and upon his denial of knowledge of said whereabouts herein
accused did torture said Cipriano Trazona by hanging the latter by the arms so that his body dangled down striking his
stomach and with an empty bottle inflicting wounds on his head and finally striking his mouth with a flashlight splitting
said Cipriano Trazona's lower lips.

14. That on or about August 10, 1944, at Sitio Gapas, Gaps Island, in the Province of Cebu, Philippines and within the
jurisdiction of this Court the accused Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its Imperial
Japanese Forces, with treasonable to give as he did give aid comfort to, said enemy, acting in his capacity as chief
undercover man, informer and spy of the Japanese Military Police of Cebu District and in company with Japanese
Kempei-Tai informers and spies, did then and there wilfully, feloniously and treasonably apprehend and arrest Pedro
Cabanada and did question the latter as the whereabouts of Alejandrino Ciriaco, a guerrilla Intelligence operative, and,
in the course of said investigation, the accused did hang said Pedro Cabanada by his arms, strike him with clubs and
an iron pipe thereby inflicting several wounds on his head for the latter's refusal to divulge said guerrilla whereabouts.

9. That on or about October 2, 1944 in the municipality of Talisay Province of Cebu Philippines and within the
Jurisdiction of this court the accused Cucufate Adlawan adhering to the enemy the Imperial Japanese Government
and her armed forces with treasonable intent to give as he did give aid and comfort to said enemy acting in his
capacity as chief undercover man informer and spy in the employ of the Japanese Military Police Cebu District in
company with other informers said Military Police, did then and there apprehend and arrest Albina Alpez and accused
herein did wilfully and treasonably investigate said Albina Alpez as to the whereabouts of her husband Ponciano Alpez,
a guerrilla, attached to the 2nd Division Cebu Area Command and when said Albina Alpez denied knowledge of her
aforesaid husband's whereabouts herein accused did slap kick and throw her to the ground hang her by the arms
strike her on the breast with his revolver threaten her with a dagger pointed at her throat and otherwise maltreat and
torture said Albina Alpez.
10. That on or about December 25, 1944 in the municipality of Minglanilla province of Cebu Philippines and within the
jurisdiction of this court the accused. Cucufate Adlawan adhering to the enemy the Empire of Japan and its Imperial of
Japan its Imperial Japanese Forces with treasonable intent to give as he did give aid and comfort said enemy in
company with five Japanese soldier and fourteen agent of the Japanese Military Police otherwise known as the
Kempei-Tai and his capacity Military Police for the Cebu District did then and there wilfully, unlawfully, feloniously and
treasonably apprehend and arrest Victoriano Primacio and one Juan Unadia on suspicion of being guerrillas and said
accused did box, beat slap and strike said Victoriano Primacio and Juan Unadia with his rifle several times and did
turn over said Victoriano Primacio and Juan Unadia to the Japanese Military Police on the ground that said person
were guerrilla and as a result of which said Victoriano Primacio and Juan Unadia have not been heard of ever since
then.
11. That on or about January 27, 1944 at sitio Tacba, Cebu City, Philippines and within the jurisdiction of this court the
accused Cucufate Adlawan adhering to the enemy the Empire of Japan and its Imperial Japanese Forces with
treasonable intent to give as he did give aid and comfort to said enemy acting in his capacity as chief undercover man
informer and spy of the Japanese Military Police Cebu District, did, then and there, wilfully, unlawfully, feloniously and
treasonably shoot and kill Lt. Miguel Dacallos, a USAFFE officer, in furtherance of the hostile designs of said enemy.
12. That on or about September 6, 1944, at sitio San Isidro, municipality of Talisay, Province of Cebu, Philippines, and
within furtherance of his adherence to the enemy, the Empire of Japan and its Imperial Japanese Forces, with
treasonable intent to give, as he did give aid and comfort to said enemy, acting in his capacity as chief undercover
man, informer and spy of the Japanese Military Police, Cebu District, and inn company with Japanese soldier, did,
then and there wilfully, unlawfully, feloniously and treasonably arrest one Jose Murillo on suspicion that the latter was a
guerrilla.
13. That on or about November 13, 1944 in the City of Cebu, Philippines, and within the jurisdiction of this Court, the
accused, Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its Imperial Japanese Forces, with
treasonable intent to give, as he did and comfort to said enemy, did then and there, wilfully, feloniously and
treasonably apprehend and arrest Basilia Arong and did take the latter to headquarters of the Japanese Military Police
and thereat herein accused did question and investigate said Basilia Arong as to the whereabouts by the enemy of

15. That on or about June 2, 1944, in sitio Basac, Mambaling, in the City of Cebu Philippines and within the
Jurisdiction of this court the accused, Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its Imperial
Japanese Forces, with treasonable intent to give, as he did give aid comfort to said enemy, acting in his capacity as
chief undercover man, informer and spy in the employ of the Japanese Military Police of the Cebu District, in company
with two Japanese soldiers and three other Japanese informers and spies, did then and there wilfully, unlawfully,
feloniously and treasonably apprehend and arrest Marciano Alejandro, Carlos Numera and Jose Rada, killing said
Marciano Alejandro, and Carlos Numera, and wounding said Jose Rada on the charge that said person had contact
with guerrillas.
16. That on or about October 8, 1943, in the municipality of Tisa, Province of Cebu, Philippines, and within the
jurisdiction of this court, the accused Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its Imperial
Japanese Forces, with treasonable intent to give, as he did give aid and comfort to said enemy, acting in his capacity
as an informer and spy of said enemy, did, then and there wilfully, unlawfully, feloniously and treasonably shoot and kill
Bernardo Laborte, a guerrilla soldier for the latter's guerrilla activities and resistance to said enemy.
17. That sometime in the month of April, 1944, in different place in the Province of Cebu, Philippines, particularly in the
area comprised between Tubano and Minglanilla, and within the jurisdiction of this Court, the accused, Cucufate
Adlawan, adhering to the enemy, thee Empire of Japan and its Imperial Japanese Forces, with treasonable intent to
give, as he did give aid and comfort to said enemy, as member of the enemy-sponsored constabulary and as informer
and spy of the Japanese Army, did then and there, willfully, unlawfully, feloniously and treasonable join and take part in
the general mopping up operation conducted by the Japanese Army under the command of Sergeant T. Yushida,
particularly in the area of Tubonok to Minglanilla for the Purpose of apprehending guerrillas and other elements
engaged in resisting said enemy.
18. That on or about August 19, 1944, in the municipality of Cordoba, Province of Cebu, Philippines and within the
jurisdiction of this Court, the accused, Cucufate Adlawan, adhering to the enemy, Empire of Japan and its Imperial
Japanese Forces, with treasonable intent to give, as he did give aid and comfort to said enemy, acting in his capacity
as chief informer and spy under the employ of the Japanese Military Police, Cebu District, in company with the
member of said Japanese Military Police under the command of Sergeant T. Yushida of the Japanese Army, did, then
and there wilfully, unlawfully, feloniously and treasonably arrest, maltreat and torture Martin Francisco and did expose
the latter's wife and some Filipino girls naked, raping them, and, did steal and carry away the following articles
belonging to said Martin Francisco:
2 diamond rings, a ring and one wrist watch
P500 in Cebu Emergency and Currency Notes
P1,858 in Japanese Military Notes
3 pairs white pants
2 out shirts
2 pairs shoes
1 buntal hat
1 wedding ring

on suspicion that said Martin Francisco was a guerrilla.

4. In holding that the crime committed by then accused is a complex crime of treason with murder, rape and robbery;

19. That sometime in 1944, at sitio Cabadiangan, Province of Cebu, Philippines, and within the Jurisdiction of this
Court, the accused, Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its Imperial Japanese forces,
with treasonable intent to give, as he did give aid and comfort to said enemy, acting as an informer to the enemy and
in company with soldiers of the Japanese Army, did then and there wilfully, unlawfully, feloniously and treasonably
conduct and carry out a raid for the purpose of apprehending guerrillas and as a result of which, Governor Hilario
Abellana of Cebu then in hiding from said enemy, was captured.

5. In sentencing the accused to death and to pay a fine of P20,000.

20. That on or about February 12, 1944, in the City of Cebu, Philippines and within the Jurisdiction of this Court, the
accused, Cucufate Adlawan, adhering to the enemy, the Empire of Japan and its Imperial Japanese Forces, with
treasonable intent give, as he did give aid and comfort to said enemy, acting in his capacity as chief undercover man,
informer and spy of the Japanese Military Police, Cebu District, did then and there, wilfully, unlawfully, feloniously and
treasonably beat and strike Vicente Padilla with a baseball bat, hang said Vicente Padilla by the arms, and otherwise
torture him in an effort to extract confession of the latter's connection with guerrillas.
21. That on or about July 19, 1944 at Cebu, City Philippines and within the Jurisdiction of this Court, the accused,
Cucufate Adlawan, adhering to the Empire of Japan and its Imperial Japanese Forces, with treasonable intent to give,
as he did give aid and comfort to said enemy, acting as chief informer and spy of the Japanese Military Police of the
Cebu District, in company with Japanese soldier and other agent of the Japanese Military Police otherwise known as
the Kempei-tai, did then and there, wilfully, unlawfully, feloniously and treasonably arrest Bartolome Rosal, Antonio de
la Serna, and Braulio Padilla and did tie up the hands of said persons, severely inflicting wounds on them, on
suspicion of being guerrillas and as consequence of said maltreatment and torture, Braulio Padilla died a few days
thereafter.
22. That on or about December 20, 1944, in the city of Cebu, Philippines and within the Jurisdiction of this Court, the
accused, Cucufate Adlawan, adhering to the enemy, Empire of Japan and its Imperial Japanese Forces, with
treasonable intent to give, as did give and comfort to said enemy, acting in his capacity as chief informer, spy and
undercover man of the Japanese Military Police of the Cebu District, did and there wilfully unlawfully, feloniously arrest
at the point of his gun, Paulita Delgado and "John Doe" her husband, on suspicion that said persons were cooperating
and helping the guerrillas and did thereafter bring said Paulita Delgado and her husband to the Kempei-Tai
headquarters and once thereat herein accused did torture them by hanging them by their arms did otherwise maltreat
them.
23. That sometime in September, 1944, at Pasil Market, Cebu City, Philippines and within the jurisdiction of this Court
the accused Cucufate Adlawan, adhering to the enemy, the Empire of Japan and Imperial Japanese Army, with
treasonable intent to give, as he did give aid and comfort to said enemy, acting in his capacity as member of the
enemy-sponsored Philippines Constabulary attached to the Japanese Military Police, did then and there, wilfully,
unlawfully, feloniously and treasonably kill Dionisio Abatol, a guerrilla, for his activities and resistance to the said
enemy.
By his plea of guilty appellant admit having committed the treasonous acts alleged in the information. But he now
pleads for modification of the sentence, contending that the lower court erred:
1. In not taking into consideration, as mitigating circumstances, the following facts:(1) voluntary surrender; (2) the facts
that the accused has been and is being utilized as witness by the CIC in cases against Japanese soldiers under trial
by the military commission; on and (3) the facts that the accused helped and saved the lives of many civilian and from
death in the hands of the Japanese;
2. In making as a matter of set-off the plea of guilty entered by the defendant-appellant on the strength of the
assurance that no death penalty would be imposed upon him;
3. In considering, as aggravating circumstances, treachery, abuse of superiority and unnecessary cruelty;

Taking up first the fourth alleged error, we find merit in the contention that appellant should not have been convicted of
the so-called "complex crime of treason with murder, robbery, and rape." The killings, robbery, and raping mentioned in
the information are therein alleged not as specific offenses but as mere elements of the crime of treason for which the
accused is being prosecuted. Being merged in and identified with the general charge, they can not be used in
combination with treason to increase the penalty under article 48 of the Revised Penal Code. (People vs. Prieto,[[1]]L399, January 29, 1948.) Appellant should, therefore, be held guilty of treason only.
Appellant's claim of voluntary surrender has not been satisfactorily proved. On the other hand, his admission that he
was "taken" from the house of his mother by an agent of the CIC, is proof that he was in fact arrested. Where there
has been actual arrest the mitigating circumstance of voluntary surrender cannot be invoked (Peoplevs. Conwi, 40 Off.
Gaz. [14th Supp.], No. 23, p. 166[[2]]; People vs. Siojo, 61 Phil., 307.)
The meritorious acts which appellant claims to have performed in aid of the CIC and his countrymen have not been
established by satisfactory proof and may not in any event be considered as mitigating circumstances under
the Revised Penal Code.
There is nothing to the claim that appellant entered a plea guilty on the assurance that he would not be sentenced to
death. The claim is not supported by proof. On the other hand, it is denied by both the prosecution and the trial court,
the latter stating in its order denying appellant' motions for reconsideration that "No responsible judge can or would
advance his opinion in connection with the decision to be rendered in any case before he has properly deliberated on
the merit of the same."
There is, however, merit in the contention that the aggravating circumstances of treachery and abuse of superior
strength should not have been considered. These circumstances are "by their nature, inherent in the offense of
treason and may not be taken to aggravate the penalty." (People vs. Racaza, 82 Phil., 623) But the facts alleged in the
information show that appellant in committing the crime of treason, deliberately augmented the wrong by being
unnecessarily cruel to captured guerrilla suspects, subjecting them to barbarous forms of torture and finally putting
them to death, and as appears in count No. 18, he also chose to add ignominy to his treasonous act in arresting and
maltreating a guerrilla suspect by stripping his wife of her clothes and then abusing her together with other Filipino
girls. Clearly shown as they are by the allegations of the complaint and deemed admitted by appellant's plea of guilty,
these two aggravating circumstances of unnecessary cruelty and ignominy may be appreciated against him. As this
said in the case of People vs. Racaza, supra.
But the law does abhor inhumanity and the abuse of strength to commit acts unnecessary to the commission of
treason. There is no incompatibility between treason and decent, human treatment of prisoners. Rapes, wanton
robbery for personal grain and other forms of cruelties are condemned and their perpetration will be regarded as
aggravating circumstances of ignominy will be regarded as aggravating circumstances of ignominy and of deliberately
augmenting unnecessary wrong to the main criminal objective under paragraphs 17 and 21 of article 14 of the Revised
Penal Code. The atrocities above mentioned of which the appellant is beyond doubt guilty, fall within the term of the
above paragraphs.
For the very reason that premeditation treachery and use of superior strength are adsorbed in treason characterized
by killings, the killings themselves and other and other accompanying crimes should be taken in to consideration for
measuring the degree and gravity of criminal responsibility irrespective of the manner in which they were committed.
Were not this the rule treason, the highest crime known to law, would confer on its perpetrators advantages that are
denied simple murderers. To avoid such incongruity and injustice, the penalty in treason will be adapted, within the
range provided in the Revised Penal Code, to the danger and harm to which the culprit has exposed his exposed his
country and his people and to the wrongs and injuries that resulted from his deed. The letter and pervading spirit of
the Revised Penal Code just penalties to the perversity of the mind that conceived and carried the crime into
execution. Where the system of graduating penalties by the prescribed standards is inapplicable, as in the case of

homicides connected with treason, the method of analogies to fit the punishment with the enormity of the offense may
be summoned to the service of justice and consistency and in furtherance of the law's aims.

their fists; that the accused then took Florencio Perez outside the house and threatened to shoot him on the back of
his head unless he told where his pistol was;

The penalty prescribed for the crime of treason is reclusion temporal to death and a fine of not to exceed P20,00
Giving the appellant the benefit of the mitigating circumstances of voluntary confession of guilty, but appreciating
against him the aggravating circumstances of ignominy and unnecessary cruel, the said penalty should be imposed in
its maximum. But since five member of this court are opposed to the imposition of the death penalty in this case, the
appellant can only be sentenced toreclusion perpetua and a fine of P20,000.

"3. That on or about December 2, 1944, in the municipality of Mandawe. Province of Cebu, the aforesaid accused
acting as a Japanese spy for the purpose of giving and with the intent to give aid and comfort to the enemy did, then
and there wilfully, unlawfully, feloniously and treasonably lead, guide and accompany three Japanese soldiers to the
house of Pablo Seno; that upon arrival at the said house, the herein accused and his companions did apprehend the
said house, the herein accused and his companions did apprehend Pablo Seno and his daughter Anunsacion Seno for
alleged guerrilla activities and connections and did ransack and take away many objects therein; that said Pablo Seno
and Anunsacion Seno after having been tied and tortured by the accused and his companions were imprisoned at the
Japanese Kempei Tai Headquarters and since then nothing more was heard of them nor are their whereabouts known;

Wherefore, the judgment below is modified in the sense that the appellant is declared guilty of treason and sentenced
to reclusion perpetua and to pay a fine of P20,000, with costs in this instance de oficio.
January 21, 1949
G.R. No. L-365
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO RACAZA, defendant-appellant.
Pedro C. Mendiola for appellant.
Assistant Solicitor Manuel P. Barcelona and Solicitor Francisco Carreon for appellee.
TUASON, J.:
Antonio Racaza was charged with treason on 14 counts and tried din the City of Cebu before the First Division of the
People's Court. The information is as follows:
That during the period comprised between January , 1944 and February, 1945, more specifically on or about the dates
and periods herein below mentioned, in the municipalities hereinafter stated all within the Provincial of Cebu and
Bohol, Philippines, within the jurisdiction of this Court, said accused not being a foreigner but a Filipino citizen owing
allegiance to the United States of America and the Commonwealth of the Philippines, in violation of said duty of
allegiance did, then and there wilfully, unlawfully, feloniously and treasonably adhere to the Empire of Japan with
which the United States and the Philippines were then at war, giving said enemy the Empire of Japan and the Imperial
Japanese forces in the Philippines, aid and/or comfort in the following manner, to wit:
"1. That on or about May 8, 1944, in the City of Cebu, Philippines, for the purpose of giving and with the intent to give
aid and comport fort to the enemy said accused did, then and there wilfully, unlawfully, feloniously and treasonably
acting as a Japanese spy lead, guided and accompany a patrol composed of Japanese soldiers and Filipino
undercovers, which apprehended Custodio Abella; that the Filipino undercovers, which apprehended Custodio Abella;
that the aforementioned accused did question Abella as to the hiding place of Captain Ibaez, G-2 of guerrilla forces;
that during the investigation, the herein accused hit Custodio Abella several times with a revolver and did threaten to
kill him if he did not give the desired information; and while Abella's hands were tied behind his back, the herein
accused did knock him down and choke him, while another companion did jump up and down several times on
Abella's stomach; that said Antonio Abella was finally taken and detained at the Japanese Kempei TaiHeadquarters for
fifteen days:
"2. That sometime during the month of August, 1944, in the municipality of Mandawe, Province of Cebu, the accused
therein acting as a Japanese spy and undercover with the purpose of giving and with the intent to give aid and
comport to the enemy did, then and there willfully, unlawfully, feloniously and treasonably lead, guide and accompany
a patrol composed of two Japanese soldiers and twelve Filipino undercovers which apprehended one Florencio Perez
as a guerrilla suspect; that over his pistol to the accused as and upon denying of having any pistol, said accused and
his companions did hang him with a rope and while he was thus suspended in mid air, the herein accused and his
companions hit Florencio Perez on the head hand in other parts of the body with the butts of the revolvers and with

"4. That on or about December 2, 1944, in the municipality of Mandawe, Province of Cebu, for the purpose of giving
and with the intent to give aid and comfort to the enemy, the aforesaid accused acting as a Japanese spy did, then
and there wilfully, unlawfully, feloniously and treasonable lead and guide a patrol of Japanese soldiers and Filipino
undercovers to the house of one Rufino Seno for being a guerrilla suspect; that said Rufino Seno was tied, beaten and
tortured and brought to and detained at the Japanese Kempei Tai Headquarters at Cebu City and since then nothing
more was heard of him nor are his whereabouts known;
"5. That on or about the first day of July, 1944, in the municipality of Clarin, Province of Bohol, Philippines, said
accused, acting as Japanese spy and with the purpose of giving and with the intent to give aid and comfort to the
enemy did, them and there wilfully, unlawfully, feloniously and treasonably lead and guided a patrol composed of
Japanese soldiers and Filipino undercovers for the enemy which apprehended Leonilo Mercado and Jovito C. Soria
for alleged guerrilla activities; that Leonilo Mercado was brought to the municipal jail of Clarin, and detained up to July
12, 1944 when his wife visited him; and since then Leonilo Mercado was not seen again nor heard from, nor are his
whereabouts known;
"6. That on or about August 19, 1944, in the City of Cebu, the herein accused who was a Japanese spy, with the
purpose of giving and with the intent to give aid and comfort to the enemy did, then and there wilfully, unlawfully,
feloniously and treasonably lead and guide a patrol of Japanese soldiers and Filipino undercovers to the house of
Silvina Caballon; that upon arrival at said house, the herein a accused and his companions did ask Silvina about the
whereabouts of her brother who was a guerrilla and to surrender the latter's revolver; that upon receiving an
unsatisfactory reply, said accused forcibly undress her, choke and beat her; that the aforesaid accused then took her
to another house where through force, violence and intimidation he attempted to have sexual intercourse with her, but
which criminal purpose the accused did not realize on account of reasons independent of his own will;
"7. On or about the 24th day of August, 1944, in the Mandawe, Province of Cebu, Philippines, said accused acting as
Japanese spy, with the purpose of giving and with the intent to give aid and comfort to the enemy did, then and there
wilfully, unlawfully, feloniously and treasonably lead, guide and accompany a patrol of fifteen Filipino pro-Japanese
undercovers and two Japanese soldiers in search of guerrillas, guerrilla suspect and their supporters, and did
apprehended Patricio Suico, Leonardo Ouano and Eduardo Ouano from their homes and did bring them to the
Japanese Navy Kempei Tai Headquarters in Cebu City where they were questioned on the whereabouts of Sulpicio
Ouano, brother of Leonardo Ouano and a guerrilla suspect, and Patricio Suico was questioned and blamed for not
taking proper steps against the guerrillas as barrio lieutenant; that the accused therein and his companions did bring
the aforesaid three persons back to Leonardo's house at Banilad where they again tied, hung tortured on account of
which Patricio became unconscious; that while said Patricio Suico was thus unconscious, the accused and his
companions did build a fire under the sled where Patricio Suico was, on account of which said Patricio was burned
and died; that while being detained in Cebu City, Leonardo and Eduardo Ouano managed to escape and fled to the
mountains;
"8. Sometimes during the month of December, 1944, in the municipality of Lahug, Province of Cebu, Philippines, the
accused herein acting as Japanese spy with four other Filipino undercovers for the Japanese Army, with the purpose
of giving and with the intent to give aid and comport to the enemy did then and there wilfully, unlawfully, feloniously
and treasonably capture Pedro Lavares and Luis Hallares and did detain, tie and torture them at the Kempei Tai
Headquarters for alleged guerrilla activities; that said accused and his aforesaid companions did detain likewise in said
Kempei Tai Headquarters Bonifacio Suico and Aniceto Taranza and did torture them by giving them fist blows tying
them with ropes, hitting them with bamboo poles and wooden pestles to force them to tell the real connections of

Major Alejandro Fortuna with the guerrillas that due to said punishment and torture, Bonifacio Suico died; that after
torturing Aniceto Taranza, said accused and his companions did bring him to the river bank near by and did kill him
with a saber;

The trial court found the defendant guilty of all the counts and sentenced him to death ands to pay a fine of P20,000
and costs, It said that "the prosecution substantiated the overt acts specified in counts Nos. 2,3,4,5,6,7,9,11,12, and 13
by two competent witnesses, and the through the confession of the defendant in open Court."

"9. On or about July 28, 1944, in the Mabaling, City of Cebu, Philippines, said accused acting as Japanese spy with
the purpose of giving and with the intent to give aid comfort to the enemy did, then and there wilfully, unlawfully,
feloniously and treasonably lead, guide and accompany a patrol of Japanese soldiers and Filipino undercovers for the
Japanese Army and did capture Vicente Abadiano, Nazario Abadiano, Tereso Sanchez, Fidencio Delgado and some
twenty Filipinos whose names cannot now be stated all suspected of being guerrillas and of having allegedly taken
part in the ambush of Japanese soldiers on board a truck while passing at the boundary of Mambaling on July 25,
1944; that all the persons above-named and twenty mountains near Ponta Princesa and after having been questioned
and tortured, twelve of them including Nazario Abadiano and Tereso Sanchez were shot by the herein accused and his
companions, all of whom died except Tereso Sanchez who is now an invalid due to wounds he received;

The trial was not conducted in strict accordance with law and the rules of practice and procedure, giving rise to
confusions, misunderstanding, and non-presentation of evidence on some charges. The court below itself was led into
serious errors.

"10. On or about July 21, 1944, in the City of Cebu, Province of Cebu, Philippines, said accused acting as Japanese
spy with the purpose of giving and with the intent to give aid and comfort to the enemy did, then and there wilfully,
unlawfully, feloniously and treasonably in company with three Filipino undercovers like the accused and two Japanese
soldiers, capture Jose Roda for being the brother of Apolonio Roda alleged G-2 operative for the guerrilla who could
not be found, Claros Numeran for being related with Santiago Numeran a guerrilla suspect whom accused and his
companions were looking for, and Marciano Alejandrino a guerrilla suspect, and did maltreat and torture said Jose
Roda, Claros Numeran and Marciano Alejandrino and later did bring them to a secluded spot at Mambaling and shoot
them to death; that due to the fact that the wounds of Jose Roda were not serious, he survived;
"11. On or about November 17, 1944, in the municipality of Mandawe, Province of Cebu, Philippines, said accused
acting as Japanese spy, for the purpose of giving and with the intent to give aid and comfort to the enemy did, then
and there willfully, unlawfully, feloniously and treasonably guide, lead and accompany a patrol composed of ten Filipino
undercovers for the Japanese Army and two Japanese soldiers for the purpose of apprehending guerrillas, guerrilla
suspects and their relatives and the herein accused and his companions did catch Hipolito Cabahug, Dioniso del
Castillo, Victorino del Castillo and Demetrio Congson and did whip and torture the last three persons for being
allegedly messengers for the guerrillas; that said accused and his companions finally did kill Dionisio del Castillo and
Victorino del Castillo by inflicting fatal wounds on theirs necks with swords;
"12. Sometimes in January, 1945, in Inawayan, Pardo, Cebu Province, said accused who was a Japanese spy, with
the purpose of giving and with the intent to give aid and comfort to the enemy did, then and there willfully, unlawfully,
feloniously and treasonably lead, guide and accompany a patrol composed of Japanese soldiers and Filipino
undercovers for the Japanese to Inawayan, Pardo, Cebu for the purpose of apprehending guerrillas; that the herein
accused and his companions did catch one Hospicio Singson from his house, tie him with a rope, hang and torture him
urging him to till about reports and papers from the mountains (guerrilla reports) and questioning him about money
contributions to guerrillas; that thereafter said Hospicio Singson was carried by accused and his companions to the
local Japanese garrison and since then he was not seen again nor heard from, nor are his whereabouts known;
"13. On or about the 5th day of January, 1945, in the municipality of Cebu Province of Cebu, with the purpose of giving
and with the intent to give aid and comfort to the enemy the aforesaid accused acting as Japanese spy, did, then and
there wilfully, unlawfully, feloniously and treasonably lead a group a Filipinos who were enemy undercovers to the
house of Susana Singson; that upon arrival at the said house, said accused and his companions did catch Hospicio
Singson, brother of Susana Singson and who was a guerrilla suspect; that the herein accused and his companions
tied and tortured Hospicio Singson and brought him to the Japanese Kempei Tai Headquarters in the City of Cebu and
that from that date Hospicio Singson was not seen again nor heard from, nor are his whereabouts known;
"14. That on or about January 25, 1945, in Minglanilla, Province of Cebu, Philippines, said accused who was a
Japanese spy, for the purpose of giving and with the intent to give aid and comfort to the enemy did, then and there
wilfully, unlawfully, feloniously and treasonably lead and accompany five other Filipino undercovers and did arrest
Anacleta Eben, that the herein accused and his companions did take Anacleta to the Japanese Kempei Tai
Headquarters where she was questioned on the whereabouts and activities of her daughter who was a member of the
Women's Auxiliary Service (Guerrilla); that during the questioning Anacleta Eben was tied, hung, boxed, beaten and
beaten and tortures, and while said accused was questioning her, he did choke and threaten to kill her with a gun.

After several witnesses for the prosecution had given testimony, defendants counsel informed the court that his client,
upon the latter's insistence, was willing "to enter a plea of guilty and ask whatever consideration or mercy the court will
give him." Upon being asked whether or not he ratified the statement of his counsel, the defendant answered yes. He
also answered yes to the question whether he was aware of the consequences of a plea of guilty (t. s. n., pp. 50-51).
However, when the information was read over again, the accused said that he admitted some of the charges but not
all (t. s. n., pp. 51-52). Specifically, he said he pleaded guilty to counts 2, 3, 4, 7, 12, an 14 and not guilty to counts 1,
5, 6, 8, 9, 10 and 11 (t. s. n., pp. 54-55).
The prosecution then resumed the presentation of evidence and called witnesses to substantiate the charges to which
a plea of not guilty was entered. But after three new witnesses, had taken the stand, and while the third of them was
testifying, counsel for the accused reiterated "his petition at he instance of the accused himself", that the latter be
allowed to changed his plea of not guilty to that of guilty to all the 14 counts. Informed of his attorney's statement, the
defendant said "I am pleading guilty. I accept my guilt" (t. s. n., pp. 71-73).
As counsel insisted on putting his client on the stand, the prosecution went ahead with its witnesses who testified on
counts 6, 9, 12 and 13. Then it rested and the accused testified on his own behalf.
According to defense counsel the purpose of the defendant's testimony was not to deny his guilt for the crime of
treason; it was, he added, to "clarify certain points which he (accused) denied when he was informed again of the
contents of the information filed against him."
After having been sworn the defendant again said that some of the charges filed against him were not true; that in
some of those cases there were other persons responsible for the commission of the crime, 9, he said who were
tortured because of their refusal to give information, be taken to Isisaki and Muraki, after which they were marched off
to Lensa by Japanese soldiers. There were about 20 prisoners, he said. Upon arriving at Lensa they were shot by
Muraki and Isisaka in the presence of Captain Suriyama. He admitted having gone with these people and seen Isisaka
and Muraka shoot the prisoners with luggers. He said about 700 civilians were herded on that particular date and that
it was among these 700 that 20 were executed.
In answer to a question of Judge Saguin if he wanted to make any statement regarding counts 3 and 4, to which he
had pleaded guilty, the defendants answered in the affirmative. He said that when they apprehended Pablo Seno and
Anunciacion Seno, he and Pedro Labares stood guard under the house while the Japanese went up. When the
Japanese came down they brought the Senos. From there they returned to the Normal School where prisoners were
confined. That was, he said, all he could say.
As to Del Castillo (count 11), he said he was not the one who killed him but two Japanese by the names of Isituca and
Pujisaki; that it was Pedro Labares and not he who reported Del Castillo to the Japanese; that he accompanied
Labares because the Japanese ordered him to do so. He said that his sole connection with the Japanese was as a
driver of Watanabi. He said that after he was captured as a guerrilla he was told that he should drive their car or else
he would be killed (t.s.n., pp. 98-102).
Regarding count 2, he said it was Japanese accompanied by some Filipinos, one of whom was Antonio Tancingco,
who arrested Florencio Perez. Reminded that he had pleaded guilty to this count, the accused after the session, he
had been struck in the head and that when he came back to court he was still confused. Nevertheless, he said having
guilt he wanted to abide by his plea fully realizing its consequences, now that his mind was already clear. (T. s. n., pp.
102-104).

In answer to a direct question of Judge Borromeo, the accused answered in the affirmative the question whether he
admitted the facts and pleaded guilty to counts 2, 3, 4,7, 12, 13 and 14 (t. s. n., p. 104). But when these last counts
were read over again and he was told to plea after each count was read, he pleaded guilty to counts 2 and 3, and not
guilty to counts 4, 7, 12, 13 and 14 (t.s.n., p. 105).
With specific reference to count 7, he said: "When we apprehended Suico and Ouano, they were brought to the pier
before Yusidati, a sergeant of the Japanese Military Police here. At night time, Ouano, his nephew and Patricio were
taken by four Japanese by the names of Muraki, Isisaki, Pujisaki and Koydi and other members of the Japanese
Military Police. We started from the pier about 9:00 o'clock of that evening and they took a truck and proceeded to
Mandawe. Upon reaching Mandawe, right in the house of Leonardo Ouano, there they were investigated by Muraki. In
the affidavit, it says that Patricio Suico was burned and that is not true. The truth is that, during that night, those three
were brought back here to the pier, and from that time on Ouano and Suico were never heard by me any more." He
admitted that he took part in the apprehension of these persons but said that he was ordered to do so by Watanabi (t.
s. n., pp. 106-107).
With respect to count No. 12, he said that those who took part in the apprehension of Hospicio Singson was Maximo
Bati alias Pacho (t. s. n., p. 108).
With regard to count 13, he said he had nothing to say and renewed his plea of guilty to this charge (t. s. n., pp. 108109).
As to the counts which the defendant denied or qualified, his plea does not posses the requirement of a plea and
should have been rejected and the parties directed to introduce their evidence. A plea of guilty must be unconditional
save to explain mitigating circumstances. The defendant's responsibility on these counts therefore have to be gauged
by the prosecution's evidence and defendant's admissions.
From the defendant's changing attitude, changing pleas and statements, only counts 2, 3, and 13 survive the test of
having been confessed in open court. The prosecution's evidence and defendant's testimony substitute counts 4, 6, 9
and 11. On count 7, only one witness testified; on the rest none whatever.
Count 4. Maximina Basubas, 46 years old, testified that on December 2, 1944, the accused apprehended her son
Rufino Seno for being a guerrilla; that Rufino Seno was tied, beaten, tortured, and taken to and detained at the
Japanese Kempei Tai headquarters in Cebu City; that since then he heard nothing more of him; that with the accused
were other Filipinos and Japanese.
Jose Cui, 24 years old, testified that on December 2, 1944, Antonio Racaza "raided our place". Racaza was
accompanied by other persons, Japanese and Filipinos; that he (witness) was arrested with four others, among them
Apolonio Ceniza and Rufino Seno. They were taken to the U.P. Building in the city of Cebu, near which he was
punished personally by Antonio Racaza, hung by the hands tied at his back and whipped with a golf club (witness
showed the scar). He said that he was accused of being a guerrilla; that Rufino Seno was brought with him and others
in the afternoon of December 3 to the Kempei Tai; that a Japanese took Rufino Seno out and he had not seen Rufino
since.
Count 6. Silvana Cabello, 22 years old, single, testified that in August 1944, Antonio Racaza and others came to their
house looking for somebody her brother who was a soldier. Among the men who came she recognized only the
accused. In her house the accused and others undressed her. She prayed to God and pleaded that she be not
undressed. They succeeded in their purpose however and her naked body was exposed. They pushed her mother
when the latter was not able to produce any arm. From that place they took her to Buakaw where they went up a
house apparently in search of something. when they did not find anything they moved to another house. In the latter
house they caught a man, took him behind a tree and there killed him. Then a soldier, Teofilo Navarro, who had killed
that person, approached her and said, "Well, how do you like to come along with me behind the cassava trees?" She
refused and then they proceeded to the provincial road with her; she was crying. At Basac, near a big house owned by
Filemon Rago, Antonio Racaza told her, "Come along with me." Once in that place he hugged her and kissed her and
told her to take off her panties. Then she said her devotion to the Virgin Mary praying that she might be delivered from
her aggressors. Luckily, the accused did not succeed. Afterward one companion of the accused, Jose Abascas,

slammed her against a coconut tree and embraced her. Later, a truck passed by and she was told to get on. Then
Racaza approached the Japanese and later she was released.
Raymunda Sabillano, 42 years old, testified that on August 19, 1944, Antonio Racaza came to her house at night (it
was Saturday) looking for her son who was a guerrilla soldiers. He had many companions among whom were two
Japanese. They were armed but Racaza was not. As she was not so, they undressed her daughter, Silvina Cabellon,
and Antonio Racaza told witness to step out. when she heard her daughter cry out she tried to get inside but they
blocked her way. Afterward they left her daughter dress up again and took her away. About 3 o'clock in the morning the
girl returned. Her house is in Pardo, Cebu City.
Count 9. Hilario Cabaezas, 56 years old, testified that on the 29th of July, 1944, her house was surrounded and she
and the inhabitants of the house were apprehended and taken to a place near the Normal School in Basac. Those
who arrested them were, among others, Antonio Racaza, Carding and Loloy. These three tied them and she pleaded
for mercy. From her house she could see may people tortured in the Basac school building. There must have been
around 1,000 people there.
Pastor Abadiano, 45 years old, testified that on the 29th of July, 1944 the accused and his several companions with
Japanese came up to hi house and maltreated him, trampling on his body. When he could not endure the punishment
any longer they asked him where his nephew Inocencio was. Inocencio was a guerrilla soldier. Among those who were
tortured and killed were Sario Abadiano, Tomas Bacalla, Quirico Abellanosa and Lope Bacon. The witness was
allowed to go when they found the brother of Inocencio. Vicente Abadiano was one of those who survived the torture.
Tereso Sanchez, 25 years old, testified that he knew Antonio Racaza. On July 29, 1944, he was arrested by Filipino
spies. About 1,000 were apprehended and taken to the school building in Basac. They were taken there to be
screened building in Basac. They were taken there to be screened for guerrillas. Among those who tortured civilians
was Antonio Racaza. He saw Jose de la Cerna. Antonio Racaza was armed with a revolver. After he was tortured he
was taken to the mountain of Lensa. With him were about 24; all of them were tied. When they arrived at the
mountain, the Japanese and their Filipino cohorts told them to sit down . The prisoners were taken by the Japanese to
another place where they were shot. The witness was shot by Filemon Delgado and was hit in the neck, the bullet
coming out his left eye. He was left for dead and that was how he lived to tell the story. Before he was shot, Nazario
Abadiano was shot by Antonio Racaza and killed immediately.
Vicente Abadiano, 19 years old, testified that he was apprehended on July 29 and brought to a place where his bother
Nazario was killed. His brother was apprehended on July 29 and brought up where he was killed by Antonio Racaza.
He actually saw Racaza shoot his brother; it was in Lensa, in the mountain. His brother had his back on Racaza when
Racaza shot him in the buttock. He saw Tereso Sanchez as one of the victims in that massacre. He also witnessed the
mass torture in the school building before the victims were marched up to the mountains.
Jose de la Cerna, 34 years old, testified that on July 29, he was one of the people arrested in Basac and concentrated
in the school building. Those who made the arrests were Japanese and Filipino undercovers. Among these were
Antonio Racaza, Antonio Tancinco, Roberto Bautista alias Eriberto Ocampo, Filemon Delgado, Margarito Campos and
Jesus Campos. Antonio Racaza was one of those who beat him (witness) with an iron bar, kicked him, boxed him and
inserted a galvanized iron tube into his throat through which sand was poured. He was choked and was unconscious
for several minutes. When he came to, they questioned him as to the whereabouts of his brother who was with
Governor Abellanosa. Then he was hung from two to five o'clock in the afternoon. The cause of the massacre and
mass torture in Basac was that about three or four days before July 29, the guerrillas attacked a train loaded with
naval officers on Mambaling bridge in Dulho, Cebu.
Count 11, Hipolito Cabahug, 18 years old, widow, testified that her husband was captured by Racaza and his
companions on November 16, 1944, in the municipality of Mandawe, Province of Cebu. On that date Antonio Racaza
came up to her house leaving his companions below. He threatened the people in the house with his sword, told them
not to move, and asked the witness whether her husband was a soldier. Because her answers were not satisfactory,
he arrested her and her husband and Antonio Racaza hung her husband. While her husband was hanging in mid-air
they beat him with a big bat. Then they lowered her husband and Racaza hung her instead. While she was dangling in
the air they stepped on her husband's prostrate body trying to force him to admit that he was a guerrilla. They put o his
neck a piece of lumber and stepped a man sat astride her husband's abdomen. Afterward they hung her husband

again. After he was released this time he was taken across a creek; that was the last she saw of him. The cadaver
was found by her father-in-law Gregorio Del Castillo. Her brother-in-law, Victorino del Castillo, was taken the next
morning and brought to the same place. They also hung Victorino and beat him while hanging. He died before his
body was brought down.

Separate Opinions

Gregorio del Castillo 50 years old, testified that this sons are dead because they were arrested by Antonio Racaza at
their place It was November 16, about 9 o'clock in the evening. Hipolita Cabahug is his daughter-in-law living with him.
He was present when his sons were arrested. Hipolita was told to come along. He found the next day the bodies of his
son in a creek. One of them was naked with several wounds and the neck was almost severed from the body. Rope
was still tied around his hands.

"A big crowd gathered at the plaza of the Cebu capitol during the three days of trial and right there the public showed
visible indignation with an eager desire that the collaborators be dealt with by the court of justice without mercy."

To sum up, we find the defendants guilty of counts 2, 3 and 13 by the defendant's plea of guilty, and of counts 4, 6, 9,
and 11 by the testimony of two or more eye-witnesses to the overt acts. These admitted and proven charges, in the
opinion of the majority of the court, lead to the same result reached by the trial court.

There is no question as to appellant's guilt. The evidence on record is conclusive, and defendant himself pleaded
guilty to several of the counts of the information. We find that he committed the acts alleged in the information. The
only question raised in this appeal refers to the penalty imposed by the People's Court.

The trial court found the aggravating circumstances of evident premeditation, superior strength, treachery and
employment of means for adding ignominy to the natural effects of the crime.

Counsel de oficio makes two assignments of error: First, that the lower court erred in not considering the plea of guilty
entered by the defendant as a mitigating circumstance, and second, in considering evident premeditation, taking
advantage of superior strength, treachery and employing means to add ignominy to the natural effects of his acts, as
aggravating circumstances, and prays that the appealed judgment be modified to any degree within the limits
of reclusion temporal and to a fine of P10,000.

The first three circumstances are, by their nature inherent in the offense of treason and may not be taken to aggravate
the penalty. Adherence and the giving of aid and comfort to the enemy is, in many cases, as in this, a long, continued
process requiring, for the successful consummation of the traitor's purpose, fixed, reflective and persistent
determination and planning.
So are superior strength and treachery included in the crime of treason. Treachery is merged in superior strength; and
to overcome the opposition and wipe out resistance movements, which was Racaza's purpose in collaborating with the
enemy, the use of a large force and equipment was necessary. The enemy to whom the accused adhered was itself
the personification of brute, superior force, and it was this superior force which enabled him to overrun the country and
for a time subdue its inhabitants by his brutal rule. The law does not expect the enemy and its adherents to meet their
foes only on even terms according to the romantic traditions of chivalry.
But the law does abhor inhumanity and the abuse of strength to commit acts unnecessary to the commission of
treason. There is no incompatibility between treason and decent, human treatment of prisoners. Rapes, wanton
robbery for personal gain, and other forms of cruelties are condemned and the perpetration of these will be regarded
as aggravating circumstances of ignominy and of deliberately augmenting unnecessary wrongs to the main Criminal
objective under paragraphs 17 and 21 of article 14 of the Revised Penal Code. The atrocities above mentioned, of
which the appellant is beyond doubt guilty, fall within the terms of the above paragraphs.
For the very reason that premeditation, treachery and use of superior strength are absorbed in treason characterized
by killing, the killings themselves and other accompanying crimes should be taken into consideration for measuring the
degree and gravity of criminal responsibility irrespective of the manner in which they were committed. Were not this
the rule, treason, the highest crime known to law, would confer on its perpetrators advantages that are denied simple
murderers. to avoid such incongruity and injustice, the penalty in treason will be adapted, within the range provided in
the Revised Penal Code, to the danger and harm to which the culprit has exposed his country and his people and to
the wrongs and injuries that resulted from his deeds. The letter and pervading spirit of the Revised Penal Code adjust
penalties to the perversity of the mind that conceived and carried the crime into execution. Where the system of
graduating penalties by the prescribed standards is inapplicable, as in the case of homicides connected with treason,
the method of analogies to fit the punishment with the enormity of the offense my be summoned to the service of
justice and consistency and in furtherance of the law's aims.
The judgment appealed from is correct in this result and the same should be affirmed with costs. However, as four
justices dissent from the imposition of the death penalty, the appealed sentence is modified and reduced to reclusion
perpetua and legal accessories, a fine of P20,000 and costs.
Moran, C.J., Paras, Feria, Pablo, Bengzon, Briones, Tuason and Montemayor, JJ., concur.

PERFECTO, J., concurring:

The above quotation comes from the appealed decision finding appellant guilty of the crime of treason and sentencing
him to death and to pay a fine of P20,000 and the costs.

The prosecution maintains that the plea of guilty cannot be considered as a mitigating circumstance in favor of
appellant because it had been entered after seven witnesses for the prosecution had already testified. But counsel de
oficio points out that the plea should be considered as a mitigating, circumstances, although entered after some
witnesses for the prosecution had testified, because of the provisions of paragraph 10 of article 13 of the Revised
Penal Code, which provides that "any other circumstance of a similar nature and analogous to those abovementioned," should be considered, referring to the specified mitigating circumstances. the similarity or analogy
between a plea of guilty entered after some of the witnesses for the prosecution had testified cannot seriously be
disputed. The circumstances in question should be taken into consideration in the judgment.
The appealed decision states that the aggravating circumstances in question concurred "in most of the overt acts
committed by the defendant, " but without specifying the specific acts constituting said circumstances. The
prosecution's brief supplies the needed specifications.
The undressing to two women and attempted rape of one of them are pointed out as adding ignominy to the crime.
According to the evidence, Silvina Cabellon was the only one undressed. The attempted rape on the person of Silvina
Cabellon may be considered as ground for the prosecution of a different offense, but cannot be considered as
aggravating treason, a crime political in nature. In the attempted rape there was nothing political and it had nothing to
do with defendant's adherence and aid to the enemy.
Nighttime, superior strength, aid of armed forces, treachery, and evident premeditation should be considered as
essential elements of the treason committed by appellant. We take judicial notice of the fact that said elements have
always or almost always accompanied the procedures under taken by the Japanese for the suppression of guerrillas.
The accused, having adhered to the enemy and allowed the underground movement, it was natural for him to follow
the same tactics of his masters.
The medium penalty provided by article 114 of the Revised Penal Code be imposed upon appellant, as no aggravating
nor mitigating circumstances can effect his legal responsibility. Although his plea of guilty should be considered in his
favor, it should be considered only with regard to the counts to which he pleaded guilty, and there are other counts in
the information to which he did not plead guilty and which are fully supported by the evidence on record.
A majority voted to affirm the appealed decision, but in view of the contrary opinion of the writer, the principal penalty is
modified to reclusion perpetua, and affirmed in all other respects.

We cannot vote for the affirmance of the appealed penalty. not only for the reasons as above stated, but for the further
reason that it is not beyond the realm of probability that the trial court could not have been completely free from the
psychological of the mob frenzy described in the a quo decision the pertinent paragraph of which is quoted at the
beginning of this opinion.

the city of Manila, Puzon held several conferences with the said Muoz whereat plans were made for the coming
insurrection; that at one of these conferences Muoz offered Puzon a commission as brigadier-general of the signal
corps and undertook to do his part in organizing the troops; and that at a later conference he assured the said Muoz
that he had things in readiness, meaning thereby that he had duly organized in accordance with the terms of his
commission.

November 3, 1906
G.R. No. 2189
THE UNITED STATES, plaintiff-appellee,
vs.
FRANCISCO BAUTISTA, ET AL., defendants-appellants.
Aguedo Velarde and Pineda and Escueta, for appellants.
Office of the Solicitor-General Araneta, for appellee.

Puzon at the trial declared that he had never united himself with the conspirators; that he had accepted the
appointment as brigadier-general of the signal corps of the revolutionary forces with no intention of ever taking any
further action in the matter, and merely because he did not wish to vex his friend Muoz by refusing to do so, and that
when Muoz offered him the appointment as brigadier-general he did so in "a joking tone," and that he, Puzon, did not
know that Ricarte was in Manila organizing the conspiracy at that time.
These statements, however (except in so far as they corroborate the testimony of Muoz as to the fact that he had
several interviews with Puzon at which plans were entered into for the advancement of the cause of the conspirators),
can not be accepted as true in the light of a written statement signed by Puzon himself at the time when he was first
arrested, part of which is as follows:

CARSON, J.:
The appellants in this case was convicted in the Court of First Instance of Manila of the crime of conspiracy to
overthrow, put down, and destroy by force the Government of the United States in the Philippine Islands and the
Government of the Philippine Islands, as defined and penalized in section 4 of Act No. 292 of the Philippine
Commission.

Q. What is your name and what is your age, residence, and occupation? A. My name is Tomas Puzon; born in
Binondo in the Province of Manila; 37 years of age; married; by profession a teacher of primary and secondary
schools, and residing in Calle Concepcion, No. 195, district of Quiapo.
Q. Do you know Artemio Ricarte? A. Personally I do not know him, but by name, yes.

The appellant Francisco Bautista was sentenced to four years' imprisonment, with hard labor, and $3,000 fine, and
Aniceto de Guzman and Tomas Puzon, and each of them, to three years' imprisonment, with hard labor, and a fine of
$2,000, and all and each of the said appellants to pay their proportionate share of the costs of the trial and to undergo
subsidiary imprisonment in the event of insolvency and failure to pay their respective fines.

Q. Did you have any information that Ricarte was in these Islands and with what object he came here? And if you
know it to be true, through whom did you get such information? A. In the first place I had notice of his coming to the
Islands as well as his object by reading the newspapers of Manila, and secondly because J. R. Muoz told me the
same on one occasion when I was in his house to visit him.

The evidence of record conclusively establishes that during the latter part of the year 1903 a junta was organized and
a conspiracy entered into by a number of Filipinos, resident in the city of Hongkong, for the purpose of overthrowing
the Government of the United States in the Philippine Islands by force of arms and establishing in its stead a
government to be known as the Republica Universal Democratica Filipina; that one Prim Ruiz was recognized as the
titular head of this conspiracy and one Artemio Ricarte as chief of the military forces to the organized in the Philippines
in the furtherance of the plans of the conspirators; that toward the end of December, 1903 the said Ricarte came to
Manila from Hongkong in hidding on board the steamship Yuensang; that after his arrival in the Philippines he held a
number of meetings in the city of Manila and the adjoining provinces whereat was perfected the above-mentioned
conspiracy hatched in Hongkong that at these meetings new members were taken into the conspiracy and plans made
for the enlistment of an army of revolution and the raising of money by national and private loans to carry on the
campaign; that to this end bonds were issued and commissions as officers in the revolutionary army were granted to a
number of conspirators, empowering the officers thus appointed to raise troops and take command thereof; and that
the conspirators did in fact take the field and offered armed resistance to the constituted authorities in the Philippines,
only failing in their design of overthrowing the Government because of their failure to combat successfully with the
officers of the law who were sent against them and of the failure of the people to rise en masse in response to their
propaganda.

Q. Did you acquire this information through any other person? A. No, sir; I have no more information than that which
I have mentioned.

It further appears from the evidence that the appellant Francisco Bautista, a resident of the city of Manila, was an
intimate friend of the said Ricarte; that Ricarte wrote and notified Bautista of his coming to Manila and that, to aid him
in his journey, Bautista forwarded to him secretly 200 pesos; that after the arrival of Ricarte, Bautista was present,
taking part in several of the above-mentioned meetings whereat the plans of the conspirators were discussed and
perfected, and that at one of these meetings Bautista, in answer to a question of Ricarte, assured him that the
necessary preparations had been made and that he "held the people in readiness."

Q. If you didn't have faith in the said authorization nor the will to carry out what was intrusted to you, why did you
accept employment as general of the brigade? A. I accepted it on account of friendship and not to vex a friend, but I
never have the intention of fulfilling the obligations.

It further appears that the appellant, Tomas Puzon, united with the conspirators through the agency of one Jose R.
Muoz, who was proven to have been a prime leader of the movement, in the intimate confidence of Ricarte, and by
him authorized to distribute bonds and nominate and appoint certain officials, including a brigadier-general of the
signal corps of the proposed revolutionary forces; that at the time when the conspiracy was being brought to a head in

Q. Are you a part of his new revolution presided over by Ricarte? A. Yes, sir.
Q. What is the employment (empleo) which you have in this organization, and who is it who invited you to join it? A.
J. R. Muoz, who is general of division of this new organization, spoke to me with much instance, asking me to accept
employment as brigadier-general, chief of signal corps, to which I, on account of his request and in view of the fact that
the said Muoz is a friend of mine from my youth, acceded; nevertheless I have organized absolutely nothing in
respect to this matter.
Q. Did you accept the employment and did they give you any commission for it? A. Yes, sir; I accepted said
employment and although they gave me an order to organize in my brigade I did not do it, because I had neither the
confidence nor the will.

Puzon, when on the stand in his own behalf, did not deny that he made this statement, but he attempted to explain it
away by saying that when he made it he was so exited that he did not know just what he was saying. He does not
allege that improper means were taken to procure the confession, and it was proven at the trial that it was freely and
voluntarily made and not the result of violence, intimidation, threat, menace, or promise of reward or leniency. The
accused appears to be an intelligent man and was for eighteen years a school-teacher and later a telegraph operator
under the Spanish Government, and during the insurrection he held a commission as an officer in the signal corps of
the revolutionary army. His confession is clear and intelligible and in no way supports his pretense that he was so

excited as not to know what he was saying when he made it, and its truth and accuracy in so far it inculpates him is
sustained by other evidence of record in this case.
It is contended that the acceptance or possession of an appointment as an officer of the military forces of the
conspiracy should not be considered as evidence against him in the light of the decisions of this court in the cases of
the United States vs. Antonio de los Reyes[[1]] (2 Off. Gaz., 364), United States vs. Silverio Nuez et al.[[2]] (3 Off. Gaz.,
408), the United States vs. Eusebio de la Serna et al.[[3]] (3 Off. Gaz., 528), and United States vs. Bernardo Manalo et
al.[[4]] (4 Off. Gaz., 570). But the case at bar is to be distinguished from these and like cases by the fact that the record
clearly disclose that the accused actually and voluntarily accepted the apppointment in question and in doing so
assumed all the obligations implied by such acceptance, and that the charge in this case is that of conspiracy, and the
fact that the accused accepted the appointment is taken into consideration merely as evidence of his criminal relations
with the conspirators. In the first of these cases the United States vs. De los Reyes the accused was charged
with treason, and the court found that the mere acceptance of a commission by the defendant, nothing else being
done either by himself or by his companions, was not an "overt act" of treason within the meaning of the law, but the
court further expressly held that
That state of affairs disclosed body of evidence, . . . the playing of the game of government like children, the
secretaries, colonels, and captains, the pictures of flags and seals and commission, all on proper, for the purpose of
duping and misleading the ignorant and the visionary . . . should not be dignified by the name of treason.
In the second case the United States vs. Nuez et al. -- wherein the accused were charged with brigandage, the
court held that, aside from the possession of commissions in an insurgent band, there was no evidence to show that it
they had committed the crime and, "moreover, that it appeared that they had never united with any party of brigands
and never had been in any way connected with such parties unless the physical possession of these appointments
proved such relation," and that it appeared that each one of the defendants "were separately approached at different
times by armed men while working in the field and were virtually compelled to accept the commissions."

Counsel for appellants contend that the constitutional provision requiring the testimony of at least two witnesses to the
same overt act, or confession in open court, to support a conviction for the crime of treason should be applied in this
case, but this court has always held, in conformance with the decisions of the Federal courts of the United States, that
the crime of conspiring to commit treason is a separate and distinct offense from the crime of treason, and that this
constitutional provision is not applicable in such cases. (In re Bollman, 4 Cranch, 74; U. S. vs. Mitchell, 2 Dall., 348.)
The evidence of record does not sustain the conviction of Aniceto de Guzman. The finding of his guilt rest substantially
upon his acceptance of a number of bonds from one of the conspirators, such bonds having been prepared by the
conspirators for the purpose of raising funds for carrying out the plans of the conspiracy, but it does not affirmatively
appear that he knew anything of the existence of the conspiracy or that, when he received the bonds wrapped in a
bundle, he knew what the contents of the bundle was, nor that ever, on any occasion, assumed any obligation with
respect to these bonds. He, himself, states that when he opened the bundle and discovered the nature of the contents
he destroyed them with fire, and that he never had any dealings with the conspirators in relation to the conspiracy or
the object for which it was organized.
We are of opinion, therefore, that the judgment and sentence before us, in so far as it affects the said Aniceto de
Guzman, should be reversed, with his proportionate share of the costs of both instances de oficio, and that the said
Anecito de Guzman should be acquitted of the crime with which he is charged and set a liberty forthwith, and that the
judgment and sentence of the trial court, in so far as it applies to Francisco Bautista and Tomas Puzon, should be, and
is hereby, affirmed, except so far as it imposes subsidiary imprisonment in the event of insolvency and failure to pay
their respective fines, and, there being no authority in law of such provision, so much of the sentence as undertakes to
impose subsidiary imprisonment is hereby reversed.
After ten days let judgment be entered in accordance herewith, when the record will be returned to the trial court for
execution. So ordered.
October 10, 1947

In the case of the United States vs. de la Serna et al. it was contended that de la Serna had confessed that "he was
one of the members of the pulajanes, with a commission as colonel," but the court was of opinion that the evidence did
not sustain a finding that such confession had in fact been made, hence the doctrine laid down in that decision, "that
the mere possession of such an appointment, when it is not shown that the possessor executed some external act by
the virtue of the same, does not constitute sufficient proof of the guilt of the defendant," applies only the case of
Enrique Camonas, against whom the only evidence of record was "the fact that a so-called appointment of sergeant
was found at his house."
In the case of the United States vs. Bernardo Manalo et al. there was testimony that four appointments of officials in a
revolutionary army were found in a trunk in the house of one Valentin Colorado, and the court in said case reaffirmed
the doctrine that "the mere possession of the documents of this kind is not sufficient to convict," and held, furthermore,
that there was "evidence in the case that at the time these papers were received by the appellant, Valentin Colorado,
he went to one of the assistant councilmen of the barrio in which lived, a witness for the Government, showed him the
envelope, and stated to him he had received these papers; that he didn't know what they were and requested this
councilman to open them. The coucilman did not wish to do that but took the envelope and sent it to the councilman
Jose Millora. We are satisfied that this envelope contained the appointments in question and that the appellant did not
act under the appointment but immediately reported the receipt of them to the authorities."
It is quite conceivable that a group of conspirators might appoint a person in no wise connected with them to some
high office in the conspiracy, in the hope that such person would afterwards accept the commission and thus unite
himself with them, and it is even possible that such an appointment might be forwarded in the mail or otherwise, and
thus come into the possession of the person thus nominated, and that such appointment might be found in his
possession, and, notwithstanding all this, the person in whose possession the appointment was found might be
entirely innocent of all intention to join the conspiracy, never having authorized the conspirators to use his name in this
manner nor to send such a commission to him. Indeed, cases are not unknown in the annals of criminal prosecutions
wherein it has been proven that such appointments have been concealed in the baggage or among the papers of the
accused persons, so that when later discovered by the officers of the law they might be used as evidence against the
accused. But where a genuine conspiracy is shown to have existed as in this case, and it is proven that the accused
voluntarily accepted an appointment as an officer in that conspiracy, we think that this fact may properly be taken into
consideration as evidence of his relations with the conspirators.

G.R. No. L-778

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NEMESIO L. AGPANGAN, defendant-appellant.
Alfredo Gonzales for appellant.
Acting First Assistant Solicitor General Roberto A. Gianzon and Solicitor Federico V. Sian for appellee.
PERFECTO, J.:
Appellant stands accused of treason, committed between December, 1944, and January, 1945, in the Province of
Laguna, on only one count alleged in the information as follows:
That on or about December 20, 1944, the accused, a member of the Ganap, a subversive pro-Japanese organization,
joined the Pampars, a military organization supporting the Imperial Japanese Army and designed to bear arms against
the army of the United States and the Commonwealth of the Philippines and the guerrillas in the Philippines; that he
was equipped with a 1903 Springfield rifle, caliber .30, and was made to undergo 10 days training, consisting of
military drill, manual of arms, and target practice; and that from or about January 12, 1945 to March 15, the said
accused was assigned to guard duty once a week; that he was armed with a rifle with orders to shoot any of the
Filipino prisoners whom he was guarding who might attempt to escape and also any guerrilla or American soldier who
might approach the Japanese garrison.
The lower court found him guilty and sentenced him to reclusion perpetua, with the accessory penalties provided by
law, and to pay a fine of P10,000 and the costs.
Three witnesses testified for the prosecution.

Tomas C. Serrano, 46, farmer, resident of Siniloan, Second Lieutenant in the Marking's guerrilla organization, testified
that on December, 1944, he saw the accused in the Japanese garrison in Siniloan, "he was a member of
the Makapili organization;" "he was doing guard duty, with a rifle, with a bayonet at his side;" "he was at the entrance
of the garrison and he made all civilians passing through the entrance bow to him." If they did not bow, "he dragged
them by the arms and brought them to the captain of the garrison;" he served as guard "since November, 1944, when
the Japanese garrison was established in Siniloan, up to the time I was arrested on March 25, 1945;" he saw the
accused on guard duty in the garrison "many times;" "I often saw him confiscating foodstuffs such as rice,
fruits, calabasa, and other vegetables, for the support of the Japanese soldiers;" "he was with arms accompanied by
Japanese soldiers and other members of the Makapili;" "I often saw him accompanied by Japanese soldiers and
other Makalipi members, arresting suspected guerrillas and sometimes they were patrolling or camping in the hideouts
of the guerrilla forces, I cannot tell how many times, but I often saw him;" the witness was arrested on March 25, 1945,
by the Japanese soldiers and Makapilis, with whom the accused was; "the next morning we, the thirteen prisoners,
were brought to the place where we were to be executed; but luckily while we were on our way to the barrio, the
American planes came roaring, so the guards took cover;" "they were pulling the rope that tied us, and luckily I was
able to slip away because I was the second to the last man in the line, and the rope was cut;" "I could not run fast
because I was lame;" the rest were executed, naming the following: "Alejandro Serrano, Custodio Adaro, Emilio Javier,
Peter Sardal, Elias Rodolfo, Ignacio Cavano, Biato Optis, Napoleon Pagtakhan, Bienvenido Agpangan, and myself;"
Miguel Palma "was in my back to the last, so we two remained, and Pacifico (Adopina) remained untied" because he
was carrying food, and when the Japanese ran, "he escaped." Asked to explain that he knew about the lot of those
who were executed, the witness said that he went home when the town was liberated, and he visited the place
"because I know the place," and we reached the spot "I smelled very bad odor, and I recognized the soil which
swelled, so I said to myself that this is the place where our son was buried;" "I went home and I told the other parents
of the victims" about the spot; " the next month, about thirty days," the witness and the other parents requested the
municipal authorities to be allowed to exhume the bodies; when his son is being taken to the place of execution. "I had
not seen him that time;" the witness based his knowledge as to appellant's being a Makapili on Exhibit A and he saw
him armed, guarding the Japanese garrison, confiscating foodstuffs for the Japanese, and arresting guerrilla suspects
in the town; Bienvenido Agpangan, one of those who were executed by the Japanese, "was the son" of appellant; "I
can not tell you whether he (appellant) was reporting to his officers any guerrilla;" Angel Javier and Custodio Adaro
were arrested by a party of which the accused was a member, and "I know because he was with them when they were
arrested;" the witness does not know whether the accused was present during the execution "because there was
nobody present; only God had witnessed the killing of those persons."
Mauricio Adaro, 47, farmer, resident of Siniloan, testified that in December, 1944, he saw the accused in the Japanese
garrison in Siniloan; " he was mounting guard;" asked from what date to what date he saw him in the garrison, the
witness answered that "I cannot remember the month in 1944 because we used to go out of Siniloan every time;"
appellant "was getting food supplies from the civilians and giving them to the Japanese;" "the accused and the
Japanese companions of his arrested my son (Custodio) in our house;" the witness was not arrested, "because I was
able to hide;" he saw defendant mounting guard in the Japanese garrison "many times;" "more than ten times;" the
garrison was located "in the school building."
Delfin Redor, 55, mayor of Siniloan, since 1937, testified hat appellant "has been my barrio lieutenant;" he belongs
to Pampar Makapili, and Pampar and Makapili, "I believe are the same;" from December, 1944, to March, 1945, the
witness saw the accused "in the Makapili garrison, in the Siniloan plaza;" "I believe that he was a member of
theMakapili;" "Sometimes he was detailed as guard in front of the garrison with arms and ammunitions bayonet;" he
saw as such "many times;" the witness was not a mayor during the Japanese occupation because "in 1944, March, I
escaped because, you know, I was wanted by the Japanese because I was also a guerrilla; before that "I was mayor
of the town;" during December, 1944, up to March, because you know, I left the office, I was still in the town of Siniloan
collecting some supplies for the guerrillas;" after abandoning the office of mayor, the witness "remained living in
the poblacion of Siniloan;" he "never stopped living in the poblacion;" "I had three times seen the accused
accompanied by the Japanese in raiding outside poblacion;" the accused commandeered foodstuffs "and took them to
the garrison for food;" "the Japanese garrison was in the Intermediate Building and the Makapili garrison is in Baybay
Academy, about one kilometer distant;" the witness saw the accused "in Makapiligarrison;" the witness was a captain
of the guerrillas and was arrested by the Japanese four times, and in those occasions he did not see the accused in
the garrison; the witness does no know of anybody who had been pointed out by the accused to the Japanese and
was arrested by the same.
The Constitution provides that "in all criminal prosecutions the accused shall be presumed to be innocent until the
contrary is proved." (Article II, section 1 [17].) To overcome this constitutional presumption, the guilt of the accused
must be proved beyond all reasonable doubt. The evidence presented by the prosecution in this case does not offer

that degree of proof. None of the several overt acts alleged in the information has been proved in accordance with the
two-witness rule provided in the article 114 of the Revised Penal Code.
It is imputed to the appellant, in the first place, that he is a member of the Ganap, "a subversive pro-Japanese
organization," and "joined the Pampar, a military organization supporting the Imperial Japanese Army and designed to
bear arms against the Army of the United States in Commonwealth of the Philippines and the guerrillas in the
Philippines." No witness has testified that appellant is the member of the Ganap. Only one witness, Redor, testified
that appellant belonged to Pampar, but he did not testify as to its nature.
The next allegation of the information is that appellant "was equipped with a 1903 Springfield rifle, caliber 30, and was
made to undergo ten days training, consisting of military drill, manual of arms, and target practice. "No evidence has
been presented in support of this allegation.
The third allegation against appellant is that "from or about January 12, 1945, to March 15, 1945, the said accused
was assigned to guard duty once a week." The fourth and the last allegation is that "he was armed with a rifle with
orders to shoot any of the Filipino prisoners whom he was guarding who might attempt to escape and also any
guerrilla or American soldier who might approach the Japanese garrison." In connection with these two allegation, the
only thing that the prosecution attempted to prove is that appellant did guard duty and was armed with rifle. But the
attempt does not meet the test under the two-witness rule.
The first two witnesses for the prosecution testified that they had seen the accused doing guard duty in the Japanese
garrison in Siniloan "many times," more than "ten times," but neither of them has mentioned any specific time, day and
hour. They were able to mention only years and months. There is no way of concluding the two witnesses testified
about the same overt act. The "many times" or more than "ten times" mentioned by them may refer either to two
different sets of moments, not one instant of one set coinciding with any one of the other, or to only one and identical
set of instances or, although referring to two sets, some of the instances are the same in both. As there is no basis on
record upon which we may determine which, among the two alternatives, is the correct one, the doubt must be
decided by taking the first alternative, the one compatible with the presumption of innocence stated in the fundamental
law. The case for the prosecution is further weakened by the fact that it is first two witnesses are contradicted by the
third, who testified that appellant did guard duty "many times," more than "ten times," in the Makapili garrison, located
in the Baybay Academy, one kilometer from the Intermediate School building, where the Japanese garrison was
located.
To meet the test under two-witness rule, it is necessary that, at least, two witnesses should testify as to the
perpetration of the same treasonous overt act, and the sameness must include not only identity of kind and nature of
the act, but as to the precise one which has actually been perpetrated. The treasonous overt act of doing guard duty in
the Japanese garrison on one specific date cannot be identified with the doing of guard duty in the same garrison in a
different date. Both overt acts, although of the same nature and character, are two distinct and inconfusable acts,
independent of each other, and either one, to serve as a ground for conviction of an accused for treason, must be
proved by two witnesses. That one witness should testify as to one, and another as to the other, is not enough. Any
number of witnesses may testify against an accused for treason as to a long line of successive treasonous overt acts;
but notwithstanding the seriousness of the acts nor their number, not until two witnesses, at least, shall have testified
as to the perpetration of a single but the same and precise overt act, can conviction be entertained.
In justice to appellant, we feel it necessary to state that our decision to acquit him is not only based on the reasonable
doubt we entertain as to his guilt, because the prosecution has not satisfied the requirements of the two-witness rule,
but because we are rather inclined to believe his testimony to the effect that a guerrilla member, Vicente Auxilio, was
caught by the Japanese in appellant's house, tortured and, finally, killed. For said reason, appellant was called by the
Japanese, investigated, and then told to do some work in the garrison, otherwise he would have the same fate that
befell Vicente Auxilio. "To save my life, I accepted the order and worked there," he testified, adding: "The Japanese,
not being contended with my work, they got my carabao and on March, 1945, they got my son, who was tortured and
killed."
This son is the same Bienvenido Agpangan who, according to the first witness for the prosecution, was executed by
the Japanese with several other victims. We do not believe that appellant could have adhered to the Japanese, the
same who tortured and killed his own son. We do not believe that, in the absence of proof, he can be such a monster.

The decision of the People's Court is reversed and appellant is acquitted. He shall be released from the custody of the
agent of the law upon the promulgation of this decision.

in a traitorous army is not sufficient to constitute overt act of treason. To be so, there must be at least an attempt to act
as such. (U.S. vs. Manalo, 6 Phil., 364; U.S. vs. Villario, 5 Phil., 697; U.S. vs. De los Reyes, 3 Phil., 349; U.S. vs.
Magtibay, 2 Phil., 703.)

Moran, C.J., Pablo, Bengzon, Briones, Padilla, and Tuazon, JJ., concur.
PARAS, J.:

In view of the failure on the part of the prosecution to establish the treasonous overt act, and of each part or bit
therefore charge in the information against the appellant, by the testimony of the two witnesses, the decision of the
People's Court appealed from is reversed and the appellant acquitted. So ordered.

I concur in the result.

April 18, 1949

Separate Opinions

G.R. No. L-856

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SUSANO PEREZ (alias KID PEREZ), defendant-appellant.

FERIA, J., concurring and dissenting:

The information filed against the appellant with the People's Court contains only one count to wit:
That on or about December 20, 1944, the accused, a member of the Ganap, a subversive pro-Japanese organization,
joined the Pampars, a military organization supporting the Imperial Japanese Army and designed to bear arms against
the army of the United States and the Commonwealth of the Philippines and the guerrillas in the Philippines; that he
was equipped with a 1903 Springfield rifle, caliber 30, and was made to undergo 10 days training, consisting of
military drill, manual of arms, and target practice; and that from or about January 12, 1945 to March 15, 1945, the said
accused was assigned to guard duty once a week; that he was armed with a rifle with orders to shoot any of the
Filipino prisoners whom he was guarding who might attempt to escape and also any guerrilla or American soldier who
might approach the Japanese garrison.
From the above it clearly appears that defendant is charge with having committed only overt act, that is, with having
joined or become an active member of the Pampars, "a military organization supporting the Imperial Japanese army
and designed to bear arms against the army of the United States and the guerrillas in the Philippines." The allegations
"that he was equipped with a 1903 Springfield rifle, caliber .30, and was made to undergo 10 days training consisting
of military drill, manual of arms, and target practice," and that "from January 12, 1945 to March 15, 1945, the said
accused was assigned to guard duty once a week," do not constitute to overt acts separate and independent from the
treasonous or over act of joining and becoming an active member of the said military organization named Pampars.
Each one of those facts is a part and parcel of said treasonous act, since by becoming an active member or soldier of
said military organization, the appellant must have necessary been armed, undergone training and done guard duty.
In the case of People vs. Alarcon, G.R. No. L-407, [[1]] already decided by this Court the defendant appellant Alarcon
was charged with the crime of treason consisting, according to the information, of several overt acts alleged separately
in several counts. In the first count he was charged with having joined and acted as a member of the pro-Japanese
military organization name Makapili; and in the fourth having retreated in December 1944 with the Japanese forces
towards Bogabong, Nueva Ecija, before the arrival of the American Forces in Cabanatuan. This Court in decision
unanimously concurred in by all the members who voted, including the Justice who pens the decision of the majority in
this case, held that "the acts alleged in the fourth count constitute only a part of the overt act charged in the first count,
since the appellant, as one of the members of said Makapili organization, had to retreat with the Japanese soldier and
other Makapilis to the mountains."
In view of the foregoing, it is that the following fundamental conclusion in the majority decision is erroneous and
misleading. The conclusion says: "The treasonous overt act of doing guard duty in the Japanese garrison on one
specific date can not be identified with the doing of guard duty in the same garrison on a different date. Both overt
acts, although of the same nature and character, are two distinct and inconfusableacts independent of each other,
and either one, to serve as a ground for conviction of an accused for treason, must be proved by two witnesses." We
say that it is erroneous and misleading, because the mere act of doing guard duty member in a Japanese garrison,
independent from that of being a member of the Japanese Army or a military organization of Filipino civilians and allied
with the Japanese forces, does not of itself constitute an overt act. Doing guard duty in a Japanese garrison on a
specific date, and standing guard in the same or another Japanese garrison on a different date, are but parts or bits of
the continuous treasonous act of being an active member of such organization. The mere acceptance of a commission

Crispin Oben and Isidro Santiago for appellant.

Assistance Solicitor General Manuel P. Barcelona and Solicitor Esmeraldo Umali for appellee.
TUASON, J.:
Susano Perez alias Kid Perez alias Kid Perez was convicted of treason by the 5th Division of the People's Court sitting
in Cebu City and sentenced to death by electrocution.
Seven counts were alleged in the information but the prosecution offered evidence only on counts 1, 2, 4, 5 and 6, all
of which, according to the court, were substantiated. In a unanimous decision, the trial court found as follows:
"As regards count No. 1
Count No. 1 alleges that the accused, together with the other Filipinos, recruited, apprehended and commandeered
numerous girls and women against their will for the purpose of using them, as in fact they were used, to satisfy the
immoral purpose and sexual desire of Colonel Mini, and among such unfortunate victims, were Felina Laput, Eriberta
Ramo alias Miami Ramo, Eduarda Daohog, Eutiquia Lamay, Feliciana Bonalos and Flaviana Bonalos.
It would be unnecessary to recite here the testimonies of all the victims of the accused; it sufficient to reproduce here
succinctly the testimony of Eriberta Ramo. She testified that on June 15, 1942, the accused came to her house to get
her and told her that she was wanted in the house of her aunt, but instead, she was brought to the house of the
Puppet Governor Agapito Hontanosas; that she escaped and returned to Baclayon her hometown; that the accused
came again and told her that Colonel Mini wanted her to be his Information Clerk; that she did not accept the job; that
a week later the accused came to Baclayon to get her, and succeeded in taking some other girls Puppet Governor
Agapito Hontanosas; that Governor Hontanosas told her that Colonel Mini wanted her to be his wife; that when she
was brought to Colonel Mini the latter had nothing on but a "G" string; that he, Colonel Mini threatened her with a
sword tied her to a bed and with force succeeded in having carnal knowledge with her; that on the following night,
again she was brought to Colonel Mini and again she was raped; that finally she was able to escape and stayed in
hiding for three weeks and only came out from the hiding when Colonel Mini left Tagbilaran.
"As regards count No. 2
Count No. 2 of the information substantially alleges: That accused in company with some Japanese and Filipinos took
Eriberta Ramo and her sister Cleopatra Ramo from their home in Baclayon to attend a banquet and a dance organized
in honor of Colonel Mini by the Puppet Governor, Agapito Hontanosas in order that said Japanese Colonel might
select those first who would later be taken to satisfy his carnal appetite and that by means of threat, force and
intimidation, the above mentioned two sister were brought to the headquarters of the Japanese Commander at the
Mission Hospital in Tagbilaran where Eriberta Ramo was forced to lived a life of shame. All these facts alleged in count

No. 2 were testified to by said witnesses Eriberta Ramo her mother Mercedes de Ramo. It is not necessary here to
recite once more their testimony in support of the allegations in court No. 2; this Court is fully convinced that the
allegation in said count No. 2 were fully substantiated by the evidence adduced.
"As regards count No. 4
Count No. 4 substantially alleges that on July 16, 1942, the two girls named Eduardo S. Daohog and Eutiquia Lamay,
were taken from their homes in Corella, Bohol, by the accused and his companion named Vicente Bullecer, and
delivered to the Japanese Officer, Dr. Takibayas to satisfy his carnal appetite, but these two, the accused Susano
Perez and his companion Vicente Bullecer, before delivering them to said Japanese Officer, satisfied first their lust; the
accused Susano Perez raping Eduarda S. Daohog and his companion, Vicente Bullecer, the other girl Eutiquia Lamay.
Eduarda S. Daohog, testifying, said: that while on the way to Tagbilaran, the accused though force and intimidation,
raped her in an uninhabited house; that she resisted with all her force against the desire of the accused, but of no
avail; that upon arriving in Tagbilaran, she was delivered to the Japanese Officer named Takibayas who also raped
her. Eutiquia Lamay testified that on July 16, 1942, the accused and his companion, Bullecer, went to her house to
take her and her sister; that her sister was then out of the house; that the accused threatened her with a revolved if
she refuses to go; that she was placed in a car where Eduarda Daohog was; that while they were in the car, the
accused carried Eduarda out of the car, and their companion Bullecer took the other witness (Eutiquia Lamay); that
when the accused and Eduarda returned to the car, the latter; Eduarda, covered her face, crying; that later, she and
Eduarda were taken to the Governor's house; that on arriving and in the presence of the Puppet Governor
Hontanosas, the Governor exclaimed: "I did not call for these girls": but the accused replied saying: "These girls talked
bad against the Japanese , and that is why we arrested them"; that the said Governor Hontaosas then, said: "Take
them to the Japanese "; that the accused and Bullecer brought the two girls to the Japanese headquarters; that
Eduarda was taken to one room by the Japanese Captain called Dr. Takibayas, and she (Eutiquia Lamay) was taken
to another room by another Japanese living in that house; that she was raped by that Jap while in the room; that she
resisted all she could, but of no avail.
In the light of the testimonies of these two witnesses, Eduarda S. Daohog and Eutiquia Lamay, all the allegations in
Court No. 4 were fully proven beyond reasonable doubt.
"As regards count No. 5
Count No. 5 alleges: That on or about June 4, 1942, the said accused commandeered Feliciana Bonalos and her
sister Flaviana Bonalos on the pretext that they were to bee taken as witnesses before a Japanese Colonel in the
investigation of a case against a certain Chinese (Insik Eping), and uponarriving at Tagbilaran, Bohol, the accused
brought the aforesaid two girls to the residence of Colonel Mini, Commander of the Japanese Armed Forces in Bohol
and by means of violence threat and intimidation, said Japanese Colonel abused and had sexual intercourse with
Flaviana Bonalos; that the accused subsequently of Colonel Mini and through violence, threat and intimidation,
succeeded in having carnal knowledge with her against her will; that two days, later, upon the pretext of conducting the
unfortunate girls to their home, said accused brought the other girls Feliciana Bonalos to a secluded place in
Tagbilaran, Bohol, and in the darkness, by mean of threat and violence had carnal knowledge with her against her will.
Feliciana Bonalos testifying in this count, declared that the accused came to get her on the pretext that she was to be
used as witness in a case affecting certain Chinaman before Colonel Mini; that she and her younger sister Flaviana
were brought in a car driven by the accused; they were brought to the house of Colonel Mini; that sister Flaviana was
conducted into a room and after remaining in the same for about an hour, she came out with her hair and her dress in
disorder; that Flaviana told her immediately that she was raped against her will by Colonel Mini; that she (Feliciana),
after leaving the residence of said Jap officer, was taken by Perez to an uninhabited house and there by threat and
intimidation, the accused succeeded in raping her; that when she returned to her (the witness), Flaviana was crying;
that the following day while conducting the two girls back to their hometown, she (Feliciana) was also raped by the
accused in an uninhabited house, against her will.
Victoriana Arayan (mother of Feliciana and Flaviana Bonalos) testified as following: That on June 15, 1942, the
accused came and told her that the Japanese needed her daughters to be witnesses; that accordingly, he daughters,
under that understanding, started for Tagbilaran; that later, she went to Tagbilaran to look for her daughters and she
found them in the office of the Puppet Governor; that on seeing her, both daughters wept and told her that they were

turned over to the Japanese and raped them; that her daughter Flaviana told her (the witness) that after the Japanese
had raped her the accused also raped her (Flaviana) in an uninhabited house; that the accused did not permit her two
daughter to return home on the pretext that the Puppet Governor was then absent and in the meanwhile they stayed in
the house of the accused Perez; that when her daughter returned to her house ultimately, they related to her (mother)
what happened; that both daughters told her they would have preferred death rather than to have gone to Tagbilaran;
that Feliciana told her (the mother) that the accused had raped her.
The information give by Feliciana to her mother is admitted in evidence as a part of the res gestae regardless of the
time that had elapsed between the occurrence and the time of the information. In the manner these two witnesses
testified in court, there could be no doubt that they were telling the absolute truth. It is hard to conceived that these
girls would assume and admit the ignominy they have gone through if they were not true. The Court is fully convinced
that all the allegations contained in Court No. 5 have been proven by the testimonies of these two witnesses beyond
reasonable doubt.
"As regards count No. 6
Count No. 6, alleges: That the accused, together with his Filipino companion apprehended Natividad Barcinas,
Nicanora Ralameda and Teotima Barcinas, nurses of the provincial hospital, for not having attended a dance and
reception organized by the Puppet Governor in honor of Colonel Mini and other Japanese high ranking officers, which
was held in Tagbilaran market on June 25, 1942; that upon being brought the Puppet Governor, they were severely
reprimanded by the latter; that on July 8, 1942, against said nurses were forced to attend another banquet and dance
in order that the Jap officers Mini and Takibayas might make a selection which girls would suit best their fancy; that the
real purpose behind those forcible invitations was to lure them to the residence of said Japanese Officer Mini for
immoral purposes.
Natividad Barcinas, a Lieutenant of the P.A., testified at length. She declared: That on June 29, 1942, she and
companion nurses, saw the accused coming to the hospital with a revolver and took them on a car to the office of the
Puppet Governor where they were severely reprimanded by the latter for not attending the dance held on June and
receptions was to select from among them the best girl that would suit the fancy of Colonel Mini for immoral purposes
that she and her companions were always afraid of the accused Perez whenever he came to said hospital; that on one
occasion, one of the nurses on perceiving the approach of the accused, ran up into her room, laid down on bed and
simulated to be sick; that said accused, not satisfied, went up into the room of that particular nurse and pulled out the
blanket which covered her and telling her that it was only her pretext that she was sick.
The testimony of Lt. Natividad Barcinas is fully corroborated by that of Nicanora Ralameda. Said testimony need not
be reproduced here.
In a carefully written brief for the appellant these findings are not questioned, but it is contended that the deeds
committed by the accused do not constitute treason. The Solicitor General submits the opposite view, and argues that
"to maintain and preserve the morale of the soldiers has always been, and will always be, a fundamental concern of
army authorities, for the efficiency of rests not only on its physical attributes but also, mainly, on the morale of its
soldiers" (citing the annual report of the Chief of Staff, United State Army, for the fiscal year ending June 30, 1933).
If furnishing women for immoral purposes to the enemies was treason because women's company kept up their
morale, so fraternizing with them, entertaining them at parties, selling them food and drinks, and kindred acts, would
be treason. For any act of hospitality without doubt produces the same general result. yet by common agreement
those and similar manifestation of sympathy and attachment are not the kind of disloyalty that are punished as
treason.
In a broad sense, the law of treason does not prescribe all kinds of social, business and political intercourse between
the belligerent occupants of the invaded country and its inhabitants. In the nature of things, the occupation of a country
by the enemy is bound to create relations of all sorts between the invaders and the natives. What aid and comfort
constitute treason must depend upon their nature degree and purpose. To draw a line between treasonable and
untreasonable assistance is not always easy. The scope of adherence to the enemy is comprehensive, its requirement
indeterminate as was said Cramer vs. United States. 89 Law. ed., 1441.

As general rule, to be treasonous the extent of the aid and comfort given to the enemies must be to render assistance
to them as enemies and not merely as individuals and in addition, be directly in furtherance of the enemies' hostile
designs. To make a simple distinction: To lend or give money to an enemy as a friend or out of charity to the
beneficiary so that he may buy personal necessities is to assist him as individual and is not technically traitorous. On
the other hand, to lend or give him money to enable him to buy arms or ammunition to use in waging war against the
giver's country enhance his strength and by same count injures the interest of the government of the giver. That is
treason. (See United States vs. Fricke, 259 F., 673; 63 C.J., 816, 817.)
Applying these principles to the case at bar, appellant's first assignment of error is correct. His "commandeering" of
women to satisfy the lust of Japanese officers or men or to enliven the entertainment held in their honor was not
treason even though the women and the entertainment helped to make life more pleasant for the enemies and boost
their spirit; he was not guilty any more than the women themselves would have been if they voluntarily and willingly
had surrendered their bodies or organized the entertainment. Sexual and social relations with the Japanese did not
directly and materially tend to improve their war efforts or to weaken the power of the United State. The acts herein
charged were not, by fair implication, calculated to strengthen the Japanese Empire or its army or to cripple the
defense and resistance of the other side. Whatever favorable effect the defendant's collaboration with the Japanese
might have in their prosecution of the war was trivial, imperceptible, and unintentional. Intent of disloyalty is a vital
ingredient in the crime of treason, which, in the absence of admission, may be gathered from the nature and
circumstances of each particular case.
But the accused may be punished for the rape of Eriberta Ramo, Eduarda Daohog, Eutiquia Lamay and Flaviana
Bonalos as principal by direct participation. Without his cooperation in the manner above stated, these rapes could not
have been committed.
Conviction of the accused of rapes instead of treason finds express sanction in section 2 of Commonwealth Act No.
682, which says:
Provided further, That where, in its opinion, the evidence is not sufficient to support the offense (treason) charged, the
People's Court may, nevertheless, convict and sentence the accused for any crime included in the acts alleged in the
information and established by the evidence.
All the above mentioned rapes are alleged in the information and substantiated by the evidence.
Counsel assails the constitutionality of this of his provision as violative of section 1, paragraph 17, Article III of the
Constitution, which guarantees to an accused the right "to be informed of the nature and cause of the accusation
against him." The contention is not well taken. The provision in requires that the private crimes of which an accused of
treason may be convicted must be averred in the information and sustained by evidence. In the light of this enactment,
the defendant was warned of the hazard that he might be founded guilty of rapes if he was innocent of treason and
thus afforded an opportunity to prepare and meet them. There is no element of surprise or anomaly involved. In facts
under the general law of criminal procedure convicted for crime different from that designated in the complaint or
information is allowed and practiced, provided only that such crime "is included or described in the body of the
information, and afterwards justified by the proof presented during the trial." (Peoplevs. Perez, 45 Phil., 599.)
The defendant personally assaulted and abused two of the offended girls but these assaults are not charged against
him and should be ruled out. The crime of coercion alleged and founded on count No. 6. need not be noticed in view of
the severity of the penalty for the other crimes which he must suffer.
We find the defendant guilty of four separate crimes of rape and sentence him for each of them to an indeterminate
penalty of from 10 year of prision mayor to 17 year and 4 months of reclusion temporal, with the accessories of law, to
indemnify each of the offended women in the sum of P3,000, and to pay the costs; it being understood that the total
duration of these penalties shall not exceed forty years.
Moran, C.J., Feria, Perfecto, Bengzon, Briones and Reyes, JJ., concur.
Paras, J., reserves his vote.
Montemayor, J., concurs in the result.

Separate Opinions
PABLO, M., disidente:
Disiento. En mi opinion, los hechos probados constituyen delito de traicion.
El acusado de buena reeputacion en Bohol para ponerlas a disposicion de los oficiales del ejercito enemigo, ha
ayudado a ellos en la obra de destruccion. En la guerra se emplea la destruccion para triunfur, y la destruccion se
realiza en las cosas y en las personas. Inutilizar para el trabajo o para la guerra a los habitanesdel pais invandido es
destruirles en mayor o menor grado y violar o deshonrar a las mujereses tambien destruirles material y moralmente y
es peor aun que matar y aniquilar. En el caso presente, el acusado ayudoal Coronel Mini y Dr. Takibayas en
deshonrar a varias senoritas,poniendolas en una situacion peor que la de las esclavas. Si el reclutar a hombres o
mujeres para ser obligados a constuir trincheraspara el ejercito invasor constituye delito de traicion; si el
apoderarsedel arroz de los ciudadanos en sus casas para darselo a los soldadoshambrientos del ejercito japones es
traicion; por que no ha de constituirtraicion el reclutar a senoritas para ser utilizadas por los enemigosen sus desos
bestiales, como un medio de entretenimiento o alivio de sus trabajos? Flaviana y Feliciana Bonalos, ilegalmente
arrestadas y entregadas despues a los dos oficiales-bestias, en su declaracion, han dicho que hubieran preferido
morir que ser violadas.
El argumento del Procurador General, que merece seria consideracion, es del tenor siguiente:
In the United States Army, and we believe this is also true in the Japanese Imperial Forces, a unit known as the United
Services Organization (U.S.O.)functions with the primordial aim and view to keep at peak the morale of the soldiers.
To achieve this, varied forms of entertainment like movies, dancer, stage show and the like are provided for at an
enormous expense. In fine, the soldiers are surrounded with all the comfort and opportunities that they ordinarily enjoy
in their civilian life. The reason for this is to tone their nerves and minimized as much as possible, they heavy strain on
them incident to the nature of their mission in time of war. Such entertainment because the more imperative when it
comes to soldiers who are assigned overseas, on a foreign soil, in a no man's land, devoid of the inspiring association
of their families, girl friends and those dearest to them.
. . . Clearly, therefore, appellant provident them with what should have been the burden of the Japanese Imperial
Forces, relieving the latter of the trouble, expense, and difficulty of sending over to these Islands Japanese women to
entertain their soldiers to bolster up their morale. In other words, the services of the Japanese women who were so
replaced by ours, through the efforts of the appellant could be diverted to other important phases of military activities
either in the homeland or in this sector. Hence, the aid and comfort to the enemy is evident.
Si el Coronel Mini y Dr. Takibayas del ejercito japones no encontraban otroconsuelo o solaz para olividar sus
preocupaciones y ytritezas mas que en saciar su lujuria, entonces el proporcionarles mujeres contra la voluntad de
estas es ayudssrles en recuperar entusiasmos perdidos e infundirles nuevo vigor para proseguir la guerra de
conquista. Bien sabido esta que los soldados no son maquinas de acero que pueden estar peleando todas las
horasde todos los dias; necesitan tiempo de descanso para recuperar fuerzas perdidas, de entretennimiento para
olvidar lugubres pensamientos y franco esparcimiento para vigorizar su espiritu. Si para el Coronel Mini y Dr.
Takibayas, el violar a las senoritas reclutadas por el acusado era buenarecompensa de sus esfuerzos militares,
entonces para ellos vale la penade exponer la vida en la luncha porque despues de todo quedan bien compensados.
Que mayor satisfaccion para ellos como la de disfrutar libremente de las senoritas de la provincia con la ayuda del
acusado? Poresa satisfaccion, redoblarian sus enfuerzos de conquista para tener otras oportunidades de saciar sus
apetitos bestiales. Bajo tales inclinaciones morbosas, darles entretenimiento, solaz y esparcimiento es ayudarles en la
guerra.
No es exagerado suponer que dichos oficiales japoneses hayan dejado en su pais hijos, esposas y madddres a
quienes quieren de corazon, y en sus momentosde soledad, de tristeza y de nostalgia no ess imposible que se
acuerden de ellos y lleguen a decir para si mismos: "Que sacamos de esta guerra de invasion, dejando a nuestros
hijos, nuestros hijos, nuestras familias ynuestros hogares abandonados solo para satisfacer las ambiciones de
conquista del emperador? Cada vez que nos damos cuenta de que no somos mas que unossimples instrumentos
para sacrificar tantas vidas y haciendas para la vanagloria del japon, se nos rebela la conciencia. Creemos que la

guerra es inicua, injusta: debemos abandonarla. No debemos continuarr invadiendo territorios." Si estos
pensamientos persistiesen en la mennte de dichos oficiales, indudablemente perderian su entusiasmo, su eficiencia
en el servicio: su obsesion les haria indiferentes, pasivos, inutiles para laguerra. Pueden deponer su actitud, pueden
cruzarse de brazos e inclusive pueden desertar, y eso seria fatal para la nacion invasora. Pero si, porinclinacion
natural, encuentran entretenimiento, esparcimiento y alegria en violar mujeres, entonces el proporcionarseles es una
ayuda efectiva. Esdarles calor, entusiasmo y valor en la guerra de conquista.
Hay mayor traicion como el poner a disposicion de los enemigos al ser mas querido, a la mujer? Que se apoderen
de todas nuestros production nuestros recursos: de todo cuanto encuentran a su paso; pero, por Dios, salvemosel
honor de nuestras mujeres.
Voto por que el acusado sea condenado por el delito de traicion.
G.R. No. 153675

April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine

Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents.
DECISION

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same
day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition
andmandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the
validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520,
praying that the Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of
the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of
Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch
10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,-a petition for
bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that
there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk."

SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended,
seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge
Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001
allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the
motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative
Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders
were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is
no provision in the Constitution granting bail to a potential extraditee.

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then
raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for
bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post
bail, thus:
In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted
subject to the following conditions:

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an
"Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997.

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and
answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of
this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor
of the government;

On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special
Administrative Region.

2. Accused must surrender his valid passport to this Court;

Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting
an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong
Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong
Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a
jail term of seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional
arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which,
in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent.

3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order
before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest
office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the
assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from
his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be
noted therein accordingly.
SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent
judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack
or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law
providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights
extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of
ones liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court
has an occasion to resolve the question of whether a prospective extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch
42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio
V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as
Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of
Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render
judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who
should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando,J.,
later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the
presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in
criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpusfinds application
"only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18,
Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right
to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available
even in extradition proceedings that are not criminal in nature.
At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the
following trends in international law: (1) the growing importance of the individual person in public international law who,
in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in
the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling
their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law,
on one hand, and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth of the individual person and
the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of

international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to
states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials
after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations
of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle,
Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former
Yugoslavia. These significant events show that the individual person is now a valid subject of international law.
On a more positive note, also after World War II, both international organizations and states gave recognition and
importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the
Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every
person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized
as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of
Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution, 3 the principles
set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the
rights enshrined therein are the rights of every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human
rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of
our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for
human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person
to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court,
to enable it to decide without delay on the legality of the detention and order their release if justified. In other words,
the Philippine authorities are under obligation to make available to every person under detention such remedies which
safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court
in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various
international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a
reexamination of this Courts ruling in Purganan is in order.
First, we note that the exercise of the States power to deprive an individual of his liberty is not necessarily limited to
criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine, 4 have likewise
been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine
jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to
bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons
in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines
under international conventions to uphold human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the
necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee
had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the
most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used
"is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals
against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of
deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in
sustaining the detainees right to bail.
If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition
cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no
reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the
innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the
various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights.
Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right
to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the
removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to
enable the requesting state or government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government."
Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of
one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to
surrender him to the demanding state. 8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an
extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment
may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations. 11 It
is not a trial to determine the guilt or innocence of the potential extraditee. 12 Nor is it a full-blown civil action, but
one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of
a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment. 14
But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of
liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is
also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law)
which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the
interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the
"provisional arrest of the accused, pending receipt of the request for extradition;" and that release from
provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received
subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A
potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the
demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of
extradition, but the length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until
December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for
over two (2) years without having been convicted of any crime. By any standard, such an extended period of
detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty
which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision
prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter,
the standard of due process is premised on the presumption of innocence of the accused. As Purganancorrectly points
out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the
purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary
detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is
a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that
he or she is not a flight risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the
Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these
obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not
necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees

rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but
also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of
his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be
the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil
cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our
jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail
in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher
than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not
a flight risk and will abide with all the orders and processes of the extradition court.
In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk.
Consequently, this case should be remanded to the trial court to determine whether private respondent may be
granted bail on the basis of "clear and convincing evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private
respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the
cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with
dispatch. SO ORDERED.
February 27, 1922
G.R. No. 17958
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain Kidd and
Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard flourished, seem far away in
the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth century piracy in the
south seas, but stripped of all touches of chivalry or of generosity, so as to present a horrible case of rapine and near
murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch possession. In one of
the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children, likewise
subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the second boat arrived
between the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch boat, too for
themselves all of the cargo, attacked some of the men, and brutally violated two of the women by methods too horrible
to the described. All of the persons on the Dutch boat, with the exception of the two young women, were again placed
on it and holes were made in it, the idea that it would submerge, although as a matter of fact, these people, after
eleven days of hardship and privation, were succored violating them, the Moros finally arrived at Maruro, a Dutch
possession. Two of the Moro marauder were Lol-lo, who also raped one of the women, and Saraw. At Maruro the two
women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they were
arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A demurrer was interposed by
counsel de officio for the Moros, based on the grounds that the offense charged was not within the jurisdiction of the
Court of First Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public offense,
under the laws in force in the Philippine Islands. After the demurrer was overruled by the trial judge, trial was had, and
a judgment was rendered finding the two defendants guilty and sentencing each of them to life imprisonment (cadena
perpetua), to return together with Kinawalang and Maulanis, defendants in another case, to the offended parties, the
thirty-nine sacks of copras which had been robbed, or to indemnify them in the amount of 924 rupees, and to pay a
one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process of elimination,
however, certain questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery or forcible
depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of
universal hostility.
It cannot be contended with any degree of force as was done in the lover court and as is again done in this court, that
the Court of First Instance was without jurisdiction of the case. Pirates are in lawhostes humani generis. Piracy is a
crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any
country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all other
crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was
committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral
to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for the first time is whether or not the
provisions of the Penal Code dealing with the crime of piracy are still in force. Article 153 to 156 of the Penal Code
reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at war with Spain,
shall be punished with a penalty ranging from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be punished with
the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article shall suffer the
penalty of cadena perpetua or death, and those who commit the crimes referred to in the second paragraph of the
same article, from cadena temporal to cadena perpetua:

ART. 156. For the purpose of applying the provisions of this code, every person, who, according to the Constitution of
the Monarchy, has the status of a Spaniard shall be considered as such.
The general rules of public law recognized and acted on by the United States relating to the effect of a transfer of
territory from another State to the United States are well-known. The political law of the former sovereignty is
necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United States,
or the characteristics and institutions of the government, remains in force. As a corollary to the main rules, laws
subsisting at the time of transfer, designed to secure good order and peace in the community, which are strictly of a
municipal character, continue until by direct action of the new government they are altered or repealed. (Chicago,
Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines by the Instructions of President
McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the Army of Occupation in the
Philippines, when he said:
Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political
condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and
property, and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible
with the new order of things, until they are suspended or superseded by the occupying belligerent; and practice they
are not usually abrogated, but are allowed to remain in force, and to be administered by the ordinary tribunals,
substantially as they were before the occupations. This enlightened practice is so far as possible, to be adhered to on
the present occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation
of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include the
Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution of the Spanish Monarchy,
would also make the provisions of the Code applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law, and he has
never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions elsewhere
and to the concepts of the public law. This must necessarily be so, considering that the Penal Code finds its inspiration
in this respect in the Novelas, the Partidas, and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the power to define and punish piracies
and felonies committed on the high seas, and offenses against the law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.)
The Congress, in putting on the statute books the necessary ancillary legislation, provided that whoever, on the high
seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the
United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec.
5368.) The framers of the Constitution and the members of Congress were content to let a definition of piracy rest on
its universal conception under the law of nations.

1. Whenever they have seized some vessel by boarding or firing upon the same.
2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries specified in articles four
hundred and fourteen and four hundred and fifteen and in paragraphs one and two of article four hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means of saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of this code, when Spain is mentioned it shall
be understood as including any part of the national territory.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not inconsistent
with the corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles of the
Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is mentioned, it should be
substituted by the words "United States" and wherever "Spaniards" are mentioned, the word should be substituted by
the expression "citizens of the United States and citizens of the Philippine Islands." somewhat similar reasoning led
this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the
Penal Code a limited meaning, which would no longer comprehend all religious, military, and civil officers, but only
public officers in the Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the Philippine Islands, or the
subjects of another nation not at war with the United States, shall be punished with a penalty ranging from cadena
temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war with the United States, it shall be
punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and 154, to be still in
force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There are present at
least two of the circumstances named in the last cited article as authorizing eithercadena perpetua or death. The crime
of piracy was accompanied by (1) an offense against chastity and (2) the abandonment of persons without apparent
means of saving themselves. It is, therefore, only necessary for us to determine as to whether the penalty of cadena
perpetua or death should be imposed. In this connection, the trial court, finding present the one aggravating
circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack of instruction
provided by article 11, as amended, of the Penal Code, sentenced the accused to life imprisonment. At least three
aggravating circumstances, that the wrong done in the commission of the crime was deliberately augmented by
causing other wrongs not necessary for its commission, that advantage was taken of superior strength, and that
means were employed which added ignominy to the natural effects of the act, must also be taken into consideration in
fixing the penalty. Considering, therefore, the number and importance of the qualifying and aggravating circumstances
here present, which cannot be offset by the sole mitigating circumstance of lack of instruction, and the horrible nature
of the crime committed, it becomes our duty to impose capital punishment.
The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty upon the
defendant and appellant Lo-lo (the accused who raped on of the women), but is not unanimous with regard to the
court, Mr. Justice Romualdez, registers his nonconformity. In accordance with provisions of Act No. 2726, it results,
therefore, that the judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is reversed as to
the defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is sentenced therefor to be hung until
dead, at such time and place as shall be fixed by the judge of first instance of the Twenty-sixth Judicial District. The
two appellants together with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and
severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the costs of both
instances. So ordered.

PER CURIAM:
Appellants Jaime Rodriguez alias Jimmy alias Wilfred de Lara y Medrano, Rico Lopez, Davao Reyes alias Dario Dece
Raymundo y Elausa and Peter Ponce y Bulaybulay alias Peter Power were charged of the crime of piracy in an
information filed before the then Court of First Instance of Sulu and Tawi-Tawi, which reads:
That on or about 3:15 in the morning of August 31, 1981, at the vicinity of Muligin Island and within the territorial
waters of the Municipality of Cagayan de Tawi-Tawi, Province of Tawi-Tawi, and within the jurisdiction of this honorable
Court, the above-named accused Wilfred de Lara y Medrano, alias Jaime Rodriguez (Jimmy) Dario Dece Raymundo y
Elausa; Rico Lopez y Fernandez and Peter Ponce y Bulaybulay alias Peter Power being crew members of the M/V
Noria 767, a barter trade vessel of Philippine registry, conspiring and confederating together and mutually helping one
another and armed with bladed weapons and high caliber firearms, to wit: three (3) daggers, two (2) M-14, one (1)
garand and one (1) Browning Automatic Rifle, with intent of gain and by means of violence and intimidation upon
persons, did then and there willfully and unlawfuflly, and feloniously take, steal and carry away against the consent of
the owners thereof, the equipments and other persona) properties belonging to the crew members and passengers of
the said M/V Noria 767, consisting of cash money amounting to Three Million Five Hundred Seventeen Thousand
Three Hundred Pesos (P3,517,300.00), personal belongings of passengers and crew amounting to One Hundred
Thirty Thousand Pesos (P130,000.00), the vessel's compass, navigational charts and instruments amounting to Forty
Thousand Pesos (P40,000.00) to the damage and prejudice of the aforementioned owners in the total amount of
THREE MILLION SIX HUNDRED EIGHTY SEVEN THOUSAND THREE HUNDRED PESOS (P3,687,300.00)
Philippine Currency; that by reason of and on the occasion of the said piracy and for the purpose of enabling the
abovenamed accused to take, steal and carry away the properties abovementioned, the herein accused in pursuance
to their conspiracy, did then and there willfully, unlawfully and feloniously with intent to kill and with evident
premeditation, treacherously attack, assault, stab, shot and, taking advantage of superior strength, use personal
violence upon the persons of Abdusador Sumihag, Vicente America, Perhan Tan, Marcos Que, Ismael Turabin, Mabar
Abdurahman, Wadi Aduk Rasdi Alfad, Kasmir Tan, Peter Paul Chiong, Juaini Husini Ismael Ombra, Sabturani Ulag,
Mutalib Sarahadil, Bajubar Adam, Quillermo Wee, Reuben Segovia Ho, Michael Lao, Yusop Abubakar, Hahji Hussin
Kulavan, Amjad Quezon, Rebuan Majid Edgar Tan, Abdurasul Alialam Federico Canizares, Omar Tahil Gilbert Que,
Arajul Salialam, Masihul Bandahala, Asola Mohammaddin, Batoto Sulpicio, Sakirani Bassal, Ibrahim Jamil, Saupi
Malang and Gulam Sahiddan, thereby inflicting upon them multiple gunshot wounds which caused their instantaneous
death and likewise causing physical injuries upon the persons of Inggal Issao Abduhasan Indasan Hadji Yusop H.
Alfad and Hadji Mahalail Alfad, thus performing all acts of execution which could have produced the death of said
persons, but nevertheless did not produce it by reason or cause independent of the will of said accused, that is, by the
timely and able medical assistance rendered to said victims which prevented death.

G.R. No. L-60100 March 20, 1985

CONTRARY TO LAW, with the aggravating circumstances of treachery, evident premeditation, night time and the use
of superior strength. (pp. 97-98, Rollo of L-61069)

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JAIME RODRIGUEZ alias JIMMY alias WILFRED DE LARA y MEDRANO and RICO LOPEZ, accused-appellants.

Upon arraignment on February 25, 1982, Jaime Rodriguez and Rico Lopez, assisted by their counsel, pleaded guilty
to the charge, were convicted on March 5, 1982 and sentenced each "to suffer the extreme penalty of death."

G.R. No. L-60768 March 20, 1985

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DARIO DE REYES alias DARIO DECE RAYMUNDO y ELAUSA, accused- appellant.

Dario Dece Raymundo, upon arraignment, interposed a plea of not guilty. However, he withdrew his plea and
substituted it with that of guilty. On March 10, 1982 he was convicted of the crime charged and sentenced "to suffer
the extreme penalty of death."
Peter Ponce y Bulaybulay entered the plea of not guilty.

G.R. No. L-61069 March 20, l985

After trial, he was found guilty and was also sentenced "to suffer the extreme penalty of death."

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PETER PONCE y BULAYBULAY alias PETER POWE, accused-appellant.

No pronouncement was made with respect to the civil liabilities of the four defendants because "there was a separate
civil action for breach of contract and damages filed with the same trial court in Civil Case No. N-85 against the several
defendants, including the four accused aforementioned." (p. 26, L-61069)
The case of the four convicted defendants is now before Us on automatic review.

Evidence shows that on August 29, 1981, at about 7:30 in the evening, the vessel M/V Noria 767, owned and
registered in the name of Hadji Noria Indasan left Jolo wharf for Cagayan de Tawi-Tawi. It arrived at the port of
Cagayan de Tawi-Tawi the following day, August 30, 1981, at around 2:00 in the afternoon. In the evening of the same
date, the vessel left for Labuan. On board the vessel were several traders and crew members. Two or three hours
after its departure, while sailing about 25 miles from Cagayan de Tawi-Tawi, a commotion occurred in one of the
cabins of the vessel.

Anent the first assigned error, suffice it to say that Presidential Decree No. 532, otherwise known as the Anti-Piracy
Law, amending Article 134 of the Revised Penal Code and which took effect on August 8, 1974, provides:

Three witnesses testified on what they saw and heard.

a) Piracy.The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical
injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be
imposed. If rape, murder or no homocide is committed as a result or on the occasion of piracy, or when the offenders
abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or
boarding a vessel, the mandatory penalty of death shall be imposed. (Emphasis supplied)

Mr. Clyde Que, a passenger, heard noises inside a cabin and, after awhile, he heard shots being fired. He rushed to
the motor launch to hide and on his way through the engine room, he saw appellant Peter Ponce. Then appellants
Jaime Rodriguez, Dario Dece and Rico Lopez, all armed with rifles, started firing towards Que's companions after
which they brought Que to the pilot's house to handle the steering wheel. He was substituted by Usman, another
passenger, while Que and the other crew members were ordered to throw overboard sacks of copra and the dead
bodies of Peter Chiong, Michael Lao, Casmin Tan and Vicente America. At the time, appellant Peter Ponce, armed
with a M-14 rifle, stood guard.
Hadji Mahalail Alfad, another passenger, heard commotions from the motor launch, followed by gunfire. He hid by
laying down among the sacks of copra. He saw appellants Peter Ponce, Jaime Rodriguez, Rico Lopez and Dario Dece
coming down the stairs as they were firing shots until Fred Canizares and Guilbert Que were hit, their bodies falling
upon him. When he tried to move, he realized that he was also hit on the right side of his stomach. Thereafter, he
pretended to be dead till daytime.
Emil Macasaet, Jr., the skipper of the vessel heard the commotion from one of the cabins. He ordered his men to open
the door but it could not be opened. After awhile, the door opened and he saw a gun pointed at them. Whereupon, he
hid behind the bags of copra until appellant Jaime Rodriguez came and fired at him. Luckily, he was not hit. He and
some of his men crawled and they took cover in the bodega of copra. While in hiding there were gunfires coming from
Dario Dece and Peter Ponce. About four (4) hours later, his Chief Mate Usman persuaded him to come out otherwise
something worse would happen. He saw Jaime Rodriguez who ordered him to direct his men to throw the copras as
well as the dead bodies overboard.
About ten o'clock in the morning of the same day, the vessel reached an island where the four appellants were able to
secure pumpboats. Macasaet was ordered to load in one of the pumpboats nine (9) attache cases which were full of
money. Rico Lopez and Jaime Rodriguez boarded one pumpboat, while Peter Ponce and Dario Dece boarded
another, bringing with them: dressed chicken, softdrinks, durian, boxes of ammunitions, gallons of water and some
meat, as well as rifles.
Municipal Health Officer Leopoldo Lao went aboard the vessel M/V Noria when it arrived at Cagayan de Tawi-Tawi on
September 2, 1981 and saw at the wharf ten dead bodies, all victims of the sea-jacking, namely: Gulam Sahiddan,
Arajul Naran Salialam, Mallang Saupi, Guilbert Que, Frederico Canizares, Masihul Bandahala, Ribowan Majid Edgar
Tan, Omar Sabdani Tahir and Abdurasul Salialam.
In their brief, appellants Jaime Rodriguez, Rico Lopez and Dario Dece claim that the trial court erred (1) in imposing
the death penalty to the accused-appellants Jaime Rodriguez alias Wilfred de Lara, Rico Lopez y Fernandez and
Davao de Reyes, alias Dario Dece Raymundo y Elausa despite their plea of guilty; (2) in giving weight to the alleged
sworn statements of Peter Ponce y Bulaybulay, Identified as Exhibits "C" to "C-10" and Exhibits "I to I-5", as evidence
against Peter Ponce y Bulaybulay; (3) in holding that accused-appellant Peter Ponce y Bulaybulay is guilty of the
crime of piracy; (4) in holding that the defense of Peter Ponce y Bulaybulay was merely a denial; and, (5) in holding
that Peter Ponce y Bulaybulay entrusted the P1,700.00 which was his personal money to Atty. Efren Capulong of the
National Bureau of Investigation.
There is no merit in this appeal of the three named defendants, namely: Jaime Rodriguez and Rico Lopez in G.R. No.
L-60100, and Dario Dece in G.R. No. L-60768.

SEC. 3. Penalties.Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon
conviction by competent court be punished by:

Clearly, the penalty imposable upon persons found guilty of the crime of piracy where rape, murder or homicide is
committed is mandatory death penalty. Thus, the lower court committed no error in not considering the plea of the
three (3) defendants as a mitigating circumstance. Article 63 of the Revised Penal Code states that:
b) ART. 63. Rules for the application of indivisible penalties.In all cases in which the law prescribes a single
indivisible penalty, it shag be applied by the courts regardless of any mitigating or aggravating circumstances that may
have attended the commission of the deed.
With respect to the other assigned errors, We also find them to be devoid of merit. Appellants Peter Ponce gave a
statement (Exhibits "C" to "C-11") to the Malaysian authorities and another statement (Exhibits "I" to "I-15") before the
National Bureau of Investigation of Manila. When said statement (Exhibits "C" to "C-11") was offered in evidence by
the prosecution, the same was not objected to by the defense, aside from the fact that Peter Ponce, on cross
examination, admitted the truthfulness of said declarations, thus:
Q And the investigation was reduced into writing is that correct?
A Yes. sir.
Q And you were investigated by the police authority of Kudat and Kota Kinabalo, is that right?
A Yes, sir. Only in Kudat.
Q And that statement you gave to the authority at Kudat, you have signed that statement, is that correct?
A Yes, sir.
Q And what you stated is all the truth before the authority in Kudat?
A Yes, sir. (pp. 33-34, tsn, May 28, 1982)
Relative to the appeal of appellant Peter Ponce (G.R. No. L-61069), which We likewise declare to be without merit,
evidence shows that his participation in the commission of the offense was positively testified to by the master of the
vessel, Emil Macasaet, Jr., and a passenger, Hadji Mahalail Alfad. Another witness, passenger Clyde Que also pointed
to have seen him (Peter Ponce) armed with an M-14 rifle.
Considering the testimonies of Clyde Que and Emil Macasaet, Jr. who actually saw appellant Peter Ponce firing his
weapon indiscriminately at the passengers and crew members in wanton disregard of human lives and the fact that
after the looting and killing, appellant Peter Ponce, still armed, joined Dario Dece in one pumpboat, there can be no

question that he was in conspiracy with the three other defendants. After his arrest, Ponce gave a statement to the
authorities stating therein his participation as well as those of his companions (Exhibits "I" to "I-1").
Separate Opinions
The four (4) appellants were arrested and detained by the Malaysian authorities. On January 8, 1982, the National
Bureau of Investigation authorities fetched and brought them to Manila where they executed their respective
statements after Rico Lopez and Peter Ponce delivered to the NBI, P3,700.00 and P1,700.00, respectively, aside from
the P527,595.00 and one Rolex watch which the Malaysian authorities also turned over to the Acting In-Charge of the
NBI in Jolo.

TEEHANKEE, J., concurring:

The statement of Ponce (Exhibit " I ") contains the questions and answers pertinent to Section 20 of the 1973
Constitution, to wit:

I concur with the judgment of conviction, there being sufficient direct evidence and positive Identification by
eyewitnesses.

l. QUESTION: Mr. Peter Ponce, we are informing you that you are under investigation here in connection with the
robbery committed on the M/V Noria last August 31, 1981, where you are an Assistant Engineer. You have a right to
remain silent and to refuse to answer any of our questions here. You have the right to be represented by counsel of
your choice in this investigation. Should you decide to be represented by a lawyer but cannot afford one we will
provide a lawyer for you free. Should you decide to give a sworn statement, the same shall be voluntary and free from
force or intimidation or promise of reward or leniency and anything that you saw here maybe used for or against you in
any court in the Philippines. Now do you understand an these rights of yours?

I take exception, however, to the statement therein that accused Peter Ponce "was fully advised of his constitutional
right to remain silent and his right to counsel." The monosyllabic answers of "Yes" and "No" have been stricken down
by the Court as utterly unacceptable as a voluntary and intelligent waiver of the constitutional right to silence and to
counsel in People vs. Caguioa (95 SCRA 2). in line with my separate concurring and dissenting opinion in the recent
case of People vs. Itlanas (G.R. No. 60118, prom. February 28, 1985). As therein stated, I subscribe to the Court's
requirement in Morales, Jr. vs. Ponce Enrile (121 SCRA 538) that "the right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel" in order to assure that it is knowingly, voluntarily and
intelligently given.

ANSWER: Yes, sir.

Separate Opinions
2. Q: Do you need the services of a lawyer?
TEEHANKEE, J., concurring:
A: No, sir.
3. Q: Are you willing to affix your signature hereinbelow to signify that you so understand all your rights as above
stated and that you do not need the services of a lawyer?
A: Yes, sir. (p. 11 6, Rollo)
Thus, it is clear that Peter Ponce was fully advised of his constitutional right to remain silent and his right to counsel.
Considering the written statements of all the appellants, (Exhibits "E", "F", "G", "H", "J" and "K"), interlocking as they
are with each other as each admits his participation and those of the other co-accused, there is no room for doubt that
conspiracy existed among them. The conduct of appellant

I concur with the judgment of conviction, there being sufficient direct evidence and positive Identification by
eyewitnesses.
I take exception, however, to the statement therein that accused Peter Ponce "was fully advised of his constitutional
right to remain silent and his right to counsel." The monosyllabic answers of "Yes" and "No" have been stricken down
by the Court as utterly unacceptable as a voluntary and intelligent waiver of the constitutional right to silence and to
counsel in People vs. Caguioa (95 SCRA 2). in line with my separate concurring and dissenting opinion in the recent
case of People vs. Itlanas (G.R. No. 60118, prom. February 28, 1985). As therein stated, I subscribe to the Court's
requirement in Morales, Jr. vs. Ponce Enrile (121 SCRA 538) that "the right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel" in order to assure that it is knowingly, voluntarily and
intelligently given.
G.R. No. L-37007

Peter Ponce before, during and after the commission of the crime is a circumstance showing the presence of
conspiracy in the commission of the crime. As a consequence, every one is responsible for the crime committed.
WHEREFORE, the decision appealed from is hereby AFFIRMED.

July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of Pangasinan, and ARMANDO
VALDEZ,petitioners,
vs.
ANGELITO C. SALANGA, in his capacity as Judge of the Court of First Instance of Pangasinan (Branch IV),
and JUAN TUVERA, SR., respondents.

SO ORDERED.
GANCAYCO, J.:
Makasiar, Aquino, Concepcion, Jr., Abad Santos, Melencio- Herrera, Plana, Escolin Relova, Gutierrez, Jr., De la
Fuente, Cuevas and Alampay JJ., concur.
Fernando, C.J., took no part,

This is a petition for review on certiorari of an order of the Court of First Instance of Pangasinan, Third Judicial District,
in Criminal Case No. D-529 entitled "The People of the Philippines versus Juan Tuvera, Sr., et al.," granting the motion
to quash the information filed by accused Juan Tuvera, Sr., herein respondent. The issue is whether a barrio captain
can be charged of arbitrary detention.
The facts are as follows:

On October 12, 1972, an information for Arbitrary Detention was filed against Juan Tuvera, Sr., Tomas Mendoza and
Rodolfo Mangsat, in the Court of First Instance of Pangasinan, which reads as follows:

The only question is whether or not Tuvera, Sr., a barrio captain is a public officer who can be liable for the crime of
Arbitrary Detention.

The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat alias
Rudy, all of Manaoag, Pangasinan, of the crime of ARBITRARY DETENTION, committed as follows:

The public officers liable for Arbitrary Detention must be vested with authority to detain or order the detention of
persons accused of a crime. Such public officers are the policemen and other agents of the law, the judges or
mayors.4

That on or about the 21st day of April 1973, at around 10:00 o'clock in the evening, in barrio Baguinay, Manaoag,
Pangasinan, Philippines and within the jurisdiction of this Honorable Court, accused Juan Tuvera, Sr., a barrio captain,
with the aid of some other private persons, namely Juan Tuvera, Jr., Bertillo Bataoil and one Dianong, maltreated one
Armando Valdez by hitting with butts of their guns and fists blows and immediately thereafter, without legal grounds,
with deliberate intent to deprive said Armando Valdez of his constitutional liberty, accused Barrio captain Juan Tuvera,
Sr., Cpl. Tomas Mendoza and Pat. Rodolfo Mangsat, members of the police force of Mangsat, Pangasinan conspiring,
confederating and helping one another, did, then and there, willfully, unlawfully and feloniously, lodge and lock said
Armando Valdez inside the municipal jail of Manaoag, Pangasinan for about eleven (11) hours.(Emphasis supplied.)
CONTRARY TO ARTICLE 124 of the R.P.C.
Dagupan City, October 12, 1972.
(SGD.) VICENTE C. CALDONA
Assistant Provincial Fiscal

Respondent Judge Salanga did not consider private respondent Tuvera as such public officer when the former made
this finding in the questioned order:
Apparently, if Armando Valdez was ever jailed and detained more than six (6) hours, Juan Tuvera, Sr., has nothing to
do with the same because he is not in any way connected with the Police Force of Manaoag, Pangasinan. Granting
that it was Tuvera, Sr., who ordered Valdez arrested, it was not he who detained and jailed him because he has no
such authority vested in him as a mere Barrio Captain of Barrio Baguinay, Manaoag, Pangasinan. 5
In line with the above finding of respondent Judge Salanga, private respondent Tuvera asserts that the motion to
quash was properly sustained for the following reasons: (1) That he did not have the authority to make arrest, nor jail
and detain petitioner Valdez as a mere barrio captain; 6 (2) That he is neither a peace officer nor a policeman,7(3) That
he was not a public official;8 (4) That he had nothing to do with the detention of petitioner Valdez; 9 (5) That he is not
connected directly or indirectly in the administration of the Manaoag Police Force; 10 (6) That barrio captains on April
21, 1972 were not yet considered as persons in authority and that it was only upon the promulgation of Presidential
Decree No. 299 that Barrio Captain and Heads of Barangays were decreed among those who are persons in
authority;11 and that the proper charge was Illegal Detention and Not Arbitrary Detention. 12

All the accused, including respondent Juan Tuvera, Sr., were arraigned and pleaded not guilty.
We disagree.
On April 4, 1973, Tuvera filed a motion to quash the information on the ground that the facts charged do not constitute
an offense and that the proofs adduced at the investigation are not sufficient to support the filing of the information.
Petitioner Assistant Provincial Fiscal Ramon S. Milo filed an opposition thereto.
Finding that respondent Juan Tuvera, Sr. was not a public officer who can be charged with Arbitrary Detention,
respondent Judge Angelito C. Salanga granted the motion to quash in an order dated April 25, 1973.
Hence, this petition.
Arbitrary Detention is committed by a public officer who, without legal grounds, detains a person. 1 The elements of this
crime are the following:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds.2
The ground relied upon by private respondent Tuvera for his motion to quash the information which was sustained by
respondent Judge, is that the facts charged do not constitute an offense, 3 that is, that the facts alleged in the
information do not constitute the elements of Arbitrary Detention.
The Information charges Tuvera, a barrio captain, to have conspired with Cpl. Mendoza and Pat. Mangsat, who are
members of the police force of Manaoag, Pangasinan in detaining petitioner Valdez for about eleven (11) hours in the
municipal jail without legal ground. No doubt the last two elements of the crime are present.

Long before Presidential Decree 299 was signed into law, barrio lieutenants (who were later named barrio captains
and now barangay captains) were recognized as persons in authority. In various cases, this Court deemed them as
persons in authority, and convicted them of Arbitrary Detention.
In U.S. vs. Braganza,13 Martin Salibio, a barrio lieutenant, and Hilario Braganza, a municipal councilor, arrested Father
Feliciano Gomez while he was in his church. They made him pass through the door of the vestry and afterwards took
him to the municipal building. There, they told him that he was under arrest. The priest had not committed any crime.
The two public officials were convicted of Arbitrary Detention.14
In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with the help of Filoteo Soliman, bound and tied his
houseboy Sixto Gentugas with a rope at around 6:00 p.m. and delivered him to the justice of the peace. Sixto was
detained during the whole night and until 9:00 a.m. of the next day when he was ordered released by the justice of the
peace because he had not committed any crime, Gellada was convicted of Arbitrary Detention. 16
Under Republic Act No. 3590, otherwise known as The Revised Barrio Charter, the powers and duties of a barrio
captain include the following: to look after the maintenance of public order in the barrio and to assist the municipal
mayor and the municipal councilor in charge of the district in the performance of their duties in such barrio; 17 to look
after the general welfare of the barrio; 18 to enforce all laws and ordinances which are operative within the barrio; 19 and
to organize and lead an emergency group whenever the same may be necessary for the maintenance of peace and
order within the barrio.20
In his treatise on Barrio Government Law and Administration, Professor Jose M. Aruego has this to say about the
above-mentioned powers and duties of a Barrio Captain, to wit:
"Upon the barrio captain depends in the main the maintenance of public order in the barrio. For public disorder therein,
inevitably people blame him.

"In the event that there be a disturbing act to said public order or a threat to disturb public order, what can the barrio
captain do? Understandably, he first resorts to peaceful measures. He may take preventive measures like placing the
offenders under surveillance and persuading them, where possible, to behave well, but when necessary, he may
subject them to the full force of law.
"He is a peace officer in the barrio considered under the law as a person in authority. As such, he may make arrest
and detain persons within legal limits.21 (Emphasis supplied.)
One need not be a police officer to be chargeable with Arbitrary Detention. It is accepted that other public officers like
judges and mayors, who act with abuse of their functions, may be guilty of this crime. 22 A perusal of the powers and
function vested in mayors would show that they are similar to those of a barrio captain 23 except that in the case of the
latter, his territorial jurisdiction is smaller. Having the same duty of maintaining peace and order, both must be and are
given the authority to detain or order detention. Noteworthy is the fact that even private respondent Tuvera himself
admitted that with the aid of his rural police, he as a barrio captain, could have led the arrest of petitioner Valdez. 24
From the foregoing, there is no doubt that a barrio captain, like private respondent Tuvera, Sr., can be held liable for
Arbitrary Detention.
Next, private respondent Tuvera, Sr. contends that the motion to quash was validly granted as the facts and evidence
on record show that there was no crime of Arbitrary Detention; 25 that he only sought the aid and assistance of the
Manaoag Police Force;26 and that he only accompanied petitioner Valdez to town for the latter's personal safety.27
Suffice it to say that the above allegations can only be raised as a defense at the trial as they traverse what is alleged
in the Information. We have repeatedly held that Courts, in resolving a motion to quash, cannot consider facts contrary
to those alleged in the information or which do not appear on the face of the information. This is because a motion to
quash is a hypothetical admission of the facts alleged in the information. 28 Matters of defense cannot be proved during
the hearing of such a motion, except where the Rules expressly permit, such as extinction of criminal liability,
prescription, and former jeopardy.29 In the case of U.S. vs. Perez,30 this Court held that a motion to quash on the
ground that the facts charged do not constitute an offense cannot allege new facts not only different but diametrically
opposed to those alleged in the complaint. This rule admits of only one exception and that is when such facts are
admitted by the prosecution.31lawphi1
Lastly, private respondent claims that by the lower court's granting of the motion to quash jeopardy has already
attached in his favor32 on the ground that here, the case was dismissed or otherwise terminated without his express
consent.
Respondent's contention holds no water. An order granting a motion to quash, unlike one of denial, is a final order. It is
not merely interlocutory and is therefore immediately appealable. The accused cannot claim double jeopardy as the
dismissal was secured not only with his consent but at his instance. 33
WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The questioned Order of April 25,
1973 in Criminal Case No. D-529 is hereby set aside. Let this case be remanded to the appropriate trial court for
further proceedings. No pronouncement as to costs. SO ORDERED.
BENITO ASTORGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of Court, seeking the reversal of a Decision of the
Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001, [1] as well as its Resolutions dated September 28,
2001 and July 10, 2002.

On October 28, 1998, the Office of the Ombudsman filed the following Information against Benito Astorga, Mayor of
Daram, Samar, as well as a number of his men for Arbitrary Detention:
That on or about the 1st day of September, 1997, and for sometime subsequent thereto, at the Municipality of Daram,
Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public
officer, being the Municipal Mayor of Daram, Samar, in such capacity and committing the offense in relation to office,
conniving, confederating and mutually helping with unidentified persons, who are herein referred to under fictitious
names JOHN DOES, who were armed with firearms of different calibers, with deliberate intent, did then and there
willfully, unlawfully and feloniously detain Elpidio Simon, Moises dela Cruz, Wenifredo Maniscan, Renato Militante and
Crisanto Pelias, DENR Employees, at the Municipality of Daram, by not allowing them to leave the place, without any
legal and valid grounds thereby restraining and depriving them of their personal liberty for nine (9) hours, but without
exceeding three (3) days.
CONTRARY TO LAW.[2]
On September 1, 1997, Regional Special Operations Group (RSOG) of the Department of Environment and Natural
Resources (DENR) Office No. 8, Tacloban City sent a team to the island of Daram, Western Samar to conduct
intelligence gathering and forest protection operations in line with the governments campaign against illegal
logging. The team was composed of Forester II Moises dela Cruz, Scaler Wenifredo Maniscan, Forest Ranger Renato
Militante, and Tree Marker Crisanto Pelias, with Elpidio E. Simon, Chief of the Forest Protection and Law Enforcement
Section, as team leader. The team was escorted by SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian. [3]
The team stopped at Brgy. Bagacay, Daram, Western Samar at 2:00 p.m., where they saw two yacht-like boats being
constructed. After consulting with the local barangay officials, the team learned that the boats belonged to a certain
Michael Figueroa. However, since Figueroa was not around at the time, the team left Brgy. Bagacay.[4]
En route to Brgy. Manungca, Sta. Rita, Samar, the team spotted two more boats being constructed in the vicinity of
Brgy. Lucob-Lucob, Daram, Samar, between 4:30-5:00 p.m., prompting them to stop and investigate. Thus, Maniscan
and Militante disembarked from the DENRs service pump boat and proceeded to the site of the boat
construction. There, they met Mayor Astorga. After conversing with the mayor, Militante returned to their boat for the
purpose of fetching Simon, at the request of Mayor Astorga. [5]
When Simon, accompanied by dela Cruz, SPO3 Cinco, and SPO1 Capoquian, approached Mayor Astorga to try and
explain the purpose of their mission, Simon was suddenly slapped hard twice on the shoulder by Mayor Astorga, who
exclaimed, Puwede ko kamo papaglanguyon pag-uli ha Tacloban. Ano, di ka maaram nga natupa ako? Natupa baya
ako. Diri kamo makauli yana kay puwede kame e charge ha misencounter. (I can make you swim back to
Tacloban. Dont you know that I can box? I can box. Dont you know that I can declare this a misencounter?) [6] Mayor
Astorga then ordered someone to fetch reinforcements, and forty-five (45) minutes later, or between 5:00-6:00 p.m.,
a banca arrived bearing ten (10) men, some of them dressed in fatigue uniforms. The men were armed with M-16 and
M14 rifles, and they promptly surrounded the team, guns pointed at the team members. [7] At this, Simon tried to
explain to Astorga the purpose of his teams mission.[8] He then took out his handheld ICOM radio, saying that he was
going to contact his people at the DENR in Catbalogan to inform them of the teams whereabouts. Suddenly, Mayor
Astorga forcibly grabbed Simons radio, saying, Maupay nga waray kamo radio bis diri somabut an iyo opisina kon
hain kamo, bis diri kamo maka aro hin bulig. (Its better if you have no radio so that your office would not know your
whereabouts and so that you cannot ask for help). [9] Mayor Astorga again slapped the right shoulder of Simon, adding,
Kong siga kamo ha Leyte ayaw pagdad-a dinhi ha Samar kay diri kamo puwede ha akon. (If you are tough guys in
Leyte, do not bring it to Samar because I will not tolerate it here.) [10] Simon then asked Mayor Astorga to allow the
team to go home, at which Mayor Astorga retorted that they would not be allowed to go home and that they would
instead be brought to Daram.[11] Mayor Astorga then addressed the team, saying, Kon magdakop man la kamo,
unahon an mga dagko. Kon madakop niyo an mga dagko, an kan Figueroa dida ha Bagacay puwede ko liwat
ipadakop an akon. (If you really want to confiscate anything, you start with the big-time. If you confiscate the boats of
Figueroa at Brgy. Bagacay, I will surrender mine.)[12] Simon then tried to reiterate his request for permission to leave,
which just succeeded in irking Mayor Astorga, who angrily said, Diri kamo maka uli yana kay dad on ko kamo ha
Daram, para didto kita mag uro istorya. (You cannot go home now because I will bring you to Daram. We will have
many things to discuss there.)[13]

The team was brought to a house where they were told that they would be served dinner. The team had dinner with
Mayor Astorga and several others at a long table, and the meal lasted between 7:00-8:00 p.m. [14] After dinner,
Militante, Maniscan and SPO1 Capoquian were allowed to go down from the house, but not to leave the barangay.
[15]
On the other hand, SPO3 Cinco and the rest just sat in the house until 2:00 a.m. when the team was finally allowed
to leave.[16]
Complainants filed a criminal complaint for arbitrary detention against Mayor Astorga and his men, which led to the
filing of the above-quoted Information.
Mayor Astorga was subsequently arraigned on July 3, 2000, wherein he pleaded not guilty to the offenses charged.
[17]
At the trial, the prosecution presented the testimonies of SPO1 Capoquian and SPO3 Cinco, as well as their Joint
Affidavit.[18] However, the presentation of Simons testimony was not completed, and none of his fellow team members
came forward to testify. Instead, the members of the team sent by the DENR RSOG executed a Joint Affidavit of
Desistance.[19]
On July 5, 2001, the Sandiganbayan promulgated its Decision, disposing of the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding accused BENITO ASTORGA Y
BOCATCAT guilty of Arbitrary Detention, and in the absence of any mitigating or aggravating circumstances, applying
the Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment of four (4) months of arresto
mayor as minimum to one (1) year and eight (8) months of prision correctional as maximum.
SO ORDERED.[20]
The accused filed a Motion for Reconsideration dated July 11, 2001 [21] which was denied by the Sandiganabayan in a
Resolution dated September 28, 2001. [22] A Second Motion for Reconsideration dated October 24, 2001 [23] was also
filed, and this was similarly denied in a Resolution dated July 10, 2002. [24]
Hence, the present petition, wherein the petitioner assigns a sole error for review:
5.1. The trial court grievously erred in finding the accused guilty of Arbitrary Detention as defined and penalized
under Article 124 of the Revised Penal Code, based on mere speculations, surmises and conjectures and, worse,
notwithstanding the Affidavit of Desistance executed by the five (5) complaining witnesses wherein the latter
categorically declared petitioners innocence of the crime charged. [25]
Petitioner contends that the prosecution failed to establish the required quantum of evidence to prove the guilt of the
accused,[26] especially in light of the fact that the private complainants executed a Joint Affidavit of Desistance.
[27]
Petitioner asserts that nowhere in the records of the case is there any competent evidence that could sufficiently
establish the fact that restraint was employed upon the persons of the team members. [28] Furthermore, he claims that
the mere presence of armed men at the scene does not qualify as competent evidence to prove that fear was in fact
instilled in the minds of the team members, to the extent that they would feel compelled to stay in Brgy. Lucob-Lucob.
[29]

Arbitrary Detention is committed by any public officer or employee who, without legal grounds, detains a person. [30] The
elements of the crime are:
1.

That the offender is a public officer or employee.

2.

That he detains a person.

3.

That the detention is without legal grounds.[31]

That petitioner, at the time he committed the acts assailed herein, was then Mayor of Daram, Samar is not
disputed. Hence, the first element of Arbitrary Detention, that the offender is a public officer or employee, is
undeniably present.
Also, the records are bereft of any allegation on the part of petitioner that his acts were spurred by some legal
purpose. On the contrary, he admitted that his acts were motivated by his instinct for self-preservation and the
feeling that he was being singled out.[32] The detention was thus without legal grounds, thereby satisfying the third
element enumerated above.
What remains is the determination of whether or not the team was actually detained.
In the case of People v. Acosta,[33] which involved the illegal detention of a child, we found the accused-appellant
therein guilty of kidnapping despite the lack of evidence to show that any physical restraint was employed upon the
victim. However, because the victim was a boy of tender age and he was warned not to leave until his godmother, the
accused-appellant, had returned, he was practically a captive in the sense that he could not leave because of
his fear to violate such instruction.[34]
In the case of People v. Cortez,[35] we held that, in establishing the intent to deprive the victim of his liberty, it is not
necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. At the time of her
rescue, the offended party in said case was found outside talking to the owner of the house where she had been
taken. She explained that she did not attempt to leave the premises for fear that the kidnappers would make good
their threats to kill her should she do so. We ruled therein that her fear was not baseless as the kidnappers knew
where she resided and they had earlier announced that their intention in looking for her cousin was to kill him on
sight. Thus, we concluded that fear has been known to render people immobile and that appeals to the fears of an
individual, such as by threats to kill or similar threats, are equivalent to the use of actual force or violence. [36]
The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victims liberty need not
involve any physical restraint upon the victims person. If the acts and actuations of the accused can produce such
fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own
actions and movements in accordance with the wishes of the accused, then the victim is, for all intents and purposes,
detained against his will.
In the case at bar, the restraint resulting from fear is evident. Inspite of their pleas, the witnesses and the
complainants were not allowed by petitioner to go home. [37] This refusal was quickly followed by the call for and arrival
of almost a dozen reinforcements, all armed with military-issue rifles, who proceeded to encircle the team, weapons
pointed at the complainants and the witnesses. [38] Given such circumstances, we give credence to SPO1 Capoquians
statement that it was not safe to refuse Mayor Astorgas orders. [39] It was not just the presence of the armed men, but
also the evident effect these gunmen had on the actions of the team which proves that fear was indeed instilled in the
minds of the team members, to the extent that they felt compelled to stay in Brgy. Lucob-Lucob. The intent to prevent
the departure of the complainants and witnesses against their will is thus clear.
Regarding the Joint Affidavit of Desistance executed by the private complainants, suffice it to say that the principles
governing the use of such instruments in the adjudication of other crimes can be applied here. Thus, in People v.
Ballabare, it was held that an affidavit of desistance is merely an additional ground to buttress the defenses of the
accused, not the sole consideration that can result in acquittal. There must be other circumstances which, when
coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the
trial and accepted by the judge. Here, there are no such circumstances. [40] Indeed, the belated claims made in the
Joint Affidavit of Desistance, such as the allegations that the incident was the result of a misunderstanding and that the
team acceded to Mayor Astorgas orders out of respect, are belied by petitioners own admissions to the contrary.
[41]
The Joint Affidavit of Desistance of the private complainants is evidently not a clear repudiation of the material points
alleged in the information and proven at the trial, but a mere expression of the lack of interest of private complainants
to pursue the case. This conclusion is supported by one of its latter paragraphs, which reads:
11. That this affidavit was executed by us if only to prove our sincerity and improving DENR relations with the local
Chiefs Executive and other official of Daram, Islands so that DENR programs and project can be effectively

implemented through the support of the local officials for the betterment of the residence living conditions who are
facing difficulties and are much dependent on government support. [42]
Petitioner also assails the weight given by the trial court to the evidence, pointing out that the Sandiganbayans
reliance on the testimony of SPO1 Capoquian is misplaced, for the reason that SPO1 Capoquian is not one of the
private complainants in the case.[43] He also makes much of the fact that prosecution witness SPO1 Capoquian was
allegedly not exactly privy to, and knowledgeable of, what exactly transpired between herein accused and the DENR
team leader Mr. Elpidio E. Simon, from their alleged confrontation, until they left Barangay Lucob-Lucob in the early
morning of 2 September 1997.[44]
It is a time-honored doctrine that the trial courts factual findings are conclusive and binding upon appellate courts
unless some facts or circumstances of weight and substance have been overlooked, misapprehended or
misinterpreted.[45] Nothing in the case at bar prompts us to deviate from this doctrine. Indeed, the fact that SPO1
Capoquian is not one of the private complainants is completely irrelevant. Neither penal law nor the rules of evidence
requires damning testimony to be exclusively supplied by the private complainants in cases of Arbitrary
Detention. Furthermore, Mayor Astorgas claim that SPO1 Capoquian was not exactly privy to what transpired
between Simon and himself is belied by the evidence. SPO1 Capoquian testified that he accompanied Simon when
the latter went to talk to petitioner.[46] He heard all of Mayor Astorgas threatening remarks.[47] He was with Simon when
they were encircled by the men dressed in fatigues and wielding M-16 and M-14 rifles. [48] In sum, SPO1 Capoquian
witnessed all the circumstances which led to the Arbitrary Detention of the team at the hands of Mayor Astorga.
Petitioner submits that it is unclear whether the team was in fact prevented from leaving Brgy. Lucob-Lucob or whether
they had simply decided to while away the time and take advantage of the purported hospitality of the accused. [49] On
the contrary, SPO3 Cinco clearly and categorically denied that they were simply whiling away the time between their
dinner with Mayor Astorga and their departure early the following morning. [50] SPO1 Capoquian gave similar testimony,
saying that they did not use the time between their dinner with Mayor Astorga and their departure early the following
morning to enjoy the place and that, given a choice, they would have gone home. [51]
Petitioner argues that he was denied the cold neutrality of an impartial judge, because the ponente of the assailed
decision acted both as magistrate and advocate when he propounded very extensive clarificatory questions on the
witnesses. Surely, the Sandiganbayan, as a trial court, is not an idle arbiter during a trial. It can propound clarificatory
questions to witnesses in order to ferret out the truth. The impartiality of the court cannot be assailed on the ground
that clarificatory questions were asked during the trial.[52]
Thus, we affirm the judgment of the Sandiganbayan finding petitioner guilty beyond reasonable doubt of Arbitrary
Detention. Article 124 (1) of the Revised Penal Code provides that, where the detention has not exceeded three days,
the penalty shall be arresto mayor in its maximum period to prision correccional in its minimum period, which has a
range of four (4) months and one (1) day to two (2) years and four (4) months. Applying the Indeterminate Sentence
Law, petitioner is entitled to a minimum term to be taken from the penalty next lower in degree, or arresto mayor in its
minimum and medium periods, which has a range of one (1) month and one (1) day to four (4) months. Hence, the
Sandiganbayan was correct in imposing the indeterminate penalty of four (4) months of arresto mayor, as minimum, to
one (1) year and eight (8) months of prision correccional, as maximum.
Before closing, it may not be amiss to quote the words of Justice Perfecto in his concurring opinion in Lino v. Fugoso,
wherein he decried the impunity enjoyed by public officials in committing arbitrary or illegal detention, and called for
the intensification of efforts towards bringing them to justice:
The provisions of law punishing arbitrary or illegal detention committed by government officers form part of our statute
books even before the advent of American sovereignty in our country. Those provisions were already in effect during
the Spanish regime; they remained in effect under American rule; continued in effect under the Commonwealth. Even
under the Japanese regime they were not repealed. The same provisions continue in the statute books of the free and
sovereign Republic of the Philippines. This notwithstanding, and the complaints often heard of violations of said
provisions, it is very seldom that prosecutions under them have been instituted due to the fact that the erring
individuals happened to belong to the same government to which the prosecuting officers belong. It is high time that
every one must do his duty, without fear or favor, and that prosecuting officers should not answer with cold shrugging
of the shoulders the complaints of the victims of arbitrary or illegal detention.

Only by an earnest enforcement of the provisions of articles 124 and 125 of the Revised Penal Code will it be possible
to reduce to its minimum such wanton trampling of personal freedom as depicted in this case. The responsible officials
should be prosecuted, without prejudice to the detainees right to the indemnity to which they may be entitled for the
unjustified violation of their fundamental rights.[53]
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the Sandiganbayan in
Criminal Case No. 24986, dated July 5, 2001 finding petitioner BENITO ASTORGA guilty beyond reasonable doubt of
the crime of Arbitrary Detention and sentencing him to suffer the indeterminate penalty of four (4) months of arresto
mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum, is AFFIRMED in toto.
Costs de oficio.
SO ORDERED.
September 6, 1910
G.R. No. 5649
THE UNITED STATES, plaintiff-appellee,
vs.
ISAAC SAMONTE, defendant-appellant.
Godofredo Reyes, for appellant.
Attorney-General Villamor, for appellee.
TRENT, J.:
The defendant, Isaac Samonte, was tried in the Court of First Instance of the Province of Tayabas on a charge of
criminal attempt against an agent of the authorities, and sentenced to one year eight months and twenty-one days
of prision correctional, to pay a fine of P65, in case of insolvency to suffer the corresponding subsidiary imprisonment,
to the accessory penalties provided in article 61 of the Penal Code, and to pay the costs. He appealed to this court.
Counsel for appellant insists, first, that the prosecution has failed to establish beyond a reasonable doubt that the
policeman, Gregorio Glindo, attempted to arrest the accused in Verdales Street, the place where the trouble occurred;
and, second that if said policeman did attempt to arrest the defendant at this place he, not having a judicial warrant,
was not, under the circumstances, authorized to make the arrest which he attempted to make.
About 8 o'clock on the night of September 6, 1908, the appellant, Isaac Samonte, and Basilio Rabe were together in
the house of one Demetrio Pandeio in the barrio of Macalalong, jurisdiction of Pitogo, Province of Tayabas. They both
left the house and met shortly afterwards in the street (Verdades) in said barrio. On meeting there they became
engaged in a quarrel, the appellant knocking or pushing Rabe down, then proceeded to maltreat him. At this moment
Rabe called "police! police!" Gregorio Glindo, a municipal policeman of Pitogo, being a patrol duty that night in said
barrio, hearing these words went to the scene, arriving just as the offended party was getting up, and attempted to
arrest the appellant, saying to him: "In the name of the United States, don't move." The appellant, on seeing the
policeman and hearing this command, said: Don't come near, because I will take your life." The policeman continued
toward the appellant and when very near him the appellant struck at the policeman with a knife. On account of this
resistance the policeman could not arrest the appellant at that time, so he went immediately to the house of the
councilman of that barrio, Demetrio Pandenio, and reported the matter. Pandenio ordered him to arrest the appellant.
He returned to obey this order, being followed by Pandenio. They found the appellant in a place called Mutingbayan.
The policeman attempted to take hold of the appellant, but he resisted, striking at the policeman again with his knife.
The councilman then ordered the appellant to submit himself, and on receiving this order the appellant said: "I do not
recognize anyone," and struck at the councilman with the knife.
The appellant was not arrested on that night on account of this resistance. He did not lay hands on to touch with his
knife either the policeman or the councilman, but he did refuse to submit himself to the authorities, and resisted arrest.

The policeman did not see the appellant knock the priest down, neither did he see him kick the said priest, but we
heard the cries of the priest calling for help, saying "police! police!" and when he arrived on the scene the priest was
getting up and freeing himself from the appellant. When the policeman heard these cries for help he was only a very
short distance some 6 or 8 brazas away, and when arrived the trouble had not terminated, although no active
fighting took place after his arrival. Under these facts and circumstances it was the duty if this police officer to stop this
disturbance by placing the defendant under arrest.

Upon complaint of Bernardino Malinao, charging the petitioners with having committed the crime of robbery, Benjamin
Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2, 1948, and presented a complaint against
them with the fiscal's office of Manila. Until April 7, 1948, when the petition for habeas corpusfiled with this Court was
heard, the petitioners were still detained or under arrest, and the city fiscal had not yet released or filed against them
an information with the proper courts justice.

Any officer in charged with the preservation of the public peace may arrest, without a warrant, any person who is
committing, or has committed, a breach of the peace in his presence. (3 Cyc., 881; Carolina vs. McAfee, 10 L. R. A.,
607; Commonwealth vs. Tobin, 11 Am., Rep., 375; People vs. Rounds, 35 N. W., 77; Douglas vs. Barber, 28 Atl. Rep.,
805.)

This case has not been decided before this time because there was not a sufficient number of Justices to form a
quorum in Manila, And it had to be transferred to the Supreme Court acting in division here in Baguio for deliberation
and decision. We have not until now an official information as to the action taken by the office of the city fiscal on the
complaint filed by the Dumlao against the petitioners. But whatever night have been the action taken by said office, if
there was any, we have to decide this case in order to lay down a ruling on the question involved herein for the
information and guidance in the future of the officers concerned.

An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an
arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created
thereby and proceeds at once to the scene thereof; of the offense is continuing, or has not been consummated, at the
time the arrest is made. (3 Cyc., 886; Ramseyvs. State, 17 S. E., 613; Dilger vs. Com., 11 S. W., 651; State vs.
McAfee, 12 S. E., 435; State vs. Williams, 15 S. E., 554; and Hawkins vs. Lutton, 70 N. W., 483.)

The principal question to be determined in the present case in order to decide whether or not the petitioners are being
illegally restrained of their liberty, is the following: Is the city fiscal of manila a judicial authority within the meaning of
the provisions of article 125 of the Revised Penal Code?

In the case at bar Gregorio Glindo, being a peace officer, not only had authority to arrest the defendant at that time,
but it was his duty to do so, he having heard the priest call for help and having arrived on the scene before the
disturbance had finally ended.
Article 249 of the Penal Code provides that the following commit criminal attempt:
xxx

xxx

xxx

2. Those who attack the authorities or their agents or employ force against them, or gravely intimidate them, or offer
an equally grave resistance while they are discharging the functions of their office or on the occasion thereof.
Article 250 of the same code fixes the penalty to be imposed for those guilty of an attempt against the authorities or
their agents, as provided in the above article.
The accused in this case, after an attempt had been made to arrest him by duly authorized police officer in the
discharge of his duty a such, offered grave resistance by refusing to submit himself to arrest and by striking at the
policeman with a knife, thereby attempting to a personal injury. Although the policeman was not wounded or touched
by the accused, these facts do not receive him from criminal responsibility.
The penalty imposed by the court below being in accordance with the law and the proofs presented, the same is
hereby affirmed, with costs against the appellant. So ordered.
G.R. No. L-2128

Taking into consideration the history of the provisions of the above quoted article, the precept of our Constitution
guaranteeing individual liberty, and the provisions of Rules of Court regarding arrest and habeas corpus, we are of the
opinion that the words "judicial authority", as used in said article, mean the courts of justices or judges of said courts
vested with judicial power to order the temporary detention or confinement of a person charged with having committed
a public offense, that is, "the Supreme Court and such inferior courts as may be established by law". (Section 1, Article
VIII of the Constitution.)
Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code formerly in force
of these Islands, which penalized a public officer other than a judicial officer who, without warrant, "shall arrest a
person upon a charge of crime and shall fail to deliver such person to the judicial authority within twenty four hours
after his arrest." There was no doubt that a judicial authority therein referred to was the judge of a court of justice
empowered by law, after a proper investigation, to order the temporary commitment or detention of the person
arrested; and not the city fiscals or any other officers, who are not authorized by law to do so. Because article 204,
which complements said section 202, of the same Code provided that "the penalty of suspension in its minimum and
medium degrees shall be imposed upon the following persons: 1. Any judicial officer who, within the period prescribed
by the provisions of the law of criminal procedure in force, shall fail to release any prisoner under arrest or to commit
such prisoner formally by written order containing a statement of the grounds upon which the same is based."
Although the above quoted provision of article 204 of the old Penal Code has not been incorporated in the Revised
Penal Code the import of said words judicial authority or officer can not be construed as having been modified by the
mere omission of said provision in the Revised Penal Code.

May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners,

vs.
THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY OF
MANILA,respondents.
Enrique Q. Jabile for petitioners.
Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Naawa and D. Guinto Lazaro for respondents.
FERIA, J.:

Article 125 of the Revised Penal Code provides that "the penalties provided in the next proceeding article shall be
imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver
such person to the proper judicial authorities within the period of six hours."

Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be secure in their
persons...against unreasonable seizure shall not be violated, and no warrant [of arrest, detention or confinement] shall
issue but upon probable cause, to be determined by the judge after the examination under oath or affirmation of the
complaint and the witness he may produce." Under this constitutional precept no person may be deprived of his liberty,
except by warrant of arrest or commitment issued upon probable cause by a judge after examination of the
complainant and his witness. And the judicial authority to whom the person arrested by a public officers must be
surrendered can not be any other but court or judge who alone is authorized to issue a warrant of commitment or
provisional detention of the person arrested pending the trial of the case against the latter. Without such warrant of
commitment, the detention of the person arrested for than six hours would be illegal and in violation of our
Constitution.

Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to the duty of an officer after
arrest without warrant, provides that "a person making arrest for legal ground shall, without unnecessary delay, and
within the time prescribed in the Revised Penal Code, take the person arrested to the proper court orjudge for such
action for they may deem proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the
defendant and his delivery to the Court, he shall be informed of the complaint or information filed against him. He shall
also informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to
present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be
reduced to writing but that of the defendant shall be taken in writing and subscribed by him.
And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of Court. According to the
provision of said section, "a writ of habeas corpus shall extend any person to all cases of illegal confinement or
detention by which any person is illegally deprived of his liberty"; and "if it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge, or by virtue of a
judgement or order of a court of record, and that the court or judge had jurisdiction to issue the process, render
judgment, or make the order, the writ shall not be allowed. "Which a contrario sensu means that, otherwise, the writ
shall be allowed and the person detained shall be released.
The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to include the fiscal of
the City of Manila or any other city, because they cannot issue a warrant of arrest or of commitment or temporary
confinement of a person surrendered to legalize the detention of a person arrested without warrant. (Section 7, Rule
108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30, 1947,
43 Off. Gaz., 1214). The investigation which the city of fiscal of Manila makes is not the preliminary investigation
proper provided for in section 11, Rule 108, above quoted, to which all person charged with offenses cognizable by the
Court of First Instance in provinces are entitled, but it is a mere investigation made by the city fiscal for the purpose of
filing the corresponding information against the defendant with the proper municipal court or Court of First Instance of
Manila if the result of the investigation so warrants, in order to obtain or secure from the court a warrant of arrest of the
defendant. It is provided by a law as a substitute, in a certain sense, of the preliminary investigation proper to avoid or
prevent a hasty or malicious prosecution, since defendant charged with offenses triable by the courts in the City of
Manila are not entitled to a proper preliminary investigation.
The only executive officers authorized by law to make a proper preliminary investigation in case of temporary absence
of both the justice of the peace and the auxiliary justice of the peace from the municipality, town or place, are the
municipal mayors who are empowered in such case to issue a warrant of arrest of the caused. (Section 3, Rule 108, in
connection with section 6, Rule 108, and section 2 of Rule 109.) The preliminary investigation which a city fiscal may
conduct under section 2, Rule 108, is the investigation referred to in the proceeding paragraph.
Under the law, a complaint charging a person with the commission of an offense cognizable by the courts of Manila is
not filed with municipal court or the Court of First Instance of Manila, because as above stated, the latter do not make
or conduct a preliminary investigation proper. The complaint must be made or filed with the city fiscal of Manila who,
personally or through one of his assistants, makes the investigation, not for the purpose of ordering the arrest of the
accused, but of filing with the proper court the necessary information against the accused if the result of the
investigation so warrants, and obtaining from the court a warrant of arrest or commitment of the accused.
When a person is arrested without warrant in cases permitted bylaw, the officer or person making the arrest should, as
abovestated, without unnecessary delay take or surrender the person arrested, within the period of time prescribed in
the Revised Penal Code, to the court or judge having jurisdiction to try or make a preliminary investigation of the
offense (section 17, Rule 109); and the court or judge shall try and decide the case if the court has original jurisdiction
over the offense charged, or make the preliminary investigation if it is a justice of the peace court having no original
jurisdiction, and then transfer the case to the proper Court of First Instance in accordance with the provisions of
section 13, Rule 108.
In the City of Manila, where complaints are not filed directly with the municipal court or the Court of First Instance, the
officer or person making the arrest without warrant shall surrender or take the person arrested to the city fiscal, and
the latter shall make the investigation above mentioned and file, if proper, the corresponding information within the
time prescribed by section 125 of the Revised Penal Code, so that the court may issue a warrant of commitment for
the temporary detention of the accused. And the city fiscal or his assistants shall make the investigation forthwith,
unless it is materially impossible for them to do so, because the testimony of the person or officer making the arrest

without warrant is in such cases ready and available, and shall, immediately after the investigation, either release the
person arrested or file the corresponding information. If the city fiscal has any doubt as to the probability of the
defendant having committed the offense charged, or is not ready to file the information on the strength of the testimony
or evidence presented, he should release and not detain the person arrested for a longer period than that prescribed
in the Penal Code, without prejudice to making or continuing the investigation and filing afterwards the proper
information against him with the court, in order to obtain or secure a warrant of his arrest. Of course, for the purpose of
determining the criminal liability of an officer detaining a person for more than six hours prescribed by the Revised
Penal Code, the means of communication as well as the hour of arrested and other circumstances, such as the time of
surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information,
must be taken into consideration.
To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal Code, would be to
authorize the detention of a person arrested without warrant for a period longer than that permitted by law without any
process issued by a court of competent jurisdiction. The city fiscal, may not, after due investigation, find sufficient
ground for filing an information or prosecuting the person arrested and release him, after the latter had been illegally
detained for days or weeks without any process issued by a court or judge.
A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or
any other person, except in those cases expressly authorized by law. What he or the complainant may do in such case
is to file a complaint with the city fiscal of Manila, or directly with the justice of the peace courts in municipalities and
other political subdivisions. If the City Fiscal has no authority, and he has not, to order the arrest even if he finds, after
due investigation, that there is a probability that a crime has been committed and the accused is guilty thereof, a
fortiori a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the
offended party or other persons even though, after investigation, he becomes convinced that the accused is guilty of
the offense charged.
In view of all the foregoing, without making any pronouncement as to the responsibility of the officers who intervened
in the detention of the petitioners, for the policeman Dumlao may have acted in good faith, in the absence of a clear
cut ruling on the matter in believing that he had complied with the mandate of article 125 by delivering the petitioners
within six hours to the office of the city fiscal, and the latter might have ignored the fact that the petitioners were being
actually detained when the said policeman filed a complaint against them with the city fiscal, we hold that the
petitioners are being illegally restrained of their liberty, and their release is hereby ordered unless they are now
detained by virtue of a process issued by a competent court of justice. So ordered.
Paras, Actg. C.J., Pablo, and Bengzon, JJ., concur.

Separate Opinions
PERFECTO, J.:, concurring:
Petitioners Melencio Sayo and Joaquin Mostero were apprehended at 11:30 in the morning of April 2, 1948, upon
complaint of Bernardino Malinao, for the crime of alleged robbery.
The fact is alleged expressly in respondent's answer supported by the affidavit of Benjamin Dumlao (Exhibit 1), the
patrolman who made the arrest. Therein it is also alleged that petitioners were "finally" placed under arrest at 4:30
p.m. and 5:00 p.m. respectively, on the same day, April 2, l948.
The distinction between the two arrests, the apprehension made at 11:00 a.m. and the "final arrest at 4:30 and 5:00
p.m., is purely academic or imaginary. There was but one arrest, effected at 11:00 a.m., April 2, 1948, and continued

without interruption until the petition had been filed with us April 5, 1948, at the hearing on the next day. Until the
moment we are writing this opinion we have not heard that petitioners have been released at any time.

No warrant of arrest having been issued by any competent tribunal for the apprehension of petitioners, said
apprehension appears to be illegal.

Respondents allege also that on April 3, 1948, at about 8:30 a.m., a criminal complaint was filed with the fiscal's office
of Manila, and that by said filing their duty to deliver arrested persons, within six hours from their arrest, to a proper
judicial authority has been duly complied with.

At any rate, even under the hypothesis that it was legal and continued to be so for six hours, this time having expired
seven days ago, the continued detention and confinement of petitioners is clearly illegal, and not only illegal but
criminal, involving an offense committed by public officers and heavily punished by the Revised Penal Code.

There is no dispute that no warrant of arrest has ever been issued for the apprehension of petitioners.

Regarding the question as to legality of the arrest, counsel for respondents has advanced the shocking theory that
police officers may arrest any person just for questioning or investigation, without any warrant of arrest.

Petitioners pray for their immediate release, alleging that, as the six-hour period provided in article 125 of the Revised
Penal Code had expired, their continued detention is illegal.
Article 125 of the Revised Penal Code provides for the penalty of arresto mayor or in its maximum period toreclusion
temporal, or from 4 months and 11 days to 20 years imprisonment, for the crime of a public officer or employee who,
after detaining a person, "shall fail to deliver such person to the proper judicial authorities within the period of six
hours."

The theory is absolutely unconstitutional and could have been entertained only under the "Kempei" system implanted
by the brutal Japanese army occupation. Such theory represents an ideology incompatible with human dignity. Reason
revolts against it.
Respondents are ordered, upon notice of the decision, to immediately release the two petitioners and to report to this
Court the time when the release shall have been effected.

Both parties implying from the above provision that after six hours of said failure, petitioners shall be entitled to be
released, discussed the question whether there is such failure or not.
Upon the very facts alleged by respondents and supported by documentary evidence accompanying it, there should
not be any dispute that there is such failure.

TUASON, J., dissenting:

(a) Respondents have not delivered the persons of petitioners to any authority, and much less to any judicial authority.

I dissent on the grounds stated in my dissent in Lino vs. Fugoso et al., Off. Gaz., 1214.

(b) Their filing of a complaint with the office of the fiscal of Manila is not a delivery of the persons of petitioners. Said
persons are not a complaint. A complaint, whether oral or written, can never be elevated to the category of the person.
No one is crazy enough to confuse or identify a person with a complaint.
(c) Even in the false hypothesis that respondents, by filing the complaint, intended to make a delivery of the persons of
petitioners, if not actually, constructively, the fiscal's office is not a judicial authority.
(d) Under our Constitution and laws, judicial authorities comprehend only courts of justice, such as the Supreme Court
and all other inferior Court, and justices and judges. The authority possessed and exercised by judicial authorities is
judicial, and the Constitution(section 1, Article VIII) vests the judicial power exclusively "in one Supreme Court and in
such inferior courts as may be established by law."
Respondents' pretension in making the fiscal of Manila a judicial authority is absolutely groundless, upon the clear
letter of the fundamental law. Counsel for respondents himself had to admit that said officer belongs to the
administrative or executive department. Under the tripartite system of the government established by the Constitution,
it is extreme absurdity to make an administrative or executive officer, or any officer of the executive department or
branch, a judicial authority. Such will make of separation of powers a madman's illusion.
That a fiscal is not a judicial authority has been unmistakably declared in the decision in Lino vs. Fugoso, L-1159, 43
Off. Gaz., 1214. The statement made therein that there was yet no purpose of deciding whether a fiscal is a judicial
authority or not, is just a rhetorical figure that is a judicial authority or not, is just a rhetorical figure that should not
deceive any one. All those who can read, will that the decision has made the declaration. It is there stated in plain
language that the fiscal is "unlike" a judicial authority.
"Unlike" means, as an elementary school student knows, not like, dissimilar, diverse, different.

RESOLUTION

August 27, 1948

FERIA, J.:
This is a motion for reconsideration of our decision which holds that the phrase "judicial authority" used in the article
125 of the Revised Penal Code, to whom a person arrested without warrant shall be delivered by the officer making
the arrest within the period of six hours from the arrest, means a competent court or judge, and the City Fiscal is not
such a judicial authority.
We have already held, in the United States vs. Fortaleza, 12 Phil., 472,477-479, that the provisions of the Provisional
Law for the application of the provisions of the Spanish Penal Code in the Philippines by Royal Decree of September
4, 1884, are in force of this Islands insofar as they have not been repealed or amended by implication by the
enactment of the body of laws put in force in these Islands since the change from Spanish to American sovereignty.
According to the ruling of this court in said case, a person may be arrested without warrant in the cases specified in
Rules 27 and 28 of said provisional law and section 37 of Act No. 183 (Charter of Manila). The provisions of said Rules
27 and 28 are substantially the same of those contained in section 6 Rule 109 of the Rules of Court which superseded
them; and the provisions of section 37 of Act No. 183 above reffered to have been incorporated in section 2463 of the
Revised Administrative Code. Both section 6 of Rule 109, and the pertinent provisions of said section 2463 of the
Revised Administrative Code are now the laws in force on the subject.

Article 30 of said Provisional Law for the application of the Penal Law in the Philippines also provides:
The executive authorities or the agents detaining a person shall release the same or else turn him over to the judicial
authorities within twenty four hours after the arrest if made in the head town of the district, or within as brief a period as
the distance and transportation facilities permit.
And the next article 31 of the same law reads as follows:
Within twenty four hours after the person arrested has been surrendered to the competent judge of Court of First
Instance, the latter shall order the commitment or release of the prisoner by warrant containing the grounds on which it
is based (auto motivado).
If it is impossible to do so because of the complexity of the facts, the number of defendants or any other serious
cause, which must be made of record, the time of detention may be extended to three days. Upon the expiration of
that period of time the judge shall order the commitment or the release of the defendant. The warrant of commitment
shall be ratified after the defendant has been heard within the period of sixty two hours from the time the defendant
has been committed to prison.
Said Rule 30 has been modified by section 17, Rule 109, which provides that "Any person making arrest for legal
ground shall, without unnecessary delay and within the time prescribed in the Revised Peal Code, take the person
arrested to the proper court or judge for such action as they may deem proper to take," and by article 125 of the
Revised Penal Code already quoted.
But the provisions of Rule 31 above quoted are still in force because they may have not been repealed, either
expressly or by implication, by any law or the present Rules of Court, except the last sentence, thereof which is no
longer in force. The procedure of hearing the accused after he has been committed to prison referred to in said last
sentence, is a sort preliminary investigation by the judge or justice of the peace according to the present procedure.
Persons arrested or accused in the City of Manila are not entitled to such investigation. In provinces the justice of the
peace or judge shall, according to section 2 of Act No. 194, "make the preliminary investigation of the charge as
speedily as may be consistent with the right and justice, but in any event he must make the investigation within three
days of the time the accused was brought before him, unless the accused or complainant shall ask for delay in order
that witnesses may be obtained, or for other good and sufficient reason, in which event a continuance for a reasonable
time may be allowed." This provision of section 2 of Act No. 194 is still in force, because no law has been enacted
amending or repealing it. (Marcos vs. Cruz [May 13, 1939] 1st Supp., 40 Off. Gaz., 174, 182.) The Rules of Court on
Criminal Procedure do not undertake to dispose of all subjects of preliminary investigation, and repeal all laws on the
subject not incorporated therein; especially those that, like the said provisions of section 2, Act No. 194, confer
substantive rights upon defendants which can not be diminished, increased or modified by the Rules of Court (section
13, Article VIII, of the Constitution).
In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional Law, article 204 of the old Penal Code,
from which article 125 of the Revised Penal Code was taken, and section 1 (3) Article III of the Constitution, there can
be no doubt that the judicial authority within the meaning of article 125 of the Revised Penal Code must be a judge
who has authority to issue a written warrant of commitment or release containing the ground on which it is based (auto
motivado). Because said section 17 of Rule 109 expressly provides that the officer making the arrest without warrant
shall, within the time prescribed in the Revised Penal Code, take the person arrested to acourt or judge for such action
as the latter may deem proper to take; Rule 31 expressly states that, within twenty four hours or at most three days
after the person arrested has been delivered to the judge of Court of First Instance (and also the justice of the peace
now), the latter shall order the commitment or release of the prisoner by a warrant containing the ground upon which
the commitment or release is based (auto motivado); article 204 of the Penal Code (not incorporated in the Revised
Penal Code), penalize the judicial authority or judge who fails to comply with the provisions of said Rule 31; and
section 1(3) Article III of the Constitution provides that no warrant shall issue but upon probable cause, to be
determined by the judge after examination under oath or affidavit of the complainant and witnesses he may produce,"
in order to safeguard "the right of the people to be secured in their person ... against unreasonable seizure" or
detention for a longer period than that fixed or considered by law as reasonable (six hours according to section 125 of
the Revised Penal Code).

It is obvious that the city fiscal is not a city judge, and has no power to issue order or commitment or release by a
written warrant containing the ground on which it is based. As a matter of fact the city fiscal has never exercised such
power since that office was created. In justice to the city fiscal, we have to state that the latter did not and does not
contend in his motion for reconsideration that it has the power to issue such a warrant, as contended in the dissenting
opinion.
To consider a city fiscal as a judicial authority within the meaning of article 125 of the Revised Penal Code, would be to
place a person arrested in provinces without warrant in a better position than those arrested in the City of Manila.
Because, as there is no law requiring the city fiscal to act or file an information against such person within a limited
period of time, after the arresting officer has taken the prisoner to the city fiscal within six hours, the prisoner may be
held under detention without any warrant for days and weeks and possibly months until such time as the city fiscal
may take action, either by releasing the prisoner without filing any information, or filing an information with the proper
city court and obtain a warrant of commitment. While a person arrested outside of the City of Manila has to be
delivered by the arresting person or peace officer to the competent judge within six hours after his arrest, and the latter
shall have to investigate the charge and issue a warrant of release or commitment of the prisoner within the period of
twenty four hours or at most three days prescribed in said article 31 of the Provisional Law.
It is obvious that the surrender or delivery to the judicial authority of a person arrested without warrant by a peace
officer, does not consist in a physical delivery, but in making an accusation or charge or filing of an information against
the person arrested with the corresponding court or judge, whereby the latter acquires jurisdiction to issue an order of
release or of commitment of the prisoner, because the arresting officer can not transfer to the judge and the latter does
not assume the physical custody of the person arrested. And in the City of Manila it does consist in delivering
physically the body of the prisoner to the city fiscal, for the latter will not assume the responsibility of being the
custodian of the prisoner; nor in making or lodging a complaint against him with the said fiscal, because the latter has
no power to order the commitment or release of the prisoner by a warrant containing the ground on which it is based
(auto motivado). Such delivery is a legal one and consists in making a charge or filing a complaint against the prisoner
with the proper justice of the peace or judge of Court of First Instance in provinces, and in filing by the city fiscal of an
information with the corresponding city courts after an investigation if the evidence against said person so warrants.
Upon the filing of such information will the prisoner be deemed deliver to a judicial authority in the City of Manila within
the meaning of article 125 of the Revised Penal Code?
The city court or judge need not make an investigation of the facts alleged in the information, which the judge or
justices of the peace in provinces have to make before issuing the proper warrant, because the law vest the power in
the city fiscal, but said city judge shall determine only the legal question whether said facts constitute an offense or
violation of ordinances, and issue a warrant of commitment if they do, or of release if they do not.
As a peace officer can not deliver directly the person arrested to the city courts, he shall deliver him to said court
through the city fiscal, and if the latter does not take the prisoner in time to the latter so that the proper investigation
may be made and information filed within six hours, he has to release the prisoner in order to avoid criminal liabilty for
violation of article 125 of the Revised Penal Code. The city fiscal is not an agent of the arresting officer, but as
prosecuting officer, he will be recreant to his duty if he does not do his best to make the investigation and file the
corresponding information in time against the person arrested without warrant, in order to effect the delivery of the
prisoner to the city courts within the period of six hours prescribed by law, and thus prevent his being released by the
officer making the arrest. If the city fiscal does not file the information within said period of time and the arresting officer
continues holding the prisoner beyond the six-hour period, the fiscal will not be responsible for violation of said article
125, because he is not the one who arrested and illegally detained the person arrested, unless he has ordered or
induced the arresting officer to hold and not release the prisoner after the expiration of said period.
Section 2640 of the Revised Administrative Code which specifies the powers and duties of chief of police of the City of
Manila, authorizes the latter "to take good and sufficient bail for the appearance before the city court of any person
arrested for violation of any city ordinance: Provided, however, That he shall not exercise this power in cases of
violation of any penal law except when the fiscal of the city shall so recommend and fix the bail to be required of the
person arrested." These provisions do not authorize, either expressly or by implication, the city fiscal to order the
detention of the prisoner if bond is not given, not only because they refer to the powers of the chief of police of Manila
and not of the city fiscal, but because the only incidental authority granted to the latter is to recommend the granting of
the bail to be required of the person arrested for violation of any penal law in order that the chief of police may release
the latter on bail. If no bail is given by the person arrested, neither the chief of police, who is only authorized to release

on bail, has power to detain the person arrested for more than six hours; nor the city fiscal, who is only empowered to
fix and recommend the bail to the chief of police, has authority to order the detention of persons arrested for violation
of a penal law.
The above-quoted provisions of section 2640 of the Revised Administrative Code refers evidently to persons arrested
without warrant, for accused arrested by virtue of a warrant issued by the courts may be released on bail only by order
of the court or judge that issued the warrant and has exclusive jurisdiction or control over the person arrested. The
purpose of the law in empowering the chief of police of Manila to release the prisoner if he sets up a bail, is to relieve
the officer making the arrest from the necessity of taking the prisoner to the city fiscal, and the latter from filing an
information with the proper courts within the period of time prescribed by law.
The dissenting opinion calls a general principle of law an excerpt of the Corpus Juris Secundum quoted therein which
says that "the officer however need not necessarily have personal knowledge of the facts constituting the offense in
the sense of having seen or witnessed the offense himself, but he may if there are no circumstances known to him by
which materially impeach his information, acquire his knowledge from information imparted to him by reliable and
credible third persons or by the information together with other suspicious circumstances" (6 C.J.S., 599, 600), and
after the quotation adds: "This is a common law rule implanted in the Philippines along with its present form of
government, a rule which has been cited and applied by this Court in a number of cases (U. S.vs. Santos, 36 Phil.,
853; U. S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16 Phil., 516).
The above-quoted excerpt is not a general principle of law or a common law rule implanted in the Philippines. It is a
summary of the ruling of several State courts based on statutory exceptions of the general rule. "It is the general rule,
although there are statutory exceptions and variations, that a peace officer has no right to make an arrest without a
warrant, upon a mere information of a third person" (5 C.J., p. 404), because "statutes sometime authorize peace
officer to make arrest upon information" (4 Am. Jur., p. 17). In none of the cases cited in the dissenting opinion has this
Court quoted and applied it. In U.S. vs. Fortaleza, 12 Phil., 472, this Court, after quoting Rules 27 and 28 of the
"Provisional Law for the Application of the Penal Law" and section 37, Act No. 183, as the law in force in force in these
Islands providing for cases in which a person may be arrested without a warrant, said:
These provisions quite clearly set out the powers usually conferred by American and English law upon "peace officers"
including "constables," in making arrests without warrants; and since similar powers are clearly included in the
powers conferred upon "agents of authority" in the above cited articles of the "Provisional Law," there can be no doubt
that the Commission, in imposing the duty of maintaining order and preserving and protecting life and property within
their respective barrios upon municipal councilors and their lieutenants of barrios, conferred upon such officials
authority to make arrests without warrant not less extensive than that conferred upon peace officers in Manila in the
above-cited provisions of the Manila Charter. (United States vs. Vallejo, No. 4367, decided by this court on September
3, 1908; also United States vs. Burgueta, 10 Phil., 188.) (Emphasis ours.)
The case of U.S. vs. Samonte, 16 Phil., 516, one of the cases cited in the last paragraph of the dissenting opinion,
does not contain anything about the implantation in these Islands of the so-called common law rule. In the case of
U.S. vs. Battallones (not Ballesteros) 23 Phil., 46, cited also therein, this Court, following the ruling in U.S. vs.
Fortaleza, said:
In a former case we held that officials in these Islands, who, "by direct provisions of law or by appointment of
competent authority are charged with the maintenance of public order and the protection and security of life and
property," have authority to make arrests without warrant substantially similar to the authority generally conferred upon
"peace officers" in the United States, and more especially that class of `peace officers' known to American and English
law as constables; and that "the provisions of section 37 of Act No. 183" (the Charter of Manila) "quite clearly set forth
the powers usually conferred by American and English law upon "peace officers" including "constables" in making
arrests without warrants," and provide that they "may pursue and arrest without warrant, any person found in
suspicious places or under suspicious circumstances, reasonably tending to show that such person has committed or
is about to commit any crime or breach of the peace; may arrest, or cause to be arrested without warrant, any
offender, when the offense is committed in the presence of a peace officer or within his view". (U.S. vs. Fortaleza, 12,
Phil., 472, 479.)

And in the case of U.S. vs. Santos, 36 Phil., 853, this Supreme Court has reiterated the ruling in the previous cases
and held:
The powers of peace officers in the Philippines, generally stated, are the same as those conferred upon constables
under the Anglo-American Common Law. The extent of their authority to make arrests without warrant and the
limitations thereon, as held by the Supreme Court, are as stated in the language of the Legislature in the Charter of
the City of Manila. (U.S. vs. Fortaleza [1909], 12 Phil., 472). The Administrative Code (section 2204, edition of 1916;
section 2258, edition of 1917) enjoins municipal policemen to "exercise vigilance in the prevention of public offenses".
The provisions above quoted of section 37 of Act No. 183 have been incorporated in section 2463 of the Revised
Administrative Code and those of Rules 27 and 28 were substantially incorporated in section 6, Rule 109 of the Rules
of Court. Section 2463 of the Revised Administrative Code reads as follows:
SEC. 2463. Police and other officers Their powers and duties. The mayor, the chief and assistant chief of police,
the chief of the secret service, and all officers and members of the city police and detective force shall be peace
officers. Such peace officers are authorized ... to pursue and arrest, without warrant, any person found in suspicious
places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to
commit, any crime or breach of the peace; to arrest or cause to be arrested, without warrant, any offender when the
offense is committed in the presence of a peace officer or within his view;
And section 6 of Rule 109 provides:
SEC. 6. Arrest without warrant When lawful. A peace officer or a private person may, without a warrant, arrest a
person:
(a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his
presence;
(b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be
arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from
one confinement to another.
These are the only provisions of law in force these Islands which enumerate the cases in which a peace officer may
arrest a person without warrant, and the so called common law relating to other cases of arrest without warrant cited in
the dissenting opinion has no application in this jurisdiction. Therefore, all the considerations set forth in the said
opinion about the disastrous consequences which this Court's interpretation of article 125 of the Revised Penal Code
will bring to a law enforcement, because "the entire six hours might be consumed by the police in their investigation
alone," or that "even if the city fiscal be given the chance to start his assigned task at the beginning of the six hours
period, this time can not insure proper and just investigation in complicated cases and in cases where the persons
arrested are numerous and witnesses are not at hand to testify," since "the police is not authorized to round up the
witnesses and take them along with the prisoner to the city fiscal," are without any foundation. Because they are
premised on the wrong assumption that, under the laws in force in our jurisdiction, a peace officer need not have
personal knowledge but may arrest a person without a warrant upon mere information from other person. "The right to
make arrests without a warrant is usually regulated by express statute, and except as authorized by such statutes, an
arrest without a warrant is illegal." (5 C.J., pp. 395, 396.) And statutory construction extending the right to make arrest
without a warrant beyond the cases provided by law is derogatory of the right of the people to personal liberty (4 Am.
Jur., p. 17).
The investigation which the city fiscal has to make before filing the corresponding information in cases of persons
arrested without a warrant, does not require so much time as that made upon a complaint of the offended parties for
the purpose of securing a warrant of arrest of the accused. In all cases above enumerated in which the law authorizes

a peace officer to arrest without warrant, the officer making the arrest must have personal knowledge that the person
arrested has committed, is actually committing, or is about to commit an offense in his presence or within his view, or
of the time, place or circumstances which reasonably tend to show that such person has committed or is about to
commit any crime or breach of the peace. And the testimony of such officer on the commission of the offense in his
presence or within his view by the person arrested, or on the facts and circumstances that tend reasonably to show
that said person has committed or is about to commit an offense, would be sufficient evidence or basis for the city
fiscal to file an information without prejudice to his presenting of their evidence or witness, if any, during the trial to
insure the conviction of the defendant. If the city fiscal does not believe the testimony of the officer making the arrest
or consider it sufficient, or has any doubt as to the probability of the prisoner having committed the offense charged,
and is not ready to file an information against him on the strength of the testimony or evidence presented, there would
be no legal reason or ground for him to wait until further evidence may be secured before dismissing the case against
the prisoner, or detaining the person arrested without warrant without violating the precept of article 125 of the Revised
Penal Code.
After the release of the prisoner, the city fiscal may make or continue the investigation and file afterwards the proper
information against him with the corresponding court, if the result of the investigation so warrants, in order to secure a
warrant of arrest of the same. Of course, as we have said in our decision for the purpose of determining the criminal
liability of a peace officer detaining a person for a longer period of time than the six hours prescribed by article 125 of
the Revised Penal Code, "the means of communication as well as the hour of arrest and other circumstances such as
the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary
information, must be taken into consideration." The period originally fixed by our Penal Code was twenty four (24)
hours, and if the city fiscal believes that the period now prescribed by article 125 of the Revised Penal Code is short,
and that the law must be amended so as to extend it, it would be proper for the interested parties to take the case to
Congress, since it can not be done by judicial legislation.
Motion for reconsideration is denied.
Paras, Actg. C.J., Pablo, Bengzon, and Briones, JJ., concur.

PERFECTO, J.:
We agree with the above resolution except that which may be at variance with our concurring opinion in this case and
with our written opinion in the case of Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214.

BRIONES, M., concurring:

Estoy enteramente conforme con la resolucion. En la opinion concurrente que dicte en el asunto de
Lino contraFuguso y otros (43 off. Gaz., 1235, 1244) donde se discutio por primera vea el importante punto legal
debatido en el presente asunto, dije lo siguiente y lo reafirmo en esta ocasion, saber:
Sin discutir la responsabilidad de la Fiscalia por la demora si esta se puede o no justificar administrativamente es
cuestion que no nos compete considerar ni resolver vamos a limitarnos a comentar y discutir la fase juridica legal.
Esta en orden naturalmente el hacer la siguiente pregunta: es correcta, es acertada la asercionde que el "Promotor
Fiscal de Manila es un funcionario judicial (judicial officer)," que, por tanto, la entrega al mismo de la persona de
undetenido dentro del periodo de 6 horas equivale a la entrega a las autoridades judiciales correspondentes (proper
judicial authorities) de que habla el ariticulo 125 del codigo penal revisado? Creemos que no: no por su letra ni por su
espiritu puede aplicarse por extension la fraseologia de ese articulo al Fiscal de la Ciudad de Manila o a cualquier otro

Fiscal; ese articulo no puede referirse mas que a un tribunal, a u juzgado, se municipal, sea de primera instancia. Asi
que story de perfecto acuerdo con la ponencia cuando positivamente sienta la doctrina de que "si bien un arresto
puede hacerse sin orden cuando hay motivos razonalbes apra ello (regla 109, articulo 6, reglamento de los
tribunales), el detenido no puede ser recluido fuera del periodo prescrito por la ley, a menos que una orden de arresto
se obtenga antes de un tribunal competente" (veanse las autoridades que se citan), y que "en el presente caso el
Fiscal de la Ciudad no tenia autoridad para expedir ordenes de arresto y carecia de facultad para convalidar tal
detencion ilegal con solo presentar las querellas, o con una orden de su propia cuenta, ora tacita, ora expresa"
(veanse asimismo las authoridades que se citan).
De lo dicho se sigue que cuando la policia entrega a la Fiscalia de la ciudad despues del periodo de 6 horas prescrito
por la ley los papeles sobre un detenido arestado sin previa orden al efecto, no por ello se cura la ilegalidad del
arresto y detencion, sino que dicha ilegalidad continua y persiste hasta que el Fiscal presenta la querella y obtiene
una orden de arresto del tribunal competente, o que, tratandose de delito, mediante la prestacion de una fianza cuya
cuantia se fijare y recommendare por dicho Fiscal, la policia soltare al detenido, a tenor de lo previsto en el articulo
2460 del codigo administrativo.
Puede ocurrir, sin embargo, que la policia entregue los papeles a la Fiscalia de la ciudad dentro del periodo de 6
horas, pero que la Fiscalia no solo deja pasar dicho periodo, sin que transcurren dias, hasta semanas sin actuar sobre
el caso en uno u otro sentido. La cuestion en orden naturalmente es la siguiente: es legal o ilegal la detencion del
arrestado en tal caso? En otras palabras: queda suspenidod el periodo de 6 horas durante el tiempo que el Fiscal de
la Ciudad tarda en actuar sobre el caso? La contestacion tiene queser necesariamente negativa. La rigidez., la
inflexibilidad del periodo de 6 horas reza no solo para la policia, sinohast para cualquier otra agencia o ramo oficial,
sin excluir a la Fiscalia de la ciudad de Manila. Si por cualquier motivo la Fiscalia dejare de actuar dentro de dicho
periodo, el deber de la policia o del que tenga la custodia del detenido es soltarle, quiera o no quiera el Fiscal, lo
recomiende o no lo recomiende. De otra manera, la restriccion que estatuye la ley a favor de los detenidos sin previa
orden de arresto restriccion que implementa las garantias de la libertad establecidas en la Constitucion
resultaria un mito. La filosofia de la ley es, a saber: solamente se verifica un arresto sin previa orden cuando hay
motivos razonalbes para ello, v. gr., cuando un individuo es cogido in fraganti cometiendo un delito. La ley presupone,
por tanto, que el Estado tiene a mano todos los elementos necesarios para decider que accion ha de tomar dentro del
periodo de 6 horas, ya entregando la persona del detenido a las autoridades judicales correspondientes mediante la
querella procedente, a tenor del articulo 125 del Codigo Penal Revisado: ya poniendole en libertad provisional bajo
una fianza razonable, de acuerdo con el citado articulo 2460 del Codigo Administrativo; o ya poniendole
compoletamente en la calle por falta de meritos en el caso. Si ninguna de estas cosas puede hacer el Estado en 6
horas no puede ser mas que por dos motivos: o poor que se quiere cometer una arbitrariedad, o la maquinaria oficial
se halla en un deplorable estado de confusion, indeptitud of impotencia.
Se arguye con enfasis que bajo esta interpretacion la prosecucion del crimen sufriria un serio quebranto, sobre todo
en la Ciudad de Manila; que materialmente la Fiscalia no puede actuar adecuadamente sobre algunos casos en el
plazo percentorio de 6 horas. Si esto es verdad el remedio no es infringer la ley como cosa inevitable, rutinaria; el
remedio seria o recabar de la Legislatura que se reforme la ley en la forma que se estime conveniente, o
implementar ya perfeccionar la maquinaria de la prosecucion criminal, colocandola a la altura de las circunstancias.
No hay nada mas anarquico, mas subversivo y fatal para el principio de la autoridad y del buen gobierno que el tener
leyes que no se cumplen, leyes que se infringen hasta por los llamados a ponerlas en vigor. "To be or not to be, that is
the question." O existe la ley y hay que cumplirla; o si la ley es mala o impracticable, hay que reformarla o derogarla.
Lo que no se debe permitir es el disolvente espectaculo de la diaria inobservancia de la ley.
Se me ocurre ahora aadir otras observaciones en refuerzo de la arriba transcritas. Creo que ni siquiera es necesario
enmendar la ley en el sentido de alargar el periodo de 6 horas provisto en el articulo 125 del Codigo Penal Revisado.
Creo que con un poco mas de esfuerzo y buena voluntad la presente ley se podria cumplir en la Ciudad de Manila. La
Fiscalia de la Ciudad podria, por ejemplo, establecer turnos semanales o mensuales, segun como se estime
conveniente, destinando fiscales que se hagan cargo exclusivamente de los casos de individuos detenidos sin previa
orden de arresto, para los efectos de presentar la correspondiente querella contra ellos, o de soltarlos si se viere que
no existen meritos suficientes para la prosecucion, sin perjuicio desde luego de ulteriores procedi mientos. Si para
realizar satisfactoriamente este trabajo fuese necesario aumentar el personal de la Fiscalia, yo no creo que el
gobierno escatimaria el dinero para una atencion tan importante.

Esincreible que dentro de 6 horas si hay voluntad de trabajar y sobre todo de hacer buena y efectiva la ley la
Fiscalia no pueda hacr su composicion de lugar en tales casos, bien para proseguir, bien para no proseguir, de
finitivamente o en el entretanto. Hay que tener en cuenta que se trata de casos en que el individuo es detenido, ora
porque ha sido sorprendido in fraganti cometiendo una infraccion o un delito, ora poroque se le ha cogido " en lugares
sospechosos o bajo cirunstancias sospechosas, que tiendan razonablemente a demostrar que el mismo ha cometido
o esta para cometer cualquier crimen o atentado contra el orden y la paz" (E. U. contrafortaleza, 12 Jur. 486). Que
es lo que neceista entonces la Fiscalia en tales casos? No esta alli el testimonio del policia, constabulario o agente
del orden aprehensor? De modo que la cuestion, en ultimo resultado, es que la Fiscalia tenga o no fe en la integridd y
verracidad del agente de la ley. Si la tiene que motivo hay para no formular inmediatamente la querella y obtener asi
del juzgado la correspondiente orden de arresto? Y si no la tiene que razon hay para pisotear la libertad individual
reteniendo la causa sin accion mas alla de las 6 horas y causando asi una inecesaria vejacion al ciudadano?
La cuestion se puede simplificar mas todavia. Todo se reduce, en ultimo termino, a que la Fiscalia pueda contar con la
ayda de una policia eficiente, integra y honrada sobre todo, que persiga el crimen si cuartel, pero que tenga el
maximo respeto a los derechos del ciudadano. Si la Fiscalia puede tener un modus vivendi con una policcia de
semejante tipo y de tales quilates, no hay miedo de que una rigida observancia del requerimiento legal de 6 horas
facilitie la inmunidad de los tulisanes, bandidos, gangsters y criminales del bajo mundo, y se ponga en grave peligro la
eficaz prosecucion del crimen y la seguridad y sosiego del pueblo. Dentro de las 6 horas hay tiempo mas que
suficiente para meter en cintura a toda la canalla ... pero por Dios que no se violen ni pisoteen las garantias
consitucionales por miedo a los gansters!
Desde luego que se debe dar cierto margen de viabilidad a la ley. Por ejemplo, si se verifica una detencion sin previa
orden de arresto a medianoche, creo que la ley estaria cumplida si en las primeras horas de la maana siguiente se
tomara enseguida accion, aungque ello rebassara un poquito el periodo de 6 horas.
Se deniega la mocion de reconsideracion.

TUASON, J., dissenting:

The city fiscal is not any the less a judicial officer simply because he can not issue warrant of arrest. The power to
issue warrant of arrest is not essential ingredient of a judicial office. This is especially so when, as in cases like the
present, the accused is already under arrest when the city fiscal intervenes and there is no need of issuing an order of
arrest. As to power to commit a detained person to prison, if that be necessary, the majority are not exactly right when
they affirm that the city fiscal is not clothed with it. I shall come to this later.
However that may be, the city fiscal is a "judicial authority" within the contemplation of article 125 of the Revised Penal
Code. This is the inevitable result from the fact that in the City of Manila, the city fiscal under the existing scheme of
the government is the only officer to whom the person arrested without warrant may be presented. The majority
opinion admits that the municipal court and the Court of First Instance of Manila "do not make or conduct a preliminary
investigation proper," and criminal complaints are not filed with them but with the city fiscal. Reasoning from another
angle, we reach the same conclusion. We are to presume that in using the generic term "judicial authorities" and in
plural instead of more specific word "justice," "judge," or "court", the lawmaker intended to include in the operation
of the article under consideration all officers who are named to receive the prisoner from the arresting officer. We have
to adopt this construction if we are to give effect to the law and the rule of court I have cited, and if we are to avoid
what I might call, without meaning offense, an absurdity.
Under no canon of statutory construction is there justification for this Court's opinion that the police and the city fiscal
have to share the six hours fixed in article 125 of the Revised Penal Code. The language, the nature and the object of
this provision unerringly point to the theory that the six hours mentioned in the Revised Penal Code are meant
exclusively for the police officer who made the arrest. I can discern absolutely no indication of any intention to have the
city fiscal squeeze in his action within this brief period, a period which, in many cases, is not even sufficient for the
police. Read separately or in conjunction with the entire criminal procedure, article 125 does not furnish the slightest
indication of legislative intent to place the city fiscal and the police under the same category. Article 125 of the Revised
Penal Code was devised for one purpose; section 2465 of the Revised Administrative Code and section 2, Rule 108,
of the Rules of Court for another. Article 125 is a penal provision designed to prevent and punish police abuses for
which the police are noted. The investigation by the city fiscal is strictly and essentially procedural. It is an integral part
of the procedure for bringing the case to trial.
Little reflection will disclose the disastrous consequences which this Court's interpretation of article 125 of the Revised
Penal Code will bring to law enforcement. It nullifies the role of the fiscal in the administration of criminal law. For sheer
lack of time, the release of the prisoner arrested without warrant will, in a great number of cases, be inevitable, unless
the city fiscal files charges without sufficient and adequate investigation. The alternative will be for the city fiscal to be
on a 24-hour watch lest in his sleep the time for him to act might slip by.

I vote to grant the motion for reconsideration.

In my dissent from the decision of this Court I contended myself with citing my dissenting opinion in Lino vs. Fugoso,
L-1197, 43 Off. Gaz., 1214, 1246, as grounds for my disagreement. As the present decision has gone farther than that
decision and contains new statements and conclusions, I deem it convenient to enlarge on my dissent.
The term "judicial officers" has been defined to be, in its popular sense, officers of a court (Hitt vs. State, Miss. 181,
So. 331) and in its strict sense, "judges and justices of all courts and all persons exercising judicial powers by virtue of
their office." (Settle vs. Van Evrea, 49 N.Y., 280.) The city fiscal is a judicial officer in both senses. In the popular or
larger sense, he is a judicial officer because he is a part of the legal machinery created for the administration of justice.
A prosecuting attorney, charged with the administration of justice and invested with important discretionary power in a
motion for a nolle prosequi, is a judicial officer. (State ex rel. Freed vs. Circuit Court of Martin Country, Ind., 14 N.E. 2d
910; State vs. Ellis, 112 N.E., 98, 100; 184 Ind., 307.)
In the strict legal sense, the city fiscal is a judicial officer when making preliminary examination because he performs
the function of a justice of the peace assuming, as the majority seem to assume, that the conduct of preliminary
examination is a judicial function. By express provision of section 2465 of the Revised Administrative Code, the city
fiscal "shall cause to be investigated all charges of crimes, misdemeanors, and violations of ordinances, and have the
necessary information or complaints prepared or made against the persons accused." In addition, section 2, Rule 108,
of the Rules of Court states that "every justice of the peace, municipal judge or city fiscal shall have jurisdiction to
conduct preliminary investigation of all offenses alleged to have been committed, within his municipality or city,
cognizable by the Court of First Instance."

But this is only a poor alternative. Regardless of any vigilance on his part the opportunity for the city fiscal to make the
required investigation cannot always be assured. The law gives the police absolute power to detain a prisoner for six
hours without incurring penal liability. There is no law which obliges the police to take the prisoner to the city fiscal
before the expiration of six hours from the time of arrest. There can be cases where the entire six hours might be
consumed by the police in their investigation alone, or just in the chasing, collection and transportation to the police
station of the law breakers. This can happen in tumultuous and other mob offenses in which many people are involved
and there is necessity of screening the guilty ones.
Supposing then that the police should deliver the prisoner or prisoners to the city fiscal at the last minute of the six
hours through the negligence or by force of circumstances, what time is there for this functionary to comply with his
duty? And even if the city fiscal be given the chance to start his assigned task at the beginning of the six hour period,
can this time insure proper and just investigation in complicated cases and in cases where the persons arrested are
numerous and witnesses are not on hand to testify? It is well to remember that the police are not authorized to round
up witnesses and take them along with the prisoners to the city fiscal.
In the light of these consequences I can not imagine that the meaning which this Court attaches to article 125 of the
Revised Penal Code so much as entered the thought of the legislature. No sound-minded legislature could have
intended to create such situation, which is easy to perceive unless we assume that the legislative purpose was to tie
up the hands of the law and give lawlessness full sway; unless the legislature wanted to coddle and pamper lawless
elements to a calamitous extreme. When the Court says that the prisoner, after being released at the end of six hours
from the time of his arrest may be rearrested should the city fiscal find sufficient evidence and prefer charges against

him, it takes for granted that underworld characters and hardened criminals are honorable men who would keep
themselves ready and handy for a second arrest.
The Court says:
To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal Code, would be to
authorize the detention of a person arrested without warrant for a period longer than that permitted by law without any
process issued by a court of competent jurisdiction. The city fiscal may not, after due investigation, find sufficient
ground for filing an information or prosecuting the person arrested and release him, after the latter had been illegally
detained for days or weeks without any process issued by a court or judge.
What is that "proper process" referred to in the above quoted portion of the decision? Whatever is meant by "proper
process," we should note that there is no fundamental difference between the proceeding before a justice of the peace
and the procedure followed by the city fiscal. There is nothing important the justice of the peace may do in the interest
of the accused in the cases triable before the Court of First Instance which the city fiscal may not do. If the city fiscal
can not issue an order of arrest, the justice of the peace himself does not do so to give the detention the stamp of
legality. At least, I am aware of no law which tells him to take this step, and I can see no material advantage which an
accused could derive from this ceremony. All the justice of the peace does which matters to the accused is admit him
to bail, if the crime be bailable, and proceed to an investigation.
But the city fiscal does just that; and if the necessary to order the commitment of the prisoner pending ascertainment
of his guilt, the city fiscal no less than the justice of the peace or judge of first instance has the authority also, as I
propose to show later. In actual practice, a person arrested without warrant in a regular municipality frequently suffers
greater injustice and is subject to, and frequently goes through, greater hardships than his counterpart in the City of
Manila. We are witness to the common spectacle of cases being dismissed on motion of the provincial fiscal for want
of sufficient evidence after the prisoner had been bound by the justice of the peace over to the Court of First Instance
for trial and after he had languished in jail for months or years. Prisoner's detention in that case is not considered
illegal.
This anomaly seldom takes place in cities where the preliminary investigation is entrusted to the city fiscal. Rarely in
the City of Manila is a case dropped for insufficiency of evidence after it has been determined in a preliminary
investigation that the prisoner should be held for trial. On the whole, the method by which the preliminary investigation
is conducted by the prosecuting attorney is more conducive to efficiency, minimizes or eliminates conflicts of opinion in
the existence of probable cause, and better insures prompt dispatch of criminal cases to the lasting benefit of the
prisoner. Only physical impossibility, as I understand it, is in the way for the adoption of this method throughout the
country.
It is a mistake, in my humble judgment, to confuse a prisoner's detention during the six-hour period fixed in article 125
of the Revised Penal Code and his continued detention after he is turned over to the city fiscal. As I have said, article
125 regulates the time within which a police officer may hold the prisoner under his responsibilty, and it applies to the
police alone. It will hardly be contended that this article, or any other law, or the constitution limits the period within
which a prisoner may be detained after he is delivered to the justice of the peace. If that is so, and since the city fiscal
acts in lieu of a justice of the peace, there is no sound basis, legal or practical, for denying to the former the same time
and the same freedom of action that is enjoyed by the latter.
By the same token, there is no sound reason for denying to the proceeding by the city fiscal the same attributes which
adhere to the proceeding before the justice of the peace. After the arresting officer produced the prisoner before the
city fiscal, the law takes its course in the same manner that it does when the examining officer is the justice of the
peace or judge of first instance. From that time the arresting officer ceases to have any control over the prisoner save
to keep him in custody subject to the orders of the city fiscal. The police step out and the law steps in and extends to
the prisoner the mantle of protection against inquisitory examination by the police. From that time on he enjoys the
rights granted by law to all accused persons the right to give bail and the right to testify freely uninfluenced by any
fear of violence or other forms of maltreatment. The danger envisioned by article 125 of the Revised Penal Code is
past.

The proceeding before the city fiscal does not lose its character of due process of law by its being conducted by the
city fiscal instead of a judge. For one thing, preliminary investigation is not a trial. It is a constitutional right. It is purely
a matter of statutory regulation. (Potenciana Dequito vs. Hugo O. Arellano et al., G.R. No. L-1336; 32 C.J.S., 456.) A
judicial proceeding which lies within the power of the legislature to provide or withhold without infringing the
fundamental law may be placed in the hands of any officer other than a judge.
The jurisdiction to make a preliminary examination or investigation is not even considered judicial. Judges who
perform this function do not do so as judicial officers. Municipal executives here and in the United States are conferred
this power. "The power to examine and to commit persons charged with crime is not judicial, but is one of the duties of
the conservators of the peace, and it may be, and usually is, vested in persons other than courts, as, for instance,
justices of the peace or police magistrates, or persons exercising jurisdiction analogous to that exercised by justices of
the peace, or who are ex officio justices of the peace, such as mayors, notaries public, or court commissioners. Power
to hold preliminary examinations may be exercised by the United States commissioners, and United States district
judges who, while making the preliminary examination, exercise the powers of commissioners only." (16 C.J., 319320.)
There is no basis for the fear that "the city fiscal may not, after due investigation, find sufficient ground for filing an
information or prosecuting the person arrested and release him, after the latter had been illegally detained for days or
weeks without any process issued by a court or judge." This statement overlooks the consistent and general practice
heretofore followed with clear, express statutory sanction. Section 2640 of the Revised Administrative Code authorizes
the chief of police of the City of Manila "to take good and sufficient bail for the appearance before the city court of any
person arrested for violation of any city ordinance," while in cases of violation of any penal law, according to the same
article, the fiscal of the city may, and does, recommend and fix the bail to be required of the person arrested. Power to
fix bail necessarily implies power to recommend or order the detention of the prisoner if bond is not given. This in its
working is no more nor less than the power to commit an accused to prison pending investigation of this case, power
which the majority erroneously say is not possessed by the city fiscal.
The constitutional and statutory provisions and rules cited by the majority are of general application which are good
only in the absence of specific enactments. The controlling provisions in the case at bar are sections 2460 and 2465 of
the Revised Administrative Code and section 2, Rule 108, of the Rules of Court.
The decision further says:
A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or
any other person, except in those cases expressly authorized by law. What he or the complainant may do in such case
is to file a complaint with the city fiscal of Manila, or directly with the justice of the peace courts in municipalities and
other political subdivisions. If the city fiscal has no authority, and he has not, to order the arrest of a person charged
with having committed a public offense even if he finds, after due investigation, that there is a probability that a crime
has been committed and the accused is guilty thereof, a fortiori a police officer has no authority to arrest and detain a
person charged with an offense upon complaint of the offended party or other persons even though, after
investigation, he becomes convinced that the accused is guilty of the offense charged.
I do not think the foregoing paragraph is relevant to the instant case. We are not dealing with the authority of a police
officer to make arrest without warrant. There is no question raised against the legality of the petitioners' arrest. Our
problem concerns the time in which the city fiscal may make his investigation and the scope of his power.
Assuming the above-quoted statement to be pertinent to the issues, the same can not, in my humble view, pass
unchallenged. Under certain, well-defined circumstances, an officer may and constantly does make arrests without a
court order, with or without complaint. An officer in good faith may arrest without warrant when he believes that a
person is guilty of a crime, and his belief rests on such grounds as would induce an ordinarily prudent and cautious
man, under the circumstances, to believe likewise. (6 C.J.S., 596.) This practice is not derived from any express
authority but on the necessity of catching law violators before they disappear and hide. I have not come across any
law naming specific offenses for committing which the offenders shall be arrested without court orders.

It is also a general principle of law that an officer need not necessarily have personal knowledge of the facts
constituting the offense himself, in the sense of having seen or witness the offense himself, but he may, if there are no
circumstances known to him which materially impeach his information, acquire his knowledge from information
imparted to him reliable and credible third persons, or by information together with other suspicious circumstances.
(Id., pp. 599, 600.) This principle ought to serve as a qualification to the ruling laid down by this Court, that "a peace
officer has no power to arrest a person without a warrant upon complaint of the offended party or any other person."
Under the rule I have quoted, a police officer certainly may arrest a person pointed to him as having committed a crime
provided that the information or complaint comes from a reliable source and under circumstances as to make an
ordinary reasonable man to believe it to be well-founded. When the victim of a robbery or aggression, for example,
should subsequently spot the criminal and request an officer to arrest him, the officer would not have to seek or wait
for a warrant of arrest before detaining the man, provided again that there was good ground to believe the truth of the
accusation.
This is a common law rule implanted in the Philippines along with its present form of government, a rule which has
been cited and applied by this Court in a number of cases. (U.S. vs. Santos, 35 Phil., 853; U.S. vs. Batallones, 23
Phil., 46; U.S. vs. Samonte, 16 Phil., 516.)
Padilla, J., concurs.

SUPPLEMENTARY

As the Rules of Court took effect on July 1, 1940, the case of Marcos vs. Cruz, decided on May 30, 1939, and cited in
the resolution, is no authority for the opinion that no law has been enacted amending or repealing section 2 of Act No.
192.
But this rule of implied repeal holds good only as regards laws of general application. Another well known rule of the
statutory construction tells us that preliminary investigations in Manila and other chartered cities are to be excluded
from the operation of the Rules of Court. Such investigations are provided for the special enactments which, because
of their special nature and limited application, must be excepted from and prevail over the general provisions. "When
the provisions of a general law, applicable to the entire state, are repugnant to the provisions of a previously enacted
special law, applicable in a particular locality only, the passage of such general law does dot operate to repeal the
special law, either in whole or in part, unless such appeal is provided for by express words, or arises by necessary
implication. An intention to repeal local acts generally is not intolerable from the fact that the general acts specifically
excludes one locality from its operation." (59 C. J. . 934.) There is no apparent intention in the Rules of Court to repeal
the laws under which preliminary investigations in Manila have to be conducted by the city fiscal. The contrary
contention is evidenced by section 2 of the rule 108, which provides that "Every justice of the peace, municipal judge
or city fiscal shall have jurisdiction to conduct preliminary investigation of all offenses alleged to have been committed
within his municipality or city, cognizable y the Court of First Instance," (Espiritu vs. De La Rosa [July 31, 1947], L1156, 45 Off. Gaz., 196; Hashim vs. Boncan [Nov. 22, 1941], 40 Off. Gaz., 13th Supp., p. 13.) In the first of these
cases, Mr. Justice Padilla, speaking for the court, categorically held that the Rules of Court had not repealed and
supplanted the provisions of the Revised Administrative Code regarding the power and authority of the City Fiscal to
conduct preliminary investigation." And in Hashim vs. Boncan, the Court, through Mr. Justice Laurel, said:
The framers of the Rules could not have intended to brush aside these lessons of experience and to tear down an
institution recognized by law and decision and sanctioned by years of settled practice. They could not have failed to
keep intact in effective machinery in the administration of criminal justice, as expeditious and simple as any reform
they have infused into the new Rules.

TUASON, J., dissenting:

When I filed my dissent from the decision of the Court on the occasion of the denial of the motion for reconsideration, it
was my understanding that there was going to be only a minute resolution. I make this remark not as a complaint but
as my explanation for writing my dissent in advance of the reasoned resolution. Even then I would contend myself with
resting my dissent on what I have already stated did the resolution contain new propositions to be answered and
disclose misunderstanding of some of many statements to be cleared. As this is in the nature and reply, topics will be
treated without regard to continuity of thought.
The resolution says that article 30 of the Provisional Law for the Application of the Penal Code in the Philippines has
been repealed by section 17 of Rule 109, but that section 31 is still in force except the last sentence. And so,
according to the resolution, is section 2 of Act No. 194.
Without discussing the materiality of those laws, I disagree that they are still in effect. Like article 30, article 31 of the
Provisional Law and section 2 of Act No. 194 deal with procedure in justice of the peace courts in general covered by
the new Rules of Court. The Rules of Court, in the words of their introductory section, concern "pleading, practice and
procedure in all courts of the Philippines, and the admission to practice law therein." These Rules are complete
revision and a complete re-enactment of the entire field of procedure, and there is every reason to believe that they
were intended to replace, with some exceptions, all previous laws on the subject, especially Spanish laws which had
long been out of harmony with the new mode of pleading and practice. If the last sentence of article 31 is repealed, as
the resolution says, I see no valid ground for not holding the other parts of that article repealed so. "Where a later act
covers the whole subject of earlier acts, embraces new provisions, and plainly shows that it was intended, not only a
substitute for the earlier acts, but to cover the whole subject then considered by the legislature, and to prescribe the
only rules in respect thereto, it operates as a repeal of all former statutes relating to subject matter. The rule applies
not only where the former acts are inconsistent or in conflict with the new act, but also even where the former acts are
not necessarily repugnant in express terms, or in all respects, to the new act." (59 C.J., 919-920.) "While, as a general
rule, implied repeal of a former statute by a later act is not favored, yet `if the later act covers the whole subject of the
earlier act and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier'." Posadas vs.
National City Bank of New York, 296 U.S., 497; 80 Law ed., 351.)

The term "proper court or judge" in section 17, Rule 109, of the Rules of Court 1 should be interpreted to mean, in the
case of Manila, city fiscal, under the last mentioned canon of interpretation. In Manila, the city fiscal performs the
duties devolving on justices of the peace in regular municipalities in the conduct of preliminary investigations, and all
criminal charges by the police and offended parties are filed with him. And it is admitted that prisoners arrested without
warrant in Manila may be taken only to the city fiscal by the arresting officer. Let it be noted also in this connection that
section 17 of Rule 109 regulates the taking of persons arrested to the court or judge, not the filing of complaint.
In view of this circumstances; in view of the fact that neither the judges of first instance nor the municipal judges of
Manila are authorized to conduct preliminary hearings other than the purpose of determining the amount of bail
(section 2474 of the Revised Administrative Code), the result of applying section 17 of Rule 109 to Manila would be
virtually to eliminate preliminary investigation in this city of persons arrested without a warrant. The decision creates a
vacuum, a situation which this Court on another occasion refused to countenance in the forceful language above
quoted in Hashim vs. Boncan et. al. There, the Court continued:
To sustain the theory of repeal is to wipe out these advantages. Not only this. If neither section 11 nor section 13 of
Rule 108 is applicable to the preliminary investigation conducted by the City Fiscal, as we have above shown, and if
existing legislation thereon is to be deemed repealed, then the matter would be left uncovered by rule or law. There
would thus be a void crying for urgent reform. There would be no such void if the old and tried procedure is kept in
being, untouched by the new Rules. Withal, our own knowledge of the history of this portion of the Rules here involved
does not warrant an interpretation not contemplated when we drafted and deliberated upon these Rules. And while,
perhaps, the language could have been clearer and the arrangement made more logical, consideration to expediency
and the avowed purpose of preliminary investigation point to the already trodden path hereinabove indicated.
The resolution has interpreted article 125 of the Revised Penal Code with meticulous adherence, at best, to its latter,
and open disregarded, at worst, of its spirit and of the pernicious results that follow from such interpretation. The
construction which the majority give to the term "judicial authority" makes it impossible for the city fiscal to perform his
assigned duties with the consequence that for lack of time, malefactors will have to be turned loose before proper
investigation in conducted, or prosecution filed on insufficient evidence, in many cases.

Nevertheless, I am not pleading, in the case, for a departure from the letter of the law. I merely submit that the city
fiscal, as was emphasized in my dissent from the decision, is a judicial officer or judicial authority both in the popular
and the legal sense of the term, and that it is unjust, unwarranted by any rule of interpretation, absolutely disastrous to
the administration of criminal law to identify the city fiscal with the police, forcing him to file an information or release
the prisoner within the six hours intended for the arresting officer alone. I do not contend that the term "judicial
authority" be expanded beyond its literal and legal meaning, although if necessary this might be done to carry out the
obvious purpose of the law, but I take exception to the unjustified restriction and limitation placed on the meaning of
"judicial authority" which not only does violence to the letter and spirit of article 125 of the Revised Penal Code but
leads to an extremely anomalous, not to say impossible, situation. We do not have to look outside for the meaning of
"judicial authority," as a simple reading of article 125 of the Revised Pena Code and section 2474 of the Revised
Administrative Code yields the clear intent of the legislature. This intent, as manifested in laws that have been
amended by section 2465 and section 2474 of the Revised Administrative Code, crystalized in a system of practice
that have received "the imprint of judicial approval" in various decisions of this Court. (U. S. vs. McGoven, 6 Phil. 261;
U. S. vs. Ocampo, 18 Phil. 122;U. S. Carlos, 21 Phil. 553; Hashimvs. Boncan, ante; Espiritu vs. De la Rosa, ante.)
The resolution, as a solution to the quandary in which it places the city fiscal, would have him go to Congress. But, as I
trust I have shown, the laws on the subject need no supplementation and implementation. They have no gaps to be
filled or ambiguities to be cleared. The loopholes exist only as a direct result of this Court's new ruling. Section 2474 of
the revised Administrative Code and its predecessors have operated smoothly, without a hitch for nearly half a century.
Not even when the arresting officer had 24 hours to take arrested persons to a judicial authority was it ever imagined,
much less asserted, that the city fiscal had to borrow his time from the police.
The resolution in laying down the rule that the city fiscal has no power to issue warrant of arrest or "an order or
commitment of release by a written warrant containing the ground on which it is based," thinks it is necessary to
advert, "in justice to the city fiscal," that this official does not pretend to possess such authority, since it is only in the
dissenting opinion, it says, where the claim is made.
At the outset I deny that I attributed to the city fiscal power to issue warrant of arrest; and did not say in an unqualified
manner that he has power to issue commitment. On the first point, what I said was an implicit aknowledgment of the
opposite. Let me quote from the second paragraph of page 2 of my dissenting opinion what I did say:
The city fiscal is not any the less a judicial officer simply because he can not issue warrant of arrest. The power to
issue warrant of arrest is not essential ingredient of a judicial office.
On the power to commit prisoners, the same paragraph of my opinion shows what I said.
As to the power to commit a detained person to prison, if that be necessary, the majority are not exactly right when
they affirm that the city fiscal is not clothed with it. It shall come to this later.
And taking the matter up again on page 11, I said:
Section 2460 of the Revised Administrative Code authorizes the chief of police of the City of Manila "to take good and
sufficient bail for the appearance before the city court of any person arrested for violation of any city ordinance," while
in cases of violation of any penal law, according to the same article, the fiscal of the city may, and does, recommended
and fix the bail necessarily implies power to recommend or order the detention of the prisoner if bond is not given. This
i its working is no more nor less than the power to commit an accused to prison pending investigation of his case,
power which the majority erroneously say is not possessed by the city fiscal.
There is nothing in this statement any outright affirmation that the city fiscal has power to issue commitment papers.
There is, on the contrary, an implied admission that the power, as it is ordinarily exercised by a judge or court, does
not exist. I merely submitted as my personal opinion and interpretation of section 2460 of the Revised Administrative
Code, regardless of what the city fiscal thinks, that it confers upon the latter official a power which, performed in
conjunction with the power of the chief of police, amounts in its practical operation to a power to commit a man to
prison. And I said this in answer to the sweeping assertion (which apparently was made in the decision in complete

oblivion of section 2460, supra), that to give the city fiscal unlimited time might result in injustice, since, the decision
says,
The city fiscal may not, after due investigation, find sufficient ground for filing an information or prosecuting the person
arrested and release him, after the latter had been illegal detained for days or weeks without any process issued by a
court or judge.
I intended to emphasize by citing section 2460 of the Revised Administrative Code, that a prisoner could secure his
released, pending investigation of his case, in the same manner and with the same facilities that he could if the
complaint or information had been filed with a court. In citing and stating my interpretation of section 2460 of the
Revised Administrative Code, I wished to show what I considered an erroneous ruling that
If the city fiscal has any doubt as to the probability of the defendant having committed the offense charged, or is not
ready to filed the information on the strength of the testimony or evidence presented, he should release and not detain
the person arrested for a longer period than that prescribed in the Penal Code.
The majority come back with the assertion that the provisions of section 2460 of the Revised Penal Administrative
Code2
do not authorize, either expressly or by implication, the city fiscal to order the detention of the prisoner if the bond is
not given, not only because they refer to the power of the chief of police of Manila and not of the city fiscal, but
because the only incidental authority granted to the latter is to recommend the granting of the bail by the chief of police
may release the latter on bail.
I disagree again. I do not believe that a provision is rendered nugatory by the mere fact that it is foreign to the subject
of the main provision or to the title or caption of the section, if otherwise the language is clear. The title or caption is
important only in determining the meaning of laws which are ambiguous and uncertain. The provision of section 2460
of the Revised Administrative Code quoted in the resolution does not suffer from such infirmity.
In truth, the proviso in section 2460 is not alien to the enacting clause. The proviso relates to the chief of police,
conferring on him power of the same nature as does the enacting clause, with the only difference that, in cases of
violations of a municipal ordinance the chief of police acts independently, on his own responsibility, while in cases of
violations of a penal law, he acts with the advice of the city fiscal and the latter fixes the amount of bail. The
intervention of the city fiscal was only inserted, in my opinion, in view of the gravity of the latter class of cases.
As to the other reason given in the resolution why, it says, continued detention of a prisoner beyond six hours is not
authorized namely, that the authority granted to the city fiscal to recommend the granting of bail by the chief of
police and to fix the amount of bail to be required of the person arrested, is only incidental my comment is that,
whether the power to take bail or release prisoners belongs to the city fiscal or the chief of police, is inconsequential.
To my mind, the important point is that the accused, as the resolution admits, may be released on bond. From this
power, irrespective of who possess it, is implied the power to keep the prisoner under detention if he does not file a
bond.
When the resolution concludes that if no bond is given by the person arrested, "neither the chief of police, who is only
authorized to release on bail, has power to detain the person arrested for more than six hours; not the city fiscal, who
is empowered to fix and recommend the bail to the chief of police has authority to release person arrested in violation
of penal law," I can not follow. In a nutshell, the majority's reasoning, as I understand it, is that the law authorizes the
city fiscal to recommend and fix the bail "in order that the chief of police may release the latter (prisoner) on bail," but
that if the prisoner does not put up a bond to be set at large just the same. The filing of bail is not a meaningless
gesture which may be taken advantage of by an accused at pleasure with the same effect. The privilege to put a bond
extended to an accused must be the price or condition of his temporary release. The law does not have to say in so
many words that if he does not put a bond he would be kept in confinement in order that we may be warranted in
reaching this result.

The resolution says that "the purpose of the law in empowering the chief of police of Manila to release the prisoner if
he puts up a bail, is to relieve the officer making the arrest the necessity of taking the prisoner to the city fiscal, and the
latter from filing an information with the proper courts within the period of time prescribed by law."
I have reflected closely on the meaning of this statement to be sure that I did not misunderstand it. Unless I still fail to
grasp the idea, I think the statement is self-annulling and self contradictory. The filing of bail cannot relive the arresting
officer from the necessity of taking the prisoner to the city fiscal for the simple reason that such bail, in cases of
violations of penal laws, can be filed only on recommendation of, and its amount can be fixed by, the city fiscal. In
other words, the prisoners necessarily has to be taken to the city fiscal before any bond can be executed. And it would
be underestimating the intelligence of an accused to expect him to file a bond within six hours from the time of his
arrest if he is aware that, if at the end of those hours the city fiscal had not preferred any charges against him and no
order of commitment had been issued by the proper judge, he (accused) had to be released. In the face of the latter
theory, no prisoner would, even if he could, perfect a bond within six hours knowing that if he did not, he would be a
free man, at leased temporarily, within what remains of six hours, while if he did, the bond would enable the city fiscal
to take his time to file case against him in court.
The gravamen of the court's argument seems to be that a commitment by a court or judge is essential to validate the
detention beyond the time specified in the Revised Penal Code. I do not share this opinion. Neither such commitment
by a judge nor a formal complaint is required by the constitution in order that a person may lawfully be kept in jail
pending investigation of his case. An opportunity to file a bond in reasonable amount satisfies the constitutional
demands. Nor does the bail have to be fixed or granted by a court. Sheriffs and police officers have been authorize by
statutory enactments in other jurisdiction to take bail. At least one court has gone so far as to uphold, "independently
of statue, a practice of long standing on the part of the sheriff to take bail in criminal cases of prisoners committed for
not filing bail, and release them from confinement." (Dickinson vs. Kingsbury, 2 Day [Com., 1.] Now then, under
section 2460 of the Revised Administrative Code, the chief of police of Manila, as already shown, is allowed to take
bail by himself in cases violation of a municipal ordinance and with the intervention of the city fiscal in other cases.
Under this provision and this practice, a detention prisoner arrested without warrant is not deprived of any privilege of
benefit guaranteed by the constitution. The lack of formal complaint does not in the least prejudice him or deprive him
of any benefit enjoined by his counterparts in the provinces. On its legal aspect, let it be observed that all the
proceedings conducted by the city fiscal is a preliminary and summary inquiry which is purely a matter of statutory
regulation. Preliminary investigation by the prosecuting attorney when authorized by law is due process no less than
one conducted by a judge. It may be suppressed entirely, and if it may be suppressed, it may be entrusted to any
officer, provided only the constitutional right to give bail is carefully safeguarded. As this Court has said in Hashim vs.
Boncan, supra, and U.S. vs. Ocampo, supra:
The prosecuting attorney of the city of Manila is presumed to be as competent to conduct a preliminary investigation
as the average person designated by law to conduct a "preliminary examination" under the provisions of General
Orders No. 58. He is a sworn officer of the court, and the law imposes upon him the duty of making such
investigations. For such purpose the legislature may designate whom it pleases within the judicial department.
The resolution has taken pain to cite and explain in detail what it says are the laws on arrests in the Philippines, and
takes me to task for quoting from 6 Corpus Juris Secundum, 599-600 and citing the decisions of this Court. We are
told the effect that the excerpts from my dissenting opinion, quoted on page 16 of the resolution are without any
foundation because, it is said,
they are premised on the wrong assumption that, under the laws in force in our jurisdiction, a place officer need not
have personal knowledge but may arrest a person without a warrant mere information from other person.
The resolution assumes that those excerpts are predicated on what I call the common law rule, on Corpus Juris
Secundum, and on decisions of the Supreme Court.
I commend a reading to my dissenting opinion. It will be seen that I did not base on those laws, rules or decisions my
statements, "The entire six hours might be consumed by the police in their investigation alone;" "Even if the city fiscal
be given the chance to start his assigned task at the beginning of the six hour period, this time can not insure proper
and just investigation in complicated cases and in cases where the persons arrested are numerous and witnesses are
not on hand to testify," and "The police is not authorized to round up witnesses and take them along with the prisoner

to the city fiscal." It will be seen that far from using as my premise those laws, rules and decisions, which I said contain
in brief outlines the powers of police officers to make arrests, I said clearly on page 12 of my dissenting opinion:
I do not think the foregoing paragraph is relevant to the instant case. We are not dealing with the authority of the police
officer to make arrest without warrant. There is no question raised against the legality of the prisoner's arrest. Our
problem concerns the time period within which the city fiscal may make his investigation, and the scope of his power.
It was the majority decision which brought the question of the authority of the police to make arrests into the
discussion. I only met the decision on its own territory though I regarded that territory as outside the legitimate circle of
the present dispute. I cited Corpus Juris Secundum and decisions of this Court, which I said are derived from common
law, to refute the statement,
a fortiori, a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the
offended party or other person seven though after investigation, he becomes convinced that the accused is guilty of
the offense charged.
I especially wanted to express my disagreement with the thesis in the decision that
A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or
any other person, except in those cases expressly authorized by law.
It was my humble opinion that the rules I cited and the rules on which the decisions of this Court are predicated, were
general provisions of law applicable to varying and changed circumstances, and I wanted to deny the insinuation that
there were, or there might be, arrests without warrant "expressly authorized by law"; so I countered that "I have not
come across any law naming specific offenses for committing which the offenders shall be arrested without court
orders." This is my concept of express provisions authorizing arrests without a warrant.
Section 6 of Rule 109, section 2463 of the Revised Administrative code, and the provisional Law on the subject of
arrest, cited in the resolution in an attempt to show the error of my citations, can not be a source of comfort to the
majority. Rather, I should think, they reinforce my position, for I believe that the rules and decisions I cited the rules
and laws called to our attentions as the real thing, are in substantial agreement. My mistake was in not citing, myself,
Rule 109, section 6, of the Rules of Court, section 2463 of the Revised Administrative Code, and the Provisional Law. I
might have found and cited them had I thought the matter worthy of more than a passing notice.
Now that the resolution has gone into this subject at length, I shall devote a few more lines to it at the peril of tiring the
reader on what I believe an impertinent topic.
My citation from Corpus Juris and my comment that "this is a common law rule implanted in the Philippines along with
its present form of government, a rule which have been cited or applied by this Court in a number of case," has met
with decision. I am informed that my quotation is "not a general principle of law or common law rule implanted in the
Philippines"; that "it is the summary of the ruling of several states courts based on statutory exceptions of the general
rule."
I do not think I wise wide off the mark when I said that the common law rule has been transplanted to this country
along with the present form of government and that the rules and decisions I have quoted spring from the common
law. And the majority are not closer to the marked when they affirmed that my quotation from Corpus Juris Secundum,
and section 2463 of the Revised Administrative Code are purely statutory creation.
There was common law before there were statutes. Common law in England and in the U. S. preceded statement
statutes and constitutions. Statutes and constitutions in matters of arrest came afterwards, restating, affirming,
clarifying, restricting or modifying the common law.

The English common law has been adopted as the basis of jurisprudence in all the states of the Union with the
exception of Louisiana "where the civil law prevails in civil matters." (11 Am. Jur., 157.) And
in England, under the common law, sheriffs, justices of the peace, coroners, constables and watchmen were entrusted
with special powers as conservators of the peace, with authority to arrest felons and persons reasonably suspected of
being felons. Whenever a charge a felony was brought to their notice, supported by reasonable grounds of suspicion,
they were required to apprehend the offenders, or at the least to raise hue and cry, under the penalty of being indicted
for neglect of duty.
See the footnote on pp. 2512-2513, Vol. 2, of Jones Blackstone and the numerous cases therein cited. It is a footnote
appended o the statement of a common law principle which of the same tenor as that just noted. Treatises on arrest
not infrequently start with a statement of the common law rule and speak of statute and constitutions in the sense I
have mentioned. Moran's Commentaries on the Rules of Court mention of the common law. (Vol. 2, p. 577) in
connection with the power to make arrest without a warrant.
The doctrine taken from 5 C. J., 395-396-that "the right to make arrest without a warrant is usually regulated by
express statute, and, except as authorize by such statutes, an arrest without a warrant is illegal" is not at war with
the proposition that the authority of peace officers to make arrest originated at common law and that constitutions and
statutes merely re-stated and defined that the authority with greater precision, naming the officers who may make
arrest, the grades of offenses for, and the circumstances under, which arrest may be effected, etc. Arrests made by
officers not designated or under circumstances not coming within the terms of the statute or constitution are illegal.

It will be noticed that the quoted portion relates to arrest for misdemeanor. For further proof, I invite attention to the title
of the Section on page 401, paragraph (a), which reads: "For Misdemeanor aa. In General." Let it be noted that the
power to arrest for misdemeanor is different from, and more restricted than, the power to arrest for felony, as is further
demonstrated by the last clause of the full sentence above quoted. This clause refers us back to section 30, p. 399,
which says:
"At common law, (here again common law mentioned), and subject to the provisions of any applicatory statute, and
subject officer may arrest, without a warrant, one whom he has reasonable or probable grounds to suspect of having
committed of felony, even though the person suspected is innocent, and generally, although no felony has in fact been
committed by any one, although, under some statutes a felony must have been actually committed, in which case an
may arrest, without a warrant, any person he has reasonable cause for believing to be the person who committed it."
As is elsewhere stated, section 6 of Rule 109 and section 2463 of the Revised Administrative Code, like the authorities
I have cited, do not limit the power of a police officer to make arrest tho those cases where he saw with his own eyes
or heard with his own ears the commission of an offense. Section 6 of a Rule 109 and section 2463 of the Revised
Administrative Code empowers police officers.
to pursue and arrest, without warrant, any person found in suspicious places or under suspicious circumstances
reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace,
and section 6 of Rule 109 authorizes a peace officer or a private person to make arrest when

Even then, broad constitutional or statutory inhibition against search and seizure of property or persons without a
warrant has exceptions, as can be inferred from the two sentences preceding the above sentence quoted in the
resolution. This exceptions are cases where the public security has demanded the search and seizure.

an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has
committed it

Well established exceptions to this rule have been long recognized in cases of felony, and of breaches of the peace
committed in the presence of the party making the arrest. (5 C. J., 395.)

Rule 28 of the Provincial Law itself empowers judicial and administrative authorities "to detain, or cause to be detained
person whom there is reasonable ground to believe guilty of some offense" or "when the authority or agent has reason
to believe that unlawful act, amounting to a crime had been committed."

Arrests under such circumstances are authorized in spite of statutes and constitutions. The power to make such arrest
is deeply rooted in the unwritten or common law, which "includes those principles, usage and rules of action applicable
to the government and security of person and property which do not rest for their authority an any express or positive
declaration of the will of the legislature." Although acting at his peril, the powers to arrest on" probable cause of
suspicion" even by a private person are "principles of the common law, essential to the welfare of society, and not
intended to be altered or impaired by the Constitution." (Wakely vs. Hart, 6 Binn. [Pa.,], 316.)
I have remarked that there is no fundamental difference between my citations, on the other hand, and section 6 of
Rule 109 and section 2463 of the Revised Administrative Code, Cited by the majority of the Court, on the other hand.
There is only a difference in phraseology. The very case of U. S. vs. Fortaleza relied upon in the resolution speaks of
barrio lieutenant's power to make arrest as not inferior to that usually conferred on peace officers known to American
and English law as constables.

To make arrest on suspicion or on information is not new; it is an everyday practice absolutely necessary in the of
public security and firmly enshrined in the jurisprudence of all civilized societies. The power to arrest on suspicion or
on reasonable ground to believe that a crime has been committed is authority to arrest on information. Information
coming from reliable sources maybe, and it often is, the basis reasonable ground to believe that a crime has been
committed or of reasonable ground of suspicion that a person is guilty thereof. Suspicion reasonable ground and
information are interviewed within the same concept.
The necessary elements of the ground of suspicion are that the officer acts upon the belief of the person's guilt, based
either upon facts or circumtances within the officers own knowledge, or information imparted by a reliable and credible
third person provided there are no circumstances known to the officer sufficient to materially impeach the information
received, It is not every idle and unreasonable charge which will justify an arrest. An arrest without a warrant is illegal
when it is made upon mere suspicion or belief, unsupported by facts, circumstances, or credible information calculated
to produce such suspicion or belief.

The resolution quotes this from 5 C. J., 404:

Failure to take these principles into account has led to the belief that:
It is a general rule, although there are statutory exceptions and variations that a peace officer has no right to make an
arrest without a warrant upon mere information of a third person.
This is only a part of the sentence. The omitted portion is more important from my point of view and contradicts the
point of view and contradicts the point stressed by the majority. The complete sentence in.
It is a general rule, although there are exceptions and variations, that a peace officer has no right to make an arrest
without a warrant, upon mere information of a third person or mere information of committed, that right being limited to
arrests for offenses of the grade of felony, as elsewhere shown.

The investigation which the city fiscal has to make before filing the corresponding information in cases of persons
arrested without a warrant, does not require so much time as that made upon a complaint of the offended parties for
the purpose of securing a warrant of arrest of the accused. In all cases above enumerated in which the law authorizes
a peace officer to arrest without warrant, the officer making the arrest must have personal knowledge that the person
arrested has committed, is actually committing, or is about to commit an offense in his presence or within his view, or
of the time, place or circumstances which reasonably tend to show that such person has committed or is about to
commit any crime or breach of the peace. And the testimony of such officer on the commission on the offense in his
presence or within his view by the person arrested, or on the facts and circumstances that tend reasonably to show
that said person has committed or is about to commit an offense, would be sufficient evidence or basis for the city

fiscal to file an information without prejudice to his presenting of other evidence of the defendant. (Pp. 16-17 of the
Resolution.).
Section 6 of Rule 109 of the Rules of Court and section 2463 of the Revised Administrative Code, as well as the
authorities I have quoted, show the fallacy of the idea that the arresting officer knows, or should know, all the facts
about the offense for the perpetration, or supposed perpetration, of which he has made the arrest. The resolution fails
to realize that in the great majority of cases an officer makes arrest on information or suspicion; that "suspicion implies
a belief or opinion as to the guilt based upon facts or circumstances which DO NOT AMOUNT TO PROOF," and that
information and suspicion by their nature require verification and examination of the informers and other persons and
circumstances. While an officer may not act on unsubstantial appearances and unreasonable stories to justify an
arrest without a warrant, obviously in the interest of security, an officer who has to act on the spot and cannot afford to
lose time, has to make arrest without satisfying himself beyond question that a crime has been committed or that the
person suspected is guilty of such crime. A police officer can seldom make arrest with personal knowledge of the
offense and of the identity of the person arrested sufficient in itself to convict. To require him to make an arrest only
when the evidence he himself can furnish proves beyond reasonable doubt the guilt of the accused, would "endanger
the safety of society." It would cripple the forces of the law to the point of enabling criminals, against whom there is
only moral conviction or prima facie proof of guilt, to escape. Yet persons arrested on necessarily innocent so that the
prosecuting attorney should release them. Further and closer investigation not infrequently confirm the suspicion or
information.
The majority of arrests are not as simple as a police officer catching a thief slipping his hand into another's pocket or
snatching someone else's bag, or suprising a merchant selling above the ceiling price, or seizing a person carrying
concealed weapons. Cases of frequent occurrence which confront the police and the prosecution in a populous and
crime-redden city are a great deal more complicated. They are cases in which the needed evidence can only be
supplied by witnesses, whom the arresting officer or private persons has not the authority or the time to round up and
take to the city fiscal for examination with in what remains, if any, of six hours.
Let me give two examples.
1. A murder with robbery is reported to the police. An alarm is broadcasted giving a description of the murderer. Later a
police officer is told that the wanted man is in a store. He proceeds to the store and. besides believing in good faith of
his informant, detects in the man's physical appearance some resemblance to the description given in the alarm. All
this occurs at the holy hours of night.
Should the officer refrain from making an arrest because he is not certain beyond reasonable doubt of the identity of
the suspected murderer? Should the city fiscal order the release of the prisoner because of insufficiency of evidence
and because the six hours are expiring, or should he prefer formal charges (if that can be done at midnight) on the
strength of evidence which, as likely as not, may be due to a mistaken identify? Should not the prosecuting attorney be
given, as the law clearly intends, adequate time to summon those who witnessed the crime and who can tell whether
the prisoner was the fugitive?, allowing the prisoner to give bail, if he can.
2. A police officer is attracted by screams from a house where a robbery has been committed. The officer rushed to the
place, finds a man slain, is told that the murderers have filed. The officer runs in the direction indicated and finds men
with arms who, from appearances, seem to be the perpetrators of the crime. The people who saw the criminals run off
are not sure those are the men they saw. The night was dark, for criminals like to ply their trade under cover of
darkness.
The officer does not, under these circumstances, have to seek an arrest warrant or wait for one before detaining the
suspected persons. To prevent their escape he brings them to the police station. On the other hand, would the fiscal
be justified in filing an information against such persons on the sole testimony of the police officer? It is not his duty to
wait for more proofs on their probable connection with the crime? Should the city fiscal file an information on sufficient
evidence, or should he as the only alternative, order the release of the prisoners? Does either course subserve the
interest of justice and the interest of the public? If the arrested persons are innocent, as they may be, is either interest
be served by hasty filing of information against them, or would they rather have a more thorough investigation of the
case?

Cases like these with varying details can be multiplied ad infinitum. They form the bulk of underworld activities with
which the forces of law have to cope and with which the general public is vitally concerned. The public would not be
secure in their homes and in the pursuit of their occupations if his Court, through unreasoning worship of formalism,
throws down a method, practice and procedure that have been used here and elsewhere from time immemorial to the
end of service and in the interest of public security. The public security. The public is not much interested in such minor
offenses as pick-pocketing, fist fights and misdemeanors or violations of municipal ordinances for which arrests can be
made by police officers only when committed in their presence or within their hearing.
The decision of this Court leaves the city fiscal no alternative between releasing prisoners for insufficiency of evidence
due to lack of time to secure more, and filing information against persons who may be innocent of the crimed charge.
The latter course, defeats directly the very aims of preliminary investigation is to secure the innocent against hasty,
malicious and oppresive prosecution and to protect him from open and public accusation of crime, and from the
trouble, expense, anxiety of a public trial, and also to protect the State from useless and expensive prosecutions.
(Hashim vs. Boncan, No. 47777, January 13, 1941; 40 Off. Gaz., 13th Supp. p. 13; U.S.vs. Mendez, 4 Phil.; 124;
U.S. vs. Grant and Kennedy, 11 Phil. 122; U. S. vs. Marfori, 35 Phil. 666; People vs. Colon, 47 Phil. 443.) Even more
deplorable would be the acquittal of guilty accused due to lack of proofs which the prosecution, if it had been afforded
sufficient time, could have gathered.
The foregoing goes, too, for the concurring opinion. There is only one more point to which we wish to address
ourselves briefly. The concurring opinion contains this passage:
Dentro de las 6 horas hay tiempo mas que suficiente para meter en cuenta atoda la canalla ... Pero; por Dios que no
se violen ni pisoteen lasgarantias constitucionales por miedo a los gangsters!
No one can disagree with this though as an abstract proposition. The only trouble is that the opinion does not cite
any concrete constitutional provision or guaranty that is infringed by our dissent. I take the suggestion in the
resolution that "it would be proper for the interested parties to take the case to Congress, since it can not be done
by judicial legislation" to be a tacit recognition that the matter is purely one of statute and that no constitutional
impediment is in the way of changing the law and enlarging the power of the city fiscal in the premises. And let it be
said that the objection in the concurring opinion to this suggestion is rested, not on constitutional grounds but on the
supposition that the law is good enough to be left alone. All which tempts us to paraphrase the famous apostrophe of
that equally famous woman in French history, and exclaim, "Oh Constitution! what grievous mistakes are committed in
thy name!"
The concurring opinion is in error when it sees shadows of fear gangster in our dissent. Society no less than a natural
person has the right to protect itself, and the arrest and punishment of transgressors of its laws is one of its legitimate
means of self-protection and self-preservation. As far as the insinuation of fear may reflect on those who are duty
bound to have part in such arrest and punishment, the application of criminal laws without quarters to the end which
they are intended to serve, is not in strict logic a sign of apprehension. Such course, rather than tolerance, leniency or
indifference towards crimes and appeasement of lawless and other elements and groups who wield the power of
physical and verbal relations, calls for exactly the opposite quality of fright.
Padilla, J., concurs.
Footnotes
1

Any person making arrest for legal ground shall, without unnecessary delay and within the time prescribed in the
Revised Penal Code, take the person arrested to the proper court or judge for such action as they may deem proper to
take.
2

There shall be a chief of police who ... may take good and sufficient bail for the appearance before the city court of
any person arrested for violation of any city ordinance: Provided, however, That he shall not exercise this power in
cases of violations of any penal law, except when the fiscal of the city shall so recommend and fix the bail to be
required of the person arrested; . . . .

G.R. Nos. 111771-77 November 9, 1993

ANTONIO L. SANCHEZ, petitioner,
vs.
The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of Regional Trial Court, NCR,
Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity as Secretary of Justice), JOVENCITO R.
ZUO, LEONARDO C. GUIYAB, CARLOS L. DE LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and
RODRIGO P. LORENZO, the last six respondents in their official capacities as members of the State
Prosecutor's Office), respondents.
Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner.
The Solicitor General for respondents.

CRUZ, J.:
There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez of Calauan, Laguna,
who stands accused of an unspeakable crime. On him, the verdict has already been rendered by many outraged
persons who would immediately impose on him an angry sentence. Yet, for all the prejudgments against him, he is
under our Constitution presumed innocent as long as the contrary has not been proved. Like any other person
accused of an offense, he is entitled to the full and vigilant protection of the Bill of Rights.
Sanchez has brought this petition to challenge the order of the respondent judge denying his motion to quash the
informations for rape with homicide filed against him and six other persons. We shall treat it as we would any other suit
filed by any litigant hoping to obtain a just and impartial judgment from this Court.

to 93-124637 for violation of Section 8, in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the
CIS Detention Center, Camp Crame, where he remains confined.
On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba, Laguna, seven
informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, Jr., George
Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta.
On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest of all the accused,
including the petitioner, in connection with the said crime.
The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the said cases might
result in a miscarriage of justice because of the tense and partisan atmosphere in Laguna in favor of the petitioner and
the relationship of an employee, in the trial court with one of the accused. This Court thereupon ordered the transfer of
the venue of the seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet Demetriou.
On September 10, 1993, the seven informations were amended to include the killing of Allan Gomez as an
aggravating circumstance.
On that same date, the petitioner filed a motion to quash the informations substantially on the grounds now raised in
this petition. On September 13, 1993, after oral arguments, the respondent judge denied the motion. Sanchez then
filed with this Court the instant petition for certiorari and prohibition with prayer for a temporary restraining order/writ of
injunction.
The petitioner argues that the seven informations filed against him should be quashed because: 1) he was denied the
right to present evidence at the preliminary investigation; 2) only the Ombudsman had the competence to conduct the
investigation; 3) his warrantless arrest is illegal and the court has therefore not acquired jurisdiction over him, 4) he is
being charged with seven homicides arising from the death of only two persons; 5) the informations are discriminatory
because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the
offense only by the Sandiganbayan.

The pertinent facts are as follows:

On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate charges against several
persons, including the petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and the killing of Allan
Gomez.

The respondents submitted a Comment on the petition, to which we required a Reply from the petitioner within a nonextendible period of five days. 1 The Reply was filed five days late. 2 The Court may consider his non-compliance an
implied admission of the respondents' arguments or a loss of interest in prosecuting his petition, which is a ground for
its dismissal. Nevertheless, we shall disregard this procedural lapse and proceed to discuss his petition on the basis of
the arguments before us.

Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a preliminary
investigation on August 9, 1993. Petitioner Sanchez was not present but was represented by his counsel, Atty.
Marciano Brion, Jr.

The Preliminary Investigation.

On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting him to appear for
investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on Sanchez in the morning of August 13,1993,
and he was immediately taken to the said camp.
At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and SPO III Vivencio
Malabanan, who both executed confessions implicating him as a principal in the rape-slay of Sarmenta and the killing
of Gomez. The petitioner was then placed on "arrest status" and taken to the Department of Justice in Manila.
The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador Panelo as his
counsel.
After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August 13, 1993, by Judge
Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in connection with Criminal Cases Nos. 93-124634

The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that he was not accorded
the right to present counter-affidavits.
During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano Brion, manifested that
his client was waiving the presentation of a counter-affidavit, thus:
Atty. Brion, Jr.:
[W]e manifest that after reviewing them there is nothing to rebut or countermand all these statements as far as Mayor
Sanchez is concerned, We are not going to submit any counter-affidavit.
ACSP Zuo to Atty. Brion:
xxx xxx xxx

Q. So far, there are no other statements.

A. If there is none then, we will not submit any counter-affidavit because we believe there is nothing to rebut or
countermand with all these statements.

If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the accused, order an
investigation or reinvestigation and hold the proceedings in the criminal case in abeyance. 7 In the case at bar,
however, the respondent judge saw no reason or need for such a step. Finding no arbitrariness in her factual
conclusions, we shall defer to her judgment.

Q. So, you are waiving your submission of counter-affidavit?

A. Yes, your honor, unless there are other witnesses who will come up soon.

At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of the information or
otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a
ground for quashing the information. 6

Jurisdiction of the Ombudsman

Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion that he could still file a
counter-affidavit up to August 27, 1993. No such counter-affidavit was filed.
During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel, this time Atty. Salvador
Panelo, with copies of the sworn statements of Centeno and Malabanan, and told him he could submit counteraffidavits on or before August 27, 1993. The following exchange ensued:
ACSP Zuo:
For the record, we are furnishing to you the sworn statement of witness Aurelio Centeno y Roxas and the sworn
statement of SPO3 Vivencio Malabanan y Angeles.
Do I understand from you that you are again waiving the submission of counter-affidavit?
Atty. Panelo:
Yes.
ACSP Zuo:
So, insofar as the respondent, Mayor Antonio Sanchez is concerned, this case is submitted for resolution.

On the other hand, there is no support for the petitioner's subsequent manifestation that his counsel, Atty. Brion, was
not notified of the inquest held on August 13, 1993, and that he was not furnished with the affidavits sworn to on that
date by Vivencio Malabanan and Aurelio Centeno, or with their supplemental affidavits dated August 15, 1993.
Moreover, the above-quoted excerpt shows that the petitioner's counsel at the hearing held on August 13, 1993, was
not Atty. Brion but Atty. Panelo.

Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted by the Department of
Justice are null and void because it had no jurisdiction over the case. His claim is that it is the Office of the
Ombudsman that is vested with the power to conduct the investigation of all cases involving public officers like him, as
the municipal mayor of Calauan, Laguna.
The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate and prosecute,
any illegal act or omission of any public official. However, as we held only two years ago in the case ofAguinaldo v.
Domagas, 9 this authority "is not an exclusive authority but rather a shared or concurrent authority in. respect of the
offense charged."
Petitioners finally assert that the information and amended information filed in this case needed the approval of the
Ombudsman. It is not disputed that the information and amended information here did not have the approval of the
Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA.
545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal or omissions on the part
of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of
the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA at 550)
isnot an exclusive authority but rather a shared or concurrent authority in respect of the offense here charged, i.e., the
crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the present case does not have any
adverse legal consequence upon the authority the panel of prosecutors to file and prosecute the information or
amended information.
In fact, other investigatory agencies, of the government such as the Department of Justice, in connection with the
charge of sedition, 10 and the Presidential Commission on Good Government, in ill-gotten wealth cases, 11 may conduct
the investigation,
The Arrest
Was petitioner Sanchez arrested on August 13, 1993?

The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel. During the entire
proceedings, he remained quiet and let this counsel speak and argue on his behalf. It was only in his tardy Reply that
he has suddenly bestirred himself and would now question his representation by this lawyer as unauthorized and
inofficious.

"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody in order that
he may be bound to answer for the commission of an offense. Under Section 2 of the same Rule, an arrest is effected
by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making
the arrest.

Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be subpoenaed or, if
subpoenaed, does not submit counter-affidavits, the investigating officer shall base his resolution on the evidence
presented by the complainant.

Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not,
required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent onthe
part of the other to submit, under the belief and impression that submission is necessary. 12

Just as the accused may renounce the right to be present at the preliminary investigation 5, so may he waive the right
to present counter-affidavits or any other evidence in his defense.

The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-invitation issued by PNP
Commander Rex Piad requesting him to appear at the said camp for investigation.
In Babst v. National Intelligence Board

13

this Court declared:

Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer some questions,
which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under
certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the
invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the
country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has
not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken,not as a
strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his
peril. . . . (Emphasis supplied)

the motion to quash, he is deemed to have waived that objection and to have submitted his person to the jurisdiction of
that court. 14

In the case at bar, the invitation came from a high-ranking military official and the investigation of Sanchez was to be
made at a military camp. Although in the guise of a request, it was obviously a command or an order of arrest that the
petitioner could hardly he expected to defy. In fact, apparently cowed by the "invitation," he went without protest (and
in informal clothes and slippers only) with the officers who had come to fetch him.

The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the corresponding warrant of
arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be
released because of such defect. * Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of
Court that:

It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation" are applicable
even to a person not formally arrested but merely "invited" for questioning.

Sec, 4. When writ is not allowed or discharge authorized. If it appears that the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a
court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the
order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or order. Nor shall, anything in this rule be
held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person
suffering imprisonment under lawful judgment.

It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status" after he was pointed
to by Centeno and Malabanan as the person who first raped Mary Eileen Sarmenta. Respondent Zuo himself
acknowledged during the August 13, 1993 hearing that, on the basis of the sworn statements of the two state
witnesses, petitioner had been "arrested."
We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules of Court, providing as
follows:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed and he has personal knowledge of facts indicating that the
person to be arrested has committed it; and

The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge Lanzanas issued a
warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 to 93-124637 for
violation of R.A No. 6713. 15 Pending the issuance of the warrant of arrest for the rape-slay cases, this first warrant
served as the initial justification for his detention.

In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by virtue of a John
Doe warrant. In their return, the respondents declared that a new warrant specifically naming her had been issued,
thus validating her detention. While frowning at the tactics of the respondents, the Court said:
The, case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies with the
requirements of the Constitution and the Rules of Court regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void, being a general warrant, release of the petitioner for that
reason will be a futile act as it will be followed by her immediate re-arrest pursuant to the new and valid warrant,
returning her to the same prison she will just have left. This Court will not participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court,

17

more recently in the Umil case. 18

The Informations
(c) When the person to be arrested is a prisoner who has escapes from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from
one confinement to another.

The petitioner submits that the seven informations charging seven separate homicides are absurd because the two
victims in these cases could not have died seven times.

It is not denied that the arresting officers were not present when the petitioner allegedly participated in the killing of
Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither did they have any personal knowledge that the
petitioner was responsible therefor because the basis of the arrest was the sworn statements of Centeno and
Malabanan. Moreover, as the rape and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or forty-six
days before the date of the arrest, it cannot be said that the offense had "in fact just been committed" when the
petitioner was arrested.

This argument was correctly refuted by the Solicitor General in this wise:

The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial Court lawfully
acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on August 26, 1993
against him and the other accused in connection with the rape-slay cases. It was belated, to be sure, but it was
nonetheless legal.

In effect, the presence of homicide qualifies the crime of rape, thereby raising its penalty to the highest degree. Thus,
homicide committed on the occasion or by reason of rape, loses its character as an independent offense, but assumes
a new character, and functions like a qualifying circumstance. However,by fiction of law, it merged with rape to
constitute an constituent element of a special complex crime of rape with homicide with a specific penalty which is in
the highest degree, i.e. death (reduced to reclusion perpetua with the suspension of the application of the death
penalty by the Constitution).

Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully acquired jurisdiction
over the person of the petitioner. The rule is that if the accused objects to the jurisdiction of the court over his person,
he may move to quash the information, but only on that ground. If, as in this case, the accused raises other grounds in

Thus, where there are two or more offenders who commit rape, the homicide committed on the occasion or by reason
of each rape, must be deemed as a constituent of the special complex crime of rape with homicide. Therefore, there
will be as many crimes of rape with homicide as there are rapes committed.

It is clearly provided in Rule 110 of the Rules of Court that:

Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in
which existing laws prescribe a simple punishment for various offenses.

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:

a) Exclusive original jurisdiction in all cases involving:

Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the Revised Penal Code.
The petitioner and his six co-accused are not charged with only one rape committed by him in conspiracy with the
other six. Each one of the seven accused is charged with having himself raped Sarmenta instead of simply helping
Sanchez in committing only one rape. In other words, the allegation of the prosecution is that the girl was raped seven
times, with each of the seven accused taking turns in abusing her with the assistance of the other six. Afterwards, their
lust satisfied, all seven of them decided to kill and thus silence Sarmenta.
Every one of the seven accused is being charged separately for actually raping Sarmenta and later killing her instead
of merely assisting the petitioner in raping and then slaying her. The separate informations filed against each of them
allege that each of the seven successive rapes is complexed by the subsequent slaying of Sarmenta and aggravated
by the killing of Allan Gomez by her seven attackers. The separate rapes were committed in succession by the seven
accused, culminating in the slaying of Sarmenta.
It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven times, but the
informations do not make such a suggestion. It is the petitioner who does so and is thus hoist by his own petard.
The Alleged Discrimination
The charge of discrimination against the petitioner because of the non-inclusion of Teofilo Alqueza and Edgardo
Lavadia in the informations must also be dismissed.
While the prosecuting officer is required by law to charge all those who in his opinion, appear to be guilty, he
nevertheless cannot be compelled to include in the information a person against whom he believes no sufficient
evidence of guilt exists. 19 The appreciation of the evidence involves the use of discretion on the part of the prosecutor,
and we do not find in the case at bar a clear showing by the petitioner of a grave abuse of such discretion. 20
The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the
President of the Philippines. 21 But even this Court cannot order the prosecution of a person against whom the
prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or
convict the accused but as a rule have no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of a grave abuse of discretion that will justify
judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is
a petition for mandamus, not certiorari or prohibition. 22 Moreover, before resorting to this relief, the party seeking the
inclusion of another person as a co-accused in the same case must first avail itself of other adequate remedies such
as the filing of a motion for such inclusion. 23
At any rate, it is a preposterous contention that because no charges have been filed against Alqueza and Lavadia, the
charges against the petitioner and his co-accused should also be dropped.
Jurisdiction of the Sandiganbayan
The petitioner argued earlier that since most of the accused were incumbent public officials or employees at the time
of the alleged commission of the crimes, the cases against them should come under the jurisdiction of the
Sandiganbayan and not of the regular courts. This contention was withdrawn in his Reply but we shall discuss it just
the same for the guidance of all those concerned.
Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides:

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code:
(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those
employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the
penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of
P6,000.00. . . . (Emphasis supplied)
The crime of rape with homicide with which the petitioner stands charged obviously does not fall under paragraph (1),
which deals with graft and corruption cases. Neither is it covered by paragraph (2) because it is not an offense
committed in relation to the office of the petitioner.
In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as follows:
[T]he relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not
accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the offense
cannot exist without the office. In other words, the office must be a constituent element of the crime as defined in the
statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised
Penal Code.
Public office is not of the essence of murder. The taking of human life is either murder or homicide whether done by a
private citizen or public servant, and the penalty is the same except when the perpetrator. being a public functionary
took advantage of his office, as alleged in this case, in which event the penalty is increased.
But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance,
its materiality arises not from the allegations but on the proof, not from the fact that the criminals are public officials but
from the manner of the commission of the crime
There is no direct relation between the commission of the crime of rape with homicide and the petitioner's office as
municipal mayor because public office is not an essential element of the crime charged. The offense can stand
independently of the office. Moreover, it is not even alleged in the information that the commission of the crime
charged was intimately connected with the performance of the petitioner's official functions to make it fall under the
exception laid down in People v. Montejo. 25
In that case, a city mayor and several detectives were charged with murder for the death of a suspect as a result of a
"third degree" investigation held at a police substation. The appearance of a senator as their counsel was questioned
by the prosecution on the ground that he was inhibited by the Constitution from representing them because they were
accused of an offense committed in relation to their office. The Court agreed. It held that even if their position was not
an essential ingredient of the offense, there was nevertheless an intimate connection between the office and the
offense, as alleged in the information, that brought it within the definition of an offense "committed in relation to the
public office."
As Chief Justice Concepcion said:
It is apparent from these allegations that, although public office is not an element of the crime of murder in abstract, as
committed by the main respondents herein, according to the amended information, the offense therein charged
is intimately connected with their respective offices and was perpetrated while they were in the performance, though
improper or irregular, of their official functions. Indeed they had no personal motive to commit the crime and they

would not have committed it had they not held their aforesaid offices. The co-defendants of respondent Leroy S.
Brown, obeyed his instructions because he was their superior officer, as Mayor of Basilan City. (Emphasis supplied).
We have read the informations in the case at bar and find no allegation therein that the crime of rape with homicide
imputed to the petitioner was connected with the discharge of his functions as municipal mayor or that there is an
"intimate connection" between the offense and his office. It follows that the said crime, being an ordinary offense, is
triable by the regular courts and not the Sandiganbayan.
Conclusion
As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts and the applicable
law and jurisprudence. They must, therefore, all be rejected. In consequence, the respondent judge, who has started
the trial of the criminal cases against the petitioner and his co-accused, may proceed therewith without further
hindrance.

PLANA, J.:
This was originally a petition for prohibition with preliminary injunction which was superseded by the amended and
supplemental petition for prohibition with preliminary injunction filed by petitioners on March 3, 1983, seeking to
prohibit the respondents (a) from issuing subpoenas or letters of invitation to petitioners and interrogating them, and
(b) from filing libel suits on matters that have been the subject of inquiry by respondent National Intelligence Board
(NIB).
Petitioners are columnists, feature article writers and reporters of various local publications. At different dates since
July, 1980, some of them have allegedly been summoned by military authorities who have subjected them to
sustained interrogation on various aspects of their works, feelings, sentiments, beliefs, associations and even their
private lives. Typical of the letters received by the petitioners from respondent NIB is that addressed to petitioner
Arlene Babst, dated December 20,1982, which reads:
Madam:

It remains to stress that the decision we make today is not a decision on the merits of the criminal cases being tried
below. These will have to be decided by the respondent judge in accordance with the evidence that is still being
received. At this time, there is yet no basis for judgment, only uninformed conjecture. The Court will caution against
such irrelevant public speculations as they can be based only on imperfect knowledge if not officious ignorance.
WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the trial of Criminal
Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to decide them with deliberate
dispatch.

Pursuant to the authority vested in me by law, you are hereby requested to appear before this Special Committee at
Philippine Army Officer's Clubhouse, Fort Bonifacio, Metro Manila (sketch attached), 9:00 A.M., December 22, 1982, to
shed light on confidential matters being looked into by this Committee.
Your failure to appear on the specified date and place shall be considered as a waiver on your part and this Committee
will be constrained to proceed in accordance with law.
Very truly yours,

SO ORDERED.
(SGD.) WILFREDO C. ESTRADA
Brig. General, AFP (Ret.)
Chairman
Aside from the interrogations, a criminal complaint for libel was filed by Brig. Gen. Artemio Tadiar, Jr. on February 9,
1983 with the Office of the City Fiscal, Manila, against petitioners Domini Torrevillas-Suarez, editor of the Panorama,
and Ma. Ceres Doyo based on an article written by Doyo and published in the March 28, 1982 issue of the Panorama,
on which the author had been interrogated by respondents. The complaint included an staggering P10 million claim for
damages. (An information for libel has since been filed with the Regional Trial Court of the National Capital Region
against Suarez and Doyo.)

G.R. No. L-62992 September 28, 1984

ARLENE BABST, ODETTE ALCANTARA CERES P. DOYO, JO ANN Q. MAGLIPON, DOMINI TORREVILLAS
SUAREZ, LORNA KALAW-TIROL, CIELO BUENAVENTURA, SYLVIA MAYUGA, SHEILA S. CORONEL, ET
AL., petitioners,
vs.
NATIONAL INTELLIGENCE BOARD, SPECIAL COMMITTEE NO. 2, BRIG. GEN. WILFREDO ESTRADA (ret.),
COL. RENATO ECARMA, NBI ASST. DIRECTOR PONCIANO FERNANDO, COL. BALBINO DIEGO, COL.
GALILEO KINTANAR, COL. EUSTAQUIO PERALTA, ET AL., respondents.
RESOLUTION

Petitioners maintain that the respondents have no jurisdiction over the proceedings which are violative of the
constitutional guarantee on free expression since they have the effect of imposing restrictive guidelines and norms on
mass media; that they are a punitive ordeal or subsequent punishment of petitioners for lawful publications; that they
amount to a system of censorship, curtailing the "free flow of information and petition and opinion," indispensable to
the right of the people to know matters of public concern guaranteed in Section 6 of Article IV of the Constitution; and
that they constitute intrusions into spheres of individual liberty. Regarding the libel charge against Suarez and Doyo,
petitioners denounce the filing as instituted with intent to intimidate and based on illegally obtained evidence, referring
to the matters inquired into by respondents in previously conducted, allegedly illegal interrogations.
In their comment, respondents counter that no issue of jurisdiction exists since they do not pretend to exercise
jurisdiction over the petitioners; that what respondents have sent to petitioners were neither subpoenas nor
summonses, but mere invitations to dialogues which were completely voluntary, without any compulsion employed on
petitioners; that the dialogues themselves were designed simply to elicit information and exchange Ideas and that the
expression of personal preferences and opinions by members of the respondent Board is not equivalent to the
imposition of norms and guidelines to be followed by petitioners. Relative to the libel case, respondents contend that
petitioners have no cause of action against respondent Board since respondent General Tadiar is not a member of
respondent Board and has filed the libel case in his personal capacity; and the libel case is not pending before any of
the respondents. Furthermore, respondents aver that this case has been rendered moot and academic because the

proceedings before NIB Special Committee No. 2 (which conducted the interrogations) have already been ordered
terminated by General Fabian C. Ver in his capacity as Director General and Chairman of the NIB, and said
proceedings have in fact been terminated.

Concepcion, Jr. and Guerrero, JJ., are on leave.

The petition is premised upon the alleged illegality and unconstitutionality of the issuance by respondent NIB to
petitioners of letters of invitation, their subsequent interrogation, and the filing of the aforementioned libel suit.
Under the circumstances of the case, the petition cannot be granted.

Separate Opinions

The assailed proceedings have come to an end. The acts sought to be prohibited (i.e., the issuance of letters of
invitation petition and subsequent interrogations) have therefore been abated, thereby rendering the petition moot and
academic as regards the aforesaid matters.

FERNANDO, C.J., concurring:

Be that as it may, it is not Idle to note that ordinarily, an invitation to attend a hearing and answer some questions,
which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under
certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the
invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the
country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has
not entirely been lifted and the designated interrogation site is a military camp, the same can easily be taken, not as a
strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his
peril, especially where, as in the instant case, the invitation carries the ominous seaming that "failure to appear . . .
shall be considered as a waiver . . . and this Committee will be constrained to proceed in accordance with law."
Fortunately, the NIB director general and chairman saw the wisdom of terminating the proceedings and the
unwelcome interrogation.
Similarly, prohibition will not issue in respect of the libel charges now pending in court against two of the petitioners
and similar suits that might be filed.
Firstly, the writ of prohibition is directed against a tribunal, board or person acting without or in excess of jurisdiction or
with grave abuse of discretion vis-a-vis certain proceedings pending before it. The libel cases adverted to are not
pending before respondent NIB or any other respondent.
Secondly, the issue of validity of the libel, charges by reason of their alleged collision with freedom of expression, is a
matter that should be raised in the proper forum, i.e., before the court where the libel cases are pending or where they
may be filed. The same rule applies to the issue of admissibility as evidence of matters that have been elicited in the
course of an inquiry or interrogation conducted by respondent NIB, which petitioners claim to have been illegally
obtained.
Finally, the right to seek redress when libeled is a personal and individual privilege of the aggrieved party, and no one
among the respondent officials has the authority to restrain any of his subordinates who has been libeled from
vindicating his right by instituting a libel suit. Brig. Gen. Tadiar has filed the libel case against petitioners Suarez and
Doyo in his personal capacity. Moreover, he is not even a member of respondent NIB. And the NIB does not appear to
have anything to do with Gen. Tadiar's private right to complain of libel.

The opinion of the Court penned by Justice Plana, written in his usual lucid style, is entitled to commendation. It is
characterized by fealty to what has long been accepted as the task incumbent on the judiciary, namely, to resolve
disputes. There is no departure from the practice very much in evidence in the United Kingdom and many
Commonwealth countries. As pointed out by him: "The petition is premised upon the alleged illegality and
unconstitutionality of the issuance by respondent NIB to petitioners of letters of invitation, their subsequent
interrogation, and the filing of the aforementioned libel suit." 1 Why it cannot be granted is made clear in these words:
"The assailed proceedings have come to an end. The acts sought to be prohibited (i.e., the issuance of letters of
invitation and subsequent interrogations) have therefore been abated, thereby rendering the petition moot and
academic as regards the aforesaid matters." 2 As he further stated in the latter portion of the opinion: "Fortunately, the
NIB director general and chairman saw the wisdom of terminating the proceedings and the unwelcome interrogation."

After pointing out the moot and academic character of the petition, Justice Plana, noted that "ordinarily an invitation to
attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure" is not per
se illegal or unconstitutional and hence free from objection. Then he made the apt observation that under the
circumstances at present obtaining, it can be viewed "as an authoritative command which one can only defy at his
peril, especially where, as in the instant case, the invitation carries the ominous warning that 'failure to appear * * *
shall be considered as a waiver * * * and this Committee will be constrained to proceed in accordance with law.'" 4 To
this extent, there is conformity to what t also has been traditional in this jurisdiction. This Court whenever an occasion
calls for it, has given expression to views indicative of its appraisal of how to avoid the at times thin line separating
what is juridically impeccable from that which may give rise to well-founded doubts as to its legality or at the very least
cast a reflection on the ways of the law. What this Court or a member thereof says then maybe be of persuasive
character.
Why prohibition will not issue with respect to the libel charges pending in court against petitioners and suits of a similar
character that could be filed, Justice Plana explained ill this manner: "Firstly, the writ of prohibition is directed against a
tribunal, board or person acting without or in excess of jurisdiction or with grave abuse of discretion vis-a-vis certain
proceedings pending before it. The libel cases adverted to are not pending before respondent NIB or any other
respondent. Secondly, the issue of validity of the libel charges by reason of their alleged collision with freedom of
expression, is a matter that should be raised in the proper forum, i.e., before the court where the libel cases are
pending or where they may be filed. Finally, the right to seek redress when libeled is a personal and individual privilege
of the aggrieved party, and no one among the respondent officials has the authority to restrain any of his subordinates
who has been libeled from vindicating his right by instituting a libel suit." 5

WHEREFORE, the petition is dismissed.

SO ORDERED.
Melencio-Herrera, Escolin, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.
Makasiar, and Aquino, JJ., concur in the result

In terms of the tried and tested concepts of strict law, it thus becomes obvious why concurrence is unavoidable. This
Tribunal, however, is likewise a court of equity. It is reliance on that aspect that distinguishes the separate opinions of
Justices Teehankee and Abad Santos. True to the tradition that cases on freedom of expression furnish the opportunity
for moving utterances, they stress in language both lofty and persuasive, the exacting responsibility of the judiciary in
preserving unimpaired press freedom. They have done me the honor of citing or referring to excerpts from my opinions
as well as my other writings. I am, of course, appreciative. Moreover, there has been no change of heart on my part. I
stand by them. I am unable, however, to go as far as they would wish this Court to go. It is my considered opinion that
it suffices that I follow what, as ponente, I did in De la Camara v. Enage, 6 namely to furnish guidelines for the lower
courts, based on authoritative doctrines. Thus: "While under the circumstances a ruling on the merits of the petition for
certiorari is not warranted, still, as set forth at the opening of this opinion, the fact that this case is moot and academic

should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the
part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required." 7
1. Fortunately, there is a case that serves such a purpose. I refer to Lopez v. Court of Appeals. 8 It deals with a civil
action for libel, but the principles therein enunciated apply as wen to criminal prosecutions. As was set forth early in
the opinion of the Court: "It is on the freedom of the press that petitioners would stake their case to demonstrate that
no action for libel would he arising from the publication of the picture of respondent Cruz Identified as responsible for
the hoax of the year, when such was not the case at all. It is easily understandable why No liability would be incurred if
it could be demonstrated that it comes within the well-nigh all-embracing scope of freedom of the press. Included
therein is the widest latitude of choice as to what items should see the light of day so long as they are relevant to a
matter of public interest, the insistence on the requirement as to its truth yielding at times to unavoidable inaccuracies
attendant on newspapers and other publications being subject to the tyranny of deadlines. If no such showing could be
plausibly made, however, it is difficult to resist the conclusion that there was in fact the commission of such quasidelict." 9
2. Further on the question of the decisive character of press freedom in the adjudication of libel suits, the Lopez
opinion had this to say: "There is an impressive recognition in our decisions of the curtailment to which press freedom
would be subjected if an action for libel were not rigorously scrutinized to remove doubts as to its being utilized to
penalize the exercise of that constitutional right. Thus, in the first leading case, United States v. Bustos, Justice
Malcolm could correctly stress: 'The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the absences of officialdom. Men in public life may suffer under a
hostile and an unjust accusation: the wound can be assuaged with the balm of a clear conscience. A public officer
must not to be too thin skinned with reference to comment upon his official acts. Only thus can the intelligence and
dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as an individual
is less than the State, so must expected criticism be born for the common good.' On this aspect of the question which,
as answered by him, would require that a criminal suit for libel should not be utilized as a means for stifling press
freedom, he categorically declared: 'Public policy, the welfare of society, and the orderly administration of government
have demanded protection for public opinion. The inevitable and incontestable result has been the development and
adoption of the doctrine of privilege.'" 10
3. So it is in the United States except for the fact that it was not until 1964, 36 years after Bustos, that its Supreme
Court had occasion to rule likewise. To quote anew from the Lopez opinion: "In the leading case of New York Times
Co. v. Sullivan, the nature of the question presented was set forth by Justice Brennan for the Court in the opening
paragraph of his opinion: 'We are required in this case to determine for the first time the extent to which the
constitutional protections for speech and press a State's power to award damages in a libel action brought by a public
official against critics of his official conduct.' This is the Court's approach to such an issue: 'In deciding the question
now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to
other "mere labels" of state law. * * * Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the various other formulas for the repression of expression that have been
challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by
standards that satisfy the First Amendment.' Continuing the Elaine trend, the opinion stressed further: 'Thus we
consider this case against the background of a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it may well include vehement caustic, and sometimes
unpleasantly sharp attacks on government and public officials. * * * The present advertisement, as an expression of
grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional
protection.'" 11
4. The test to be followed, according to the language of the New York Times decision, as reinforced by Curtis
Publishing Co. v. Butts, was set forth thus in the Lopez opinion: "For liability to arise then without offending press
freedom, there is this test to meet: 'The constitutional guarantees require, we think, a federal rule that prohibits a
public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that
the statement was made with "actual malice" that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.' The United States Supreme Court went further in Curtis Publishing Co. v. Butts, where
such immunity was held as covering statements concerning public figures regardless of whether or not they are
government officials. Why there should be such an extension is understandable in the light of the broad scope enjoyed
by press freedom which certainly allows a full and free discussion of public issues. What can be more logical and
appropriate, then, than such an expansion of the principle. As noted by a commentator: 'Since discussion of public

issues cannot be meaningful without reference to the men involved on both sides of such issues, and since such men
will not necessarily be public officials, one cannot but agree that the Court was right in Curtis to extend the Times rule
to all public figures.'" 12
5. Accordingly, the Lopez opinion could rightfully stress: "The significance of the foregoing line of decisions impressive
for their consistency is quite obvious. No inroads on press freedom should be allowed in the guise of punitive action
visited on what otherwise could be characterized as libel whether in the form of printed words or a defamatory
imputation resulting from the publication of respondent's picture with the offensive caption as in the case here
complained of. This is not to deny that the party responsible invites the institution either of a criminal prosecution or a
civil suit. It must be admitted that what was done did invite such a dire consequence, considering the value the law
justly places on a man's reputation. This is merely to underscore the primacy that freedom of the press enjoys. It ranks
rather high in the hierarchy of legal values. If the cases mean anything at an then, to emphasize what has so clearly
emerged, they call for the utmost care on the part of the judiciary to assure that in safeguarding the interest of the
party allegedly offended, a realistic account of the obligation of a news media to disseminate information of a public
character and to comment thereon as well as the conditions attendant on the business of publishing cannot be
ignored." 13
6. There is no ambiguity in the above authoritative doctrines. Press freedom is a preferred right. 14 It is entitled to the
fullest protection that the law affords. A person who deems himself aggrieved by defamatory statements is of course
entitled to seek redress in the courts Nonetheless, in the felicitous language of the New York Times decisions "libel
can claim no talismatic immunity from constitutional limitations. " While there is an undeniable public interest in
assuring that a man's reputation be safeguarded from calumny and unjust accusation, on matters of public concern,
he cannot be shielded from the scrutiny of the press and the expression thereafter of whatever failings it might uncover
on matters of public concern. Care is to be taken, however, that in its publication there is avoidance of affirming what is
not true or disregarding in a manner deemed reckless to take the necessary steps of ascertaining its truth or falsity.
That is as it should be. Justice Holmes, in his classic dissent in Abrams, after stressing that the ultimate good desired
is better reached by a free trade of Ideas, and that there should be the competition in the open market, was insistent
that truth is the only ground upon which man's wishes can be safely carried out. 15 Professor Emerson, at present the
foremost scholar in the held, emphasized the value of freedom of expression as "an essential process for advancing
knowledge and discovering truth." 16
7. There is no more exacting duty on the part of the judiciary, therefore, than to heed the clear and unmistakable
mandate of the Constitution in passing upon the conflicting claims of the parties in libel cases. To repeat, the law
cannot ignore a man's inherent right to have his reputation remain free from unjustified and unwarranted imputations
of wrongdoing. Nonetheless, because of the primacy enjoyed by the free speech and free press guarantees of the
Constitution, even on the assumption that there has been injury to man's reputation, the damages to be assessed, if at
all warranted, should not be lacking in the quality of realism. The same sense of realism should likewise be displayed
by the plaintiff in a libel suit in estimating the amount due him for the injury inflicted on his good name. The times are
difficult, even perilous. It is of the essence, therefore, that there be on the part of public officials and journalists alike an
attitude of trust and confidence in the good faith that motivates them in the discharge of their responsibilities. Such an
attitude may lessen the atmosphere of confrontation and dissipate the fear that press freedom has become a casualty
under the circumstances. It is for the judiciary to be ever on the alert that such be not the case.
TEEHANKEE, J., dissenting:
I am constrained to dissent on the grounds, as hereinafter stated, that rather than dismiss as moot and petition at bar
due to termination of respondent committee's interrogation proceedings, the Court should rule squarely or at least lay
down the authoritative and controlling doctrines on the vital issues of profound public importance and interest that
involve the upholding of the preferred freedoms of speech and press that are so vital for the survival of our democratic
heritage and the prescribing of the questioned acts of harassing and intimidating journalists who expose and report on
complaints of military abuses.
Petitioners, all in mass media as editors, columnists, reporters or feature article writers, filed on January 25, 1983 the
verified petition for prohibition against respondent National Intelligence Board, Special Committee No. 2, and its
Chairman and members, all composed of ranking military officers, save respondent NBI Assistant Director Ponciano
Fernando. They complain that "some of them have received summonses, subpoenas or directives from military
authorities who have subjected them to sustained interrogation, touching the most delicate aspects of their work,

feelings, sentiments, beliefs, associations and even aspects of their private lives. From August to December of 1982,
several such subpoenas were received by some of the petitioners, most of which came in the wake of the mass arrest,
indictment and prosecution of the editor and staff of the publication 'We Forum', which could be read as a threat that
petitioners might also be subjected to similar treatment and that those "who have been subjected to the aforesaid
sustained interrogation found it an ordeal creating a 'chilling effect' on their work."
Invoking the preferred freedom of the press which constitutionally protects them from prior restraint or censorship or
subsequent punishment or liability unless there be a clear and present danger of substantive evil that may be rightfully
prevented by law, and disregarding emphatic admonitions by their interrogators to keep silent concerning the
interrogation and the risk of possible personal reprisal, they have petitioned of this Court for the writ of prohibition with
injunction. Petitioners ask the Court to put a stop to such summonses' directives and interrogations by respondents
and to declare them "unconstitutional and unlawful Petitioners further ask the Court to likewise put a stop to "further
harassment in the form of scurrilous libel suits to be filed by military commanders against the editor, some staff
members and contributors of Philippine Panorama (Sunday magazine of Bulletin Today), as per official announcement
of Camp Aguinaldo reported on January 30, 1983. 1 By Amended and Supplemental Petition of March 3, 1983,
petitioners pinpoint the criminal libel complaint "with a staggering P10-million claim for damages" (as against the
modest P250.00 fee received by the writer) filed on February 9, 1983 with the City Fiscal of Manila by Brig. Gen.
Artemio A. Tadiar, Jr. (as Commanding General of the Third Philippine Marine Brigade, AFP) against petitioners
Domini Torrevillas Suarez and Ma. Ceres P. Doyo, editor and writer, respectively, for the alleged libelous article "Forty
Years After the Fall Bataan is Again under Seige" which was published a year before in the Philippine Panorama issue
of March 28, 1982. 2The criminal information for libel, Crime Case No. 83-16213 was filed with the Regional Trial Court
of Manila on March 24, 1983 and sought P l0-million "by way of actual, moral, exemplary and other damages" for the
complainant Brig. Gen. Tadiar for having been "expos[ed] . . . to public hatred, contempt, discredit, dishonor and
ridicule.") 3
At the hearing on February 1, 1983, the Solicitor General on behalf of respondents submitted the memorandum dated
January 19, 1983 of respondent General Fabian C. Ver as Director General and Chairman of the National Intelligence
Board terminating the proceedings of respondent Committee No. 2 and stating that after reviewing the report of said
Committee on "the series of dialogues [you] have conducted with selected members of the media the Board
"expressed satisfaction in the results of the dialogues and noted better mutual understanding of the respective roles of
media and government. "
The Court's majority resolution dismisses the petition as having become moot and academic with the termination of
respondent Committee's proceedings and interrogations.
Petitioners on the other hand, invoke the imperatives of public interest in their petition and plead for a definite ruling
thereon from the Court so that the violations of their constitutional rights of free press and speech and privacy may not
be repeated.
Petitioners are entitled to such a definite ruling. In the words of the late Chief Justice Fred Ruiz Castro in Aquino, Jr. v.
Enrile, 4 "the fact that a final determination of a question involved in an action is needed will be useful as a guide for
the conduct of public officers or tribunals is a sufficient reason for retaining an action which would or should otherwise
be dismissed. Likewise appeals may be retained if the questions involved are likely to arise frequently in the future
unless they are settled by a court of last resort.
This was also my submittal in my dissents in the recent habeas corpus cases of Renato Caete 5 and Aristedes
Sarmiento. 6 In these cases, the military authorities had refused to release the detainees despite their acquittal by the
trial courts on the ground that "only the President of the Philippines can order (their) release since (they are) being
detained pursuant to a PCO." The charges against them were found to be bereft of basis and evidence.
In Caete's case, the trial court granted his motion to dismiss the case of illegal possession of subversive documents
for insufficiency of the prosecution's evidence. In Sarmiento's case, the trial court dismiss the subversion charges for
"utter worthlessness of evidence," so much so that Mr. Justice Felix V. Makasiar suggested that "(T)he military
establishment should inquire into whether the President was deceived into issuing the PCO and who initiated the
arrest of the couple without supporting evidence." The detainees were released by the military only when the PCO's
were lifted after the lapse of several months since their acquittal and the Court's majority ordered the dismissal of the
cases as having become moot. I maintained in line with a host of precedents that the basic issue of whether a

judgment of acquittal prevails over the PCO should be squarely resolved rather than emasculated with the dismissal of
the cases in order to avoid countless other Caetes and Sarmientos.
In De la Camara vs. Enage 7 (where petitioner-accused had escaped from jail, apparently in desperation due to the
excessive and exorbitant bail fixed by respondent judge of almost P2.5-million rejected by the now Chief Justice
therein as a sanctimonious avowal of respect for a mandate of the Constitution . . . on a purely verbal level when the
Department of Justice had recommended P40,000 bail for the two offenses the Court held that "the fact that this case
is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable . . . for
the guidance of lower court judges, the controlling and authoritative doctrines that should be observed in according full
respect to constitutional rights. While we dismissed the case as moot with petitioner's escape, the Court nevertheless
squarely ruled that the constitutional right to bail should not be rendered nugatory with the imposition of excessive bail
and declared the challenged order as having "reduced the right to bail to a barren form of words . . . absolutely bereft
of support in law."
I hold then with Mr. Justice Vicente Abad Santos, and as intimated by the majority resolution when it noted that
"fortunately, the NIB director general and chairman saw the wisdom of terminating the proceedings and the
unwelcome interrogations" 8 that the "invitations" and interrogations were violative of the freedoms of speech, press
and privacy and proper objects of the petition at bar for prohibition with injunction. The Court should so rule, setting
forth as in De la Camara for the guidance of lower court judges the controlling and authoritative doctrines that
safeguard the preferred freedoms of press and speech and making of record the Solicitor General's assurance and
"commitment" at the hearing that no further interrogations of journalists would take place and that "there will be no
other committees that will be created for the same purpose."
The Chief Justice (then Associate Justice) had in the 1969 case of Gonzales vs. Comelec 9 collated precedents and
jurisprudence and restated such controlling principles, as follows:
... There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger
of substantive evil that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring
individual self-fulfillment, of attaining the truth, of securing participation by the people in social including political
decision-making, and of maintaining the balance between stability and change. The trend as reflected in Philippine
and American decisions is to recognize the broadest scope and assure the widest latitude to this constitutional
guaranty. It represents a profound commitment to the principle that debate of public issues should be uninhibited,
robust, and wide-open. It is not going too far, according to another American decision, to view the function of free
speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger."
Freedom of speech and the press thus means something more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, to take refuge in the existing climate of opinion on any
matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not more, for
those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that
we hate, no less than for the thought that agrees with us.
The special appeal made by revered Law Professor Gerardo Florendo at last year's hearing of February lst is herein
likewise reproduced for the record:
... With your indulgence, most Honorable Supreme Court Justices, I am appearing here for the first time in view of the
importance of the question here to be ventilated before the great and august Body, of the Supreme Court, for unless
the petition is upheld by the Supreme Court, neither the freedom of the Supreme Court Justices nor of the defendantattorneys can be protected, much less my freedom as a civilian and mere citizen of this great Republic of the
Philippines. So, as I'm here, Your Honor, to add to my weak voice, at the advanced age of 87 years, so that before I
pass out of this world into the great beyond, no one can say a voice no matter how big (sic). For indeed, reading the
petition, the questions asked by the military are in themselves punishment far beyond the ken of prison walls. But

harassing the individual concerned out of the rooms, in the privacy of their habitations, we wish the whole country
could stand to say that what you, the Military, which is sworn to protect the freedom and liberty of the citizens of this
country, could really exercise that to the benefit of each and every citizen, because when a citizen's freedom is
jeopardized, endangered, that also affects you personally and your children, and your grandchildren. So that, Your
Honor, I wish now to intervene here and say, Military, please change your proceedings, your actuations and exercise
your duties as you are sworn to defend the freedom and liberty of your country and of the citizens of the land. Thank
you. 10
As to the prohibition suit against the criminal libel suit initiated by respondent Brig. Gen. Tadiar with a claim of P10
million damages, the majority resolution dismisses the petition on the grounds that (1) the libel case is not pending
before respondent NIB; (2) the lack of cause of action or non- existence of a criminal offense should be raised in the
proper forum, i.e. the court where the libel case is pending; and (3) respondent Brig. Gen. Tadiar has filed the libel
case "in his personal capacity" in the exercise of "a personal and individual privilege of the aggrieved party."
The Resolution has thus adopted the conventional approach of requiring that the invalidity of the libel case be raised in
the Regional Trial Court (which has not been impleaded, as the information had not yet been filed at the time of the
filing of the Amended and Supplemental Petition) and first passed upon by said court.

The late Justice Hugo Black of the U.S. Supreme Court in the Pentagon Vietnam Paper's cases (which turned down
the U.S. Government's plea for injunction against the publication of the papers in the name of national security) had
stressed that "(T)he press was to serve the governed, not the governors. The Government's power to censor the press
was abolished so that the press would remain forever free to censure the Government. The press was protected so
that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively
expose deception in government. ... ." 14
As already indicated, the Court should now set forth once again the controlling and authoritative doctrines that the
Court, even ahead of the U.S. Supreme Court, had first enunciated in the 1918 landmark case of U.S. vs. Bustos15 on
the protected right of fair comment on the official acts of public officers thus: "The interest of society and the
maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom Men in public life may suffer under a hostile and an unjust accusation: the wound can be assuaged with the
balm of a clear conscience. A public officer must not to be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize
defamation. Nevertheless, as an individual is less than the State, so must expected criticism be born for the common
good."

But this Court has set aside procedural niceties in the past and cut the gordian knot and directly gave its final
determination particularly when necessary as a guide for the conduct of public officers and tribunals and to forestall
needless congestion of the court's dockets with the likelihood of numerous future similar cases being filed.

Given this approach, the first ground above cited of the majority resolution for not ruling now on the Tadiar libel suit
may be easily remedied with the Court's considering as formally impleaded as party respondents the Regional Trial
Court where the case is pending as well as the People (who is after all represented by the Solicitor General) which is
the party plaintiff in all criminal cases.

And this direct approach is required now. The Chief Justice himself in a lecture at the National Press Club last July,
observed that about thirteen years ago (before martial law) fiscals automatically dismissed libel complaints against
newsmen by merely invoking the preferred freedom of the press but that nowadays the prosecutors tend to file such
libel cases against newsmen. It may be added that the prosecutors have cooperated in aggravating the pressure and
intimidation by the new gimmick of including in the criminal information the complainant's claim for astronomical
damages in tens and hundreds of millions of pesos, which the newsman could not possibly even begin to aspire to
earn, even if he lived a hundred lifetimes. It is of common knowledge and practice that such claims for damages were
never before set out in specific amounts in the information nor have the courts been known to have ever granted
before awards for damages in such punitive and fantastic amounts, "the usual practice being more likely to reduce
damages for libel than to increase them. 11

The third above-cited ground that respondent Gen. Tadiar has filed the libel case "in his personal capacity" is not
borne out by the record. The information filed recites that the libel was committed against "the character, honesty,
integrity, virtue and reputation of Brigadier General Artemio A. Tadiar, Jr., Commanding General of the 3rd Philippine
Marine Brigades, Armed Forces of the Philippines, both as a man and as an officer in the Armed Forces of the
Philippines," and that the article's "false, defamatory and libelous statements (which) impute to the officers and men of
the 4th Marine Battalion a unit of the Third Philippine Marine Brigade under the command of Brig. Gen. Artemio A.
Tadiar, Jr., the commission of the crimes of murder, homicide, arbitrary detention, illegal arrests and searches,
maltreatment and other acts of oppression, terrorism, abuse of authority and acts of misconduct unbecoming of
military officers and members of the Armed Forces of the Philippines," although it claimed P lO-Million damages on
Brig. Gen. Tadiar's behalf.

Lawyer-columnist Apolonio Batalia comments that "(M)ost of the stories appearing in the periodicals are about
government and many of them tend to offend government officials. If a newsman is fearful of being indicted for libel, he
writes less freely and doctors the facts to make them inoffensive to certain government officials even if he thinks that it
is not correct to do so. But he is afraid of risking exposure to a criminal case." He adds that "(I)f fiscals become fearful
of dismissing complaints on valid grounds, the fear might spread to include not only newsmen but the lower courts as
well. There cannot be that desirable amount of freedom guaranteed by the Constitution if reliance is placed only on
what the Supreme Court will rule in particular cases," and cautions that "(P)ress freedom is the concern of judges,
fiscals, other government officials, writers, and the rest of society, including the possible complainants in libel suits. In
the absence of the will on the part of such people to preserve press freedom, the Supreme Court will be of little utility."
He cites the case of Isidoro Chammag, a Bulletin correspondent in the north: "After he wrote a story about Abra folk
fleeing their homes on account of a military raid on suspected insurgents, he was sued for libel. He did not have the
resources to post bail." 12 His colleagues started a fund campaign to raise bail for him.

There is no question then that respondent Gen. Tadiar felt libelled because the article's narration of misdeeds
reportedly committed by officers and men under his command in Bataan (false and defamatory statements, according
to his complaint) reflected upon him as the commanding general. Petitioners complain then that if respondents AFP
Chief of Staff and NIB had "expressed satisfaction in the results of the dialogues and noted better mutual
understanding of the respective roles of media and government," respondent Tadiar could not take a stance opposite
that of his superiors and that "conflict of interests arise and national policy considerations would thereby be ignored by
General Tadiar's action. The assurance of the Solicitor General that petitioners would not be subjected to further
interrogations would be meaningless. If that were snowed, it would appear that the Armed Forces of the Philippines,
thru its Chief of Staff, terminated the interrogations of newspaperwomen with its left hand only to hit them with libel
suits with its right hand. What one cannot do directly, he cannot do indirectly." 16Petitioner Doyo's offending article is
attached to the record and appears to bear out their contention that a principal element of libel is here absent: that of
Identification or Identifiability. Thus, petitioners submit that "(A)n examination of the allegedly libelous article would
disclose that respondent General Tadiar is not mentioned at all even inferentially, indirectly, parenthetically,
tangentially, or peripherally in the allegedly libelous article; nor is it even suggested that he was in command of the
troops." 17

In a recent editorial, the Times-Journal decries that "libel suits are being used to harass journalists." It recalls that
"(D)uring the severest period of martial law the Philippine press was kept under tight watch. Not a few editors and
reporters have experienced the quiet terror of an irate phone call from some ranking public official or a less-than
friendly summons from the military. And Filipino journalists are not so dense as to misread such feedback as anything
less than the intimidation it was meant to cause," and points out that "(W)hile the formal lifting of martial law has eased
somewhat the daily pressure on media to rigidly tow the official line, memories of those less-than-shining moments of
Philippine journalism are still vivid in the collective mind of media. Many editors and reporters, especially those of the
mainstream press, still find themselves automatically censoring themselves, sacrificing full disclosure at the altar of
compromise The editorial concludes "(T)hat nuisance suits continue to be used in their place should be cause for
serious worry not only among journalists but also for the public and policy-makers. The lessons of the recent past only
show that corruption and abuse of authority thrives best when the press is timid."13

The Court has long adopted the criterion set forth in the U.S. benchmark case of New York Times Co. vs.
Sullivan18 that "libel can claim no talismanic immunity from constitutional limitations" that protect the preferred
freedoms of speech and press. Sullivan laid down the test of actual malice, viz. "(T)he constitutional guaranty of
freedom of speech and press prohibits a public official from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with 'actual malice that is, with knowledge that it
was false or with reckless disregard of whether it was false or not." Particularly applicable to respondent Tadiar's
complaint is the declaration that there is no legal alchemy by which a State may create a cause of action for libel "by

transmitting criticism of government, however impersonal it may seem on its face, into personal criticism and hence,
potential libel, of the officials of whom the government is composed ... We hold that such a proposition may not
constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of
an official responsible for those operations."
Ultimately, the core issue is whether or not the article on Bataan is constitutionally protected as fair comment on
matters of public interest involving military conduct and operations and therefore not actionable as libel, criminally or
civilly. As former Chief Justice Ricardo Paras pointed out in Quisumbing vs. Lopez, 19 so long as there is no personal
ill will, self-seeking motive or actual malice or abuse of press freedom, "the newspapers should be given such leeway
and tolerance as to enable them to courageously and effectively perform their important role in our democracy. " The
ground rules and limits of the Constitution are there and should be applied and respected by all concerned in all cases,
and not on a case by case basis if the fundamental rights of free speech and press are to be upheld and enhanced
and the courts not rendered "of little utility."

Special Committee No. 2 of the National Intelligence Board summoned and interrogated on various dates the following
petitioners:
1. Domini Torrevillas-Suarez
2. Lorna Kalaw-Tirol
3. Ma. Ceres P. Doyo
4. Jo-Ann Q. Maglipon
5. Arlene Babst

The ringing words of the late Justice Jose Abad Santos, hero and martyr of the Japanese invasion of the Philippines in
World War II, in his dissenting opinion in People vs. Rubio 20 against the majority decision that to his mind "set at
naught constitutional principles" against the issuance of general search warrants give us, mutatis mutandis, a fitting
admonition:

6. Ninez Cacho-Olivares
Some of the other petitioners were summoned but had not yet been interrogated when the petition was filed.

The internal revenue agents concerned in this case have shown commendable zeal in their efforts to protect the
revenues of the Government; but this same zeal, if allowed to override constitutional stations would become
"obnoxious to fundamental principles of liberty." And if we are to be saved from the sad experiences of some countries
which have constitutions only in name, we must insist that governmental authority be exercised within constitutional
limits; for, after all what matters is not so much what the people write in their constitutions as the spirit in which they
observe their provisions.
ABAD SANTOS, J., dissenting.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or
your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all
opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says
that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your
power or your premises. But when men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better
reached by free trade in Ideas that the best test of truth is the. power of the thought to get itself accepted in the
competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at
any rate, is the theory of our Constitution. It is an experiment as an life is an experiment. Every year, if not every day,
we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part
of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we
loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful
and pressing purposes of the law that an immediate check is required to save the country. (Justice Holmes in Abrams
vs. United States, 250 U.S. 616, 630; 63 US. S.C. Lawyers' Ed. 1173, 1180 [1919].)
The above quotation has relevance to this case which is a petition for prohibition.
When the petition was filed on January 25, 1983, the petitioners were in the mass print media. Some were editors (e.g.
Domini Torrevillas-Suarez of PANORAMA magazine some were columnists (e.g. Arlene Babst of BULLETIN TODAY),
some were feature writers (e.g. Jo-Ann Q. Maglipon), and some were reporters (e.g. Maritess Danguilan-Vitug). As
this is written some of the petitioners have ceased to write regularly such as Ms. Babst and Letty Jimenez-Magsanoc.
The respondents are the members of Special Committee No. 2 of the National Intelligence Board composed of retired
Brigadier General Wilfredo C. Estrada, Brigadier General Renato Ecarma, National Bureau of Investigation Assistant
Director Ponciano Fernando, Colonel Balbino Diego, Colonel Galileo Kintanar, Colonel Eustaquio Peralta, Colonel
Constantino Tigas, and Major Eleonor Bernardino.

Typical of the summonses was the confidential letter sent to petitioner Babst which reads as follows:
Republic of the Philippines
NATIONAL INTELLIGENCE BOARD
Special Committee No. 2
December 20, 1982
Ms. Arlene BABST
Recoletos St., cor Muralia St.
Intramuros, Metro Manila
Madam:
Pursuant to the authority vested in me by law, you are hereby requested to appear before this Special Committee at
Philippine Army Officer's Clubhouse, Fort Bonifacio, Metro Manila, (sketch attached), 9:00 A.M., December 22, 1982,
to shed light on confidential matters being looked into by this Committee.
Your failure to appear on the specified date and place shall be considered as a waiver on your part and this Committee
will be constrained to proceed in accordance with law.
Very truly yours,
(SGD) WILFREDO C. ESTRADA
Brig. General, AFP (Ret.)
Chairman
(Annex A, Petition.)
In an affidavit which Ms. Babst executed on January 15, 1983, she said:

1. I presently work for the Bulletin Publishing Corporation as of the Bulletin Today; as Editorial Page columnist of the
Bulletin Today;

f. Col. Ecarma
g. Col. Tigas, Ministry of Information

2. In connection with my columns in said publication, I was served on December 20, 1982 a written invitation marked
"Confidential" from Brig. Gen. Wilfredo C. Estrada to appear before the National Intelligence Board, Special
Committee #2, on December 22, 1982, for the stated purpose: 'to shed light on confidential matters' with the warning
that my failure to appear 'shall be considered as a waiver on your part and the Committee will be constrained to
proceed in accordance with law;
3. On December 22, 1982, 1 appeared before the Special Committee #2 of the National Intelligence Board composed
of all military personnel who were, namely: Brig. Gen. Wilfredo Estrada, AFP (RET.); Col. Balbino Diego, legal officer of
the Presidential Security Command (PSC); Col. Juanito Fernando of the National Bureau of Investigation (NBI), Col.
Galileo Kintanar of the 15th MIG, ISAFP; Col. Peralta of the CIS; Col. Ecarma, Col. Constantino Tigas of the Ministry
of Information; Maj. Eleonor Bernardino, and a number of other persons, including staff and personnel;
4. The "interrogation" or interview termed by the Panel as a "dialogue" lasted from 9:40 A. M. till about 1:15 P. M. or for
a duration of more than three (3) hours;
5. Through out the proceedings the perceptible objective of the Panel was to intimidate and instill fear in me (as well
as all writers of the press) to the point that we will suppress the truth and not freely write or express my views on
matters of public concern;
6. The proceedings that transpired are stated in a five page 'Information Sheet' which I personally executed and is
hereby attached and incorporated as an integral part of this affidavit and bears my authenticating signature on each
and every page thereof;

h. Major Babette Bernardino

3) The investigation lasted from 9:40 a.m. till about 1:15 p,m. with a 10 minute coffee break at around 11:20: From 9 to
9:40, we talked informally. Col. Fernando read me Sec. 9 of Article 4 of the Bill of Rights, the section saying that no law
shall be passed to abridge freedom of speech, of the press, or of peaceful assembly BUT, Col. Fernando told me
emphatically, this section was subordinate to that one (which he also showed me saying that police power could
overrule the first section when 'matters of national security' so decree.
QUESTIONS ASKED BY THE INTERROGATORS:
1. May we call you Arlene?
2. What is your marital status
3. Would you care to tell us more about yourself? (I said no.)
4. Tell us about your trips abroad, who financed them, for what purpose, when, which countries have you visited or not
visited, were these for journalistic purposes, who did you travel with?
5. What are the things you consider important to you? (I said, Zen, writing, friendships.)

7. I am executing this affidavit for all legal purposes it may serve. (Annex C, Petition.)
6. Ten us about your educational background.
On the interrogation, she wrote as follows:
7. When did you start with the Bulletin aid how did you get your post?
INFORMATION ON THE INTERROGATION:
8. Tell us about your previous media positions.
1) The invitation was received on Monday evening at the Bulletin Today, Dec. 20, 1982. I later learned that two military
men had gone to my parents' old house in Quezon City, looking for me, and causing much distress in my bewildered
household. Copy of invitation with Atty. Joker P. Arroyo, who subsequently accompanied me to the interrogation.
The invitation was for: WEDNESDAY, DEC. 22, 1982, at 9 a.m., Fort Bonifacio
2) The investigation panel was composed of the following:
a. Brig. Gen. Wilfredo C. Estrada, AFP (Ret.) Chairman of the National Intelligence Board, Special Committee
b. Col. Balbino Diego, Chief, Intelligence and Legal Office, Presidential Security Com.
c. Col. Fernando, National Bureau of Investigation
d. Col. Galilee Kintanar, 15th MIG ISAFP, Bago Bantay
e. Col. Peralta, CIS

9. They asked specifically about columns on:

Edgar Jopson Wed., Sept. 29,1982
What exactly is press freedom?, Fri. Sept. 17, 1982
Fear eats away at the soul, Jan. 10, 1982
and several others in passing
They questioned mostly my attitude, style tone, point of view' in regard to these columns.
10. Don't you think that you should consider the effect of your columns on the mind and passions of your readers? Col.
Diego asked: Why do you write to agitate the mind and arouse the passions?
Col. Kintanar was the one most concerned with 'the effect of your writings on the minds and passions of your readers.'

11. After my lawyer,Mr.Arroyo, pointed out that out of some 450 columns, only a few seemed to be questioned by the
board, Gen. Estrada said that even so, a plane cannot fly unless it is 100% in flying condition. I couldn't make out what
he meant by that.
12. What subjects do you write about? (I listed a dozen various topics from feminism to art to philosophy to film to
religion, etc.). Why do you choose them?
13. Who reads your columns at the Bulletin before they are published or not published
14. What kind of mail/feedback do you get
15. Do you mind if we ask about your brother's case? (This in connection with my columns criticizing anomalies in
government and business.)
16. Were you really a nun When? Where? Why? Why did you leave?
17. Tell us about your Zen, what is it, how do you practice it, where, etc.
18. Why did you leave the Catholic religion
19. Why do you women writers make Fr. Agatep look like a hero? (I told them I've never even written about him.)

32. Don't you think your writings make heroes of the very people people the military have such a hard time with?
33. Don't you feel that many groups would like to influence you? (I said, Of course and listed hotel PR groups, the
military, etc.)
34. Who are the writers who have influenced you?
35. What is the name of your novel? What does it mean? How is it selling? Who published it?
36. Did you know that Fr. Agatep was a womanizer? (Who among Filipino men isn't, I replied, words to that effect.)
37. Tell us more about Buddhism and Zen and meditation. Is it true you face the wall two hours a day, sitting absolutely
still?
38. When did you start writing? Why How?
39. Your cousin Carmen Sabater said you disappeared in 1970. Why?
40. We have a report that you applied for a job at ISAFP in 1973. (They showed me an application form I was
supposed to have filled out and signed; I did not recognize it at all What is ISAFP, I asked them, I don't even know
what that is- they explained it was the Intelligence Service of the Armed Forces of the Philippines. Why in God's name
would I want to work for them, I said.

20. What were you doing in February, 1970, because we have on our files (and they showed me their thick dossier) a
report that you disappeared for a month then and probably joined the underground.

41. What is your definition of national security?

21. Did We Forum ask you to write for them?

42. What is your definition of press freedom?

22. Are speaking engagements part of your duties as a journalist? Do you consider them hazardous? (I replied that
these were a hazard of the trade, part of being a public figure.)

43. What are the guidelines for responsible journalism? Do you realize that some of your writings are only a hairline
away from subversive writing?

23. Would you care to write about the military? Would you like to visit Samar, Leyte, the PMA?

44. What is subversive writing? (You tell me, I said again.)

24. Did you know that Edgar Jopson was a radical? Why did he become a radical? (You tell me, I told them.

45. Did you mind coming here today? (yes, very much) Thank you for coming. (I didn't thank them so Mr. Arroyo had to
mind my manners for me

25. Are you ever censored or edited?

26. Are you familiar with the problem of brain washing?
27. Don't you think that you are being unwittingly used by those who try to subvert the government?

46. Would you like to come to Baguio or Samar or Leyte, they repeated, and offered me a job again with the OMA
Have you ever written anything favorable about the military? I pointed out the column 'The Human Side of the Military',
written Jan. 30, 1981.
The interrogation was recorded by stenographers seated at the sides and, I suspect, by hidden recorders, why not
indeed? Am I being too cynical? Sorry.

28. Would you are to join the Office of Media Affairs?

29. Do you have children?
30. On that column "Diary of a political detainee", did you check whether the detainees were really fasting?
31. Are you hiding behind your literary devices? Are you evading my question? (this by Maj. Bernardino)

Col. Kintanar repeated about half a dozen times that I should be concemed about the effect my writing has on my
readers and that I was "on the borderline" between legitimate journalism and writing things that arouse the people.
Arouse them to what, I asked? To think, I hope, I said.
My response to the invitation and the interrogation: I am helpless about being insulted but I do not have to smile at the
insults. I was indignant that I was "invited" (with a threat) at all. By what legal authority was I brought there? If they
really wanted a dialogue, they should have invited us as a group to lunch and served decent white wine. (I told them
this.) They ruined my Christmas shopping which was a far more interesting activity for that morning, I firmly believe.

They wished me a happy birthday and I told them I would indeed remember this charming gift the military of my
country gave me practically on the eve of my birthday and Christmas, 1982. (Annex C-1, Petition.)

Maria Ceres P. Doyo wrote an article entitled "40 Years After the "Fall", Bataan is Again Under Siege," which appeared
in the March 28 issue. General Felix said this article is libelous because it casts aspersion on the marines and the PC
and discredits his capability and integrity as a military commander.

The original petition asks that the interrogations be declared unconstitutional and unlawful and that the respondents be
prohibited permanently from engaging in such practices and similar acts.

He quoted the following from the article:

An amended and supplemental petition was filed on March 3, 1984, naming Generals Fabian Ver and Artemio Tadiar,
Jr. as additional respondents. Another prayer was added that the respondents be prohibited from filing libel suits on
matters that been inquired into by the National Intelligence Board.

"In September 1981, military operations in Bataan were stepped up. For many this was the start of a nightmarish
experience. Raid, tortures, arrests, killings. The PC and the marines were trying to flush out so-called subversive
elements."

The additional prayer was made because the petitioners were apprehensive that aside from the interrogations they
would be subjected to other forms of harassment. The BULLETIN TODAY carried the following item in its issue of
January 30, 1983:

General Azada, commanding general of Recom I charged that Doyo's article on Fr. Zacarias Agatep glamorized an
acknowledged enemy of the government and put the military authorities in a bad light by casting aspersions and
apprehensions on the circumstances surrounding the encounter between the PC and NPA where Agatep was killed.

OFFICERS TO FILE LIBEL CHARGES

Coronel, author of the article "Who Killed Bobby de la Paz?" in the Panorama last Dec. 12, questioned the Eascom
pronouncement that the New People's Army (NPA) was responsible for the murder of de la Paz.

Camp Aguinaldo announced yesterday that charges of scurrilous libel will be filed by military officers against the editor
and some staff members and contributors of Philippine Panorama, the Sunday magazine of Bulletin Today.
AFP spokesman Col. Reynaldo Wycoco said the charge stemmed from what the complainants considered as
malicious writings of some staff members and contributors of Panorama on sensitive issues, that maligned them
personally or cast aspersions on their integrity and dignity as military commanders.
Among the complainants are Brign Gen. Victorino Asada of the First Constabulary regional command Brig. Gen.
Bienvenido Felix of Third PC regional command Brig. Gen. Salvador Mison of the eastern command Brig. Gen. Pedrito
de Guzman, while commander of the Eleventh PC regional command in Davao, and other officers.
Solicitor General Estelito P. Mendoza, and other government prosecutors in charge of national security cases have
been consulted on the legal actions to be taken against writers of other newspapers and magazines who have
allegedly committed the same offense.
The spokesman said those to be charged are Domini Torrevillas-Suarez, Panorama editor, Jo Ann Maglipon, writer
contributor; Lorna Kalaw-Tirol, staff writer, Maria Ceres Doyo, writer-contributor, and Sheilah Coronel, staff-writer.

The article said the Eascom 'never conducted any thorough investigation of the case' and that there were
'circumstantial evidence that point to the military's involvement in the slaying.'
General Mison charged that Coronal simply quoted from a leftish group publication, without verifying from the local
military and police authorities on the progress of the actual investigation. (Annex F, Amended Petition.)
In fact respondent Tadiar executed a complaint affidavit dated February 9, 1983, which he filed with the City Fiscal of
Manila. He accused petitioners Domini Torrevillas-Suarez and Ma. Ceres Doyo of libel because of the publication in
PANORAMA of an article entitled "40 YEARS AFTER THE 'FALL', BATAAN IS AGAIN UNDER SIEGE He claimed
damages (other than exemplary damages) in the amount of ten million (P10,000,000.00) pesos which Justice Plana
has described as staggering. Annex G-1, Amended Petition.)
It should be stated also that petitioner Letty Jimenez-Magsanoc once wrote a highly critical article published in
PANORAMA for which she was threatened with libel suits by several highly placed government officials. Mrs. Jimenez
Magsanoc is not with PANORAMA anymore.
Recently a committee of the print media issued a

General De Guzman said Maglipon's article entitled 'Where the Men with Guns Tread Nothing is Left But Charred
Remains and the Skeleton of a Village' which appeared July 4, 1982, in Philippine Panorama, gravely discredited the
soldiers in his command with obvious malicious intent.
The article allegedly contained numerous imputations that government troopers intimidated, tortured, and massacred
innocent civilians belonging to the Atas minority, whom they are sworn to protect, and that they rampaged through their
villages in Davao del Norte, during 1978-1981.
Tirol wrote an article entitled "In this Catholic Country, Is it Being Subversive to Live Out Christ's Gospel?" published
last Nov. 21. The article blamed the military for acts of atrocities on the Church in the Samar provinces, the
complainants said.
In Northern Samar, 'the people had been terrorized by two months of military operations, and that the head of one
dead man was displayed in the poblacion, 35 ears attached to it, dead people were brought to the centers tied to a
pole and then dumped into a pit,' the article was quoted as saying.
Mrs. Tirol, in complete contempt of the military authorities led by General Mison, said that the military "dumps into the
waste basket the letter complaints about military abuses," the complainants said.

STATEMENT OF CONCERN
We view with concern recent developments which threaten the freedom of journalists to report and comment on issues
of public importance.
We are alarmed by the increasing number of libel suits filed against journalists by public officials and the military. This
form of harassment through legal action threatens the citizens' constitutional right to be informed.
This month alone, two libel suits were filed against the Bulletin Publishing Corp., Panorama editor Domini Torrevillas
Suarez, contributor Mauro Avena, and lawyer Lupino Lazaro for the publication of Lazaro's views on the Aquino
assassination and the conduct of the Agrava Board Investigation.
Since the May 14 elections, Mr. & Mrs. received two notices of libel in connection with articles on alleged election
anomalies in Cebu and Leyte.

In 1982, the editor-publisher of We Forum was charged with libel for running a series of articles that questioned the
authenticity of President Marcos' war decorations.
In 1983, five women journalists were threatened with libel suits for exposes on military abuses inPanorama magazine.
One case, against freelance writer Ceres Doyo and editor Torrevillas-Suarez, has actually been filed.
In the same year, Bulletin correspondent Isidro Chammag was charged with libel for his report on military abuses in
Abra.
The provincial press and the foreign press in the Philippines are no less vulnerable to "legalized" harassments. They
have had their share of libel suits, many of which are still pending in the courts.
Suing for libel has traditionally been the defense of aggrieved citizens. Today, however, libel suits have become a
convenient instrument of the state to cow and intimidate journalists through court action. A sad consequence of this is
the blacklisting of journalists by publications wary of libel suits.
We view with alarm the ominous implication of President Marcos' statement in his July 23rd State-of-the-Nation
address which now classifies libel with violence and subversion: "Violence, subversion and libel are not acceptable
weapons of dissent in a democratic society." Side by side with this is the grave threat posed by P.D. 1834 which
makes "unlawful use of publications" punishable by death or life imprisonment.
We strongly protest these continuing assaults on press freedom. We appeal to the authorities concerned to help
restore the people's right to a free press. We affirm our commitment to fair and responsible journalism and our
solidarity with our harassed colleagues.
In the comment submitted for the respondents on the original petition it is argued that the petition is totally devoid of
merit. It contains a prayer for dismissal.
When the case was heard on February 1, 1983, on the issuance of a preliminary injunction, the Solicitor General
submitted a copy of the memorandum of General Fabian C. Ver, Director General and Chairman of the National
Intelligence Board, addressed to respondent Estrada, dated January 19, 1983, which reads as follows:
The Board reviewed the Report of Special Committee No. 2 regarding the series of dialogues you have conducted with
selected members of the media. It expressed satisfaction in the results of the dialogue and noted better mutual
understanding of the respective roles of media and government. In view thereof, such proceedings of Committee No. 2
are hereby ordered terminated. (Rollo, p. 64.)
In the light of the memorandum the Solicitor General said that there was no need for further proceedings on the
matter. Mr. Joker Arroyo, one of the counsels for the petitioners, admitted that the plea for preliminary injunction was
no longer viable. He nonetheless contended that the matter is such importance that the petitioners hope for a definite
ruling on the principal question raised.
The ponencia of Justice Plana declares the petition moot and academic in respect of the interrogations because they
have been abated. He adds a short and mild note of concern I agree with Justice Teehankee that the Court should rule
squarely on the matter.
The Constitution states that "No law shall be passed abridging the freedom of speech, or of the press, " (Art. IV, Sec.
9.) In the instant case the persons who compose Special Committee No. 2 of the National Intelligence Board have
abridged the freedom to speak and the freedom to publish by intimidation and veiled threats addressed to some
members of the press who by their writings have been critical of the government. Their actions are the more odious
and had chilling effects because they were cloaked by a mantle of pseudo legality.

The letter of respondent Estrada to Ms. Babst uses the word "law" twice a law which vests authority in him and
which also authorizes his committee to proceed if Ms. Babst should fail to appear. I have asked and searched but I
have yet to discover the law respondent Estrada had in mind.
The letter uses the word "requested" but in context the request was a thinly veiled command to appear before the
Special Committee for failure to do so is to be considered as a waiver (of what?) and the committee will have to
proceed in accordance with law (again what law?).
The interrogations were not only offensive to the guarantees of free speech and free press, they also violated the right
to privacy the right to withhold information which are nobody's business. Note, for example, that Ms. Babst was asked
if she was really a nun, if she practised Zen, why she left the Catholic religion, etc.
In the case of Ms. Babst it could be asked why she honored the "request" and discussed even impertinent and
personally intrusive questions when she had the legal services of Atty. Joker Arroyo. It should be recalled that the
interrogation took place on December 22, 1982, and on that date the WE FORUM case was just a few days old and it
should be noted that not only were the staffers of that publication arrested on Presidential Commitment Orders but the
equipment and other properties of the paper were also sequestered. Fear indeed can have a paralyzing effect.
For freedom to speak and to publish to be meaningful, "Not much reflection is needed to show that these freedoms
would be nullified if a person were allowed to express his views only on the pain of being held accountable. That would
be to stifle the expression of opinions which are repugnant or contrary to the current political, economic, or moral
views. The right to dissent becomes non-existent. To expose the party availing himself of freedom of speech or of the
press to run the risk of punishment is to make a mockery of our commitment to the free mind." (Fernando, The Bill of
Rights, p. 131 [1972].)
I also want to put on record what Professor Archibald Cox of Harvard Law School (formerly Solicitor General of the
United States and as Watergate Special Prosecutor one of the victims of the Saturday night "massacre") said when he
pleaded for forbearance to those who were disrupting a teach-in on Vietnam in March of 1971:
My name is Archibald Cox. I beseech you to let me say a few words in the name of the President and Fellows of this
University on behalf of freedom of speech. For if this meeting is disrupted-hateful as some of us may find it then liberty
will have died a little and those guilty of the disruption will have done inestimable damage to the causes of humanity
and peace.
Men and women whose views aroused strong emotions-loved by some and hated by others have always been
allowed to speak at Harvard-Fidel Castro, the late Malcolm X, George Wallace, William Kuntsler and others. Last year,
in this very building, speeches were made for physical obstruction of University activities. Harvard gave a platform to
all these speakers, even those calling for her destruction. No one in the community tried to silence them, despite
intense opposition.
The reason is plain, and it applies here tonight. Freedom of speech is indivisible. You cannot deny it to one man and
save it for others. Over and over again the test of our dedication to liberty is our willingness to allow the expression of
Ideas we hate. (33 Harvard Law School Bulletin, No. 1.)
It is now well-settled that prohibition can be issued in the sound discretion of the court in order to prevent oppressive
enforcement of the criminal law. (Dimayuga and Fajardo vs. Fernandez, 43 Phil. 304 [1922].) Upon the other hand, the
reasons advanced by Justice Plana why prohibition should not be issued are based on technical and ignore equitable
grounds. He forgets that prohibition is a prerogative and an equitable writ.
In the light of the foregoing, I place on record my condemnation of the interrogations. They were violative of the
freedoms of speech, press and privacy. They were the proper objects of prohibition or injunction. Similarly, any libel
suit, whether civil or criminal, on matters inquired into in the interrogation can also be prohibited.

I close with this statement. The Armed Forces of the Philippines is an honorable and distinguished institution. Mt.
Samat, Corregidor and the Libingan Ng Mga Bayani are monuments to the uncommon valor of its gallant, brave and
patriotic members. Let not the shining image of the Armed Forces of the Philippines be tarnished by some of its
members who by their excessive zeal subordinate the rights they are sworn to protect to the imagined demands of
national security, to borrow a phrase from Senator Emmanuel Pelaez.

courts, based on authoritative doctrines. Thus: "While under the circumstances a ruling on the merits of the petition for
certiorari is not warranted, still, as set forth at the opening of this opinion, the fact that this case is moot and academic
should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the
part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required." 7
1. Fortunately, there is a case that serves such a purpose. I refer to Lopez v. Court of Appeals. 8 It deals with a civil
action for libel, but the principles therein enunciated apply as wen to criminal prosecutions. As was set forth early in
the opinion of the Court: "It is on the freedom of the press that petitioners would stake their case to demonstrate that
no action for libel would he arising from the publication of the picture of respondent Cruz Identified as responsible for
the hoax of the year, when such was not the case at all. It is easily understandable why No liability would be incurred if
it could be demonstrated that it comes within the well-nigh all-embracing scope of freedom of the press. Included
therein is the widest latitude of choice as to what items should see the light of day so long as they are relevant to a
matter of public interest, the insistence on the requirement as to its truth yielding at times to unavoidable inaccuracies
attendant on newspapers and other publications being subject to the tyranny of deadlines. If no such showing could be
plausibly made, however, it is difficult to resist the conclusion that there was in fact the commission of such quasidelict." 9

Separate Opinions
FERNANDO, C.J., concurring:
The opinion of the Court penned by Justice Plana, written in his usual lucid style, is entitled to commendation. It is
characterized by fealty to what has long been accepted as the task incumbent on the judiciary, namely, to resolve
disputes. There is no departure from the practice very much in evidence in the United Kingdom and many
Commonwealth countries. As pointed out by him: "The petition is premised upon the alleged illegality and
unconstitutionality of the issuance by respondent NIB to petitioners of letters of invitation, their subsequent
interrogation, and the filing of the aforementioned libel suit." 1 Why it cannot be granted is made clear in these words:
"The assailed proceedings have come to an end. The acts sought to be prohibited (i.e., the issuance of letters of
invitation and subsequent interrogations) have therefore been abated, thereby rendering the petition moot and
academic as regards the aforesaid matters." 2 As he further stated in the latter portion of the opinion: "Fortunately, the
NIB director general and chairman saw the wisdom of terminating the proceedings and the unwelcome interrogation."

After pointing out the moot and academic character of the petition, Justice Plana, noted that "ordinarily an invitation to
attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure" is not per
se illegal or unconstitutional and hence free from objection. Then he made the apt observation that under the
circumstances at present obtaining, it can be viewed "as an authoritative command which one can only defy at his
peril, especially where, as in the instant case, the invitation carries the ominous warning that 'failure to appear * * *
shall be considered as a waiver * * * and this Committee will be constrained to proceed in accordance with law.'" 4 To
this extent, there is conformity to what t also has been traditional in this jurisdiction. This Court whenever an occasion
calls for it, has given expression to views indicative of its appraisal of how to avoid the at times thin line separating
what is juridically impeccable from that which may give rise to well-founded doubts as to its legality or at the very least
cast a reflection on the ways of the law. What this Court or a member thereof says then maybe be of persuasive
character.
Why prohibition will not issue with respect to the libel charges pending in court against petitioners and suits of a similar
character that could be filed, Justice Plana explained ill this manner: "Firstly, the writ of prohibition is directed against a
tribunal, board or person acting without or in excess of jurisdiction or with grave abuse of discretion vis-a-vis certain
proceedings pending before it. The libel cases adverted to are not pending before respondent NIB or any other
respondent. Secondly, the issue of validity of the libel charges by reason of their alleged collision with freedom of
expression, is a matter that should be raised in the proper forum, i.e., before the court where the libel cases are
pending or where they may be filed. Finally, the right to seek redress when libeled is a personal and individual privilege
of the aggrieved party, and no one among the respondent officials has the authority to restrain any of his subordinates
who has been libeled from vindicating his right by instituting a libel suit." 5
In terms of the tried and tested concepts of strict law, it thus becomes obvious why concurrence is unavoidable. This
Tribunal, however, is likewise a court of equity. It is reliance on that aspect that distinguishes the separate opinions of
Justices Teehankee and Abad Santos. True to the tradition that cases on freedom of expression furnish the opportunity
for moving utterances, they stress in language both lofty and persuasive, the exacting responsibility of the judiciary in
preserving unimpaired press freedom. They have done me the honor of citing or referring to excerpts from my opinions
as well as my other writings. I am, of course, appreciative. Moreover, there has been no change of heart on my part. I
stand by them. I am unable, however, to go as far as they would wish this Court to go. It is my considered opinion that
it suffices that I follow what, as ponente, I did in De la Camara v. Enage, 6 namely to furnish guidelines for the lower

2. Further on the question of the decisive character of press freedom in the adjudication of libel suits, the Lopez
opinion had this to say: "There is an impressive recognition in our decisions of the curtailment to which press freedom
would be subjected if an action for libel were not rigorously scrutinized to remove doubts as to its being utilized to
penalize the exercise of that constitutional right. Thus, in the first leading case, United States v. Bustos, Justice
Malcolm could correctly stress: 'The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the absences of officialdom. Men in public life may suffer under a
hostile and an unjust accusation: the wound can be assuaged with the balm of a clear conscience. A public officer
must not to be too thin skinned with reference to comment upon his official acts. Only thus can the intelligence and
dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as an individual
is less than the State, so must expected criticism be born for the common good.' On this aspect of the question which,
as answered by him, would require that a criminal suit for libel should not be utilized as a means for stifling press
freedom, he categorically declared: 'Public policy, the welfare of society, and the orderly administration of government
have demanded protection for public opinion. The inevitable and incontestable result has been the development and
adoption of the doctrine of privilege.'" 10
3. So it is in the United States except for the fact that it was not until 1964, 36 years after Bustos, that its Supreme
Court had occasion to rule likewise. To quote anew from the Lopez opinion: "In the leading case of New York Times
Co. v. Sullivan, the nature of the question presented was set forth by Justice Brennan for the Court in the opening
paragraph of his opinion: 'We are required in this case to determine for the first time the extent to which the
constitutional protections for speech and press a State's power to award damages in a libel action brought by a public
official against critics of his official conduct.' This is the Court's approach to such an issue: 'In deciding the question
now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to
other "mere labels" of state law. * * * Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the various other formulas for the repression of expression that have been
challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by
standards that satisfy the First Amendment.' Continuing the Elaine trend, the opinion stressed further: 'Thus we
consider this case against the background of a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it may well include vehement caustic, and sometimes
unpleasantly sharp attacks on government and public officials. * * * The present advertisement, as an expression of
grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional
protection.'" 11
4. The test to be followed, according to the language of the New York Times decision, as reinforced by Curtis
Publishing Co. v. Butts, was set forth thus in the Lopez opinion: "For liability to arise then without offending press
freedom, there is this test to meet: 'The constitutional guarantees require, we think, a federal rule that prohibits a
public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that
the statement was made with "actual malice" that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.' The United States Supreme Court went further in Curtis Publishing Co. v. Butts, where
such immunity was held as covering statements concerning public figures regardless of whether or not they are
government officials. Why there should be such an extension is understandable in the light of the broad scope enjoyed

by press freedom which certainly allows a full and free discussion of public issues. What can be more logical and
appropriate, then, than such an expansion of the principle. As noted by a commentator: 'Since discussion of public
issues cannot be meaningful without reference to the men involved on both sides of such issues, and since such men
will not necessarily be public officials, one cannot but agree that the Court was right in Curtis to extend the Times rule
to all public figures.'" 12
5. Accordingly, the Lopez opinion could rightfully stress: "The significance of the foregoing line of decisions impressive
for their consistency is quite obvious. No inroads on press freedom should be allowed in the guise of punitive action
visited on what otherwise could be characterized as libel whether in the form of printed words or a defamatory
imputation resulting from the publication of respondent's picture with the offensive caption as in the case here
complained of. This is not to deny that the party responsible invites the institution either of a criminal prosecution or a
civil suit. It must be admitted that what was done did invite such a dire consequence, considering the value the law
justly places on a man's reputation. This is merely to underscore the primacy that freedom of the press enjoys. It ranks
rather high in the hierarchy of legal values. If the cases mean anything at an then, to emphasize what has so clearly
emerged, they call for the utmost care on the part of the judiciary to assure that in safeguarding the interest of the
party allegedly offended, a realistic account of the obligation of a news media to disseminate information of a public
character and to comment thereon as well as the conditions attendant on the business of publishing cannot be
ignored." 13
6. There is no ambiguity in the above authoritative doctrines. Press freedom is a preferred right. 14 It is entitled to the
fullest protection that the law affords. A person who deems himself aggrieved by defamatory statements is of course
entitled to seek redress in the courts Nonetheless, in the felicitous language of the New York Times decisions "libel
can claim no talismatic immunity from constitutional limitations. " While there is an undeniable public interest in
assuring that a man's reputation be safeguarded from calumny and unjust accusation, on matters of public concern,
he cannot be shielded from the scrutiny of the press and the expression thereafter of whatever failings it might uncover
on matters of public concern. Care is to be taken, however, that in its publication there is avoidance of affirming what is
not true or disregarding in a manner deemed reckless to take the necessary steps of ascertaining its truth or falsity.
That is as it should be. Justice Holmes, in his classic dissent in Abrams, after stressing that the ultimate good desired
is better reached by a free trade of Ideas, and that there should be the competition in the open market, was insistent
that truth is the only ground upon which man's wishes can be safely carried out. 15 Professor Emerson, at present the
foremost scholar in the held, emphasized the value of freedom of expression as "an essential process for advancing
knowledge and discovering truth." 16
7. There is no more exacting duty on the part of the judiciary, therefore, than to heed the clear and unmistakable
mandate of the Constitution in passing upon the conflicting claims of the parties in libel cases. To repeat, the law
cannot ignore a man's inherent right to have his reputation remain free from unjustified and unwarranted imputations
of wrongdoing. Nonetheless, because of the primacy enjoyed by the free speech and free press guarantees of the
Constitution, even on the assumption that there has been injury to man's reputation, the damages to be assessed, if at
all warranted, should not be lacking in the quality of realism. The same sense of realism should likewise be displayed
by the plaintiff in a libel suit in estimating the amount due him for the injury inflicted on his good name. The times are
difficult, even perilous. It is of the essence, therefore, that there be on the part of public officials and journalists alike an
attitude of trust and confidence in the good faith that motivates them in the discharge of their responsibilities. Such an
attitude may lessen the atmosphere of confrontation and dissipate the fear that press freedom has become a casualty
under the circumstances. It is for the judiciary to be ever on the alert that such be not the case.
TEEHANKEE, J., dissenting:
I am constrained to dissent on the grounds, as hereinafter stated, that rather than dismiss as moot and petition at bar
due to termination of respondent committee's interrogation proceedings, the Court should rule squarely or at least lay
down the authoritative and controlling doctrines on the vital issues of profound public importance and interest that
involve the upholding of the preferred freedoms of speech and press that are so vital for the survival of our democratic
heritage and the prescribing of the questioned acts of harassing and intimidating journalists who expose and report on
complaints of military abuses.
Petitioners, all in mass media as editors, columnists, reporters or feature article writers, filed on January 25, 1983 the
verified petition for prohibition against respondent National Intelligence Board, Special Committee No. 2, and its
Chairman and members, all composed of ranking military officers, save respondent NBI Assistant Director Ponciano

Fernando. They complain that "some of them have received summonses, subpoenas or directives from military
authorities who have subjected them to sustained interrogation, touching the most delicate aspects of their work,
feelings, sentiments, beliefs, associations and even aspects of their private lives. From August to December of 1982,
several such subpoenas were received by some of the petitioners, most of which came in the wake of the mass arrest,
indictment and prosecution of the editor and staff of the publication 'We Forum', which could be read as a threat that
petitioners might also be subjected to similar treatment and that those "who have been subjected to the aforesaid
sustained interrogation found it an ordeal creating a 'chilling effect' on their work."
Invoking the preferred freedom of the press which constitutionally protects them from prior restraint or censorship or
subsequent punishment or liability unless there be a clear and present danger of substantive evil that may be rightfully
prevented by law, and disregarding emphatic admonitions by their interrogators to keep silent concerning the
interrogation and the risk of possible personal reprisal, they have petitioned of this Court for the writ of prohibition with
injunction. Petitioners ask the Court to put a stop to such summonses' directives and interrogations by respondents
and to declare them "unconstitutional and unlawful Petitioners further ask the Court to likewise put a stop to "further
harassment in the form of scurrilous libel suits to be filed by military commanders against the editor, some staff
members and contributors of Philippine Panorama (Sunday magazine of Bulletin Today), as per official announcement
of Camp Aguinaldo reported on January 30, 1983. 1 By Amended and Supplemental Petition of March 3, 1983,
petitioners pinpoint the criminal libel complaint "with a staggering P10-million claim for damages" (as against the
modest P250.00 fee received by the writer) filed on February 9, 1983 with the City Fiscal of Manila by Brig. Gen.
Artemio A. Tadiar, Jr. (as Commanding General of the Third Philippine Marine Brigade, AFP) against petitioners
Domini Torrevillas Suarez and Ma. Ceres P. Doyo, editor and writer, respectively, for the alleged libelous article "Forty
Years After the Fall Bataan is Again under Seige" which was published a year before in the Philippine Panorama issue
of March 28, 1982. 2The criminal information for libel, Crime Case No. 83-16213 was filed with the Regional Trial Court
of Manila on March 24, 1983 and sought P l0-million "by way of actual, moral, exemplary and other damages" for the
complainant Brig. Gen. Tadiar for having been "expos[ed] . . . to public hatred, contempt, discredit, dishonor and
ridicule.") 3
At the hearing on February 1, 1983, the Solicitor General on behalf of respondents submitted the memorandum dated
January 19, 1983 of respondent General Fabian C. Ver as Director General and Chairman of the National Intelligence
Board terminating the proceedings of respondent Committee No. 2 and stating that after reviewing the report of said
Committee on "the series of dialogues [you] have conducted with selected members of the media the Board
"expressed satisfaction in the results of the dialogues and noted better mutual understanding of the respective roles of
media and government. "
The Court's majority resolution dismisses the petition as having become moot and academic with the termination of
respondent Committee's proceedings and interrogations.
Petitioners on the other hand, invoke the imperatives of public interest in their petition and plead for a definite ruling
thereon from the Court so that the violations of their constitutional rights of free press and speech and privacy may not
be repeated.
Petitioners are entitled to such a definite ruling. In the words of the late Chief Justice Fred Ruiz Castro in Aquino, Jr. v.
Enrile, 4 "the fact that a final determination of a question involved in an action is needed will be useful as a guide for
the conduct of public officers or tribunals is a sufficient reason for retaining an action which would or should otherwise
be dismissed. Likewise appeals may be retained if the questions involved are likely to arise frequently in the future
unless they are settled by a court of last resort.
This was also my submittal in my dissents in the recent habeas corpus cases of Renato Caete 5 and Aristedes
Sarmiento. 6 In these cases, the military authorities had refused to release the detainees despite their acquittal by the
trial courts on the ground that "only the President of the Philippines can order (their) release since (they are) being
detained pursuant to a PCO." The charges against them were found to be bereft of basis and evidence.
In Caete's case, the trial court granted his motion to dismiss the case of illegal possession of subversive documents
for insufficiency of the prosecution's evidence. In Sarmiento's case, the trial court dismiss the subversion charges for
"utter worthlessness of evidence," so much so that Mr. Justice Felix V. Makasiar suggested that "(T)he military
establishment should inquire into whether the President was deceived into issuing the PCO and who initiated the
arrest of the couple without supporting evidence." The detainees were released by the military only when the PCO's
were lifted after the lapse of several months since their acquittal and the Court's majority ordered the dismissal of the

cases as having become moot. I maintained in line with a host of precedents that the basic issue of whether a
judgment of acquittal prevails over the PCO should be squarely resolved rather than emasculated with the dismissal of
the cases in order to avoid countless other Caetes and Sarmientos.
In De la Camara vs. Enage 7 (where petitioner-accused had escaped from jail, apparently in desperation due to the
excessive and exorbitant bail fixed by respondent judge of almost P2.5-million rejected by the now Chief Justice
therein as a sanctimonious avowal of respect for a mandate of the Constitution . . . on a purely verbal level when the
Department of Justice had recommended P40,000 bail for the two offenses the Court held that "the fact that this case
is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable . . . for
the guidance of lower court judges, the controlling and authoritative doctrines that should be observed in according full
respect to constitutional rights. While we dismissed the case as moot with petitioner's escape, the Court nevertheless
squarely ruled that the constitutional right to bail should not be rendered nugatory with the imposition of excessive bail
and declared the challenged order as having "reduced the right to bail to a barren form of words . . . absolutely bereft
of support in law."

petition, the questions asked by the military are in themselves punishment far beyond the ken of prison walls. But
harassing the individual concerned out of the rooms, in the privacy of their habitations, we wish the whole country
could stand to say that what you, the Military, which is sworn to protect the freedom and liberty of the citizens of this
country, could really exercise that to the benefit of each and every citizen, because when a citizen's freedom is
jeopardized, endangered, that also affects you personally and your children, and your grandchildren. So that, Your
Honor, I wish now to intervene here and say, Military, please change your proceedings, your actuations and exercise
your duties as you are sworn to defend the freedom and liberty of your country and of the citizens of the land. Thank
you. 10
As to the prohibition suit against the criminal libel suit initiated by respondent Brig. Gen. Tadiar with a claim of P10
million damages, the majority resolution dismisses the petition on the grounds that (1) the libel case is not pending
before respondent NIB; (2) the lack of cause of action or non- existence of a criminal offense should be raised in the
proper forum, i.e. the court where the libel case is pending; and (3) respondent Brig. Gen. Tadiar has filed the libel
case "in his personal capacity" in the exercise of "a personal and individual privilege of the aggrieved party."

I hold then with Mr. Justice Vicente Abad Santos, and as intimated by the majority resolution when it noted that
"fortunately, the NIB director general and chairman saw the wisdom of terminating the proceedings and the
unwelcome interrogations" 8 that the "invitations" and interrogations were violative of the freedoms of speech, press
and privacy and proper objects of the petition at bar for prohibition with injunction. The Court should so rule, setting
forth as in De la Camara for the guidance of lower court judges the controlling and authoritative doctrines that
safeguard the preferred freedoms of press and speech and making of record the Solicitor General's assurance and
"commitment" at the hearing that no further interrogations of journalists would take place and that "there will be no
other committees that will be created for the same purpose."

The Resolution has thus adopted the conventional approach of requiring that the invalidity of the libel case be raised in
the Regional Trial Court (which has not been impleaded, as the information had not yet been filed at the time of the
filing of the Amended and Supplemental Petition) and first passed upon by said court.

The Chief Justice (then Associate Justice) had in the 1969 case of Gonzales vs. Comelec 9 collated precedents and
jurisprudence and restated such controlling principles, as follows:

And this direct approach is required now. The Chief Justice himself in a lecture at the National Press Club last July,
observed that about thirteen years ago (before martial law) fiscals automatically dismissed libel complaints against
newsmen by merely invoking the preferred freedom of the press but that nowadays the prosecutors tend to file such
libel cases against newsmen. It may be added that the prosecutors have cooperated in aggravating the pressure and
intimidation by the new gimmick of including in the criminal information the complainant's claim for astronomical
damages in tens and hundreds of millions of pesos, which the newsman could not possibly even begin to aspire to
earn, even if he lived a hundred lifetimes. It is of common knowledge and practice that such claims for damages were
never before set out in specific amounts in the information nor have the courts been known to have ever granted
before awards for damages in such punitive and fantastic amounts, "the usual practice being more likely to reduce
damages for libel than to increase them. 11

... There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger
of substantive evil that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring
individual self-fulfillment, of attaining the truth, of securing participation by the people in social including political
decision-making, and of maintaining the balance between stability and change. The trend as reflected in Philippine
and American decisions is to recognize the broadest scope and assure the widest latitude to this constitutional
guaranty. It represents a profound commitment to the principle that debate of public issues should be uninhibited,
robust, and wide-open. It is not going too far, according to another American decision, to view the function of free
speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger."
Freedom of speech and the press thus means something more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, to take refuge in the existing climate of opinion on any
matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not more, for
those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that
we hate, no less than for the thought that agrees with us.
The special appeal made by revered Law Professor Gerardo Florendo at last year's hearing of February lst is herein
likewise reproduced for the record:
... With your indulgence, most Honorable Supreme Court Justices, I am appearing here for the first time in view of the
importance of the question here to be ventilated before the great and august Body, of the Supreme Court, for unless
the petition is upheld by the Supreme Court, neither the freedom of the Supreme Court Justices nor of the defendantattorneys can be protected, much less my freedom as a civilian and mere citizen of this great Republic of the
Philippines. So, as I'm here, Your Honor, to add to my weak voice, at the advanced age of 87 years, so that before I
pass out of this world into the great beyond, no one can say a voice no matter how big (sic). For indeed, reading the

But this Court has set aside procedural niceties in the past and cut the gordian knot and directly gave its final
determination particularly when necessary as a guide for the conduct of public officers and tribunals and to forestall
needless congestion of the court's dockets with the likelihood of numerous future similar cases being filed.

Lawyer-columnist Apolonio Batalia comments that "(M)ost of the stories appearing in the periodicals are about
government and many of them tend to offend government officials. If a newsman is fearful of being indicted for libel, he
writes less freely and doctors the facts to make them inoffensive to certain government officials even if he thinks that it
is not correct to do so. But he is afraid of risking exposure to a criminal case." He adds that "(I)f fiscals become fearful
of dismissing complaints on valid grounds, the fear might spread to include not only newsmen but the lower courts as
well. There cannot be that desirable amount of freedom guaranteed by the Constitution if reliance is placed only on
what the Supreme Court will rule in particular cases," and cautions that "(P)ress freedom is the concern of judges,
fiscals, other government officials, writers, and the rest of society, including the possible complainants in libel suits. In
the absence of the will on the part of such people to preserve press freedom, the Supreme Court will be of little utility."
He cites the case of Isidoro Chammag, a Bulletin correspondent in the north: "After he wrote a story about Abra folk
fleeing their homes on account of a military raid on suspected insurgents, he was sued for libel. He did not have the
resources to post bail." 12 His colleagues started a fund campaign to raise bail for him.
In a recent editorial, the Times-Journal decries that "libel suits are being used to harass journalists." It recalls that
"(D)uring the severest period of martial law the Philippine press was kept under tight watch. Not a few editors and
reporters have experienced the quiet terror of an irate phone call from some ranking public official or a less-than
friendly summons from the military. And Filipino journalists are not so dense as to misread such feedback as anything
less than the intimidation it was meant to cause," and points out that "(W)hile the formal lifting of martial law has eased
somewhat the daily pressure on media to rigidly tow the official line, memories of those less-than-shining moments of
Philippine journalism are still vivid in the collective mind of media. Many editors and reporters, especially those of the
mainstream press, still find themselves automatically censoring themselves, sacrificing full disclosure at the altar of
compromise The editorial concludes "(T)hat nuisance suits continue to be used in their place should be cause for

serious worry not only among journalists but also for the public and policy-makers. The lessons of the recent past only
show that corruption and abuse of authority thrives best when the press is timid."13
The late Justice Hugo Black of the U.S. Supreme Court in the Pentagon Vietnam Paper's cases (which turned down
the U.S. Government's plea for injunction against the publication of the papers in the name of national security) had
stressed that "(T)he press was to serve the governed, not the governors. The Government's power to censor the press
was abolished so that the press would remain forever free to censure the Government. The press was protected so
that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively
expose deception in government. ... ." 14
As already indicated, the Court should now set forth once again the controlling and authoritative doctrines that the
Court, even ahead of the U.S. Supreme Court, had first enunciated in the 1918 landmark case of U.S. vs. Bustos15 on
the protected right of fair comment on the official acts of public officers thus: "The interest of society and the
maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom Men in public life may suffer under a hostile and an unjust accusation: the wound can be assuaged with the
balm of a clear conscience. A public officer must not to be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize
defamation. Nevertheless, as an individual is less than the State, so must expected criticism be born for the common
good."
Given this approach, the first ground above cited of the majority resolution for not ruling now on the Tadiar libel suit
may be easily remedied with the Court's considering as formally impleaded as party respondents the Regional Trial
Court where the case is pending as well as the People (who is after all represented by the Solicitor General) which is
the party plaintiff in all criminal cases.
The third above-cited ground that respondent Gen. Tadiar has filed the libel case "in his personal capacity" is not
borne out by the record. The information filed recites that the libel was committed against "the character, honesty,
integrity, virtue and reputation of Brigadier General Artemio A. Tadiar, Jr., Commanding General of the 3rd Philippine
Marine Brigades, Armed Forces of the Philippines, both as a man and as an officer in the Armed Forces of the
Philippines," and that the article's "false, defamatory and libelous statements (which) impute to the officers and men of
the 4th Marine Battalion a unit of the Third Philippine Marine Brigade under the command of Brig. Gen. Artemio A.
Tadiar, Jr., the commission of the crimes of murder, homicide, arbitrary detention, illegal arrests and searches,
maltreatment and other acts of oppression, terrorism, abuse of authority and acts of misconduct unbecoming of
military officers and members of the Armed Forces of the Philippines," although it claimed P lO-Million damages on
Brig. Gen. Tadiar's behalf.
There is no question then that respondent Gen. Tadiar felt libelled because the article's narration of misdeeds
reportedly committed by officers and men under his command in Bataan (false and defamatory statements, according
to his complaint) reflected upon him as the commanding general. Petitioners complain then that if respondents AFP
Chief of Staff and NIB had "expressed satisfaction in the results of the dialogues and noted better mutual
understanding of the respective roles of media and government," respondent Tadiar could not take a stance opposite
that of his superiors and that "conflict of interests arise and national policy considerations would thereby be ignored by
General Tadiar's action. The assurance of the Solicitor General that petitioners would not be subjected to further
interrogations would be meaningless. If that were snowed, it would appear that the Armed Forces of the Philippines,
thru its Chief of Staff, terminated the interrogations of newspaperwomen with its left hand only to hit them with libel
suits with its right hand. What one cannot do directly, he cannot do indirectly." 16Petitioner Doyo's offending article is
attached to the record and appears to bear out their contention that a principal element of libel is here absent: that of
Identification or Identifiability. Thus, petitioners submit that "(A)n examination of the allegedly libelous article would
disclose that respondent General Tadiar is not mentioned at all even inferentially, indirectly, parenthetically,
tangentially, or peripherally in the allegedly libelous article; nor is it even suggested that he was in command of the
troops." 17
The Court has long adopted the criterion set forth in the U.S. benchmark case of New York Times Co. vs.
Sullivan18 that "libel can claim no talismanic immunity from constitutional limitations" that protect the preferred
freedoms of speech and press. Sullivan laid down the test of actual malice, viz. "(T)he constitutional guaranty of
freedom of speech and press prohibits a public official from recovering damages for a defamatory falsehood relating to

his official conduct unless he proves that the statement was made with 'actual malice that is, with knowledge that it
was false or with reckless disregard of whether it was false or not." Particularly applicable to respondent Tadiar's
complaint is the declaration that there is no legal alchemy by which a State may create a cause of action for libel "by
transmitting criticism of government, however impersonal it may seem on its face, into personal criticism and hence,
potential libel, of the officials of whom the government is composed ... We hold that such a proposition may not
constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of
an official responsible for those operations."
Ultimately, the core issue is whether or not the article on Bataan is constitutionally protected as fair comment on
matters of public interest involving military conduct and operations and therefore not actionable as libel, criminally or
civilly. As former Chief Justice Ricardo Paras pointed out in Quisumbing vs. Lopez, 19 so long as there is no personal
ill will, self-seeking motive or actual malice or abuse of press freedom, "the newspapers should be given such leeway
and tolerance as to enable them to courageously and effectively perform their important role in our democracy. " The
ground rules and limits of the Constitution are there and should be applied and respected by all concerned in all cases,
and not on a case by case basis if the fundamental rights of free speech and press are to be upheld and enhanced
and the courts not rendered "of little utility."
The ringing words of the late Justice Jose Abad Santos, hero and martyr of the Japanese invasion of the Philippines in
World War II, in his dissenting opinion in People vs. Rubio 20 against the majority decision that to his mind "set at
naught constitutional principles" against the issuance of general search warrants give us, mutatis mutandis, a fitting
admonition:
The internal revenue agents concerned in this case have shown commendable zeal in their efforts to protect the
revenues of the Government; but this same zeal, if allowed to override constitutional stations would become
"obnoxious to fundamental principles of liberty." And if we are to be saved from the sad experiences of some countries
which have constitutions only in name, we must insist that governmental authority be exercised within constitutional
limits; for, after all what matters is not so much what the people write in their constitutions as the spirit in which they
observe their provisions.
ABAD SANTOS, J., dissenting.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or
your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all
opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says
that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your
power or your premises. But when men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better
reached by free trade in Ideas that the best test of truth is the. power of the thought to get itself accepted in the
competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at
any rate, is the theory of our Constitution. It is an experiment as an life is an experiment. Every year, if not every day,
we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part
of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we
loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful
and pressing purposes of the law that an immediate check is required to save the country. (Justice Holmes in Abrams
vs. United States, 250 U.S. 616, 630; 63 US. S.C. Lawyers' Ed. 1173, 1180 [1919].)
The above quotation has relevance to this case which is a petition for prohibition.
When the petition was filed on January 25, 1983, the petitioners were in the mass print media. Some were editors (e.g.
Domini Torrevillas-Suarez of PANORAMA magazine some were columnists (e.g. Arlene Babst of BULLETIN TODAY),
some were feature writers (e.g. Jo-Ann Q. Maglipon), and some were reporters (e.g. Maritess Danguilan-Vitug). As
this is written some of the petitioners have ceased to write regularly such as Ms. Babst and Letty Jimenez-Magsanoc.
The respondents are the members of Special Committee No. 2 of the National Intelligence Board composed of retired
Brigadier General Wilfredo C. Estrada, Brigadier General Renato Ecarma, National Bureau of Investigation Assistant

Director Ponciano Fernando, Colonel Balbino Diego, Colonel Galileo Kintanar, Colonel Eustaquio Peralta, Colonel
Constantino Tigas, and Major Eleonor Bernardino.
Special Committee No. 2 of the National Intelligence Board summoned and interrogated on various dates the following
petitioners:
1. Domini Torrevillas-Suarez
2. Lorna Kalaw-Tirol
3. Ma. Ceres P. Doyo
4. Jo-Ann Q. Maglipon
5. Arlene Babst
6. Ninez Cacho-Olivares
Some of the other petitioners were summoned but had not yet been interrogated when the petition was filed.
Typical of the summonses was the confidential letter sent to petitioner Babst which reads as follows:
Republic of the Philippines
NATIONAL INTELLIGENCE BOARD
Special Committee No. 2
December 20, 1982
Ms. Arlene BABST
Recoletos St., cor Muralia St.
Intramuros, Metro Manila
Madam:
Pursuant to the authority vested in me by law, you are hereby requested to appear before this Special Committee at
Philippine Army Officer's Clubhouse, Fort Bonifacio, Metro Manila, (sketch attached), 9:00 A.M., December 22, 1982,
to shed light on confidential matters being looked into by this Committee.
Your failure to appear on the specified date and place shall be considered as a waiver on your part and this Committee
will be constrained to proceed in accordance with law.
Very truly yours,
(SGD) WILFREDO C. ESTRADA
Brig. General, AFP (Ret.)
Chairman
(Annex A, Petition.)

In an affidavit which Ms. Babst executed on January 15, 1983, she said:
1. I presently work for the Bulletin Publishing Corporation as of the Bulletin Today; as Editorial Page columnist of the
Bulletin Today;
2. In connection with my columns in said publication, I was served on December 20, 1982 a written invitation marked
"Confidential" from Brig. Gen. Wilfredo C. Estrada to appear before the National Intelligence Board, Special
Committee #2, on December 22, 1982, for the stated purpose: "to shed light on confidential matters" with the warning
that my failure to appear 'shall be considered as a waiver on your part and the Committee will be constrained to
proceed in accordance with law;
3. On December 22, 1982, 1 appeared before the Special Committee #2 of the National Intelligence Board composed
of all military personnel who were, namely: Brig. Gen. Wilfredo Estrada, AFP (RET.); Col. Balbino Diego, legal officer of
the Presidential Security Command (PSC); Col. Juanito Fernando of the National Bureau of Investigation (NBI), Col.
Galileo Kintanar of the 15th MIG, ISAFP; Col. Peralta of the CIS; Col. Ecarma, Col. Constantino Tigas of the Ministry
of Information; Maj. Eleonor Bernardino, and a number of other persons, including staff and personnel;
4. The "interrogation" or interview termed by the Panel as a "dialogue" lasted from 9:40 A. M. till about 1:15 P. M. or for
a duration of more than three (3) hours;
5. Through out the proceedings the perceptible objective of the Panel was to intimidate and instill fear in me (as well
as all writers of the press) to the point that we will suppress the truth and not freely write or express my views on
matters of public concern;
6. The proceedings that transpired are stated in a five page "Information Sheet" which I personally executed and is
hereby attached and incorporated as an integral part of this affidavit and bears my authenticating signature on each
and every page thereof;
7. I am executing this affidavit for all legal purposes it may serve. (Annex C, Petition.)
On the interrogation, she wrote as follows:
INFORMATION ON THE INTERROGATION:
1) The invitation was received on Monday evening at the Bulletin Today, Dec. 20, 1982. I later learned that two military
men had gone to my parents' old house in Quezon City, looking for me, and causing much distress in my bewildered
household. Copy of invitation with Atty. Joker P. Arroyo, who subsequently accompanied me to the interrogation.
The invitation was for: WEDNESDAY, DEC. 22, 1982, at 9 a.m., Fort Bonifacio
2) The investigation panel was composed of the following:
a. Brig. Gen. Wilfredo C. Estrada, AFP (Ret.) Chairman of the National Intelligence Board, Special Committee
b. Col. Balbino Diego, Chief, Intelligence and Legal Office, Presidential Security Com.
c. Col. Fernando, National Bureau of Investigation
d. Col. Galilee Kintanar, 15th MIG ISAFP, Bago Bantay

e. Col. Peralta, CIS

Col. Kintanar was the one most concerned with "the effect of your writings on the minds and passions of your
readers."

f. Col. Ecarma
g. Col. Tigas, Ministry of Information
h. Major Babette Bernardino
3) The investigation lasted from 9:40 a.m. till about 1:15 p,m. with a 10 minute coffee break at around 11:20: From 9 to
9:40, we talked informally. Col. Fernando read me Sec. 9 of Article 4 of the Bill of Rights, the section saying that no law
shall be passed to abridge freedom of speech, of the press, or of peaceful assembly BUT, Col. Fernando told me
emphatically, this section was subordinate to that one (which he also showed me saying that police power could
overrule the first section when 'matters of national security' so decree.
QUESTIONS ASKED BY THE INTERROGATORS:

11. After my lawyer,Mr.Arroyo, pointed out that out of some 450 columns, only a few seemed to be questioned by the
board, Gen. Estrada said that even so, a plane cannot fly unless it is 100% in flying condition. I couldn't make out what
he meant by that.
12. What subjects do you write about? (I listed a dozen various topics from feminism to art to philosophy to film to
religion, etc.). Why do you choose them?
13. Who reads your columns at the Bulletin before they are published or not published
14. What kind of mail/feedback do you get
15. Do you mind if we ask about your brother's case? (This in connection with my columns criticizing anomalies in
government and business.)

1. May we call you Arlene?

16. Were you really a nun? When? Where? Why? Why did you leave?
2. What is your marital status
17. Tell us about your Zen, what is it, how do you practice it, where, etc.
3. Would you care to tell us more about yourself? (I said no.)
18. Why did you leave the Catholic religion
4. Tell us about your trips abroad, who financed them, for what purpose, when, which countries have you visited or not
visited, were these for journalistic purposes, who did you travel with?
5. What are the things you consider important to you? (I said, Zen, writing, friendships.)

19. Why do you women writers make Fr. Agatep look like a hero? (I told them I've never even written about him.)
20. What were you doing in February, 1970, because we have on our files (and they showed me their thick dossier) a
report that you disappeared for a month then and probably joined the underground.

6. Ten us about your educational background.

21. Did We Forum ask you to write for them
7. When did you start with the Bulletin aid how did you get your post?
8. Tell us about your previous media positions.
9. They asked specifically about columns on:
Edgar Jopson Wed., Sept. 29,1982
What exactly is press freedom? Fri. Sept. 17, 1982
Fear eats away at the soul, Jan. 10, 1982
and several others in passing
They questioned mostly my attitude, style tone, point of view' in regard to these columns.
10. Don't you think that you should consider the effect of your columns on the mind and passions of your readers? Col.
Diego asked: Why do you write to agitate the mind and arouse the passions?

22. Are speaking engagements part of your duties as a journalist? Do you consider them hazardous? (I replied that
these were a hazard of the trade, part of being a public figure.)
23. Would you care to write about the military? Would you like to visit Samar, Leyte, the PMA?
24. Did you know that Edgar Jopson was a radical? Why did he become a radical? (You tell me, I told them.
25. Are you ever censored or edited?
26. Are you familiar with the problem of brain washing?
27. Don't you think that you are being unwittingly used by those who try to subvert the government?
28. Would you are to join the Office of Media Affairs?
29. Do you have children?
30. On that column "Diary of a political detainee", did you check whether the detainees were really fasting?

31. Are you hiding behind your literary devices? Are you evading my question? (this by Maj. Bernardino)
32. Don't you think your writings make heroes of the very people people the military have such a hard time with?
33. Don't you feel that many groups would like to influence you? (I said, Of course and listed hotel PR groups, the
military, etc.)
34. Who are the writers who have influenced you?
35. What is the name of your novel? What does it mean? How is it selling? Who published it?
36. Did you know that Fr. Agatep was a womanizer? (Who among Filipino men isn't, I replied, words to that effect.)

My response to the invitation and the interrogation: I am helpless about being insulted but I do not have to smile at the
insults. I was indignant that I was "invited" (with a threat) at all. By what legal authority was I brought there? If they
really wanted a dialogue, they should have invited us as a group to lunch and served decent white wine. (I told them
this.) They ruined my Christmas shopping which was a far more interesting activity for that morning, I firmly believe.
They wished me a happy birthday and I told them I would indeed remember this charming gift the military of my
country gave me practically on the eve of my birthday and Christmas, 1982. (Annex C-1, Petition.)
The original petition asks that the interrogations be declared unconstitutional and unlawful and that the respondents be
prohibited permanently from engaging in such practices and similar acts.
An amended and supplemental petition was filed on March 3, 1984, naming Generals Fabian Ver and Artemio Tadiar,
Jr. as additional respondents. Another prayer was added that the respondents be prohibited from filing libel suits on
matters that been inquired into by the National Intelligence Board.

37. Tell us more about Buddhism and Zen and meditation. Is it true you face the wall two hours a day, sitting absolutely
still?

The additional prayer was made because the petitioners were apprehensive that aside from the interrogations they
would be subjected to other forms of harassment. The BULLETIN TODAY carried the following item in its issue of
January 30, 1983:

38. When did you start writing? Why? How?

OFFICERS TO FILE LIBEL CHARGES

39. Your cousin Carmen Sabater said you disappeared in 1970. Why?

Camp Aguinaldo announced yesterday that charges of scurrilous libel will be filed by military officers against the editor
and some staff members and contributors of Philippine Panorama, the Sunday magazine of Bulletin Today.

40. We have a report that you applied for a job at ISAFP in 1973. (They showed me an application form I was
supposed to have filled out and signed; I did not recognize it at all What is ISAFP, I asked them, I don't even know
what that is- they explained it was the Intelligence Service of the Armed Forces of the Philippines. Why in God's name
would I want to work for them, I said.
41. What is your definition of national security?
42. What is your definition of press freedom?
43. What are the guidelines for responsible journalism? Do you realize that some of your writings are only a hairline
away from subversive writing?
44. What is subversive writing? (You tell me, I said again.)
45. Did you mind coming here today? (yes, very much) Thank you for coming. (I didn't thank them so Mr. Arroyo had to
mind my manners for me
46. Would you like to come to Baguio or Samar or Leyte, they repeated, and offered me a job again with the OMA
Have you ever written anything favorable about the military? I pointed out the column 'The Human Side of the Military',
written Jan. 30, 1981.
The interrogation was recorded by stenographers seated at the sides and, I suspect, by hidden recorders, why not
indeed? Am I being too cynical? Sorry.
Col. Kintanar repeated about half a dozen times that I should be concemed about the effect my writing has on my
readers and that I was "on the borderline" between legitimate journalism and writing things that arouse the people.
Arouse them to what, I asked? To think, I hope, I said.

AFP spokesman Col. Reynaldo Wycoco said the charge stemmed from what the complainants considered as
malicious writings of some staff members and contributors of Panorama on sensitive issues, that maligned them
personally or cast aspersions on their integrity and dignity as military commanders.
Among the complainants are Brig. Gen. Victorino Asada of the First Constabulary regional command Brig. Gen.
Bienvenido Felix of Third PC regional command Brig. Gen. Salvador Mison of the eastern command Brig. Gen. Pedrito
de Guzman, while commander of the Eleventh PC regional command in Davao, and other officers.
Solicitor General Estelito P. Mendoza, and other government prosecutors in charge of national security cases have
been consulted on the legal actions to be taken against writers of other newspapers and magazines who have
allegedly committed the same offense.
The spokesman said those to be charged are Domini Torrevillas-Suarez, Panorama editor, Jo Ann Maglipon, writer
contributor; Lorna Kalaw-Tirol, staff writer, Maria Ceres Doyo, writer-contributor, and Sheilah Coronel, staff-writer.
General De Guzman said Maglipon's article entitled "Where the Men with Guns Tread Nothing is Left But Charred
Remains and the Skeleton of a Village" which appeared July 4, 1982, in Philippine Panorama, gravely discredited the
soldiers in his command with obvious malicious intent.
The article allegedly contained numerous imputations that government troopers intimidated, tortured, and massacred
innocent civilians belonging to the Atas minority, whom they are sworn to protect, and that they rampaged through their
villages in Davao del Norte, during 1978-1981.
Tirol wrote an article entitled "In this Catholic Country, Is it Being Subversive to Live Out Christ's Gospel?" published
last Nov. 21. The article blamed the military for acts of atrocities on the Church in the Samar provinces, the
complainants said.

In Northern Samar, "the people had been terrorized by two months of military operations, and that the head of one
dead man was displayed in the poblacion, 35 ears attached to it, dead people were brought to the centers tied to a
pole and then dumped into a pit," the article was quoted as saying.

This month alone, two libel suits were filed against the Bulletin Publishing Corp., Panorama editor Domini Torrevillas
Suarez, contributor Mauro Avena, and lawyer Lupino Lazaro for the publication of Lazaro's views on the Aquino
assassination and the conduct of the Agrava Board Investigation.

Mrs. Tirol, in complete contempt of the military authorities led by General Mison, said that the military "dumps into the
waste basket the letter complaints about military abuses," the complainants said.

Since the May 14 elections, Mr. & Mrs. received two notices of libel in connection with articles on alleged election
anomalies in Cebu and Leyte.

Maria Ceres P. Doyo wrote an article entitled "40 Years After the "Fall", Bataan is Again Under Siege," which appeared
in the March 28 issue. General Felix said this article is libelous because it casts aspersion on the marines and the PC
and discredits his capability and integrity as a military commander.

In 1982, the editor-publisher of We Forum was charged with libel for running a series of articles that questioned the
authenticity of President Marcos' war decorations.

He quoted the following from the article:

"In September 1981, military operations in Bataan were stepped up. For many this was the start of a nightmarish
experience. Raid, tortures, arrests, killings. The PC and the marines were trying to flush out so-called subversive
elements."
General Azada, commanding general of Recom I charged that Doyo's article on Fr. Zacarias Agatep glamorized an
acknowledged enemy of the government and put the military authorities in a bad light by casting aspersions and
apprehensions on the circumstances surrounding the encounter between the PC and NPA where Agatep was killed.
Coronel, author of the article "Who Killed Bobby de la Paz?" in the Panorama last Dec. 12, questioned the Eascom
pronouncement that the New People's Army (NPA) was responsible for the murder of de la Paz.
The article said the Eascom "never conducted any thorough investigation of the case" and that there were
"circumstantial evidence that point to the military's involvement in the slaying."
General Mison charged that Coronal simply quoted from a leftish group publication, without verifying from the local
military and police authorities on the progress of the actual investigation. (Annex F, Amended Petition.)
In fact respondent Tadiar executed a complaint affidavit dated February 9, 1983, which he filed with the City Fiscal of
Manila. He accused petitioners Domini Torrevillas-Suarez and Ma. Ceres Doyo of libel because of the publication in
PANORAMA of an article entitled "40 YEARS AFTER THE 'FALL', BATAAN IS AGAIN UNDER SIEGE He claimed
damages (other than exemplary damages) in the amount of ten million (P10,000,000.00) pesos which Justice Plana
has described as staggering. Annex G-1, Amended Petition.)
It should be stated also that petitioner Letty Jimenez-Magsanoc once wrote a highly critical article published in
PANORAMA for which she was threatened with libel suits by several highly placed government officials. Mrs. Jimenez
Magsanoc is not with PANORAMA anymore.
Recently a committee of the print media issued a
STATEMENT OF CONCERN
We view with concern recent developments which threaten the freedom of journalists to report and comment on issues
of public importance.
We are alarmed by the increasing number of libel suits filed against journalists by public officials and the military. This
form of harassment through legal action threatens the citizens' constitutional right to be informed.

In 1983, five women journalists were threatened with libel suits for exposes on military abuses inPanorama magazine.
One case, against freelance writer Ceres Doyo and editor Torrevillas-Suarez, has actually been filed.
In the same year, Bulletin correspondent Isidro Chammag was charged with libel for his report on military abuses in
Abra.
The provincial press and the foreign press in the Philippines are no less vulnerable to "legalized" harassments. They
have had their share of libel suits, many of which are still pending in the courts.
Suing for libel has traditionally been the defense of aggrieved citizens. Today, however, libel suits have become a
convenient instrument of the state to cow and intimidate journalists through court action. A sad consequence of this is
the blacklisting of journalists by publications wary of libel suits.
We view with alarm the ominous implication of President Marcos' statement in his July 23rd State-of-the-Nation
address which now classifies libel with violence and subversion: "Violence, subversion and libel are not acceptable
weapons of dissent in a democratic society." Side by side with this is the grave threat posed by P.D. 1834 which
makes "unlawful use of publications" punishable by death or life imprisonment.
We strongly protest these continuing assaults on press freedom. We appeal to the authorities concerned to help
restore the people's right to a free press. We affirm our commitment to fair and responsible journalism and our
solidarity with our harassed colleagues.
In the comment submitted for the respondents on the original petition it is argued that the petition is totally devoid of
merit. It contains a prayer for dismissal.
When the case was heard on February 1, 1983, on the issuance of a preliminary injunction, the Solicitor General
submitted a copy of the memorandum of General Fabian C. Ver, Director General and Chairman of the National
Intelligence Board, addressed to respondent Estrada, dated January 19, 1983, which reads as follows:
The Board reviewed the Report of Special Committee No. 2 regarding the series of dialogues you have conducted with
selected members of the media. It expressed satisfaction in the results of the dialogue and noted better mutual
understanding of the respective roles of media and government. In view thereof, such proceedings of Committee No. 2
are hereby ordered terminated. (Rollo, p. 64.)
In the light of the memorandum the Solicitor General said that there was no need for further proceedings on the
matter. Mr. Joker Arroyo, one of the counsels for the petitioners, admitted that the plea for preliminary injunction was
no longer viable. He nonetheless contended that the matter is such importance that the petitioners hope for a definite
ruling on the principal question raised.
The ponencia of Justice Plana declares the petition moot and academic in respect of the interrogations because they
have been abated. He adds a short and mild note of concern I agree with Justice Teehankee that the Court should rule
squarely on the matter.

The Constitution states that "No law shall be passed abridging the freedom of speech, or of the press, " (Art. IV, Sec.
9.) In the instant case the persons who compose Special Committee No. 2 of the National Intelligence Board have
abridged the freedom to speak and the freedom to publish by intimidation and veiled threats addressed to some
members of the press who by their writings have been critical of the government. Their actions are the more odious
and had chilling effects because they were cloaked by a mantle of pseudo legality.
The letter of respondent Estrada to Ms. Babst uses the word "law" twice a law which vests authority in him and
which also authorizes his committee to proceed if Ms. Babst should fail to appear. I have asked and searched but I
have yet to discover the law respondent Estrada had in mind.

In the light of the foregoing, I place on record my condemnation of the interrogations. They were violative of the
freedoms of speech, press and privacy. They were the proper objects of prohibition or injunction. Similarly, any libel
suit, whether civil or criminal, on matters inquired into in the interrogation can also be prohibited.
I close with this statement. The Armed Forces of the Philippines is an honorable and distinguished institution. Mt.
Samat, Corregidor and the Libingan Ng Mga Bayani are monuments to the uncommon valor of its gallant, brave and
patriotic members. Let not the shining image of the Armed Forces of the Philippines be tarnished by some of its
members who by their excessive zeal subordinate the rights they are sworn to protect to the imagined demands of
national security, to borrow a phrase from Senator Emmanuel Pelaez.

The letter uses the word "requested" but in context the request was a thinly veiled command to appear before the
Special Committee for failure to do so is to be considered as a waiver (of what?) and the committee will have to
proceed in accordance with law (again what law?).
The interrogations were not only offensive to the guarantees of free speech and free press, they also violated the right
to privacy the right to withhold information which are nobody's business. Note, for example, that Ms. Babst was asked
if she was really a nun, if she practised Zen, why she left the Catholic religion, etc.
In the case of Ms. Babst it could be asked why she honored the "request" and discussed even impertinent and
personally intrusive questions when she had the legal services of Atty. Joker Arroyo. It should be recalled that the
interrogation took place on December 22, 1982, and on that date the WE FORUM case was just a few days old and it
should be noted that not only were the staffers of that publication arrested on Presidential Commitment Orders but the
equipment and other properties of the paper were also sequestered. Fear indeed can have a paralyzing effect.
For freedom to speak and to publish to be meaningful, "Not much reflection is needed to show that these freedoms
would be nullified if a person were allowed to express his views only on the pain of being held accountable. That would
be to stifle the expression of opinions which are repugnant or contrary to the current political, economic, or moral
views. The right to dissent becomes non-existent. To expose the party availing himself of freedom of speech or of the
press to run the risk of punishment is to make a mockery of our commitment to the free mind." (Fernando, The Bill of
Rights, p. 131 [1972].)
I also want to put on record what Professor Archibald Cox of Harvard Law School (formerly Solicitor General of the
United States and as Watergate Special Prosecutor one of the victims of the Saturday night "massacre") said when he
pleaded for forbearance to those who were disrupting a teach-in on Vietnam in March of 1971:
My name is Archibald Cox. I beseech you to let me say a few words in the name of the President and Fellows of this
University on behalf of freedom of speech. For if this meeting is disrupted-hateful as some of us may find it then liberty
will have died a little and those guilty of the disruption will have done inestimable damage to the causes of humanity
and peace.
Men and women whose views aroused strong emotions-loved by some and hated by others have always been
allowed to speak at Harvard-Fidel Castro, the late Malcolm X, George Wallace, William Kuntsler and others. Last year,
in this very building, speeches were made for physical obstruction of University activities. Harvard gave a platform to
all these speakers, even those calling for her destruction. No one in the community tried to silence them, despite
intense opposition.
The reason is plain, and it applies here tonight. Freedom of speech is indivisible. You cannot deny it to one man and
save it for others. Over and over again the test of our dedication to liberty is our willingness to allow the expression of
Ideas we hate. (33 Harvard Law School Bulletin, No. 1.)
It is now well-settled that prohibition can be issued in the sound discretion of the court in order to prevent oppressive
enforcement of the criminal law. (Dimayuga and Fajardo vs. Fernandez, 43 Phil. 304 [1922].) Upon the other hand, the
reasons advanced by Justice Plana why prohibition should not be issued are based on technical and ignore equitable
grounds. He forgets that prohibition is a prerogative and an equitable writ.

[G.R. No. 117321. February 11, 1998]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON TAN y VERZO, accused-appellant.
DECISION
ROMERO, J.:
May the confession of an accused, given before a police investigator upon invitation and without the benefit of
counsel, be admissible in evidence against him?
Accused-appellant Herson Tan, along with Lito Amido, were charged with the crime of highway robbery with murder
before the Regional Trial Court, Branch 62, of Gumaca, Quezon Province, under an information [1] dated February 8,
1989, which reads as follows:
That on or about the 5th day of December 1988, along the Maharlika Highway at Barangay Tinandog, Municipality of
Atimonan, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping each other, armed with bladed and pointed
weapons, with intent to gain, by means of force, violence, threats and intimidation, did then and there wilfully,
unlawfully and feloniously take, steal and carry away from one Freddie Saavedra, a Honda TMX motorcycle with a
sidecar bearing Plate No. DW 9961 valued at THIRTY THOUSAND PESOS (P30,000.00) Philippine currency,
belonging to the said Freddie Saavedra, to the damage and prejudice of the latter in the aforesaid amount; and that on
the occasion of said robbery and by reason thereof, the said accused, with intent to kill, with evident premeditation
and treachery, and taking advantage of their superior strength and in pursuance of their conspiracy, did then and there
wilfully, unlawfully and feloniously attack, assault and stab with the said weapon said Freddie Saavedra, thereby
inflicting upon the latter multiple stab wounds on the different parts of his body, which directly caused his death.
Contrary to law.
On arraignment, the accused pleaded not guilty to the charge.
The relevant facts established by the prosecution are as follows:

On December 5, 1988, at about 7:00 oclock p.m., tricycle driver Freddie Saavedra went to see his wife, Delfa, at Our
Lady of Angels Academy in Atimonan, Quezon, where the latter is a third year high school student, to inform her that
he will drive both accused to Barangay Maligaya. It was the last time, however, that Freddie was seen alive. When
the latter failed to return that evening, Delfa, as early as 4:30 oclock a.m. of December 6, 1988 inquired on his
whereabouts from relatives and friends. In the course of such inquiry, a certain Arnel Villarama revealed that the
lifeless body of her husband was discovered on the diversion road at Barangay Malinao in Atimonan. Forthwith, they
proceeded to the said place and found him sprawled on the ground with fourteen stab wounds in different parts of his
body.
Meanwhile, relying on the information that an abandoned sidecar of a tricycle was sighted at Barangay Malinao,
Lucena Philippine National Police (PNP) led by Lt. Carlos Santos proceeded to the scene of the crime and recovered
a blue sidecar which they brought back with them to their headquarters. Subsequently, Lt. Santos, Cpl. Numeriano
Aguilar and Pat. Rolando Alandy invited appellant in connection with the instant case and with respect to two other
robbery cases reported in Lucena City. During their conversation, appellant allegedly gave an explicit account of what
actually transpired in the case at bar. He narrated that he and co-accused Amido were responsible for the loss of the
motorcycle and the consequent death of Saavedra. Moreover, he averred that they sold the motorcycle to a certain
Danny Teves of Barrio Summit, Muntinlupa for a sum of P4,000.00. With the help of appellant as a guide, the Lucena
PNP immediately dispatched a team to retrieve the same.
After admitting that it was purchased from both the accused and upon failure to present any document evidencing the
purported sale, Teves voluntarily surrendered it to the police who turned it over, together with the sidecar, to the
Atimonan Police Station for safekeeping.
Lt. Carlos, on cross-examination, testified that when he invited appellant to their headquarters, he had no warrant for
his arrest. In the course thereof, he informed the latter that he was a suspect, not only in the instant case, but also in
two other robbery cases allegedly committed in Lucena City. In the belief that they were merely conversing inside the
police station, he admitted that he did not inform appellant of his constitutional rights to remain silent and to the
assistance of counsel; nor did he reduce the supposed confession to writing. [2]
Appellant, on the other hand, alleged that he had no participation in the offense charged and contended that his only
involvement in the matter was the referral of accused Amido to Teves. He recounted that sometime in December
1988, Amido sought him at his house and told him that the motorcycle he was riding on was being offered for
sale. Upon proof shown that it was indeed registered under Amidos name, he accompanied the latter to Manila on
board the said motorcycle and they approached Antonio Carandang. The latter, thereafter, brought them to a certain
Perlita Aguilar and Danilo Teves with whom the sale was finally consummated. He allegedly received P150.00 as his
commission.
Amido presented alibi as his defense. He alleged that although a tricycle driver by occupation, he was at Barangay
Malusak, Atimonan on the day in question, some seven kilometers from the town, busy assisting in the renovation of
his mothers house. He narrated that the victim was his friend and, therefore, he could not have participated in the
gruesome death of the latter.

Appellant assails the finding of conviction despite failure of the prosecution to positively identify him as the culprit of
the crime and to present clear and convincing circumstantial evidence that would overcome his innocence.
In light of the above facts and circumstances, the appealed decision is set aside and appellant acquitted on the ground
that his constitutional rights were violated.
It is well-settled that the Constitution abhors an uncounselled confession or admission and whatever information is
derived therefrom shall be regarded as inadmissible in evidence against the confessant. Article III, Section 12,
paragraphs (1) and (3) of the Constitution provides:
x x x

xxx

xxx

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.
xxx

xxx

xxx

(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against
him.
Republic Act No. 7438 (R.A. No. 7438),[4] approved on May 15, 1992, reenforced the constitutional mandate protecting
the rights of persons under custodial investigation, a pertinent provision [5] of which reads:
As used in this Act, custodial investigation shall include the practice of issuing an invitation to a person who is
investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the
inviting officer for any violation of law.
Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into
custody or otherwise deprived of his freedom of action in any significant manner. The rules on custodial investigation
begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to
focus a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that
tends itself to eliciting incriminating statements that the rule begins to operate. [6]
Furthermore, not only does the fundamental law impose, as a requisite function of the investigating officer, the duty to
explain those rights to the accused but also that there must correspondingly be a meaningful communication to and
understanding thereof by the accused. A mere perfunctory reading by the constable of such rights to the accused
would thus not suffice.[7]

In a decision dated April 21, 1994, the trial court convicted appellant, the dispositive portion of which reads:
WHEREFORE, premised in the foregoing considerations, this Court finds Herson Tan GUILTY beyond reasonable
doubt of the crime of Highway Robbery with Murder and hereby sentences him to suffer an imprisonment of
RECLUSION PERPETUA. He is further ordered to indemnify the family of the deceased in the amount of Thirty
Thousand Pesos (P30,000.00).
Due to insufficiency of evidence, Lito Amido is hereby ACQUITTED of the charges against him and the Provincial
Warden of Quezon, Provincial Jail, Lucena City, is hereby ordered to release from custody the person of said Lito
Amido, unless he is being detained thereat for some other lawful cause.
SO ORDERED.[3]

Under the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy the following
requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel;
(3) it must be express; and (4) it must be in writing.[8]
While the Constitution sanctions the waiver of the right to counsel, it must, however, be voluntary, knowing and
intelligent, and must be made in the presence and with the assistance of counsel. [9] To reiterate, in People v. Javar,
[10]
it was ruled therein that any statement obtained in violation of the constitution, whether exculpatory or inculpatory, in
whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made
without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even
if it had been voluntarily given.

The records of this case do not indicate that appellant was assisted by counsel when he made such waiver, a finding
evident from the testimony of Lt. Santos on cross-examination, thus:

immediate release from confinement is hereby ordered, unless there is any other lawful cause for continued
detention. Costs de oficio.

Q Now, when you brought Herson Tan to the Headquarters, did you tell him that he is one of the suspects in the
robbery slain (sic) that took place in Atimonan on December 5, 1988?

SO ORDERED.

A Yes, sir, and he was also suspect to the robbery case which was investigated at Lucena Police Station. There
were two (2) cases which were investigated on Herson Tan.
Q Now, so in addition to the Atimonan case, you also took Herson Tan to your custody in connection with another
case that happened in Lucena?
A

Yes, sir.

Q And you happened to have Herson Tan in your list as suspect in both cases because Herson was previously
incarcerated at Lucena City Jail in connection with a certain case, is it not?
A

Yes, sir.

Just for curiosity sake, you invited him in your headquarters, is that what happened in this case?

Yes, sir.

And it just happened that without applying third degree to him he gave you that information?

Yes, sir.

Did you notify him of his constitutional right to counsel before you propounded questions to him?

No, sir, because we are asking question only to him.

G.R. No. 108494 September 20, 1994

Q Before propounding question or information you sought to elicit from him, did you inform him of his constitutional
right not to testify against himself because he is a suspect in these two (2) cases?
A

No, sir, because we were just conversing.[11] (Underscoring supplied)

The evidence for the prosecution shows that when appellant was invited for questioning at the police headquarters, he
allegedly admitted his participation in the crime. This will not suffice to convict him, however, of said crime. The
constitutional rights of appellant, particularly the right to remain silent and to counsel, are impregnable from the
moment he is investigated in connection with an offense he is suspected to have committed, even if the same be
initiated by mere invitation. This Court values liberty and will always insist on the observance of basic constitutional
rights as a condition sine qua non against the awesome investigative and prosecutory powers of government. [12]
What remains of the evidence for the prosecution is inadequate to warrant a conviction. Considering the
circumstances attendant in the conduct of appellants investigation which fell short of compliance with constitutional
safeguards, we are constrained to acquit the appellant.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Gumaca, Quezon (Branch 62) is
REVERSED and SET ASIDE. Appellant HERSON TAN y VERZO is hereby ACQUITTED of the crime charged and his

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SAMUEL MARRA y ZARATE, ALLAN TAN, alias "Allan Yao,"
PETER DOE, PAUL DOE and TOM DOE, accused.
SAMUEL MARRA y ZARATE, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

REGALADO, J.:
In an information filed before the Regional Trial Court, Branch 43, Dagupan City, Samuel Marra y Zarate, John Doe,
Peter Doe, Paul Doe and Tom Doe were charged with the crime of murder for the fatal shooting of one Nelson Tandoc
on March 7, 1992. 1 On June 4, 1992, an amended information was filed wherein Allan Tan, alias "Allan Yao," was

indicated as an accused instead of John Doe. 2 A warrant of arrest was thereafter issued against Allan Tan 3 but the
same was returned unserved, 4 hence trial proceeded with regard to herein accused-appellant Samuel Marra alone.
Duly assisted by counsel, appellant pleaded not guilty upon arraignment on May 15, 1992. 5 After trial on the merits,
judgment was rendered by the court below on October 8, 1992 finding appellant guilty beyond reasonable doubt of the
crime charged, attended by the aggravating circumstance of nighttime, and sentencing him to suffer the penalty
ofreclusion perpetua. He was further ordered to pay the heirs of Nelson Tandoc the sums of P50,000.00 as death
indemnity, P50,000.00 as actual damages, P100,000.00 as moral damages, and the costs. 6
The prosecution's eyewitness, Jimmy Din, positively identified appellant as the triggerman in the killing of Nelson
Tandoc. Din recounted that at around 2:00 A.M. on March 7, 1992, he and his friend, Nelson Tandoc, were conversing
with each other in front of Lucky Hotel located at M.H. del Pilar Street, Dagupan City, which was owned by the witness'
father and of which he was the administrator. He noticed a man pass by on the opposite side of the street. The man
made a dirty sign with his finger and Din informed Tandoc thereof. The man repeated his offensive act and called them
by waving his hands. Infuriated, they followed the man until the latter stopped in front of the Dunkin' Donuts store at
the corner of Arellano and Fernandez streets. They demanded an explanation from the man but they were not given
any. 7
At that instant, two men arrived and one of them inquired what was going on. Tandoc informed him that they were just
demanding an explanation from the man. Din was surprised when Tandoc unexpectedly slapped one of the two men. A
brawl ensued, with Tandoc clashing with the two men while Din exchanged blows with the man who made the dirty
finger sign. After the fisticuffs, their three opponents ran away in a westward direction. 8
Tandoc and Din then decided to walk back to the hotel. When they were about to enter the place, they noticed that the
men with whom they just had a fight were running towards them. Sensing danger, they ran inside the annex building of
the hotel and immediately secured the lock of the sliding outer door. They entered a room and waited until they felt that
the situation had normalized. After ten to fifteen minutes, thinking that the men were no longer in the vicinity, they left
the room. Having decided to go home, Tandoc opened the sliding door. All of a sudden, Din saw Appellant, who at that
time was wearing a security guard's uniform, shoot Tandoc with a revolver. There was a fluorescent bulb installed at
the front of the hotel which enabled Din to identify the assailant. Tandoc was shot in the middle of the chest and he fell
down. Then, Din saw four to five men scamper away from the scene. 9
Aware of his injury, Tandoc told Din, "Tol, I was shot." The latter tried to chase appellant and his companions but he
failed to catch up with them. Din and his wife then brought Tandoc to the Villaflor Hospital. The victim was taken to the
emergency room but he expired an hour later. 10
At about 3:45 A.M. of March 7, 1992, SPO3 Reynaldo de Vera of the Dagupan City Police Station received a report
about a shooting incident at the annex building of the Lucky Hotel. He proceeded to the crime scene along with SPO4
Orlando Garcia, SPO3 Mauricio Flores and SPO3 Noli de Castro. Upon their arrival about five minutes later, they were
informed by the wife of Jimmy Din that the victim had been brought to the Villaflor Hospital. They proceeded to the
hospital where Din informed them that he could recognize the man who killed Tandoc and that the killer was, at that
time, wearing the polo shirt of a security guard's uniform. 11
They decided to proceed to an eatery called "Linda's Ihaw-Ihaw." Seeing the security guard of a nearby bus company,
they inquired from him if he knew of any unusual incident that happened in the vicinity. The guard said that he saw the
guard of "Linda's Ihaw-Ihaw," together with some companions, chasing two persons running towards M. H. del Pilar
Street. He further added that the man was wearing a polo shirt of a security guard's uniform. Asked where that
particular guard might be, he pointed to a man eating inside the eatery nearby. The man eating was not in a security
guard's uniform. 12
They approached the man and inquired whether he was the security guard of "Linda's Ihaw-Ihaw," which the latter
answered in the affirmative. After a series of questions, they learned that he was Samuel Marra, that his tour of duty
was from 7:00 P.M. of a preceding day to 6:00 A.M. the following day, that he was still on duty at around 2:30 in the
morning of March 7, 1992, and that the firearm issued to him was in his house. Upon their request to see the firearm,
they proceeded to Marra's residence at Interior Nueva Street. 13

When they arrived, Marra took a .38 caliber revolver from inside an aparador and handed it to De Vera. De Vera also
found five live bullets and one spent shell. Smelling gunpowder from the barrel of the gun, De Vera asked Marra when
he last fired the gun but the latter denied ever having done so. Abruptly, De Vera asked him point-blank why he shot
Tandoc. Marra at first denied the accusation but when informed that someone saw him do it, he said that he did so in
self-defense, firing at the victim only once. Tandoc allegedly had a samurai sword with him at the time of the incident.
However, persistent efforts on the part of the policemen to thereafter locate said bladed weapon proved futile. Marra
also admitted that prior to the incident, he chased the victim and Din. The officers then took Marra to the police station
where he was detained. 14
Meanwhile, De Vera went to Villaflor Hospital from where he fetched Din and brought him to the police station. There,
Din definitely identified Marra as the assailant. During the investigation, De Vera also found out that Marra had not
firearm license. 15
Dr. Tomas G. Cornel, Assistant City Health Officer of Dagupan City, testified that he conducted an autopsy on a certain
Nelson Tandoc. He found a gunshot wound on the victim with the point of entry of the left side of the anterior chest wall
and the point of exit at the lower left portion of the right shoulder. 16
Prosecutor Gregorio Gaerlan, stepfather of the victim, testified on the funeral, burial and other expenses incurred by
the family. He declared that they paid Funeraria Quiogue P25,000.00 for its services; Villaflor Hospital, P2,875.00 for
the confinement of Tandoc; St. John Memorial Cathedral, P350.00; Eternal Garden, P3,000.00 for the interment fee
and P150.00 for the rent of the tent during the burial; and that they spent P2,300.00 for the video tape expenses and
P11,800.00 for food and drinks during the wake. 17
Understandably, appellant gave a different version of the incident. Marra declared in court that he used to work as a
security guard at "Linda's Ihaw-Ihaw" from seven o'clock in the evening to six o'clock in the morning of the following
day. On March 6, 1992, he reported for duty at seven o'clock that evening as was his usual practice. At around four
o'clock down of the following day, he went home to change his clothes. He proceeded to the Five Star Bus Terminal
which was adjacent to "Linda's Ihaw-Ihaw." He saw Neneng, the cashier of said eatery, and together they
ordered arroz caldo. Later, at about 5:00 A.M., he was approached by four policemen who inquired if he was a security
guard. He answered in the affirmative. He was also asked about his sidearm. When he answered that it was at his
residence, they all went to his house to look for it. After he handed over the firearm to the policemen, he was brought
to the city hall where he was detained. 18
Under cross-examination, he insisted that when he handed the gun to the policeman, there were five live bullets, and
not four live bullets and one empty shell as claimed by the prosecution. Prior to the incident, he had never met Jimmy
Din nor does he know of any cause why Din would harbor any ill feelings against him. 19
After a careful scrutiny of the records and an objective evaluation of the evidence, the Court is not disposed to reverse
the judgment of the lower court, the decision of the latter being amply supported by the established facts and fully
sustained by the applicable law.
In assailing the decision of the court below, the defense argues that "Jimmy Din . . . was not able to identify the
assailant in a definite and believable manner." It goes on to state further that " Jimmy Din was inside the hotel when
Nelson Tandoc was shot and his vision was o(b)structed by the door. Jimmy Din was also not familiar with the
accused. Under the circumstances by which he allegedly witnessed the shooting, how could be identify clearly an
assailant at the distance of 45 meters?" 20
Appellant's counsel is only partly correct, having conveniently failed to mention other vital parts of Din's testimony. An
impartial review of said testimony readily reveals that Din was indeed in a position to know the identity of the assailant.
Firstly, Din knew for a fact that the persons he and Tandoc fought with near the Dunkin' Donuts store were the same
men who chased them while they were on their way back to the hotel because he was able to take a good look at
them. During the chase, he naturally turned around to look at the men who were running after them and who were at
that time in front of the Balingit Trading store which was well-lighted. 21 It logically follows that they were the same
persons who were waiting for them when they later came out of the hotel, and he was familiar with their identities
because of their previous encounter.

Secondly, we do not agree with appellant that the door blocked the view of Din. Said door, partly made of plywood,
had a spring hinge which makes it possible for the door to close by itself. However, at that time the spring hinge had
been weakened by long and constant use such that it would take some time for it to close the door, thereby allowing
Din sufficient opportunity to have an unobstructed view of the scene outside. 22
Thirdly, Din was quite near the victim and appellant, which proximity, enabled him to clearly see what really happened.
He thus readily perceived the actual shooting at the time when Tandoc pushed the door open. At that precise moment,
Din was at the left side of Tandoc and about four to five meters away from the assailant. 23
Lastly, the place was brightly illuminated by a 20-watt fluorescent bulb installed on the outside wall in front of the hotel.
Marra was only about three meters away therefrom. Such physical conditions would undeniably afford a clear view
from inside the hotel of the immediate area outside and in front of the same where the incident took place.
The prosecution presented another vital witness in the person of Sgt. Reynaldo de Vera, whose testimony we shall
repeat here for easy reference. In capsulized form, De Vera narrated the sequence of events that happened after he
and his companions went to the crime scene to conduct an investigation. Having received information that a man in a
security guard's uniform was involved in the incident, they sought information from a security guard of a nearby bus
terminal. Said security guard pointed them to Marra, who at that time was eating in acarinderia nearby. Informed by
Marra that his gun was at his residence, they all went to Marra's residence to get the same. After receiving said
firearm, De Vera asked appellant why he killed Tandoc but Marra initially denied any participation in the killing.
Nevertheless, when confronted with the fact that somebody saw him do it, Marra admitted the act although he alleged
it was done in self-defense. This testimony of De Vera as to the confession of Marra is of significant weight, but the
admissibility thereof shall also be passed upon.
Section 12(1), Article III of the 1987 Constitution provides that "(a)ny person under investigation for the commission of
an offense shall have the right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. . . . ." The critical inquiry then is whether or not Marra was under custodial
investigation when he admitted the killing but invoked self-defense. We believe that he was not so situated.

. . . the oral confession made by the accused to Pat. Padilla that "he had shot a tourist" and that the gun he had used
in shooting the victim was in his bar which he wanted surrendered to the Chief of Police (t.s.n., October 17, 1984, pp.
6-9) is competent evidence against him. The declaration of an accused acknowledging his guilt of the offense charged
may be given in evidence against him (Sec. 29 [now Sec. 33], Rule 130). It may in a sense be also regarded as part of
the res gestae. The rule is that, any person, otherwise competent as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need
not be repeated verbatim, but in such a case it must be given in substance. (23 C.J.S. 196, cited in People vs. Tawat,
G.R. No. 62871, May 25, 1985, 129 SCRA 431). (Italics supplied.)
In any event, even without his admission, the case against appellant has been duly established by the other evidence
of the prosecution, as earlier discussed. However, persistently arguing for an acquittal, the defense points out that
when the police officers saw Marra, he was not in a blue uniform whereas Din testified that the person who shot
Tandoc was wearing the polo shirt of a security guard's uniform. This is a puerile argument since appellant himself
removed any lingering doubts on this point. He said that on ending his tour of duty at 4:00 A.M. of March 7, 1992, he
decided to go home to change clothes, after which he went to "Linda's Ihaw-Ihaw" to eat. This explains why, at the
time the police officers saw him, he was already in civilian clothes. The shooting had taken place earlier at around 2:00
A.M. At that time, Marra was still in his security guard's uniform, being then on duty.
However, while we agree that the crime committed by appellant was murder qualified by treachery, we reject the
finding that the same was aggravated by nighttime. No evidence was presented by the prosecution to show that
nocturnity was specially sought by appellant or taken advantage of by him to facilitate the commission of the crime or
to ensure his immunity from capture. 27 At any rate, whether or not such aggravating circumstance should be
appreciated, the penalty to be imposed on appellant would not be affected considering the proscription against the
imposition of the death penalty at the time when the offense in the instant case was committed.
WHEREFORE, the judgment of the court a quo finding accused-appellant Samuel Marra y Zarate guilty of the crime of
murder and imposing upon him the penalty and civil liabilities therein stated is hereby AFFIRMED.
SO ORDERED.

Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation
ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect,the suspect is taken
into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating
statements that the rule begins to operate. 24
In the case at bar, appellant was not under custodial investigation when he made the admission. There was no
coercion whatsoever to compel him to make such a statement. Indeed, he could have refused to answer questions
from the very start when the policemen requested that they all go to his residence. The police inquiry had not yet
reached a level wherein they considered him as a particular suspect. They were just probing into a number of
possibilities, having been merely informed that the suspect was wearing what could be a security guard's uniform. As
we held in People vs. Dy: 25 "What was told by the accused to Pat. Padilla was a spontaneous statement not elicited
through questioning, but given in an ordinary manner. No written confession was sought to be presented in evidence
as a result of formal custodial investigation. 26 The trial Court, therefore, cannot be held to have erred in holding that
compliance with the constitutional procedure on custodial investigation is not applicable in the instant case, . . . ."
Accordingly, the testimony of Sgt. de Vera assumes a dominant dimension because it totally destroys the defense of
denial cum alibi subsequently raised by appellant. In his answers to Sgt. De Vera, appellant expressly admitted that he
shot Tandoc, albeit with an exculpatory explanation. This admission of Marra is in complete contrast to the statements
he later made in open court.
In addition, the law provides that the declaration of an accused acknowledging his guilt of the offense charged, or of
any offense necessarily included therein may be given in evidence against him and, in certain circumstances, this
admission may be considered as part of the res gestae. In a similar situation involved in the aforecited case ofPeople
vs. Dy, this Court held:

G.R. Nos. 118866-68 September 17, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODOLFO DE LA CRUZ, alias RODOLFO DOMINGO or "OMPONG," accused-appellant.

REGALADO, J.:
In this appeal from three sentences of reclusion perpetua, accused-appellant Rodolfo de la Cruz, aliasRodolfo
Domingo or "Ompong," consistent with his negative pleas when arraigned on November 5, 1992 and January 11,

1993, 1 impugns his conviction for multiple murder in Criminal Cases Nos. 92-8029, 92-8030 and 92-8031 by the
Regional Trial Court, Branch 74, 2 of Antipolo, Rizal. He anchors his entreaty for the reversal thereof mainly on the
ground that he was not fully and appropriately apprised of or allowed to exercise his constitutional rights prior to and
while undergoing custodial investigation.
In the early evening of June 23, 1992, the lifeless bodies of Teodorico M. Laroya, Jr. and his children, 12-year old
Karen Verona D. Laroya and 10-year old John Lester D. Laroya, were discovered in their residence at 13 Emerald
Street, Greenpark Village, Cainta, Rizal by their horrified neighbors. The star-crossed trio were all bloodied
consequent to numerous stab wounds, and each of them had a knife still embedded in and protruding from their
bodies when found. Karen Verona also bore external signs of sexual assault. 3
None of their neighbors, however, witnessed the gruesome murders. Two of them later testified in court, namely,
Harold Jim F. Balocating and Anita F. Pangan. The former merely recounted how, while playing table tennis in front of
the Laroya residence, he and his friends stumbled upon the dead bodies of the victims. Anita Pangan, on the other
hand, recalled that at around 9:00 P.M. of June 23, 1992, appellant, who was a brother-in-law of Teodorico Laroya, Jr.,
purchased some candies at her store which is located inside the village. 4
Both Balocating and Pangan had previously executed sworn statements just three days after the incident, the
assertions in which were of the same import as their respective testimonies in court. 5 On June 27, 1992, the police
authorities apprehended appellant at the house of his brother in Fort Bonifacio. SPO1 Carlos R. Atanacio, Jr., a
member of the Cainta Police Station in Cainta, Rizal interrogated appellant regarding the crimes on the same day that
he was arrested.
This police officer declared in the trial court that before he questioned appellant as to his participation in said crimes,
all steps were undertaken to completely inform the latter of his rights and this he did in the presence of appellant's
supposed counsel, one Atty. Lorenza Bernardino-Villanueva. Appellant then signed, likewise in the presence of said
counsel, an extrajudicial confession wherein he narrated in detail how he allegedly snuffed out the lives of the victims. 6
When presented as the lone witness for himself, appellant was observed by the trial court to be afflicted with a
problem in expressing himself and an impediment in his speech (ngo-ngo). By appellant's own account, he only
reached the fourth grade of elementary schooling and, although conversant with Tagalog, he is unable to read and
write, although he can sign his name. He bluntly repudiated the version of SPO1 Atanacio, Jr. and insisted that he was
never assisted by any counsel of his choice, much less met said Atty. Lorenza Bernardino-Villanueva, when he was
interrogated at the police headquarters in Cainta, Rizal and signed his supposed extrajudicial confession.
Parenthetically, his answers to the questions appearing therein are in surprisingly fluent, flawless and expressive
Tagalog, 7which could not have been done by him because of his defect in speech and articulation.

then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct
interrogatory question which tend to elicit incriminating statements.
Furthermore, not only does the fundamental law impose, as a requisite function of the investigating officer, the duty to
explain those rights to the accused but also that there must correspondingly be a meaningful communication to and
understanding thereof by the accused. A mere perfunctory reading by the constable of such rights to the accused
would thus not suffice.
The defendant in the dock must be made to understand comprehensively, in the language or dialect that he knows, the
full extent of the same. A confession made in an atmosphere characterized by deficiencies in informing the accused of
all the rights to which he is entitled would be rendered valueless and inadmissible, perforated, as it is by noncompliance with the procedural and substantive safeguards to which an accused is entitled under the Bill of Rights and
as now further implemented and ramified by statutory law. 11
2. In the present case, SPO1 Atanacio, Jr., admitted in his testimony before the lower court that the investigation of
appellant in connection with the murders actually commenced at around 9:00 A.M. on June 27, 1992 at the police
headquarters in Cainta, Rizal, at the time when appellant was still without counsel. 12 The sworn statement containing
appellant's extrajudicial confession itself shows that it was taken at around 11:00 A.M. 13 Further, while SPO1 Atanacio,
Jr. informed appellant in Tagalog of his right to remain silent, that any statement he made could be used for or against
him in any court, and that he could have counsel preferably of his own choice, he nonetheless failed to tell appellant
that if the latter could not afford the services of counsel, he could be provided with one. 14
The foregoing lapses on the part of the police authorities are all fatal to the admissibility of the extrajudicial confession
supposedly executed by appellant before SPO1 Atanacio, Jr. Jurisprudence along these lines have all been too
consistent an accused under custodial interrogation must continuously have a counsel assisting him from the very
start thereof. Indeed, Section 12, Article III of the Constitution, could not be any clearer.
To reiterate, prior to the commencement of the investigation, the accused must perforce be informed, on top of all his
other rights enumerated therein, that where he lacks a counsel of his choice because of indigence or other
incapacitating cause, he shall be provided with one. Without this further safeguard, the cautionary right to counsel
would merely impress upon the accused, more so upon an impecunious person like appellant who is hardly educated,
that his right thereto would mean simply that he can consult a lawyer if he has one or has the financial capacity to
obtain legal services, and nothing more.

He further claims that he was instead tortured by the police authorities into signing the same, and not that he did so
voluntarily. While he admits having been at the residence of the victims on the night that they were murdered, he flatly
denied having killed them as he left the trio well and alive that same night when he proceeded to his brother's place in
Fort Bonifacio. 8

Curiously, the record is completely bereft of any indication as to how appellant was able to engage the services of Atty.
Lorenza Bernardino-Villanueva, the counsel who was allegedly present when appellant executed his confession and
who was not even subpoenaed to testify thereon. This significant circumstance lends credence to the latter's denial
that he ever met in person, much less executed the confession in the presence of, said counsel. What emerges from a
perusal of the record is that this counsel was merely picked out and provided by the law enforcers themselves, thus
putting into serious doubt her independence and competence in assisting appellant during the
investigation 15 as to affect its admissibility.

1. In unambiguous and explicit terms, Section 12, paragraph 1, of Article III of the Constitution requires that "[a]ny
person under investigation for the commission of an offense shall have the right to be informed of his right to remain
silent and to have independent counsel preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of
counsel." Corollary thereto, paragraph 3 thereof declares that any confession or admission obtained in violation of the
same shall be inadmissible in evidence against the confessant.

Moreover, had she been equal to her responsibility in the face of such serious charge involved in the cases, the failure
of SPO1 Atanacio, Jr. to fully apprise appellant of all his rights, particularly the requirement that if he could not afford
the services of a lawyer he shall be provided with one would have been rectified by said counsel at that very stage of
the investigation. Indeed, from our earliest jurisprudence, the law vouchsafes to the accused the right to an effective
counsel, one who can be made to act in protection of his rights, 16 and not by merely going through the motions of
providing him with anyone who possesses a law degree.

An accused person must be informed of the rights set out in said paragraph of Section 12 upon being held as a
suspect and made to undergo custodial investigation by the police authorities. 9 As explained by this Court in People
vs. Marra, 10 custodial investigation involves any questioning initiated by law enforcement authorities after a person is
taken into custody or otherwise deprived of his freedom of action in any significant manner. And, the rule begins to
operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime and direction is

Again, about the only matter that bears out the presence of such counsel at that stage of custodial interrogation are
the signatures which she affixed on the affidavit. Withal, a cursory reading of the confession itself and SPO1
Atanacio's version of the manner in which he conducted the interrogation, yields no evidence or indication pointing to
her having explained to the appellant his rights under the Constitution.
In People vs. Ayson, etc., et al., 17 this Court aptly emphasized these constitutional safeguards in this wise:

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "incustody interrogation" being regarded as the commencement of an adversary proceeding against the suspect.

de la Cruz, alias Rodolfo Domingo or "Ompong," is hereby ACQUITTED. His immediate release is accordingly ordered
unless there be any other lawful cause for his continued incarceration.

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights
must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded
him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But
unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as
a result of interrogation can be used against him.

SO ORDERED.

The objective is to prohibit "incommunicado" interrogation of individuals in a police-dominated atmosphere, resulting in

self-incriminating statements without full warnings of constitutional rights.
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused
persons." And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way." The situation contemplated has also been more precisely described by this Court.
. . . After a person is arrested and his custodial investigation begins, a confrontation arises which at best may be
termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and "crossexamined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself
in strange and unfamiliar surroundings, and every person he meets, he considers hostile to him. The investigators are
well-trained and seasoned in their work. They employ all the methods and means that experience and study have
taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not
aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the
law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this
imbalance.
3. Necessarily, even while there is evidence of the corpus delicti in this case, appellant's conviction must be set aside
for his extrajudicial confession is obviously inadmissible in evidence against him. The rule is that an extrajudicial
confession, where admissible must be corroborated by evidence of the corpus delicti in order to sustain a finding of
guilt. 18 Both must co-exist. The insistence of the Office of the Solicitor General that appellant's confession could
nonetheless be treated as an "admission" which could therefore be admitted in evidence is misplaced, for the Bill of
Rights treats of both "confessions" and "admissions" in the same light. 19 In addition, it should be stressed that in
appellant's case, no eyewitnesses to the actual killings were ever presented to testify in court, and the prosecution
relied primarily on circumstantial evidence to inculpate appellant in crimes wherein he was meted three penalties
of reclusion perpetua.
It is significant that, with the exception of appellant's putative extrajudicial confession, no other evidence of his alleged
guilt has been presented by the People. The proposition that the medical findings jibe with the narration of appellant as
to how he allegedly committed the crimes falls into the fatal error of figuratively putting the horse before the cart.
Precisely, the validity and admissibility of the supposed extrajudicial confession are in question and the contents
thereof are denied and of serious dubiety, hence the same cannot be used as the basis for such a finding. Otherwise,
it would assume that which has still to be proved, a situation of petitio principii or circulo en probando.
Evidently, herein appellant cannot be made to suffer the extreme penal consequences of the crimes on account of the
shaky and decrepit circumstantial evidence proffered by the prosecution. While the defense of alibi advanced by
appellant is by nature a weak one by itself, it assumes commensurate significance and strength where the evidence
for the prosecution itself is frail and effete. For, needless to state, the prosecution must not rely on the weakness of the
evidence of the defense but upon the vigor of its own. 20 In sum, the presumption of innocence enjoyed by appellant
has remained intact and impervious to the prosecution's assault thereon.
ACCORDINGLY, on the foregoing premises, the judgments of the Regional Trial Court, Branch 74, of Antipolo, Rizal in
Criminal Cases Nos. 92-8029, 92-8030 and 92-8031 are REVERSED and SET ASIDE and accused-appellant Rodolfo

March 25, 1919

G.R. No. 14639
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this application for habeas
corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant
democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic
principles of popular government, and if we give expression to the paramount purpose for which the courts, as an
independent power of such a government, were constituted. The primary question is - Shall the judiciary permit a
government of the men instead of a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for
other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best
of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted
for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept
confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly
perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some
government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard
of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police,
Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170
inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given
no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a
police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not
been asked if they wished to depart from that region and had neither directly nor indirectly given their consent to the
deportation. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor
and a detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during
the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers
by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The governor and the
hacendero Yigo, who appear as parties in the case, had no previous notification that the women were prostitutes who
had been expelled from the city of Manila. The further happenings to these women and the serious charges growing
out of alleged ill-treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say,
generally, that some of the women married, others assumed more or less clandestine relations with men, others went
to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found means to
return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney
for the relatives and friends of a considerable number of the deportees presented an application for habeas corpus to
a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was made to include
all of the women who were sent away from Manila to Davao and, as the same questions concerned them all, the
application will be considered as including them. The application set forth the salient facts, which need not be

repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was made
returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain
facts relative to sequestration and deportation, and prayed that the writ should not be granted because the petitioners
were not proper parties, because the action should have been begun in the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or
control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an
exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the
haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the
court, that these women had been sent out of Manila without their consent. The court awarded the writ, in an order of
November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of Davao, to bring
before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel
for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day
named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in
court by the respondents. It has been shown that three of those who had been able to come back to Manila through
their own efforts, were notified by the police and the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the original petition
copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto, and
telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao, and offered
certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to
Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court
because the women had never been under his control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers. Respondent Yigo answered alleging that he did not have
any of the women under his control and that therefore it was impossible for him to obey the mandate. The court, after
due deliberation, on December 10, 1918, promulgated a second order, which related that the respondents had not
complied with the original order to the satisfaction of the court nor explained their failure to do so, and therefore
directed that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales,
and Yigo on January 13, 1919, unless the women should, in written statements voluntarily made before the judge of
first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate
some other legal motives that made compliance impossible. It was further stated that the question of whether the
respondents were in contempt of court would later be decided and the reasons for the order announced in the final
decision.

forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the
women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of the police
and the constabulary was deemed necessary and that these officers of the law chose the shades of night to cloak their
secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question - By authority of what law did the Mayor and the
Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within the
Philippine Islands? We turn to the statutes and we find Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The GovernorGeneral can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine
Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and
punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other States
have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes.
Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for any law,
order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to
force citizens of the Philippine Islands - and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens to change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically punishes any
public officer who, not being expressly authorized by law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of
Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction.
Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express.
Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor
and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of
the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines
have the same privilege. If these officials can take to themselves such power, then any other official can do the same.
And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute
could be sent against her wishes and under no law from one locality to another within the country, then officialdom can
hold the same club over the head of any citizen.

Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and
policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13, 1919,
the respondents technically presented before the Court the women who had returned to the city through their own
efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by their
returns, once again recounted the facts and further endeavored to account for all of the persons involved in the
habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who,
on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda.
The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of
the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano
Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the
city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los recurridos, (reply
to respondents' memorandum) dated January 25, 1919, be struck from the record.

Law defines power. Centuries ago Magna Charta decreed that - "No freeman shall be taken, or imprisoned, or be
disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will
we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no
man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng.
stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of
the Supreme Court of the United States, "is the only supreme power in our system of government, and every man who
by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to
observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106
U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may
be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere
will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."
(Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and
makes clear why we said in the very beginning that the primary question was whether the courts should permit a
government of men or a government of laws to be established in the Philippine Islands.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision.
We will now proceed to do so.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus.

One fact, and one fact only, need be recalled - these one hundred and seventy women were isolated from society, and
then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were

The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still
rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any
such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines
who shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by
virtue of the judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not
more than three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the
Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a
fine of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art.
211.)

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says
counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this
is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles
of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of
action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to
other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as
effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were
prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived
his right.

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has
violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they
have defended the same official in this action. Nevertheless, that the act may be a crime and that the persons guilty
thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case
which will later be referred to - "It would be a monstrous anomaly in the law if to an application by one unlawfully
confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore
might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal
procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists
as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient
defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.

Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality
in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the
municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the
person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the
true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the
order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no
reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport
these women from the city of Manila to Davao, the same officials must necessarily have the same means to return
them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow
citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the
person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily
evaded.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in
this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should
not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was
finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city
limits and that perforce they could not bring the women from Davao.

It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as
it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of
respectable courts are however very persuasive in nature.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the
deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of
Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty,
even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's
jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code
of Criminal Procedure, sec. 93.) Petitioners had standing in court.

A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ of
habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the
State a minor child under guardianship in the State, who has been and continues to be detained in another State. The
membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and
Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J.,
with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished
American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the
opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as
will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the
opinion of Justice Cooley are quoted:

The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should
have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense
and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of first instance.
But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any judge
thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure,
sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown
that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their
plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different parts
of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown
that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate
court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a
denial of the benefits of the writ.

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was
laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon
the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare
in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after
the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now
be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the
whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . .
.

The second proposition - that the statutory provisions are confined to the case of imprisonment within the state seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England
that the court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served
upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or
person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by
compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he
fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the
ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are
usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so
that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The
important question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of
Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57
Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the
respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and
her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date
to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been
handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to
obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to
have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of
the writ, together with the cause of her being taken and detained. That is a command to bring the child before the
judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it
could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the
writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful
reason he is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior
period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo
[1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.],
233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have
before the circuit court of the District of Columbia three colored persons, with the cause of their detention. Davis, in his
return to the writ, stated on oath that he had purchased the negroes as slaves in the city of Washington; that, as he
believed, they were removed beyond the District of Columbia before the service of the writ of habeas corpus, and that
they were then beyond his control and out of his custody. The evidence tended to show that Davis had removed the
negroes because he suspected they would apply for a writ of habeas corpus. The court held the return to be evasive
and insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and refusing to
produce them, ordered that he be committed to the custody of the marshall until he should produce the negroes, or be
otherwise discharged in due course of law. The court afterwards ordered that Davis be released upon the production
of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the
two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926.
See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a
legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding
the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as
purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to
present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918.
The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record
discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of his chief, there
were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of
having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought
before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have
produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit
that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could
have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code of
Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted;
they did not show impossibility of performance; and they did not present writings that waived the right to be present by
those interested. Instead a few stereotyped affidavits purporting to show that the women were contended with their life
in Davao, some of which have since been repudiated by the signers, were appended to the return. That through
ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is
demonstrated to be found in the municipality of Davao, and that about this number either returned at their own
expense or were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the
non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar
facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case,
supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought about that
state of things by his own illegal act, he must take the consequences; and we said that he was bound to use every
effort to get the child back; that he must do much more than write letters for the purpose; that he must advertise in
America, and even if necessary himself go after the child, and do everything that mortal man could do in the matter;
and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the
return did not show that every possible effort to produce the women was made by the respondents. That the court
forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the
spectacle of a clash between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become more zealous and to have
shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal
police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges
and counter-charges in such a bitterly contested case are to be expected, and while a critical reading of the record
might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance
with it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally
closed. If any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular
individual is still restrained of her liberty, it can be made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this
connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of
the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, an hacendero of Davao,
and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle.
Only occasionally should the court invoke its inherent power in order to retain that respect without which the
administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person and
does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be
guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce the body of a person in
obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of the court.
(Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any
of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in
opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful
mitigating circumstance. The hacendero Yigo appears to have been drawn into the case through a misconstruction
by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to
fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court,
his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this
undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who was
primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made
arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women
to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ of habeas corpus issued by the court was only
tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty
for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as
much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him as for a
contempt. Some members of the court are inclined to this stern view. It would also be possible to find that since
respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of the first
order. Some members of the court are inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his later activity may be considered only as extenuating
his conduct. A nominal fine will at once command such respect without being unduly oppressive - such an amount is
P100.
In resume - as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in
contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one
hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record the Replica al
Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So
ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may
serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas corpus proceeding
against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great number of women
of various ages, inmates of the houses of prostitution situated in Gardenia Street, district of Sampaloc, to change their
residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of prostitution,
as those in the said Gardenia Street, Sampaloc. For this reason, when more than one hundred and fifty women were
assembled and placed aboard a steamer and transported to Davao, considering that the existence of the said houses
of prostitution has been tolerated for so long a time, it is undeniable that the mayor of the city, in proceeding in the
manner shown, acted without authority of any legal provision which constitutes an exception to the laws guaranteeing
the liberty and the individual rights of the residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police in complying with the order of the
mayor of the city; neither do we believe in the necessity of taking them to the distant district of Davao. The said
governmental authority, in carrying out his intention to suppress the segregated district or the community formed by
those women in Gardenia Street, could have obliged the said women to return to their former residences in this city or
in the provinces, without the necessity of transporting them to Mindanao; hence the said official is obliged to bring
back the women who are still in Davao so that they may return to the places in which they lived prior to their becoming
inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not find any apparent
disobedience and marked absence of respect in the steps taken by the mayor of the city and his subordinates, if we
take into account the difficulties encountered in bringing the said women who were free at Davao and presenting them
before this court within the time fixed, inasmuch as it does not appear that the said women were living together in a
given place. It was not because they were really detained, but because on the first days there were no houses in
which they could live with a relative independent from one another, and as a proof that they were free a number of
them returned to Manila and the others succeeded in living separate from their companions who continued living
together.
To determine whether or not the mayor acted with a good purpose and legal object and whether he has acted in good
or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them to change their domicile, it
is necessary to consider not only the rights and interests of the said women and especially of the patrons who have
been directing and conducting such a reproachable enterprise and shameful business in one of the suburbs of this
city, but also the rights and interests of the very numerous people of Manila where relatively a few transients
accidentally and for some days reside, the inhabitants thereof being more than three hundred thousand (300,000) who
can not, with indifference and without repugnance, live in the same place with so many unfortunate women dedicated
to prostitution.
If the material and moral interests of the community as well as the demands of social morality are to be taken into
account, it is not possible to sustain that it is legal and permissible to establish a house of pandering or prostitution in
the midst of an enlightened population, for, although there were no positive laws prohibiting the existence of such
houses within a district of Manila, the dictates of common sense and dictates of conscience of its inhabitants are
sufficient to warrant the public administration, acting correctly, in exercising the inevitable duty of ordering the closing
and abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates thereof to leave
it, although such a house is inhabited by its true owner who invokes in his behalf the protection of the constitutional
law guaranteeing his liberty, his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in his favor the
constitutional law which guarantees his liberty and individual rights, should the administrative authority order his
hospitalization, reclusion, or concentration in a certain island or distant point in order to free from contagious the great
majority of the inhabitants of the country who fortunately do not have such diseases. The same reasons exist or stand
good with respect to the unfortunate women dedicated to prostitution, and such reasons become stronger because the
first persons named have contracted their diseases without their knowledge and even against their will, whereas the
unfortunate prostitutes voluntarily adopted such manner of living and spontaneously accepted all its consequences,
knowing positively that their constant intercourse with men of all classes, notwithstanding the cleanliness and
precaution which they are wont to adopt, gives way to the spread or multiplication of the disease known as syphilis, a
venereal disease, which, although it constitutes a secret disease among men and women, is still prejudicial to the

human species in the same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her sufficient
remuneration for her subsistence, prefers to put herself under the will of another woman who is usually older than she
is and who is the manager or owner of a house of prostitution, or spontaneously dedicates herself to this shameful
profession, it is undeniable that she voluntarily and with her own knowledge renounces her liberty and individual rights
guaranteed by the Constitution, because it is evident that she can not join the society of decent women nor can she
expect to get the same respect that is due to the latter, nor is it possible for her to live within the community or society
with the same liberty and rights enjoyed by every citizen. Considering her dishonorable conduct and life, she should
therefore be comprised within that class which is always subject to the police and sanitary regulations conducive to the
maintenance of public decency and morality and to the conservation of public health, and for this reason it should not
permitted that the unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the
administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but those who have been worrying
so much about the prejudice resulting from a governmental measure, which being a very drastic remedy may be
considered arbitrary, have failed to consider with due reflection the interests of the inhabitants of this city in general
and particularly the duties and responsibilities weighing upon the authorities which administer and govern it; they have
forgotten that many of those who criticize and censure the mayor are fathers of families and are in duty bound to take
care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal life they
assumed, were obliged to change their residence not by a private citizen but by the mayor of the city who is directly
responsible for the conservation of public health and social morality, the latter could take the step he had taken,
availing himself of the services of the police in good faith and only with the purpose of protecting the immense majority
of the population from the social evils and diseases which the houses of prostitution situated in Gardenia Street have
been producing, which houses have been constituting for years a true center for the propagation of general diseases
and other evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said houses of
prostitution and the change of the domicile of the inmates thereof, the mayor did not in bad faith violate the
constitutional laws which guarantees the liberty and the individual rights of every Filipino, inasmuch as the women
petitioners do not absolutely enjoy the said liberty and rights, the exercise of which they have voluntarily renounced in
exchange for the free practice of their shameful profession.
In very highly advanced and civilized countries, there have been adopted by the administrative authorities similar
measures, more or less rigorous, respecting prostitutes, considering them prejudicial to the people, although it is true
that in the execution of such measures more humane and less drastic procedures, fortiter in re et suaviter in forma,
have been adopted, but such procedures have always had in view the ultimate object of the Government for the sake
of the community, that is, putting an end to the living together in a certain place of women dedicated to prostitution and
changing their domicile, with the problematical hope that they adopt another manner of living which is better and more
useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged to take back
and restore the said women who are at present found in Davao, and who desire to return to their former respective
residences, not in Gardenia Street, Sampaloc District, with the exception of the prostitutes who should expressly make
known to the clerk of court their preference to reside in Davao, which manifestation must be made under oath. This
resolution must be transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be
charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision rendered in these proceedings, with
respect to the finding as to the importance of the contempt committed, according to the same decision, by Justo
Lukban, Mayor of the city of Manila, and the consequent imposition upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to
present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918.
The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record
disclosed, the mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the Attorney for the Bureau of Labor to the telegram of his chief,
there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because
of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought
before the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents, for the
purpose of complying with the order of the court, could have, (1) produced the bodies of the persons according to the
command of the writ; (2) shown by affidavits that on account of sickness or infirmity the said women could not safely
be brought before this court; and (3) presented affidavits to show that the parties in question or their lawyers waived
their right to be present. According to the same decision, the said respondents ". . . did not produce the bodies of the
persons in whose behalf the writ was granted; did not show impossibility of performance; and did not present writings,
that waived the right to be present by those interested. Instead, a few stereotyped affidavits purporting to show that the
women were contented with their life in Davao, some of which have since been repudiated by the signers, were
appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could
have been brought back to Manila is demonstrated by the fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned at their own expense or were produced at the
second hearing by the respondents."
The majority opinion also recognized that, "That court, at the time the return to its first order was made, would have
been warranted summarily in finding the respondent guilty of contempt of court, and in sending them to jail until they
obeyed the order. Their excuses for the non production of the persons were far from sufficient." To corroborate this, the
majority decision cites the case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added
"that the return did not show that every possible effort to produce the women was made by the respondents."
When the said return by the respondents was made to this court in banc and the case discussed, my opinion was that
Mayor Lukban should have been immediately punished for contempt. Nevertheless, a second order referred to in the
decision was issued on December 10, 1918, requiring the respondents to produce before the court, on January 13,
1919, the women who were not in Manila, unless they could show that it was impossible to comply with the said order
on the two grounds previously mentioned. With respect to this second order, the same decision has the following to
say:
In response to the second order of the court, the respondents appear to have become more zealous and to have
shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal
police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges
and countercharges in such a bitterly contested case are to be expected, and while a critical reading of the record
might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance
with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the issuance of the first
order on November 4th till the 21st of the same month before taking the first step for compliance with the mandate of
the said order; he waited till the 21st of November, as the decision says, before he sent a telegram to the provincial
governor o f Davao and naturally this half-hearted effort, as is so qualified in the decision, resulted in that none of the
women appeared before this court on December 2nd. Thus, the said order was not complied with, and in addition to
this noncompliance there was the circumstances that seven of the said women having returned to Manila at their own
expense before the said second day of December and being in the antechamber of the court room, which fact was
known to Chief of Police Hohmann, who was then present at the trial and to the attorney for the respondents, were not
produced before the court by the respondents nor did the latter show any effort to present them, in spite of the fact that
their attention was called to this particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents, on January 13th, the
day fixed for the protection of the women before this court, presented technically the seven (7) women abovementioned who had returned to the city at their own expense and the other eight (8) women whom the respondents
themselves brought to Manila, alleging moreover that their agents and subordinates succeeded in bringing them from
Davao with their consent; that in Davao they found eighty-one (81) women who, when asked if they desired to return
to Manila with free transportation, renounced such a right, as is shown in the affidavits presented by the respondents
to this effect; that, through other means, fifty-nine (59) women have already returned to Manila, but notwithstanding
the efforts made to find them it was not possible to locate the whereabouts of twenty-six (26) of them. Thus, in short,
out of the one hundred and eighty-one (181) women who, as has been previously said, have been illegally detained by
Mayor Lukban and Chief of Police Hohmann and transported to Davao against their will, only eight (8) have been
brought to Manila and presented before this court by the respondents in compliance with the said two orders. Fiftynine (59) of them have returned to Manila through other means not furnished by the respondents, twenty-six of whom
were brought by the attorney for the petitioners, Mendoza, on his return from Davao. The said attorney paid out of his
own pocket the transportation of the said twenty-six women. Adding to these numbers the other seven (7) women who
returned to this city at their own expense before January 13 we have a total of sixty-six (66), which evidently proves,
on the one hand, the falsity of the allegation by the respondents in their first answer at the trial of December 2, 1918,
giving as one of the reasons for their inability to present any of the said women that the latter were content with their
life in Mindanao and did not desire to return to Manila; and, on the other hand, that the respondents, especially the first
named, that is Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with the orders
issued by this court, could bring before December 2nd, the date of the first hearing of the case, as well as before
January 13th, the date fixed for the compliance with the second order, if not the seventy-four (74) women already
indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority decision, inasmuch
as the said respondent could count upon the aid of the Constabulary forces and the municipal police, and had
transportation facilities for the purpose. But the said respondent mayor brought only eight (8) of the women before this
court on January 13th. This fact can not, in my judgment, with due respect to the majority opinion, justify the
conclusion that the said respondent has substantially complied with the second order of this court, but on the other
hand demonstrates that he had not complied with the mandate of this court in its first and second orders; that neither
of the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila, who is,
according to the majority decision, principally responsible for the contempt, to which conclusion I agree. The conduct
of the said respondent with respect to the second order confirms the contempt committed by non-compliance with the
first order and constitutes a new contempt because of non-compliance with the second, because of the production of
only eight (8) of the one hundred and eighty-one (181) women who have been illegally detained by virtue of his order
and transported to Davao against their will, committing the twenty-six (26) women who could not be found in Davao,
demonstrates in my opinion that, notwithstanding the nature of the case which deals with the remedy of habeas
corpus, presented by the petitioners and involving the question whether they should or not be granted their liberty, the
respondent has not given due attention to the same nor has he made any effort to comply with the second order. In
other words, he has disobeyed the said two orders; has despised the authority of this court; has failed to give the
respect due to justice; and lastly, he has created and placed obstacles to the administration of justice in the said
habeas corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the said
proceeding with the promptness which the nature of the same required.
Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and he is guilty of
contempt whose conduct is such as tends to bring the authority and administration of the law into disrespect or
disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless the defendant
is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to obstruct the
service of legal process. If a person hinders or prevents the service of process by deceiving the officer or
circumventing him by any means, the result is the same as though he had obstructed by some direct means. (Ruling
Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the law and for the
means it has provided in civilized communities for establishing justice, since true respect never comes in that way, it is
apparent nevertheless that the power to enforce decorum in the courts and obedience to their orders and just
measures is so essentially a part of the life of the courts that it would be difficult to conceive of their usefulness or
efficiency as existing without it. Therefore it may be said generally that where due respect for the courts as ministers of

the law is wanting, a necessity arises for the use of compulsion, not, however, so much to excite individual respect as
to compel obedience or to remove an unlawful or unwarranted interference with the administration of justice. (Ruling
Case Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been exercised from the earliest times. In
England it has been exerted when the contempt consisted of scandalizing the sovereign or his ministers, the lawmaking power, or the courts. In the American states the power to punish for contempt, so far as the executive
department and the ministers of state are concerned, and in some degree so far as the legislative department is
concerned, is obsolete, but it has been almost universally preserved so far as regards the judicial department. The
power which the courts have of vindicating their own authority is a necessary incident to every court of justice, whether
of record or not; and the authority for issuing attachments in a proper case for contempts out of court, it has been
declared, stands upon the same immemorial usage as supports the whole fabric of the common law. . . . (Ruling Case
Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige of the
authority of the court which issued the said orders, which loss might have been caused by noncompliance with the
same orders on the part of the respondent Justo Lukban; the damages which might have been suffered by some of
the women illegally detained, in view of the fact that they were not brought to Manila by the respondents to be
presented before the court and of the further fact that some of them were obliged to come to this city at their own
expense while still others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred in the resolution of the petition
interposed by the said petitioners and which was due to the fact that the said orders were not opportunately and duly
obeyed and complied with, are circumstances which should be taken into account in imposing upon the respondent
Justo Lukban the penalty corresponding to the contempt committed by him, a penalty which, according to section 236
of the Code of Civil Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months,
or both such fine and imprisonment. In the imposition of the penalty, there should also be taken into consideration the
special circumstance that the contempt was committed by a public authority, the mayor of the city of Manila, the first
executive authority of the city, and consequently, the person obliged to be the first in giving an example of obedience
and respect for the laws and the valid and just orders of the duly constituted authorities as well as for the orders
emanating from the courts of justice, and in giving help and aid to the said courts in order that justice may be
administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon the
respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged against him. Lastly,
I believe it to be my duty to state here that the records of this proceeding should be transmitted to the AttorneyGeneral in order that, after a study of the same and deduction from the testimony which he may deem necessary, and
the proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter
shall present the corresponding informations for the prosecution and punishment of the crimes which have been
committed on the occasion when the illegal detention of the women was carried into effect by Mayor Justo Lukban of
the city of Manila and Chief of Police Anton Hohmann, and also of those crimes committed by reason of the same
detention and while the women were in Davao. This will be one of the means whereby the just hope expressed in the
majority decision will be realized, that is, that in the Philippine Islands there should exist a government of laws and not
a government of men and that this decision may serve to bulwark the fortifications of an orderly Government of laws
and to protect individual liberty from illegal encroachments.
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.

According to the petitioners, the resolution of the case would depend on the resolution of the following issues:
CORTES, J.:

1. Does the President have the power to bar the return of former President Marcos and family to the Philippines?

Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved, the
Court's decision in this case would undeniably have a profound effect on the political, economic and other aspects of
national life.

a. Is this a political question?

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people
power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under
a revolutionary government. Her ascension to and consilidation of power have not been unchallenged. The failed
Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel
troops led by Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to
surreptitiously return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila
Bulletin, January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to
the fanaticism and blind loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the
victory of "people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did
not, however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the
major players in the February Revolution, led a failed coup that left scores of people, both combatants and civilians,
dead. There were several other armed sorties of lesser significance, but the message they conveyed was the same
a split in the ranks of the military establishment that thraetened civilian supremacy over military and brought to the fore
the realization that civilian government could be at the mercy of a fractious military.

2. Assuming that the President has the power to bar former President Marcos and his family from returning to the
Philippines, in the interest of "national security, public safety or public health
a. Has the President made a finding that the return of former President Marcos and his family to the Philippines is a
clear and present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?

But the armed threats to the Government were not only found in misguided elements and among rabid followers of Mr.
Marcos. There are also the communist insurgency and the seccessionist movement in Mindanao which gained ground
during the rule of Mr. Marcos, to the extent that the communists have set up a parallel government of their own on the
areas they effectively control while the separatist are virtually free to move about in armed bands. There has been no
let up on this groups' determination to wrest power from the govermnent. Not only through resort to arms but also to
through the use of propaganda have they been successful in dreating chaos and destabilizing the country.

(4) Assuming that notice and hearing may be dispensed with, has the President's decision, including the grounds upon
which it was based, been made known to petitioners so that they may controvert the same?

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation attributed
to Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three years after Mrs.
Aquino assumed office, have yet to show concrete results in alleviating the poverty of the masses, while the recovery
of the ill-gotten wealth of the Marcoses has remained elusive.

d. Assuming that the Court may inquire as to whether the return of former President Marcos and his family is a clear
and present danger to national security, public safety, or public health, have respondents established such fact?

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino,
considering the dire consequences to the nation of his return at a time when the stability of government is threatened
from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to
bar the return of Mr. Marcos and his family.

c. Is the President's determination that the return of former President Marcos and his family to the Philippines is a
clear and present danger to national security, public safety, or public health a political question?

3. Have the respondents, therefore, in implementing the President's decision to bar the return of former President
Marcos and his family, acted and would be acting without jurisdiction, or in excess of jurisdiction, or with grave abuse
of discretion, in performing any act which would effectively bar the return of former President Marcos and his family to
the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is
guaranteed under the following provisions of the Bill of Rights, to wit:

The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after
causing twenty years of political, economic and social havoc in the country and who within the short space of three
years seeks to return, is in a class by itself.

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
xxx xxx xxx

This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr.
Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar
their return to the Philippines.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.

The Issue

The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because
only a court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because
no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any
authority or agency of the government, there must be legislation to that effect.

Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the
President may prohibit the Marcoses from returning to the Philippines.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the
Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and
freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are
necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a political question which
is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos and his family
have the right to travel and liberty of abode. Petitioners invoke these constitutional rights in vacuo without reference to
attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E. Marcos and
family have the right to return to the Philippines and reside here at this time in the face of the determination by the
President that such return and residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political question as it involves merely a
determination of what the law provides on the matter and application thereof to petitioners Ferdinand E. Marcos and
family. But when the question is whether the two rights claimed by petitioners Ferdinand E. Marcos and family impinge
on or collide with the more primordial and transcendental right of the State to security and safety of its nationals, the
question becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish their
residence here? This is clearly a justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish their
residence here even if their return and residence here will endanger national security and public safety? this is still a
justiciable question which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall return to the
Philippines and establish their residence here? This is now a political question which this Honorable Court can not
decide for it falls within the exclusive authority and competence of the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights. In support
thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment by all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for
reasons of national security and public safety has international precedents. Rafael Trujillo of the Dominican Republic,
Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt,
Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed
dictators whose return to their homelands was prevented by their governments. [See Statement of Foreign Affairs
Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits. We,
however, view this issue in a different light. Although we give due weight to the parties' formulation of the issues, we
are not bound by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of the right to travel and the
import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2
L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and
recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries
or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is
the right to return to one's country, a totally distinct right under international law, independent from although related to
the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and
Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a
country, and the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to
freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave
any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees
the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any
country, including his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect
national security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one's
country in the same context as those pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats
only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be
considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the
land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a
different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily
deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of effectively
exercising the right to travel are not determinative of this case and are only tangentially material insofar as they relate

to a conflict between executive action and the exercise of a protected right. The issue before the Court is novel and
without precedent in Philippine, and even in American jurisprudence.

We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested in a President
of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]

Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the right
to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will
have to be awaited.

Reviewing how the powers of the U.S. President were exercised by the different persons who held the office from
Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's dictatorship, he
concluded that "what the presidency is at any particular moment depends in important measure on who is President."
[At 30.]

Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. Our
resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not the President has the
power under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine,
pursuant to the express power of the Court under the Constitution in Article VIII, Section 1, whether or not the
President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she
determined that the return of the Marcose's to the Philippines poses a serious threat to national interest and welfare
and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall
the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked but
with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of
the government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative power shall be vested in
the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the
Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers
subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626
(1910)] pointed out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government." [At 631-632.1 If this can
be said of the legislative power which is exercised by two chambers with a combined membership of more than two
hundred members and of the judicial power which is vested in a hierarchy of courts, it can equally be said of the
executive power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the
Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the same
article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the
commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty with
the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget to Congress, and the power to address Congress [Art. VII,
Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers of the Constitution
intend that the President shall exercise those specific powers and no other? Are these se enumerated powers the
breadth and scope of "executive power"? Petitioners advance the view that the President's powers are limited to those
specifically enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated powers, and what
is not enumerated is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4Rollo p. 233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is legally
patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution ought to settle
everything beforehand it should be a nightmare; by the same token, to those who think that constitution makers ought
to leave considerable leeway for the future play of political forces, it should be a vision realized.

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of course, an agency of government
subject to unvarying demands and duties no remained, of cas President. But, more than most agencies of
government, it changed shape, intensity and ethos according to the man in charge. Each President's distinctive
temperament and character, his values, standards, style, his habits, expectations, Idiosyncrasies, compulsions,
phobias recast the WhiteHouse and pervaded the entire government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the President. The thrust of the office, its impact on
the constitutional order, therefore altered from President to President. Above all, the way each President understood it
as his personal obligation to inform and involve the Congress, to earn and hold the confidence of the electorate and to
render an accounting to the nation and posterity determined whether he strengthened or weakened the constitutional
order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the consideration of
tradition and the development of presidential power under the different constitutions are essential for a complete
understanding of the extent of and limitations to the President's powers under the 1987 Constitution. The 1935
Constitution created a strong President with explicitly broader powers than the U.S. President. The 1973 Constitution
attempted to modify the system of government into the parliamentary type, with the President as a mere figurehead,
but through numerous amendments, the President became even more powerful, to the point that he was also the de
facto Legislature. The 1987 Constitution, however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is
head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless
the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only
one of the powers of the President. It also grants the President other powers that do not involve the execution of any
provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
ofspecific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on
the issue of who between the Governor-General of the Philippines and the Legislature may vote the shares of stock
held by the Government to elect directors in the National Coal Company and the Philippine National Bank, the U.S.
Supreme Court, in upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and "committee" respectively, are not
charged with the performance of any legislative functions or with the doing of anything which is in aid of performance
of any such functions by the legislature. Putting aside for the moment the question whether the duties devolved upon
these members are vested by the Organic Act in the Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact that they do not fall within the authority of either of
these two constitutes logical ground for concluding that they do fall within that of the remaining one among which the
powers of government are divided ....[At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find reinforcement for
the view that it would indeed be a folly to construe the powers of a branch of government to embrace only what are
specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific
of them are found to terminate in a penumbra shading gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot
carry out the distinction between legislative and executive action with mathematical precision and divide the branches
into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the
Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and protect
the people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy." [Art.
II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty and
property, and the promotion of the general welfare are essentially ideals to guide governmental action. But such does
not mean that they are empty words. Thus, in the exercise of presidential functions, in drawing a plan of government,
and in directing implementing action for these plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the
President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than
that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered
their sovereign powers to the State for the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds
everyone that "[s]overeignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the country are the deposed
dictator and his family at whose door the travails of the country are laid and from whom billions of dollars believed to
be ill-gotten wealth are sought to be recovered. The constitutional guarantees they invoke are neither absolute nor
inflexible. For the exercise of even the preferred freedoms of speech and ofexpression, although couched in absolute
terms, admits of limits and must be adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with
attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when
no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times
of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain
public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has been recognized by
memembers of the Legislature, and is manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to return to the Philippines "as a genuine
unselfish gesture for true national reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution and our laws." [House Resolution No. 1342, Rollo, p.
321.1 The Resolution does not question the President's power to bar the Marcoses from returning to the Philippines,
rather, it appeals to the President's sense of compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines
cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to
travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar
to the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of
the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the
part of the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."
[Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political
question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into
areas which the Court, under previous constitutions, would have normally left to the political departments to decide.
But nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the
President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example,
question the President's recognition of a foreign government, no matter how premature or improvident such action
may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally
undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.

To the President, the problem is one of balancing the general welfare and the common good against the exercise of
rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is
not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that
the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve
and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws
are faithfully executed [see Hyman, The American President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in the President].

There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope
of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If
grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a
matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second
paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers the courts
to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of
the government, incorporates in the fundamental law the ruling inLansang v. Garcia [G.R. No. L-33964, December 11,
1971, 42 SCRA 4481 that:]

More particularly, this case calls for the exercise of the President's powers as protector of the peace. Rossiter The
American Presidency].The power of the President to keep the peace is not limited merely to exercising the

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of habeas
corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of

government, the Executive is supreme within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which
the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere
alloted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise of such authority, the function of
the Court is merely to check not to supplant the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act [At
479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President to
conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do
exist, it cannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding
to bar their return.

present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the
Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the
briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser,
wherein petitioners and respondents were represented, there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a wellorganized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The
documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify
the violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given
assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the
Marcoses that may prove to be the proverbial final straw that would break the camel's back. With these before her, the
President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the
Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against
the State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her
by the Constitution to suppress or stamp out such violence. The State, acting through the Government, is not
precluded from taking pre- emptive action against threats to its existence if, though still nascent they are perceived as
apt to become serious and direct. Protection of the people is the essence of the duty of government. The preservation
of the State the fruition of the people's sovereignty is an obligation in the highest order. The President, sworn to
preserve and defend the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought
about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the root
causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy is of common
knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would wipe away the
gains achieved during the past few years and lead to total economic collapse. Given what is within our individual and
common knowledge of the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse of
discretion in determining that the return of former President Marcos and his family at the present time and under

"The threats to national security and public order are real the mounting Communist insurgency, a simmering separatist
movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these threats is an
explosive ingredient in a steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E. Gutierrez, Jr.
But they express eloquently the basis of my full concurrence to the exhaustive and well-written ponencia of Mme.
Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of law. History and time-honored principles
of constitutional law have conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
"emergency." whatever they may be called, the fact is that these powers exist, as they must if the governance function
of the Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on
national peace and order in these admittedly critical times, said question cannot be withdrawn from the competence of
the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to
public order and safety. One needs only to recall the series of destabilizing actions attempted by the so-called Marcos
loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The most publicized
of these offensives is the Manila Hotel incident which occurred barely five (5) months after the People's Power
Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel
and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as
acting president of the Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military rebels
waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers
took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another
group struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy hostage.
Troops on board several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers
encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through Gate 1 of
Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated members to unite
in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government? Launched not
by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who
remains at large to date, this most serious attempt to wrest control of the government resulted in the death of many
civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms and ammunition
from the Camp Crame Armory during a raid conducted in June 1988. Most of the group members were, however,
captured in Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan Balik Saya which
sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to mobilize
civilians from nearby provinces to act as blockading forces at different Metro Manila areas for the projected link-up of
Marcos military loyalist troops with the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were arrested or forced to turn
back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates heavily
against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden their followers
toward similar actions, but any such action would be seized upon as an opportunity by other enemies of the State,
such as the Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the
RAM, to wage an offensive against the government. Certainly, the state through its executive branch has the power,
nay, the responsibility and obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor,
which albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the requested return.
I refer to the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as
an unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution. Millions of our people
braved military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and
money to put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the
Philippines was a moral victory for the Filipino people; and the installation of the present administration, a realization of
and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy, compassion
and even Filipino tradition. The political and economic gains we have achieved during the past three years are
however too valuable and precious to gamble away on purely compassionate considerations. Neither could public
peace, order and safety be sacrificed for an individual's wish to die in his own country. Verily in the balancing of
interests, the scales tilt in favor of presidential prerogative, which we do not find to have been gravely abused or
arbitrarily exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious
consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the
great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are interpreting
the Constitution for only one person and constituting him into a class by himself. The Constitution is a law for all
classes of men at all times. To have a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of power.
Mr. Marcos is insensate and would not live if separated from the machines which have taken over the functions of his
kidneys and other organs. To treat him at this point as one with full panoply of power against whom the forces of
Government should be marshalled is totally unrealistic. The Government has the power to arrest and punish him. But
does it have the power to deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public safety
which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under
martial law. There is, however, no showing of the existence of a law prescribing the limits of the power to impair and
the occasions for its exercise. And except for citing breaches of law and order, the more serious of which were totally
unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any
grave exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension
of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to consider.
They contend that the decision to ban former President Marcos, and his family on grounds of national security and
public safety is vested by the Constitution in the President alone. The determination should not be questioned before
this Court. The President's finding of danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that
power to deal with such questions has been conferred on the courts by express constitutional or statutory provisions. It
is not so easy, however, to define the phrase political question, nor to determine what matters fall within its scope. It is
frequently used to designate all questions that he outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or executive branch of the
government.

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident truth. But
faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court has permitted a
basic freedom enshrined in the Bill of Rights to be taken away by Government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for both
unloved and despised persons on one hand and the rest who are not so stigmatized on the other.

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr., who penned the
decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The
ingredients of a political question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may
describe a political question, which identifies it as essentially a function of the separation of powers. Prominent on the
surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial
discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision
already made; or potentiality of embarrassment from multifarious pronouncements by various departments on one
question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the President or
Congress, the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power against
a civil right which claim is not found in a specific provision is dangerous. Neither should we validate a roving
commission allowing public officials to strike where they please and to override everything which to them represents
evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests the determination of the
question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying
the circumstances when the right may be impaired in the interest of national security or public safety. The power is in
Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the commander-inchief clause which allows the President to call out the armed forces in case of lawless violence, invasion or rebellion
and to suspend the privilege of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion,
when the public safety requires it.
There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in
rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to suspend the privilege of the
writ of habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there
may be disturbances but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability
and to ignore a plea for the enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The constant
insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the "loyalists" engaging
in rallies and demonstrations have to be paid individual allowances to do so constitute the strongest indication that the
hard core "loyalists" who would follow Marcos right or wrong are so few in number that they could not possibly
destabilize the government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of Filipino
customs and traditions to allow a dying person to return to his home and breath his last in his native surroundings. Out
of the 103 Congressmen who passed the House resolution urging permission for his return, there are those who
dislike Mr. Marcos intensely or who suffered under his regime. There are also many Filipinos who believe that in the
spirit of national unity and reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and
that such a return would deprive his fanatic followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional
guarantee of liberty of abode and the citizen's right to travel as against the respondents' contention that national
security and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there is
likewise no dearth of decisional data, no unmanageable standards which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the limits
prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the
President. Section 6 further provides that the right to travel, and this obviously includes the right to travelout of or back
into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, as
may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another or from the
Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor General
immigration, health, quarantine, passports, motor vehicle, destierro probation, and parole are all inapplicable insofar
as the return of Mr. Marcos and family is concerned. There is absolutely no showing how any of these statutes and
regulations could serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply be applying the
Constitution, in the preservation and defense of which all of us in Government, the President and Congress included,
are sworn to participate. Significantly, the President herself has stated that the Court has the last word when it comes
to constitutional liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political question
doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary
criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience. Every
major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of
martial law, the ratification of a new constitution, the arrest and detention of "enemies of the State" without charges
being filed against them, the dissolution of Congress and the exercise by the President of legislative powers, the trial
of civilians for civil offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking
over or closure of newspaper offices, radio and television stations and other forms of media, the proposals to amend
the Constitution, etc. was invariably met by an invocation that the petition involved a political question. It is indeed
poetic justice that the political question doctrine so often invoked by then President Marcos to justify his acts is now
being used against him and his family. Unfortunately, the Court should not and is not allowed to indulge in such a
persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition of
judicial power was added to the vesting in the Supreme Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid
having to make decisions simply because they are too controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences
or a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down
an exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the
most vigorous critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution
was accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power

through a convenient resort to the question doctrine. We are compelled to decide what would have been nonjusticeable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to resolve. There are still some
political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not
one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national security do
not readily lend themselves to the presentation of proof before a court of justice. The vital information essential to an
objective determination is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It
posed a rhetorical question. If after investigating conditions in the Archipelago or any part thereof, the President finds
that public safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII of the
Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual briefing with a
lawyer for the petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile, (121
SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether or not the president acted
arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited machinery fit] cannot be
in better position [than the Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago? (At
p. 887). The answer is obvious. It must rely on the Executive Branch which has the appropriate civil and military
machinery for the facts. This was the method which had to be used in Lansang. This Court relied heavily on classified
information supplied by the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very
branch of the government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them. It was a case of
the defendant judging the suit. After all is said and done, the attempt by its Court to determine whether or not the
President acted arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and refrain from giving the seal of
approval to the act of the Executive Branch. For it is possible that the suspension of the writ lacks popular support
because of one reason or another. But when this Court declares that the suspension is not arbitrary (because it cannot
do otherwise upon the facts given to it by the Executive Branch) it in effect participates in the decision-making process.
It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for
determining the clear and present danger to national security and public safety. The majority of the Court has taken
judicial notice of the Communist rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But
is it fair to blame the present day Marcos for these incidents? All these problems are totally unrelated to the Marcos of
today and, in fact, are led by people who have always opposed him. If we use the problems of Government as
excuses for denying a person's right to come home, we will never run out of justifying reasons. These problems or
others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or
not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present danger to national
security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only
after the present petition was filed that the alleged danger to national security and public safety conveniently surfaced
in the respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to (1)
national welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and
stability. (See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national
security and public safety. The President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance simply because it is a popular
one. Supreme Court decisions do not have to be popular as long as they follow the Constitution and the law. The
President's original position "that it is not in the interest of the nation that Marcos be allowed to return at this time" has
not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President is reported to have
stated that "considerations of the highest national good dictate that we preserve the substantial economic and political
gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing health.
(Daily Globe, front page, February 15, 1989). "Interest of the nation national good," and "preserving economic and
political gains," cannot be equated with national security or public order. They are too generic and sweeping to serve
as grounds for the denial of a constitutional right. The Bill of Rights commands that the right to travel may not be
impaired except on the stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional command cannot be negated by
mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on injustice,
ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest and most
present danger to national security and constitutional freedoms. Nobody has suggested that one way to quell it would
be to catch and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples' power." Yet,
there is no move to arrest and exile the leaders of student groups, teachers' organizations, pea ant and labor
federations, transport workers, and government unions whose threatened mass actions would definitely endanger
national security and the stability of government. We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists, and
other dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a constitutional right. It is not shown how extremists from the right
and the left who loathe each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the
claim of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome
person can be substituted for the Marcos threat as the catalysing factor. The alleged confluence of NPAs,
secessionists, radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or any serious
problem, the Government can state that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is denied. Tomorrow, a newspaper
may be closed. Public assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel of
Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will
be tomorrow's pariahs I deeply regret that the Court's decision to use the political question doctrine in a situation
where it does not apply raises all kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured the
Court that a rebellion of the above combined groups will not succeed and that the military is on top of the situation.
Where then is the clear danger to national security? The Court has taken judicial notice of something which even the
military denies. There would be severe strains on military capabilities according to General de Villa. There would be
set-backs in the expected eradication of the Communist threat. There would be other serious problems but all can be
successfully contained by the military. I must stress that no reference was made to a clear and present danger to
national security as would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the right to
travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too reminiscent of
Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos
to issue decrees whenever the Batasang Pambansa failed or was unable to act adequately on any matter for any
reason that in his judgment required immediate action. When the Bill of Rights provides that a right may not be
impaired except in the interest of national security, public safety, or public health and further requires that a law must
provide when such specifically defined interests are prejudiced or require protection, the inaction of Congress does not
give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling against
an unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We have to be true
to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up to
machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The physical
condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is. But he invokes a
constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a
constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel documents
or any formal lifting of the Marcos ban as would allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we should
differentiate the right to return home from the right to go abroad or to move around in the Philippines. If at all, the right
to come home must be more preferred than any other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and
"threats to national security" during that unfortunate period which led the framers of our present Constitution not only
to re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now
have a freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains that our
country has achieved in terms of human rights, especially human rights for those whom we do not like or those who
are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who were
barred by their successors from returning to their respective countries. There is no showing that the countries involved
have constitutions which guarantee the liberty of abode and the freedom to travel and that despite such constitutional
protections, the courts have validated the "ban a return" policy. Neither is it shown that the successors of the listed
dictators are as deeply committed to democratic principles and as observant of constitutional protections as President
Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord and to
divide the nation. Opposition to the government no matter how odious or disgusting is, however, insufficient ground to
ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless to defend itself
against a threat to national security? Does the President have to suspend the privilege of the writ of habeas corpus or
proclaim martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has more
than ample powers under eixisting law to deal with a person who transgresses the peace and imperils public safety.
But the denial of travel papers is not one of those powers because the Bill of Rights says so. There is no law
prescribing exile in a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live and die in his own
country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit simply because
many believe Marcos to be beneath contempt and undeserving of the very liberties he flounted when he was the
absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor can we resolve it. The
question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which may depend on
the action we take today), the respondents have acted with grave abuse of discretion in barring him from his own
country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not, that
the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government was
prepared to prove the justification for opposing the herein petition, i.e. that it had not acted arbitrarily. He said it was.
Accordingly, the Court, appreciating the classified nature of the information expected, scheduled a closed-door hearing
on July 25,1988. The Solicitor General and three representatives from the military appeared for the respondents,
together with former Senator Arturo M. Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive would
pose a threat to the national security as it had alleged. The fears expressed by its representatives were based on
mere conjectures of political and economic destabilization without any single piece of concrete evidence to back up
their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's
decision" to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v.
Gil (67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was
precisely to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the
President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add
several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter
stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the
most detested man in the entire history of our country. But we are not concerned here with popularity and
personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us see
things through the prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast
all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts and the
applicable law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear is a
phantom. That phantom did not rise when the people stood fast at EDSA against the threat of total massacre in
defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of Constitutional
Law. These principles have not changed simply because I am now on the Court or a new administration is in power
and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of the
government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary invoked.
These rights are guaranteed by the Constitution to all individuals, including the patriot and the homesick and the
prodigal son returning, and tyrants and charlatans and scoundrels of every stripe.

health, as may be provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel within the
country, to travel out of the country and to return to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises in the interpretation of the qualifications
attached by the Constitution to such right to travel.

I vote to grant the petition.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not agree. It is my
view that, with or without restricting legislation, the interest of national security, public safety or public health can justify
and even require restrictions on the right to travel, and that the clause "as may be provided by law" contained in Article
III, Section 6 of the 1987 Constitution merely declares a constitutional leave or permission for Congress to enact laws
that may restrict the right to travel in the interest of national security, public safety or public health. I do not, therefore,
accept the petitioners' submission that, in the absence of enabling legislation, the Philippine Government is powerless
to restrict travel even when such restriction is demanded by national security, public safety or public health, The power
of the State, in particular cases, to restrict travel of its citizens finds abundant support in the police power of the state
wich may be exercised to preserve and maintain government as well as promote the general welfare of the greatest
number of people.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a society
without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the Philippines
may be resolved by answering two simple questions: Does he have the right to return to his own country and should
national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration of
Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country exceptonly if
prevented by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on is sheer
speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by popular will, can
arouse an entire country to rise in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should be
allowed to return to our country under the conditions that he and the members of his family be under house arrest in
his hometown in Ilocos Norte, and should President Marcos or any member of his family die, the body should not be
taken out of the municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline, and for
human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right of a Filipino,
Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly justiciable involving, as it does,
colliding assertions of individual right and governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987
Constitution, the new provision on the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Article VIII, Section 1,
par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel which, in the
language of the Constitution, shall not be impaired "except in the interest of national security, public safety, or public

And yet, the power of the State, acting through a government in authority at any given time, to restrict travel, even if
founded on police power, cannot be absolute and unlimited under all circumstances, much less, can it be arbitrary and
irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to
return to the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise of this
right invoked by Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and
data which would justify their reliance on national security and public safety in negating the right to return invoked by
Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the
Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain, for convincing
evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to
me that the apprehensions entertained and expressed by the respondents, including those conveyed through the
military, do not, with all due respect, escalate to proportions of national security or public safety. They appear to be
more speculative than real, obsessive rather than factual. Moreover, such apprehensions even if translated into
realities, would be "under control," as admitted to the Court by said military authorities, given the resources and
facilities at the command of government. But, above all, the Filipino people themselves, in my opinion, will know how
to handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual return, to
this country. The Court, in short, should not accept respondents' general apprehensions, concerns and perceptions at
face value, in the light of a countervailing and even irresistible, specific, clear, demandable, and enforceable right
asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to justify
derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By adopting the generally
accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine
government cannot just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides
that everyone has the right to leave any country, including his own, and to return to his country. This guarantee is
reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically
chosen by the drafters of the Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice which falls short of
international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President, have raised the
argument of "national security" and "public safety," it is the duty of this Court to unquestioningly yield thereto, thus
casting the controversy to the realm of a political question. I do not agree. I believe that it is one case where the
human and constitutional light invoked by one party is so specific, substantial and clear that it cannot be

overshadowed, much less, nullified by simplistic generalities; worse, the Court neglects its duty under the Constitution
when it allows the theory of political question to serve as a convenient, and yet, lame excuse for evading what, to me,
is its clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right of former
Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same time,credibly deny the
right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to
that question. Instead, it has become clearer by the day that the drama today is the same drama in 1983 with the only
difference that the actors are in opposite roles, which really makes one hope, in the national interest, that the mistake
in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise, the following
are the cogent and decisive propositions in this case
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;
2. respondents have not shown any "hard evidence" or convincing proof why his right as a Filipino to return should be
denied him. All we have are general conclusions of "national security" and "public safety" in avoidance of a specific
demandable and enforceable constitutional and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all members of the
Court, in what appears to be an extended political contest, the "cold neutrality of an impartial judge." It is only thus that
we fortify the independence of this Court, with fidelity, not to any person, party or group but to the Constitution and only
to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.

The majority says, with ample help from American precedents, that the President is possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of
specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the
President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than
that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered
their sovereign powers to the State for the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds
everyone that "sovereignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare and the common good against the exercise of
rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is
not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that
the needs of the nation demanded [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve
and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws
are faithfully executed [See Hyman, The American President, where the author advances the view that an allowance
of discretionary power is unavoidable in any government and is best lodged in the President]. 7

SARMIENTO, J., dissenting:

I am not persuaded.
I vote to grant the petition.
I
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take exception to
allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my
brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble" is concerned), have
overstepped the bounds of judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to return to
one's country," pitted against "the right of travel and freedom of abode", and their supposed distinctions under
international law, as if such distinctions, under international law in truth and in fact exist. There is only one right
involved here, whether under municipal or international law: the light of travel, whether within one's own country, or to
another, and the right to return thereto. The Constitution itself makes no distinctions; let then, no one make a
distinction. Ubi lex non distinguish nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a citizen
his right to travel (back to the country or to another)? It is a question that, in essence, involves the application, and no
more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health, as may be provided by law. 4

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by constitutional
implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights. Precisely a constitution
exists to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human
being is duly safeguarded. To be true to its primordial aim a constitution must lay down the boundaries beyond which
he's forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override the direct mandate of the
fundamental law. It will not suffice, so I submit, to say that the President's plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express constitutional commands. "Clearly," so I
borrow J.B.L. Reyes, in his own right, a titan in the field of public law, "this argument ... rests ... not upon the text of the
(Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and of changing the same other than
what it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful
judicial mandate. Had the Constitution intended a third exception, that is, by Presidential initiative, it could have so
averred. It would also have made the Constitution, as far as limits to the said right are concerned, come full circle:
Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is there
any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when
necessary in the interest of national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the interest of
national security, public safety, or public health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so
appears, the right may be impaired only "within the limits provided by law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign affairs; 17the
Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a formidable barrier against
Presidential action. (Even on matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been proved
that Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public health?" What
appears in the records are vehement insistences that Marcos does pose a threat to the national good and yet, at the
same time, we have persistent claims, made by the military top brass during the lengthy closed-door hearing on July
25, 1989, that "this Government will not fall" should the former first family in exile step on Philippine soil. which is
which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court itself
must be content that the threat is not only clear, but more so, present. 18
That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open to no
doubt. But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we unravel chinks in
our political armor. It also flies in the face of claims, so confidently asserted, that "this Government will not fall" even if
we allowed Marcos to return.

Amendment No. 6), it is inconsistent with the express provisions of the commander-in-chief clause of the 1987
Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of Marcos,
the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly criticized the dictator, his
associates, and his military machinery. He would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was held incommunicado a greater part of the time, in the
military stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and
confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate health beyond
cure. He died, on November 11, 1977, a martyr on the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14, 1979, he
was, along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel
Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering " 24in the
midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of
martial rule, published by him and former Congressman Concordia, authored by President Macapagal and translated
into Tagalog by Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two
dozens of criminal complaints filed by the several military officers named in the "condemned" book as having violated
the human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the
events at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos' return not because I
have a score to settle with him. Ditto's death or my arrest are scores that can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for his
crimes to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial and accord
him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the liberty of
abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his constitutional right, a right
that can not be abridged by personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity"
"to stir trouble" Now that the shoe is on the other foot, let no more of human rights violations be repeated against any
one, friend or foe. In a democratic framework, there is no this as getting even.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial law,
and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices, and or at the
helm of its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the continued banishment of
Marcos. Morality is the last refuge of the self-righteous.

The majority started this inquiry on the question of power. I hold that the President, under the present Constitution and
existing laws, does not have it. Mandamus, I submit, lies.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I indicated,
not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as far as Philippine society is
concerned, Marcos is "history".

Feliciano, J., is on leave.

Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as protector of
peace. 21
Separate Opinions
This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also means that
we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers
in times of emergency or to leading the State against external and internal threats to its existence" 22 is a bigger
fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially with respect to the detestable

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a simmering separatist
movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these threats is an
explosive ingredient in a steaming cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E. Gutierrez, Jr.
But they express eloquently the basis of my full concurrence to the exhaustive and well-written ponencia of Mme.
Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of law. History and time-honored principles
of constitutional law have conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
'emergency." whatever they may be called, the fact is that these powers exist, as they must if the governance function
of the Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on
national peace and order in these admittedly critical times, said question cannot be withdrawn from the competence of
the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to
public order and safety. One needs only to recall the series of destabilizing actions attempted by the so-called Marcos
loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The most publicized
of these offensives is the Manila Hotel incident which occurred barely five (5) months after the People's Power
Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel
and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as
acting president of the Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military rebels
waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers
took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another
group struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy hostage.
Troops on board several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers
encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through Gate 1 of
Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated members to unite
in their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government? Launched not
by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who
remains at large to date, this most serious attempt to wrest control of the government resulted in the death of many
civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms and ammunition
from the Camp Crame Armory during a raid conducted in June 1988. Most of the group members were, however,
captured in Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan Balik Saya which
sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to mobilize
civilians from nearby provinces to act as blockading forces at different Metro Manila areas for the projected link-up of
Marcos military loyalist troops with the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were arrested or forced to turn
back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates heavily
against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden their followers
toward similar actions, but any such action would be seized upon as an opportunity by other enemies of the State,
such as the Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the

RAM, to wage an offensive against the government. Certainly, the state through its executive branch has the power,
nay, the responsibility and obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor,
which albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the requested return.
I refer to the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as
an unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution. Millions of our people
braved military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and
money to put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the
Philippines was a moral victory for the Filipino people; and the installation of the present administration, a realization of
and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy, compassion
and even Filipino tradition. The political and economic gains we have achieved during the past three years are
however too valuable and precious to gamble away on purely compassionate considerations. Neither could public
peace, order and safety be sacrificed for an individual's wish to die in his own country. Verily in the balancing of
interests, the scales tilt in favor of presidential prerogative, which we do not find to have been gravely abused or
arbitrarily exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious
consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the
great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident truth. But
faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court has permitted a
basic freedom enshrined in the Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for both
unloved and despised persons on one hand and the rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are interpreting
the Constitution for only one person and constituting him into a class by himself. The Constitution is a law for all
classes of men at all times. To have a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of power.
Mr. Marcos is insensate and would not live if separated from the machines which have taken over the functions of his
kidneys and other organs. To treat him at this point as one with full panoply of power against whom the forces of
Government should be marshalled is totally unrealistic. The Government has the power to arrest and punish him. But
does it have the power to deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public safety
which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under

martial law. There is, however, no showing of the existence of a law prescribing the limits of the power to impair and
the occasions for its exercise. And except for citing breaches of law and order, the more serious of which were totally
unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any
grave exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension
of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to consider.
They contend that the decision to ban former President Marcos, and his family on grounds of national security and
public safety is vested by the Constitution in the President alone. The determination should not be questioned before
this Court. The President's finding of danger to the nation should be conclusive on the Court.

The respondents have not pointed to any provision of the Constitution which commits or vests the determination of the
question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying
the circumstances when the right may be impaired in the interest of national security or public safety. The power is in
Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the commander-inchief clause which allows the President to call out the armed forces in case of lawless violence, invasion or rebellion
and to suspend the privilege of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion,
when the public safety requires it.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
It is a well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that
power to deal with such questions has been conferred on the courts by express constitutional or statutory provisions. It
is not so easy, however, to define the phrase political question, nor to determine what matters fall within its scope. It is
frequently used to designate all questions that he outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or executive branch of the
government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr., who penned the
decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The
ingredients of a political question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may
describe a political question, which Identifies it as essentially a function of the separation of powers. Prominent on the
surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial
discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision
already made; or potentiality of embarrassment from multifarious pronouncements by various departments on one
question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the President or
Congress, the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power against
a civil right which claim is not found in a specific provision is dangerous. Neither should we validate a roving
commission allowing public officials to strike where they please and to override everything which to them represents
evil. The entire Govern ment is bound by the rule of law.

There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in
rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to suspend the privilege of the
writ of habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there
may be disturbances but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability
and to ignore a plea for the enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The constant
insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the "loyalists" engaging
in rallies and demonstrations have to be paid individual allowances to do so constitute the strongest indication that the
hard core "loyalists" who would follow Marcos right or wrong are so few in number that they could not possibly
destabilize the government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of Filipino
customs and traditions to allow a dying person to return to his home and breath his last in his native surroundings. Out
of the 103 Congressmen who passed the House resolution urging permission for his return, there are those who
dislike Mr. Marcos intensely or who suffered under his regime. There are also many Filipinos who believe that in the
spirit of national unity and reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and
that such a return would deprive his fanatic followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional
guarantee of liberty of abode and the citizen's right to travel as against the respondents' contention that national
security and public safety would be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there is
likewise no dearth of decisional data, no unmanageable standards which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the limits
prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the
President. Section 6 further provides that the right to travel, and this obviously includes the right to travelout of or back
into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, as
may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another or from the
Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor General
immigration, health, quarantine, passports, motor vehicle, destierro probation, and parole are all inapplicable insofar
as the return of Mr. Marcos and family is concerned. There is absolutely no showing how any of these statutes and
regulations could serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply be applying the
Constitution, in the preservation and defense of which all of us in Government, the President and Congress included,
are sworn to participate. Significantly, the President herself has stated that the Court has the last word when it comes
to constitutional liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political question
doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary
criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience. Every
major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of
martial law, the ratification of a new constitution, the arrest and detention of "enemies of the State" without charges
being filed against them, the dissolution of Congress and the exercise by the President of legislative powers, the trial
of civilians for civil offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking
over or closure of newspaper offices, radio and television stations and other forms of media, the proposals to amend
the Constitution, etc. was invariably met by an invocation that the petition involved a political question. It is indeed
poetic justice that the political question doctrine so often invoked by then President Marcos to justify his acts is now
being used against him and his family. Unfortunately, the Court should not and is not allowed to indulge in such a
persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition of
judicial power was added to the vesting in the Supreme Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid
having to make decisions simply because they are too controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences
or a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down
an exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the
most vigorous critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution
was accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power
through a convenient resort to the question doctrine. We are compelled to decide what would have been nonjusticeable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to resolve. There are still some
political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not
one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national security do
not readily lend themselves to the presentation of proof before a court of justice. The vital information essential to an
objective determination is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It
posed a rhetorical question. If after investigating conditions in the Archipelago or any part thereof, the President finds
that public safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII of the
Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual briefing with a
lawyer for the petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile, (121
SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether or not the president acted
arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited machinery fit] cannot be
in better position [than the Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago? (At
p. 887). The answer is obvious. It must rely on the Executive Branch which has the appropriate civil and military
machinery for the facts. This was the method which had to be used in Lansang. This Court relied heavily on classified
information supplied by the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very
branch of the government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them. It was a case of
the defendant judging the suit. After all is said and done, the attempt by its Court to determine whether or not the
President acted arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and refrain from giving the seal of
approval to the act of the Executive Branch. For it is possible that the suspension of the writ lacks popular support
because of one reason or another. But when this Court declares that the suspension is not arbitrary (because it cannot
do otherwise upon the facts given to it by the Executive Branch) it in effect participates in the decision-making process.
It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for
determining the clear and present danger to national security and public safety. The majority of the Court has taken
judicial notice of the Communist rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But
is it fair to blame the present day Marcos for these incidents? All these problems are totally unrelated to the Marcos of
today and, in fact, are led by people who have always opposed him. If we use the problems of Government as
excuses for denying a person's right to come home, we will never run out of justifying reasons. These problems or
others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or
not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present danger to national
security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only
after the present petition was filed that the alleged danger to national security and public safety conveniently surfaced
in the respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to-41)
national welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and
stability. (See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national
security and public safety. The President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance simply because it is a popular
one. Supreme Court decisions do not have to be popular as long as they follow the Constitution and the law. The
President's original position "that it is not in the interest of the nation that Marcos be allowed to return at this time" has
not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President is reported to have
stated that "considerations of the highest national good dictate that we preserve the substantial economic and political
gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing health.
(Daily Globe, front page, February 15, 1989). "Interest of the nation national good," and "preserving economic and
political gains," cannot be equated with national security or public order. They are too generic and sweeping to serve
as grounds for the denial of a constitutional right. The Bill of Rights commands that the right to travel may not be
impaired except on the stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional command cannot be negated by
mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on injustice,
ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest and most
present danger to national security and constitutional freedoms. Nobody has suggested that one way to quell it would
be to catch and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples' power." Yet,
there is no move to arrest and exile the leaders of student groups, teachers' organizations, pea ant and labor
federations, transport workers, and government unions whose threatened mass actions would definitely endanger
national security and the stability of government. We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists, and
other dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a constitutional right. It is not shown how extremists from the right
and the left who loathe each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the
claim of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome
person can be substituted for the Marcos threat as the catalysing factor. The alleged confluence of NPAS,
secessionists, radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or any serious
problem, the Government can state that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is denied. Tomorrow, a newspaper
may be closed. Public assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel of
Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will
be tomorrow's pariahs I deeply regret that the Court's decision to use the political question doctrine in a situation
where it does not apply raises all kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured the
Court that a rebellion of the above combined groups will not succeed and that the military is on top of the situation.
Where then is the clear danger to national security? The Court has taken judicial notice of something which even the
military denies. There would be severe strains on military capabilities according to General de Villa. There would be
set-backs in the expected eradication of the Communist threat. There would be other serious problems but all can be
successfully contained by the military. I must stress that no reference was made to a clear and present danger to
national security as would allow an overriding of the Bill of Rights.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we should
differentiate the right to return home from the right to go abroad or to move around in the Philippines. If at all, the right
to come home must be more preferred than any other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and
"threats to national security" during that unfortunate period which led the framers of our present Constitution not only
to re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now
have a freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains that our
country has achieved in terms of human rights, especially human rights for those whom we do not like or those who
are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who were
barred by their successors from returning to their respective countries. There is no showing that the countries involved
have constitutions which guarantee the liberty of abode and the freedom to travel and that despite such constitutional
protections, the courts have validated the "ban a return" policy. Neither is it shown that the successors of the listed
dictators are as deeply committed to democratic principles and as observant of constitutional protections as President
Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord and to
divide the nation. Opposition to the government no matter how odious or disgusting is, however, insufficient ground to
ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless to defend itself
against a threat to national security? Does the President have to suspend the privilege of the writ of habeas corpus or
proclaim martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has more
than ample powers under eixisting law to deal with a person who transgresses the peace and imperils public safety.
But the denial of travel papers is not one of those powers because the Bill of Rights says so. There is no law
prescribing exile in a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the right to
travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too reminiscent of
Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos
to issue decrees whenever the Batasang Pambansa failed or was unable to act adequately on any matter for any
reason that in his judgment required immediate action. When the Bill of Rights provides that a right may not be
impaired except in the interest of national security, public safety, or public health and further requires that a law must
provide when such specifically defined interests are prejudiced or require protection, the inaction of Congress does not
give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling against
an unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We have to be true
to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up to
machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The physical
condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is. But he invokes a
constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a
constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel documents
or any formal lifting of the Marcos ban as would allow international airlines to sell them tickets would suffice.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and die-in his own
country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit simply because
many believe Marcos to be beneath contempt and undeserving of the very liberties he flounted when he was the
absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor can we resolve it. The
question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which may depend on
the action we take today), the respondents have acted with grave abuse of discretion in barring him from his own
country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not, that
the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government was
prepared to prove the justification for opposing the herein petition, i. that it had not acted arbitrarily. He said it was.
Accordingly, the Court, appreciating the classified nature of the information expected, scheduled a closed-door hearing
on July 25,1988. The Solicitor General and three representatives from the military appeared for the respondents,
together with former Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive would
pose a threat to the national security as it had alleged. The fears expressed by its representatives were based on
mere conjectures of political and economic destabilization without any single piece of concrete evidence to back up
their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's
decision" to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v.
Gil (67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was
precisely to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the
President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add
several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter
stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the
most detested man in the entire history of our country. But we are not concerned here with popularity and
personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us see
things through the prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast
all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts and the
applicable law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear is a
phantom. That phantom did not rise when the people stood fast at EDSA against the threat of total massacre in
defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of Constitutional
Law. These principles have not changed simply because I am now on the Court or a new administration is in power
and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of the
government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary invoked.
These rights are guaranteed by the Constitution to all individuals, including the patriot and the homesick and the
prodigal son returning, and tyrants and charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a society
without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the Philippines
may be resolved by answering two simple questions: Does he have the right to return to his own country and should
national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration of
Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country exceptonly if
prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on is sheer
speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by popular will, can
arouse an entire country to rise in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should be
allowed to return to our country under the conditions that he and the members of his family be under house arrest in
his hometown in Ilocos Norte, and should President Marcos or any member of his family die, the body should not be
taken out of the municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline, and for
human compassion.
PADILLA, J., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right of a Filipino,
Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly justiciable involving, as it does,
colliding assertions of individual right and governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987
Constitution, the new provision on the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Article VIII, Section 1,
par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel which, in the
language of the Constitution, shall not be impaired "except in the interest of national security, public safety, or public
health, as may be provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel within the
country, to travel out of the country and to return to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises in the interpretation of the qualifications
attached by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not agree. It is my
view that, with or without restricting legislation, the interest of national security, public safety or public health can justify
and even require restrictions on the right to travel, and that the clause "as may be provided by law" contained in Article
III, Section 6 of the 1987 Constitution merely declares a constitutional leave or permission for Congress to enact laws
that may restrict the right to travel in the interest of national security, public safety or public health. I do not, therefore,
accept the petitioners' submission that, in the absence of enabling legislation, the Philippine Government is powerless
to restrict travel even when such restriction is demanded by national security, public safety or public health, The power
of the State, in particular cases, to restrict travel of its citizens finds abundant support in the police power of the state
wich may be exercised to preserve and maintain government as well as promote the general welfare of the greatest
number of people.
And yet, the power of the State, acting through a government in authority at any given time, to restrict travel, even if
founded on police power, cannot be absolute and unlimited under all circumstances, much less, can it be arbitrary and
irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to
return to the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise of this
right invoked by Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and

data which would justify their reliance on national security and public safety in negating the right to return invoked by
Mr. Marcos?

we fortify the independence of this Court, with fidelity, not to any person, party or group but to the Constitution and only
to the Constitution.

I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the
Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain, for convincing
evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to
me that the apprehensions entertained and expressed by the respondents, including those conveyed through the
military, do not, with all due respect, escalate to proportions of national security or public safety. They appear to be
more speculative than real, obsessive rather than factual. Moreover, such apprehensions even if translated into
realities, would be "under control," as admitted to the Court by said military authorities, given the resources and
facilities at the command of government. But, above all, the Filipino people themselves, in my opinion, will know how
to handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual return, to
this country. The Court, in short, should not accept respondents' general apprehensions, concerns and perceptions at
face value, in the light of a countervailing and even irresistible, specific, clear, demandable, and enforceable right
asserted by a Filipino.

ACCORDINGLY, I vote to GRANT the petition.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to justify
derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By adopting the generally
accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine
government cannot just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides
that everyone has the right to leave any country, including his own, and to return to his country. This guarantee is
reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically
chosen by the drafters of the Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice which falls short of
international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President, have raised the
argument of "national security" and "public safety," it is the duty of this Court to unquestioningly yield thereto, thus
casting the controversy to the realm of a political question. I do not agree. I believe that it is one case where the
human and constitutional light invoked by one party is so specific, substantial and clear that it cannot be
overshadowed, much less, nullified by simplistic generalities; worse, the Court neglects its duty under the Constitution
when it allows the theory of political question to serve as a convenient, and yet, lame excuse for evading what, to me,
is its clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right of former
Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same time,credibly deny the
right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to
that question. Instead, it has become clearer by the day that the drama today is the same drama in 1983 with the only
difference that the actors are in opposite roles, which really makes one hope, in the national interest, that the mistake
in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise, the following
are the cogent and decisive propositions in this case1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;
2. respondents have not shown any "hard evidence" or con- vincing proof why his right as a Filipinoto return should be
denied him. All we have are general conclusions of "national security" and "public safety" in avoidance of a specific
demandable and enforceable constitutional and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all members of the
Court, in what appears to be an extended political contest, the "cold neutrality of an impartial judge." It is only thus that

SARMIENTO, J., dissenting:

I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take exception to
allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my
brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble" is concerned), have
overstepped the bounds of judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to return to
one's country," pitted against "the right of travel and freedom of abode", and their supposed distinctions under
international law, as if such distinctions, under international law in truth and in fact exist. There is only one right
involved here, whether under municipal or international law: the light of travel, whether within one's own country, or to
another, and the right to return thereto. The Constitution itself makes no distinctions; let then, no one make a
distinction. Ubi lex non distinguish nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a citizen
his right to travel (back to the country or to another)? It is a question that, in essence, involves the application, and no
more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the President is possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of
specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the
President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than
that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered
their sovereign powers to the State for the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds
everyone that "sovereignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the general welfare and the common good against the exercise of
rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the

people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is
not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that
the needs of the nation demanded [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve
and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws
are faithfully executed [See Hyman, The American President, where the author advances the view that an allowance
of discretionary power is unavoidable in any government and is best lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by constitutional
implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights. Precisely a constitution
exists to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human
being is duly safeguarded. To be true to its primordial aim a constitution must lay down the boundaries beyond which
he's forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override the direct mandate of the
fundamental law. It will not suffice, so I submit, to say that the President's plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express constitutional commands. "Clearly," so I
borrow J.B.L. Reyes, in Ms own right, a titan in the field of public law, "this argument ... rests ... not upon the text of the
(Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and of changing the same other than
what it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful
judicial mandate. Had the Constitution intended a third exception, that is, by Presidential initiative, it could have so
averred. It would also have made the Constitution, as far as limits to the said right are concerned, come full circle:
Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is there
any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when
necessary in the interest of national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the interest of
national security, public safety, or public health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so
appears, the right may be impaired only "within the limits provided by law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign affairs; 17the
Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a formidable barrier against
Presidential action. (Even on matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been proved
that Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public health?" What
appears in the records are vehement insistences that Marcos does pose a threat to the national good and yet, at the

same time, we have persistent claims, made by the military top brass during the lengthy closed-door hearing on July
25, 1989, that "this Government will not fall" should the former first family in exile step on Philippine soil. which is
which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court itself
must be content that the threat is not only clear, but more so, present. 18
That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open to no
doubt. But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we unravel chinks in
our political armor. It also flies in the face of claims, so confidently asserted, that "this Government will not fall" even if
we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial law,
and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices, and or at the
helm of its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the continued banishment of
Marcos. Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I indicated,
not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as far as Philippine society is
concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the President's power as protector of
peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also means that
we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers
in times of emergency or to leading the State against external and internal threats to its existence" 22 is a bigger
fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially with respect to the detestable
Amendment No. 6), it is inconsistent with the express provisions of the commander-in-chief clause of the 1987
Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of Marcos,
the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly criticized the dictator, his
associates, and his military machinery. He would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was held incommunicado a greater part of the time, in the
military stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and
confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate health beyond
cure. He died, on November 11, 1977, a martyr on the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14, 1979, he
was, along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel
Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering " 24in the
midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of
martial rule, published by him and former Congressman Concordia, authored by President Macapagal and translated
into Tagalog by Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two
dozens of criminal complaints filed by the several military officers named in the "condemned" book as having violated
the human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the
events at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos' return not because I
have a score to settle with him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for Ms
crimes to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial and accord
him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the liberty of
abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his constitutional right, a right
that can not be abridged by personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity"
"to stir trouble" Now that the shoe is on the other foot, let no more of human rights violations be repeated against any
one, friend or foe. In a democratic framwork, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the present Constitution and
existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.
G.R. Nos. 79690-707 April 27, 1988
ENRIQUE A. ZALDIVAR, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN AND HONORABLE RAUL M. GONZALEZ, CLAIMING TO BE AND
ACTING AS TANODBAYAN-OMBUDSMAN UNDER THE 1987 CONSTITUTION, respondents.
G.R. No. L-80578 April 27, 1988
ENRIQUE A. ZALDIVAR, petitioner,
vs.
HON. RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman under the 1987
Constitution, respondent.
Francisco Carreon and Nestor C. Lumba for petitioner.
The Solicitor General for respondent.

PER CURIAM:
In G.R. Nos. 79690-707 "Petition for Certiorari, Prohibition, and mandamus under Rule 65," petitioner Enrique A.
Zaldivar, governor of the province of Antique, sought to restrain the Sandiganbayan and Tanodbayan Raul Gonzalez
from proceeding with the prosecution and hearing of Criminal Cases Nos. 12159 to 12161 and 12163-12177 on the
ground thatsaid cases were filed by said Tanodbayan without legal and constitutional authority, since under the 1987
Constitution which took effect on February 2, 1987, it is only the Ombudsman (not the present or incumbent
Tanodbayan) who has the authority to file cases with the Sandiganbayan. The complete prayer of the petition reads:
WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or until further orders of the
Honorable Court, a writ of preliminary injunction issue upon the filing of a bond in such amount as may be fixed by the
Honorable Court, restraining the Honorable Sandiganbayan from hearing and trying Criminal Cases Nos. 12159 to
12161, and 12163 to 12177 insofar as petitioner Enrique A. Zaldivar is concerned and from hearing and resolving the
special prosecutor's motion to suspend (Annex J) and thereafter, final judgment be rendered:
(1) ordering that the amended informations in the above-mentioned crimininal cases be or issuing a writ of mandamus
commanding and ordering the respondent Sandiganbayan to do so and, in consequence, prohibiting and restraining

the respondent Sandigan-bayan from proceeding to hear and try the abovementioned criminal cases or making the
temporary preliminary injunction permanent;
(2) declaring the acts of respondent Gonzalez as "Tanodbayan-Ombudsman" after 2 February 1987 relating to these
cases as anullity and without legal effect, particularly, the promulgation of Tanodbayan resolution of 5 February 1987,
the filing of the original informations on 3 March 1987 and the amended ones on 4 June 1987, and the filing of the
Motion for Suspension Pendente Lite.
PETITIONER prays for such other and further relief as may be deemed proper in the premises, with costs against the
respondents.
Manila, Philippines, September 9, 1987.
(pp. 45-47, Rollo)
In G.R. No. 80578, petitioner Enrique A. Zaldivar, on substantially the same ground as the first petition, prays that
Tanodbayan Gonzalez be restrained from conducting preliminary investigations and similar cases with the
Sandiganbayan. The prayer reads:
WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or until further orders of this
Honorable court, a writ of preliminary injunction issue restraining the respondent from further acting in TBP CASE NO.
87-01304 and, particularly, from filing the criminal Information consequent thereof-, and from conducting preliminary
investigations in, and filing criminal informations for, such other complaints/ cases now pending or which may
hereafter be filed against petitioner with the Office of the respondent.
It is likewise prayed that the present petition be consolidated with G.R.L-Nos. 79690-79707.
After proper proceedings, it is prayed that final judgment be rendered annulling the acts of respondent Gonzalez as
"Tanodbayan- Ombudsman" after 2 February 1987 relating to the investigation of complaints against petitioner,
particularly:
(1) Annulling, for absolute want of jurisdiction, the preliminary investigation conducted, and the Resolution rendered,
by respondent in TBP CASE NO. 87-01304;
(2) Prohibiting and restraining the respondent from filing any criminal Information as a consequence of the void
preliminary investigation he conducted in TBP CASE NO. 87-01304, or annulling the criminal Information in the said
case which may, in the meantime, have already been filed;
(3) Prohibiting and restraining the respondent from conducting preliminary investigations in, and filing criminal
informations for, such other complaints/cases now pending or which may hereafter be filed against petitioner with the
Office of the respondent.
PETITIONER further prays for such other and further reliefs as may be deemed proper in the proper with costs
against the respondent.
Manila, Philippines, November 18,1987
(pp. 24-25, Rollo)
We issued the restraining orders prayed for.

After a study of the petitions, We have decided to give due course to the same; to consider the comments of the
Solicitor-General and of Tanodbayan Gonzalez as their Answers thereto; and to forthwith decide the petitions.
We find the petitions impressed with merit.
Under the 1987 Constitution, the Ombudsman (as distinguished from theincumbent Tanodbayan) is charged with the
duty to:
Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or
agency, when such act or commission appears to be illegal, unjust, improper, or inefficient (Sec. 13, par. 1)
The Constitution likewise provides that:
The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It shall continue to function
and exercise its powers as now or hereafter may be provided by law, contemptexcept those conferred on the office of
the Ombudsman created under this Constitution. (Art. XI, Section 7) (Emphasis ours).
Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (caged
Special Prosecutor under the 1987 constitution and who is supposed to retain powers and duties NOT GIVEN to the
Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases
with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2,
1987. From that time, he has been divested of such authority.
Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the Tanodbayan
Ombudsman) and can investigate and prosecute cases only upon the latter's authority or orders. The Special
Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do so by the
Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is now
deemed transferred to the Ombudsman, who may, however, retain it in the Spedal Prosecutor in connection with the
cases he is ordered to investigate.
It is not correct either to suppose that the Special Prosecutor remains the Ombudsman as long as he has not been
replaced, for the fact is that he has never been the Ombudsman. The Office of the Ombudsman is a new creation
under Article XI of the Constitution different from the Office of the Tanodbayan created under PD 1607 although
concededly some of the powers of the two offices are Identical or similar. The Special Prosecutor cannot plead that he
has a right to hold over the position of Ombudsman as he has never held it in the first place.
WHEREFORE, We hereby:
(1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal informations filed
against him in the Sandiganbayan; and
(2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations and filing criminal cases
with the Sandiganbayan or otherwise exercising the powers and function of the Ombudsman.
SO ORDERED.

[G.R. No. 125299. January 22, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENCIO DORIA y BOLADO, and VIOLETA GADDAO y
CATAMA @ "NENETH," accused-appellants.
DECISION
PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were
charged with violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972. [1] The information
reads:
"That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and
aiding one another and without having been authorized by law, did, then and there willfully, unlawfully and feloniously
sell, administer, deliver and give away to another eleven (11) plastic bags of suspected marijuana fruiting tops
weighing 7,641.08 grams in violation of the above-cited law.
CONTRARY TO LAW."[2]
The prosecution contends the offense was committed as follows: In November 1995, members of the North
Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom), received information from two
(2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in Mandaluyong City. The Narcom
agents decided to entrap and arrest "Jun" in a buy-bust operation. As arranged by one of the CI's, a meeting between
the Narcom agents and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA, Kamuning, Quezon City
to prepare for the buy-bust operation. The Narcom agents formed Team Alpha composed of P/Insp. Nolasco Cortes as
team leader and PO3 Celso Manlangit, SPO1 Edmund Badua and four (4) other policemen as members. P/Insp.
Cortes designated PO3 Manlangit as the poseur-buyer and SPO1 Badua as his back-up, and the rest of the team as
perimeter security. Superintendent Pedro Alcantara, Chief of the North Metropolitan District PNP Narcom, gave the
team P2,000.00 to cover operational expenses. From this sum, PO3 Manlangit set aside P1,600.00-- a one thousand
peso bill and six (6) one hundred peso bills[3]-- as money for the buy-bust operation. The market price of one kilo of
marijuana was then P1,600.00. PO3 Manlangit marked the bills with his initials and listed their serial numbers in the
police blotter.[4] The team rode in two cars and headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in buying one (1) kilo
of marijuana. PO3 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed PO3 Manlangit to wait
for him at the corner of Shaw Boulevard and Jacinto Street while he got the marijuana from his associate. [5] An hour
later, "Jun" appeared at the agreed place where PO3 Manlangit, the CI and the rest of the team were waiting. "Jun"
took out from his bag an object wrapped in plastic and gave it to PO3 Manlangit. PO3 Manlangit forthwith arrested
"Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not find the marked bills on him. Upon
inquiry, "Jun" revealed that he left the money at the house of his associate named "Neneth." [6] "Jun" led the police
team to "Neneth's" house nearby at Daang Bakal.

The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as his associate.
[7]
SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house. Standing by the
door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of the box's flaps was open and
inside the box was something wrapped in plastic. The plastic wrapper and its contents appeared similar to
the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit entered "Neneth's" house and took
hold of the box. He peeked inside the box and found that it contained ten (10) bricks of what appeared to be dried
marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth." [8] The policemen
arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the marked bills and turned
them over to the investigator at headquarters. It was only then that the police learned that "Jun" is Florencio Doria y
Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1) brick of dried marijuana leaves recovered from "Jun"
plus the ten (10) bricks recovered from "Neneth's" house were examined at the PNP Crime Laboratory. [9] The bricks,
eleven (11) in all, were found to be dried marijuana fruiting tops of various weights totalling 7,641.08 grams. [10]
The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria, a 33year old carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate of his house reading
a tabloid newspaper. Two men appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in
their area and as the men questioning him were strangers, accused-appellant denied knowing any "Totoy." The men
took accused-appellant inside his house and accused him of being a pusher in their community. When accusedappellant denied the charge, the men led him to their car outside and ordered him to point out the house of
"Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took them to "Totoy's"
house.
Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as PO3
Manlangit, pushed open the door and he and his companions entered and looked around the house for about three
minutes. Accused-appellant Doria was left standing at the door. The policemen came out of the house and they saw
Violeta Gaddao carrying water from the well. He asked Violeta where "Totoy" was but she replied he was not
there. Curious onlookers and kibitzers were, by that time, surrounding them. When Violeta entered her house, three
men were already inside. Accused-appellant Doria, then still at the door, overheard one of the men say that they found
a carton box. Turning towards them, Doria saw a box on top of the table. The box was open and had something
inside. PO3 Manlangit ordered him and Violeta to go outside the house and board the car. They were brought to police
headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance, Totoy
Gaddao. He said that he and Totoy Gaddao sometimes drank together at the neighborhood store. This closeness,
however, did not extend to Violeta, Totoy's wife. [11]
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she was at her
house at Daang Bakal, Mandaluyong City where she lived with her husband and five (5) children, namely, Arvy, aged
10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up
at 5:30 in the morning and bought pan de sal for her children's breakfast. Her husband, Totoy, a housepainter, had left
for Pangasinan five days earlier. She woke her children and bathed them. Her eldest son, Arvy, left for school at 6:45
A.M. Ten minutes later, she carried her youngest son, Jayson, and accompanied Arjay to school. She left the twins at
home leaving the door open. After seeing Arjay off, she and Jayson remained standing in front of the school soaking
in the sun for about thirty minutes. Then they headed for home. Along the way, they passed the artesian well to fetch
water. She was pumping water when a man clad in short pants and denim jacket suddenly appeared and grabbed her
left wrist. The man pulled her and took her to her house. She found out later that the man was PO3 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on top of the
table. This was the first time she saw the box. The box was closed and tied with a piece of green straw. The men
opened the box and showed her its contents. She said she did not know anything about the box and its contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her husband, and
that her husband never returned to their house after he left for Pangasinan. She denied the charge against her and
Doria and the allegation that marked bills were found in her person. [12]

After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial court found the
existence of an "organized/syndicated crime group" and sentenced both accused-appellants to death and pay a fine
of P500,000.00 each. The dispositive portion of the decision reads as follows:
"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @
"Neneth" having been established beyond reasonable doubt, they are both CONVICTED of the present charge against
them.
According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of
Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty
imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten
million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act No. 7659 which
explicitly state that:
'The maximum penalty shall be imposed if the offense was committed by any person who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually
helping one another for purposes of gain in the commission of any crime.'
the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun" and
VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred Thousand Pesos
(P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for
destruction in accordance with law.
Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the New
Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional Institute for Women,
Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review.
SO ORDERED."[13]
Before this Court, accused-appellant Doria assigns two errors, thus:
"I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES FOR THE
PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND
THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT
POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA FRUITINGS FOUND
INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES
NOT COME WITHIN THE PLAIN VIEW DOCTRINE."[14]
Accused-appellant Violeta Gaddao contends:

"I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE POLICE
VERSION OF THE MANNER THE ALLEGED BUY-BUST AS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE INCONSISTENT
WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH DESPITE
THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND
BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE
RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH LEADING TO
THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT." [15]
The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the apprehension of
accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-appellant Gaddao, the search of her
person and house, and the admissibility of the pieces of evidence obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form of entrapment
employed by peace officers as an effective way of apprehending a criminal in the act of the commission of an offense.
[16]
Entrapment has received judicial sanction when undertaken with due regard to constitutional and legal safeguards.
[17]

Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine that evolved
from the increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics
offenses.[18] Entrapment sprouted from the doctrine of estoppel and the public interest in the formulation and
application of decent standards in the enforcement of criminal law.[19] It also took off from a spontaneous moral
revulsion against using the powers of government to beguile innocent but ductile persons into lapses that they might
otherwise resist.[20]
In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is understood as the
inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal
prosecution against him.[21] The classic definition of entrapment is that articulated by Justice Roberts in Sorrells v.
United States,[22] the first Supreme Court decision to acknowledge the concept: "Entrapment is the conception and
planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it
except for the trickery, persuasion or fraud of the officer." [23] It consists of two (2) elements: (a) acts of persuasion,
trickery, or fraud carried out by law enforcement officers or the agents to induce a defendant to commit a crime; and
(b) the origin of the criminal design in the minds of the government officials rather than that of the innocent defendant,
such that the crime is the product of the creative activity of the law enforcement officer.[24]
It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or
about to violate the law. Not every deception is forbidden. The type of entrapment the law forbids is the inducing of
another to violate the law, the "seduction" of an otherwise innocent person into a criminal career. [25] Where the criminal
intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense
charged in order to prosecute him, there is entrapment and no conviction may be had. [26] Where, however, the criminal

intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a
decoy for the state, or public officials furnished the accused an opportunity for commission of the offense, or that the
accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is
no entrapment and the accused must be convicted.[27] The law tolerates the use of decoys and other artifices to catch
a criminal.
Entrapment is recognized as a valid defense[28] that can be raised by an accused and partakes of the nature of a
confession and avoidance.[29] It is a positive defense. Initially, an accused has the burden of providing sufficient
evidence that the government induced him to commit the offense. Once established, the burden shifts to the
government to show otherwise.[30] When entrapment is raised as a defense, American federal courts and a majority of
state courts use the "subjective" or "origin of intent" test laid down in Sorrells v. United States[31] to determine whether
entrapment actually occurred. The focus of the inquiry is on the accused's predisposition to commit the offense
charged, his state of mind and inclination before his initial exposure to government agents. [32] All relevant facts such as
the accused's mental and character traits, his past offenses, activities, his eagerness in committing the crime, his
reputation, etc., are considered to assess his state of mind before the crime. [33] The predisposition test emphasizes the
accused's propensity to commit the offense rather than the officer's misconduct [34] and reflects an attempt to draw a
line between a "trap for the unwary innocent and the trap for the unwary criminal." [35] If the accused was found to have
been ready and willing to commit the offense at any favorable opportunity, the entrapment defense will fail even if a
police agent used an unduly persuasive inducement.[36] Some states, however, have adopted the "objective" test.
[37]
This test was first authoritatively laid down in the case of Grossman v. State[38] rendered by the Supreme Court of
Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here, the
court considers the nature of the police activity involved and the propriety of police conduct. [39] The inquiry is focused
on the inducements used by government agents, on police conduct, not on the accused and his predisposition to
commit the crime. For the goal of the defense is to deter unlawful police conduct. [40]The test of entrapment is whether
the conduct of the law enforcement agent was likely to induce a normally law-abiding person, other than one who is
ready and willing, to commit the offense;[41] for purposes of this test, it is presumed that a law-abiding person would
normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully. [42] Official
conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as badgering, cajoling or
importuning,[43] or appeals to sentiments such as pity, sympathy, friendship or pleas of desperate illness, are not.
[44]
Proponents of this test believe that courts must refuse to convict an entrapped accused not because his conduct
falls outside the legal norm but rather because, even if his guilt has been established, the methods employed on
behalf of the government to bring about the crime "cannot be countenanced." To some extent, this reflects the notion
that the courts should not become tainted by condoning law enforcement improprieties. [45] Hence, the transactions
leading up to the offense, the interaction between the accused and law enforcement officer and the accused's
response to the officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its
commission are considered in judging what the effect of the officer's conduct would be on a normal person. [46]
Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that the
"subjective" test creates an "anything goes" rule, i.e., if the court determines that an accused was predisposed to
commit the crime charged, no level of police deceit, badgering or other unsavory practices will be deemed
impermissible.[47] Delving into the accused's character and predisposition obscures the more important task of judging
police behavior and prejudices the accused more generally. It ignores the possibility that no matter what his past
crimes and general disposition were, the accused might not have committed the particular crime unless confronted
with inordinate inducements.[48] On the other extreme, the purely "objective" test eliminates entirely the need for
considering a particular accused's predisposition. His predisposition, at least if known by the police, may have an
important bearing upon the question of whether the conduct of the police and their agents was proper. [49] The
undisputed fact that the accused was a dangerous and chronic offender or that he was a shrewd and active member
of a criminal syndicate at the time of his arrest is relegated to irrelevancy.[50]
Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United States now
combine both the "subjective" and "objective" tests.[51] In Cruz v. State,[52] the Florida Supreme Court declared that the
permissibility of police conduct must first be determined. If this objective test is satisfied, then the analysis turns to
whether the accused was predisposed to commit the crime. [53] In Baca v. State,[54] the New Mexico Supreme Court
modified the state's entrapment analysis by holding that "a criminal defendant may successfully assert a defense of
entrapment, either by showing lack of predisposition to commit the crime for which he is charged, or, that the police
exceeded the standards of proper investigation.[55] The hybrid approaches combine and apply the "objective" and
"subjective" tests alternatively or concurrently.

As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused caught
in flagrante delicto. In United States v. Phelps,[56] we acquitted the accused from the offense of smoking opium after
finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to
prosecute him. Smith, the BIR agent, testified that Phelps' apprehension came after he overheard Phelps in a saloon
say that he liked smoking opium on some occasions. Smith's testimony was disregarded. We accorded significance
to the fact that it was Smith who went to the accused three times to convince him to look for an opium den where both
of them could smoke this drug.[57] The conduct of the BIR agent was condemned as "most reprehensible." [58] In People
v. Abella,[59] we acquitted the accused of the crime of selling explosives after examining the testimony of the
apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, xxx a very
high one" causing the accused to sell the explosives. We found that there was inducement, "direct, persistent and
effective" by the police officer and that outside of his testimony, there was no evidence sufficient to convict the
accused.[60] In People v. Lua Chu and Uy Se Tieng,[61] we convicted the accused after finding that there was no
inducement on the part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the
way for the introduction of opium from Hongkong to Cebu after the accused had already planned its importation and
ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely
entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the
seizure of the prohibited drug and the arrest of the surreptitious importers. [62]
It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we first laid down the distinction between
entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,[64] we held:
"ENTRAPMENT AND INSTIGATION. -- While it has been said that the practice of entrapping persons into crime for
the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as distinguished from mere
entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or
punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were
purposely placed in his way, or that the criminal act was done at the 'decoy solicitation' of persons seeking to expose
the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission.
Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation
merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the
offense was committed by him, free from the influence or instigation of the detective. The fact that an agent of an
owner acts as a supposed confederate of a thief is no defense to the latter in a prosecution for larceny, provided the
original design was formed independently of such agent; and where a person approached by the thief as his
confederate notifies the owner or the public authorities, and, being authorised by them to do so, assists the thief in
carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution
for an illegal sale of liquor that the purchase was made by a 'spotter,' detective, or hired informer; but there are cases
holding the contrary." [65]
The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v. Galicia,[66] the
appellate court declared that "there is a wide difference between entrapment and instigation." The instigator practically
induces the would-be accused into the commission of the offense and himself becomes a co-principal. In entrapment,
ways and means are resorted to by the peace officer for the purpose of trapping and capturing the lawbreaker in the
execution of his criminal plan.[67] In People v. Tan Tiong,[68] the Court of Appeals further declared that "entrapment is no
bar to the prosecution and conviction of the lawbreaker." [69]
The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v. Tiu Ua.
[70]
Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed contrary to public policy
and illegal.[71]
It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or inducement in
Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the accused. It is instigation that
is a defense and is considered an absolutory cause. [72] To determine whether there is entrapment or instigation, our
courts have mainly examined the conduct of the apprehending officers, not the predisposition of the accused to
commit the crime. The "objective" test first applied in United States v. Phelps has been followed in a series of similar
cases.[73] Nevertheless, adopting the "objective" approach has not precluded us from likewise applying the "subjective"
test. In People v. Boholst,[74] we applied both tests by examining the conduct of the police officers in a buy-bust
operation and admitting evidence of the accused's membership with the notorious and dreaded Sigue-Sigue Sputnik
Gang. We also considered accused's previous convictions of other crimes [75] and held that his opprobrious past and

membership with the dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the
accused did not sell or smoke marijuana and did not have any criminal record was likewise admitted in People v.
Yutuc[76] thereby sustaining his defense that led to his acquittal.
The distinction between entrapment and instigation has proven to be very material in anti-narcotics operations. In
recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust
operations and other entrapment procedures in apprehending drug offenders. Anti-narcotics laws, like anti-gambling
laws are regulatory statutes.[77] They are rules of convenience designed to secure a more orderly regulation of the
affairs of society, and their violation gives rise to crimes mala prohibita.[78] They are not the traditional type of criminal
law such as the law of murder, rape, theft, arson, etc. that deal with crimes mala in se or those inherently wrongful and
immoral.[79] Laws defining crimes mala prohibita condemn behavior directed, not against particular individuals, but
against public order.[80] Violation is deemed a wrong against society as a whole and is generally unattended with any
particular harm to a definite person. [81] These offenses are carried on in secret and the violators resort to many devices
and subterfuges to avoid detection. It is rare for any member of the public, no matter how furiously he condemns
acts mala prohibita, to be willing to assist in the enforcement of the law. It is necessary, therefore, that government in
detecting and punishing violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but upon
the diligence of its own officials. This means that the police must be present at the time the offenses are committed
either in an undercover capacity or through informants, spies or stool pigeons. [82]
Though considered essential by the police in enforcing vice legislation, the confidential informant system breeds
abominable abuse. Frequently, a person who accepts payment from the police in the apprehension of drug peddlers
and gamblers also accept payment from these persons who deceive the police. The informant himself may be a drug
addict, pickpocket, pimp, or other petty criminal. For whatever noble purpose it serves, the spectacle that government
is secretly mated with the underworld and uses underworld characters to help maintain law and order is not an
inspiring one.[83] Equally odious is the bitter reality of dealing with unscrupulous, corrupt and exploitative law
enforcers. Like the informant, unscrupulous law enforcers' motivations are legion-- harassment, extortion, vengeance,
blackmail, or a desire to report an accomplishment to their superiors. This Court has taken judicial notice of this ugly
reality in a number of cases[84] where we observed that it is a common modus operandi of corrupt law enforcers to prey
on weak and hapless persons, particularly unsuspecting provincial hicks. [85] The use of shady underworld characters
as informants, the relative ease with which illegal drugs may be planted in the hands or property of trusting and
ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled this Court to be
extra-vigilant in deciding drug cases. [86]Criminal activity is such that stealth and strategy, although necessary weapons
in the arsenal of the police officer, become as objectionable police methods as the coerced confession and the
unlawful search. As well put by the Supreme Court of California in People v. Barraza,[87]
"[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest, illegal
detention and the third degree, it is a type of lawless enforcement. They all spring from common motivations. Each is
a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when dealing
with known criminals of the 'criminal classes,' justifies the employment of illegal means." [88]
It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law
enforcement agents raised by the Solicitor General be applied with studied restraint. This presumption should not by
itself prevail over the presumption of innocence and the constitutionally-protected rights of the individual. [89] It is the
duty of courts to preserve the purity of their own temple from the prostitution of the criminal law through lawless
enforcement.[90] Courts should not allow themselves to be used as an instrument of abuse and injustice lest an
innocent person be made to suffer the unusually severe penalties for drug offenses. [91]
We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported
transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer
and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale
by the delivery of the illegal drug subject of the sale.[92] The manner by which the initial contact was made, whether or
not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the
illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at
all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the
accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or
plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the

predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the
defense of inducement.

ATTY. ARIAS
May we make it of record that the witness is pulling out item after item from the box showed to him
and brought in front of him.

In the case at bar, the evidence shows that it was the confidential informant who initially contacted accused-appellant
Doria. At the pre-arranged meeting, the informant was accompanied by PO3 Manlangit who posed as the buyer of
marijuana. PO3 Manlangit handed the marked money to accused-appellant Doria as advance payment for one (1) kilo
of marijuana. Accused-appellant Doria was apprehended when he later returned and handed the brick of marijuana to
PO3 Manlangit.

COURT
Q

Noted.

Now tell the court, how did you know that those are the eleven bricks?
x

PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical manner and his credibility was not
crumpled on cross-examination by defense counsel. Moreover, PO3 Manlangit's testimony was corroborated on its
material points by SPO1 Badua, his back-up security. The non-presentation of the confidential informant is not fatal to
the prosecution. Informants are usually not presented in court because of the need to hide their identity and preserve
their invaluable service to the police. [93] It is well-settled that except when the appellant vehemently denies selling
prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, [94] or there are
reasons to believe that the arresting officers had motives to testify falsely against the appellant, [95] or that only the
informant was the poseur-buyer who actually witnessed the entire transaction, [96] the testimony of the informant may
be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness testimonies. [97] There is
no need to present the informant in court where the sale was actually witnessed and adequately proved by
prosecution witnesses.[98]
The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other police officers' testimonies are
minor and do not detract from the veracity and weight of the prosecution evidence. The source of the money for the
buy-bust operation is not a critical fact in the case at bar. It is enough that the prosecution proved that money was
paid to accused-appellant Doria in consideration of which he sold and delivered the marijuana.

I have markings on these eleven bricks, sir.

Point to the court, where are those markings?

Here, sir, my signature, my initials with the date, sir.

PROSECUTOR
Q

Witness showed a white wrapper and pointing to CLM and the signature.

Whose signature is that?

ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as to what was handed to
him by the accused Jun, your Honor?

Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit was actually
identified by PO3 Manlangit himself before the trial court. After appellants' apprehension, the Narcom agents placed
this one (1) brick of marijuana recovered from appellant Doria inside the carton box lumping it together with the ten
(10) bricks inside. This is why the carton box contained eleven (11) bricks of marijuana when brought before the trial
court. The one (1) brick recovered from appellant Doria and each of the ten (10) bricks, however, were identified and
marked in court. Thus:

PROSECUTOR

"ATTY. ARIAS, Counsel for Florencio Doria:

Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify that box?

COURT

A This is the box that I brought to the crime laboratory which contained the eleven pieces of marijuana
brick we confiscated from the suspect, sir.

Yes, your Honor.

What makes you so sure?

x.

COURT

Your Honor, there is already a ruling by this Honorable Court, your Honor, despite reconsideration.

Let the prosecution do its own thing and leave the appreciation of what it has done to the court.

ATTY. VALDEZ

We submit, your Honor.

This brick is the one that was handed to me by the suspect Jun, sir.
Why do you know that that is the thing? Are you sure that is not "tikoy?"

Please open it and show those eleven bricks.

PROSECUTOR

Witness bringing out from the said box...

A I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I brought it to the
PCCL, your Honor.

ATTY. VALDEZ, Counsel for Violeta Gaddao:

What are you sure of?

Your Honor, I must protest the line of questioning considering the fact that we are now dealing with eleven items when
the question posed to the witness was what was handed to him by Jun?

I am sure that this is the brick that was given to me by one alias Jun, sir.

What makes you so sure?

COURT

So be it.
A Because I marked it with my own initials before giving it to the investigator and before we brought it to
the PCCL, your Honor.

PROSECUTOR
"D?"
COURT

x.

May we request that a tag be placed on this white plastic bag and this be marked as Exhibit
x

Mark it as Exhibit "D."

To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on this plastic?

This one, the signature, I made the signature, the date and the time and this Exhibit "A."

How about this one?

I don't know who made this marking, sir.

PROSECUTOR

May it be of record that this was just entered this morning.

I am asking you about this "itim" and not the "asul."

This CLM, the date and the time and the Exhibit "A," I was the one who made these markings, sir.

PROSECUTOR

May we place on record that the one that was enclosed...

Q Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with a piece of
paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?"
Tag it. Mark it.

This particular exhibit that you identified, the wrapper and the contents was given to you by whom?

It was given to me by suspect Jun, sir.

Whereat?

At the corner of Boulevard and Jacinto St., sir.

How about the other items that you were able to recover?
x

x."[99]

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the corner of
Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic wrapping were marked as
Exhibits "D," "D-1," and "D-2" and described as weighing nine hundred seventy (970) grams. [100]
We also reject appellant's submission that the fact that PO3 Manlangit and his team waited for almost one hour for
appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot
capitalize on the circumstance that the money and the marijuana in the case at bar did not change hands under the
usual "kaliwaan" system. There is no rule of law which requires that in "buy-bust" operations there must be a
simultaneous exchange of the marked money and the prohibited drug between the poseur-buyer and the pusher.
[101]
Again, the decisive fact is that the poseur-buyer received the marijuana from the accused-appellant. [102]
We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in
three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that
the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving
final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one
confinement to another.

Noted. The court saw it.

COURT

"Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a warrant, arrest a
person:

ATTY. ARIAS
Your Honor, there are also entries included in that enclosure where it appears D-394-95, also Exhibit
"A," etc. etc., that was not pointed to by the witness. I want to make it of record that there are other entries included in
the enclosure.
COURT

A These other marijuana bricks, because during our follow-up, because according to Jun the money which I
gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir.

x."[103]

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually
committing, or is attempting to commit an offense." Appellant Doria was caught in the act of committing an offense.
When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only
authorized but duty-bound to arrest him even without a warrant. [104]
The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of the box of
marijuana and marked bills are different matters.

x.

Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without such
warrant is inadmissible for any purpose in any proceeding.[105] The rule is, however, not absolute. Search and seizure
may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances:
[106]
(1) search incident to a lawful arrest;[107] (2) search of a moving motor vehicle;[108] (3) search in violation of customs
laws;[109] (4) seizure of evidence in plain view;[110] (5) when the accused himself waives his right against unreasonable
searches and seizures.[111]
The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and seizure of
the box of marijuana and the marked bills were likewise made without a search warrant. It is claimed, however, that

the warrants were not necessary because the arrest was made in "hot pursuit" and the search was an incident to her
lawful arrest.

What was your intention in going to the house of Aling Neneth?

To arrest her, sir.

To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances enumerated in
Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct testimony of PO3
Manlangit, the arresting officer, however shows otherwise:

But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was there?

"ATTY VALDEZ, Counsel for appellant Gaddao:

Yes, sir.

We submit at this juncture, your Honor, that there will be no basis for that question.

As far as you can see, she was just inside her house?

This particular exhibit that you identified, the wrapper and the contents was given to you by whom?

I saw her outside, sir.

It was given to me by suspect Jun, sir.

She was fetching water as a matter of fact?

Whereat?

She was `sa bandang poso.'

At the corner of Boulevard and Jacinto Street, sir.

Carrying a baby?

How about the other items that you were able to recover?

No, sir.

ATTY. VALDEZ:
COURT

We submit at this juncture, your Honor, that there will be no basis for that question.

There is. Answer.

A These other marijuana bricks, because during our follow-up, because according to Jun the money which I
gave him was in the hands of Neneth and so we proceeded to the house of Neneth, sir.
Q

Whereat?

At Daang Bakal near the crime scene at Shaw Boulevard, sir.

And what happened upon arrival thereat?

We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir.

You mentioned "him?"

Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir.

And what happened?

At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir.
x

Q At that particular time when you reached the house of Aling Neneth and saw her outside the house, she
was not committing any crime, she was just outside the house?

Q She was not about to commit any crime because she was just outside the house doing her daily
chores. Am I correct?
A

I just saw her outside, sir.

And at that point in time you already wanted to arrest her. That is correct, is it not?

Yes, sir.

Now, if any memory of your testimony is correct, according to you SPO1 Manlangit approached her?

PO3 Manlangit, sir.

You did not approach her because PO3 Manlangit approached her?

Yes, sir.

Q During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking place, you were just
in the side lines?

x."[112]
A

SPO1 Badua testified on cross-examination that:

No, sir.

I was just watching, sir.

Q So you were just an on-looker to what Manlangit was doing, because precisely according to you your role in this
buy-bust operation was as a back-up?

The buy-bust money was recovered from the house of Aling Neneth, sir.

Yes, sir.

Q It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what you are trying to
tell the Court?

Who got the alleged marijuana from inside the house of Mrs. Neneth?

PO3 Manlangit, sir.

ATTY. VALDEZ:

Manlangit got the marijuana?

Yes, sir.

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest
under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the trial court, there was
no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in "hot pursuit." [114] In fact, she
was going about her daily chores when the policemen pounced on her.

And the money from Aling Neneth?

I don't know, sir.

You did not even know who got the money from Aling Neneth?

No, sir.
I am through with this witness, your Honor."[113]

Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal
knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause"
which means an "actual belief or reasonable grounds of suspicion." [115] The grounds of suspicion are reasonable when,
in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be arrested. [116] A reasonable suspicion therefore must be founded
on probable cause, coupled with good faith on the part of the peace officers making the arrest. [117]

PROSECUTOR:
There is no basis for this question, your Honor. Money, there's no testimony on that.
ATTY. VALDEZ:
I was asking him precisely.
PROSECUTOR:
No basis.
COURT:
Sustained.
Q Alright. I will ask you a question and I expect an honest answer. According to the records, the amount
of P1,600.00 was recovered from the person of Aling Neneth. That's right?
A

Yes, sir, the buy-bust money.

Q What you are now saying for certain and for the record is the fact that you were not the one who retrieved the
money from Aling Neneth, it was Manlangit maybe?
A

I saw it, sir.

It was Manlangit who got the money from Aling Neneth?

Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her coaccused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-accused in
response to his (PO3 Manlangit's) query as to where the marked money was.[118] Appellant Doria did not point to
appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This
identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her co-accused in
pushing drugs. Appellant Doria may have left the money in her house, [119] with or without her knowledge, with or
without any conspiracy. Save for accused-appellant Doria's word, the Narcom agents had no reasonable grounds to
believe that she was engaged in drug pushing. If there is no showing that the person who effected the warrantless
arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense,
the arrest is legally objectionable. [120]
Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person and
home and the subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her
arrest. This brings us to the question of whether the trial court correctly found that the box of marijuana was in plain
view, making its warrantless seizure valid.
Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure
even without a search warrant and may be introduced in evidence. [121] The "plain view" doctrine applies when the
following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an
intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is
inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime,
contraband or otherwise subject to seizure.[122] The law enforcement officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly view the area. [123] In the course of such lawful intrusion, he
came inadvertently across a piece of evidence incriminating the accused. [124] The object must be open to eye and
hand[125] and its discovery inadvertent.[126]
It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the
object is inside a closed container. Where the object seized was inside a closed package, the object itself is not in
plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether
by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in
plain view and may be seized.[127] In other words, if the package is such that an experienced observer could infer from
its appearance that it contains the prohibited article, then the article is deemed in plain view. [128] It must be immediately

apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to
seizure.[129]

Yes.
PROSECUTOR

PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows:
One flap is inside and the other flap is standing and with the contents visible.
"ATTY. VALDEZ:
COURT
So here we are. When you and Badua arrived, Aling Neneth was inside the house?
Noted.
A

Yes, sir.

Badua demanded from Aling Neneth the buy-bust money?

Yes, sir.

At that particular instance, you saw the carton?

Yes, sir.

This carton, according to you was under a table?

Yes, sir, dining table.

I noticed that this carton has a cover?

Yes, sir.

A I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked "Sa iyo galing ang
marijuanang ito, nasaan ang buy-bust money namin?" sir.

I ask you were the flaps of the cover raised or closed?

Making reference to the marijuana that was given by alias Jun?

It was open, sir. Not like that.

Yes, sir.

COURT

When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not [sic]?

Go down there. Show to the court.

I just don't know if she was frisked already by Badua, sir.

INTERPRETER

Who got hold of this?

Witness went down the witness stand and approached a carton box.

I was the one, sir.

You were the one who got this?

PROSECUTOR

Yes, sir.

Can we describe it?

At that particular point in time, you did not know if the alleged buy-bust money was already retrieved by Badua?

ATTY. VALDEZ

Yes, sir.

Like this, sir.

At this juncture, you went inside the house?

Yes, sir.

And got hold of this carton?

Yes, sir.

Did you mention anything to Aling Neneth?

I asked her, what's this...

No, no. no. did you mention anything to Aling Neneth before getting the carton?

You went inside the house?

PROSECUTOR

Yes, sir.

For the record, your Honor...

You did not have any search warrant?

Yes, sir.

PROSECUTOR

Q In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao was in
possession of the buy-bust money because according to you, you did not know whether Badua already retrieved the
buy-bust money from her?
A

Yes, sir.

How far was this from the door?

Two and a half meters from the door, sir. It was in plain view.

Under the table according to you?

Yes, sir, dining table.

Somewhere here?

It's far, sir.

You were only able to verify according to you...

Panero, wait. Because I am objecting to the words a piece of plastic. By reading it...
ATTY. VALDEZ
That's a piece of plastic.
PROSECUTOR
By reading it, it will connote... this is not a piece of plastic.
ATTY. VALDEZ
What is that? What can you say, Fiscal? I'm asking you?
PROSECUTOR
With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be big or a small one,
for record purposes.

PROSECUTOR
COURT
May we request the witness to place it, where he saw it?
Leave that to the court.
A

Here, sir.

What you see is a carton?

Yes, sir, with plastic.

Marked "Snow Time Ice Pop?"

Yes, sir.

PROSECUTOR
Leave that to the court.

With a piece of plastic visible on top of the carton?

Yes, sir.

That is all that you saw?

Yes, sir.

Q The only reason according to you, you were able to... Look at this, no even Superman... I withdraw
that. Not even a man with very kin [sic] eyes can tell the contents here. And according to the Court, it could
be "tikoy," is it not [sic]?
A

Yes, sir.

Siopao?

Yes, sir.

Canned goods?

Yes, sir.

criminals should escape than that the government should play an ignoble part.' It is simply not allowed in the free
society to violate a law to enforce another, especially if the law violated is the Constitution itself." [140]

It could be ice cream because it says Snow Pop, Ice Pop?

I presumed it was also marijuana because it may ...

I am not asking you what your presumptions are. I'm asking you what it could possibly be.

It's the same plastic, sir.

ATTY. VALDEZ

"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs.-- The penalty of reclusion
perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon
any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in
transit or transport any prohibited drug, or shall act as a broker in any of such transactions.
x

I'm not even asking you that question so why are you voluntarily saying the information. Let the prosecutor do that for
you.
COURT
Continue. Next question.
x

Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic Act No.
7659 punishes the "sale, administration, delivery, distribution and transportation of a prohibited drug" with the penalty
of reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million, to wit:

x."[130]

PO3 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant
Doria. The Narcom agents testified that they had no information on appellant Gaddao until appellant Doria named her
and led them to her.[131] Standing by the door of appellant Gaddao's house, PO3 Manlangit had a view of the interior of
said house. Two and a half meters away was the dining table and underneath it was a carton box. The box was
partially open and revealed something wrapped in plastic.

x."

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the sale took
place between the poseur-buyer and the seller thereof and the presentation of the drug, i.e., the corpus delicti, as
evidence in court.[141] The prosecution has clearly established the fact that in consideration of P1,600.00 which he
received, accused-appellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3
Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accused-appellant Gaddao conspired
with accused-appellant Doria in the sale of said drug. There being no mitigating or aggravating circumstances, the
lower penalty of reclusion perpetua must be imposed.[142]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special Court in
Criminal Case No. 3307-D is reversed and modified as follows:
1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua and to pay a
fine of five hundred thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama is acquitted.

In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana because
he himself checked and marked the said contents.[132] On cross-examination, however, he admitted that he
merely presumed the contents to be marijuana because it had the same plastic wrapping as the "buy-bust
marijuana." A close scrutiny of the records reveals that the plastic wrapper was not colorless and transparent as to
clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in the box was individually
wrapped in old newspaper and placed inside plastic bags-- white, pink or blue in color. [133] PO3 Manlangit
himself admitted on cross-examination that the contents of the box could be items other than marijuana. He
did not know exactly what the box contained that he had to ask appellant Gaddao about its contents. [134] It was
not immediately apparent to PO3 Manlangit that the content of the box was marijuana. The marijuana was not
in plain view and its seizure without the requisite search warrant was in violation of the law and the Constitution. [135] It
was fruit of the poisonous tree and should have been excluded and never considered by the trial court. [136]
The fact that the box containing about six (6) kilos of marijuana [137] was found in the house of accused-appellant
Gaddao does not justify a finding that she herself is guilty of the crime charged.[138]Apropos is our ruling in People v.
Aminnudin,[139] viz:
"The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our
law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible
youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for
the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers
with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the
authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of
order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that some

SO ORDERED.

[G.R. No. 121572. March 31, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOEL ELAMPARO Y FONTANILLA, accused-appellant. Exsm
DECISION
QUISUMBING, J.:
On May 31, 1995, the Regional Trial Court of Caloocan City,[1] convicted appellant of the crime of illegal possession of
drugs, imposing upon him the penalty of reclusion perpetua and ordering him to pay a fine of P9,000,000.00.
As summarized by the solicitor General, the facts of this case which we find to be supported by the records are as
follows:[2]

"On February 12, 1995, at about 5:00 in the morning, prosecution witness Police Officer Romeo Baldonado, while
attending to his duties as supervising policeman of the Kalookan Police Station, received a report from an informant
that some people are selling shabu and marijuana somewhere at Bagong Barrio, Caloocan City (TSN, April 11, 1995,
p. 3; TSN, April 4, 1995, p. 3). Said informant stated that he himself succeeded in buying said drugs (ibid., p. 3).

them to likewise bring him to the police station where he was detained. The arresting officers demanded the amount of
P15,000.00 for his release. He remained in jail as he refused to accede to their demand. On the other hand, Erwin
Spencer was released two (2) days after they were jailed for the latter gave money to the police officers. (TSN, pp. 18, May 9, 1995). Calr-ky

Hence, Police Officer Baldonado formed a buy-bust operation team with himself as team leader and Police Officers
Ernesto Andala, Ronielo Reantillo and Bismark Gaviola as members (TSN, April 4, 1995, p. 4). Said team proceeded
to the area reported to at Progreso P. Gomez, Bagong Barrio, Kalookan City at around 5:45 in the morning of the
same day (ibid., p. 3). Ky-le

ANGELO BERNALE (sic), a student, testified that he is renting a small room at the accused (sic) house located at No.
2 P. Gomez St., Bagong Barrio, Kalookan City. On February 12, 1995, at about 6:00 to 7:00 oclock in the morning he
was about to go out of the accused (sic) house to bring breakfast to his father when he sighted Erwin Spencer in
handcuffs, in the company of three policemen one of whom was holding a box. Then he saw the policemen knocked at
the door of the accused (sic) house. Shortly thereafter, the accused was taken away by the policemen."

Upon arrival at the area, prosecution witness Gaviola, together with the informant asset stood at the corner of P.
Gomez Street, Bagong barrio, Kalookan City, since the said spot was identified to be the market or where the buyers
of marijuana await a runner (seller). Thereafter, a runner later identified to be Erwin Spencer approached the poseurbuyer, Gaviola, who was asked Iiscore ba kayo (TSN, April 5, 1995, p. 22). Having answered, Iiscore kami, Spencer
then left and returned after five minutes with the marijuana (ibid., p. 22). Gaviola then handed over the marked money
and arrested Spencer, but who freed himself and ran (TSN, April 4, 1995, p. 7).
Then, the buy-bust team pursued Spencer, who ran inside a bungalow-type house with steel gate (ibid., p. 8). Having
trapped Spencer inside the house, the police officers frisked him and recovered the marked money (ibid., p. 9). The
police officers likewise found appellant repacking five (5) bricks of marijuana wrapped in a newspaper on top of the
round table inside the houses sala (TSN, April 11, 1995, p. 7). Appellant was then arrested and he confessed that the
source of the marijuana was Benguet (TSN, April 4, 1995, p. 10).
Spencer and appellant were later taken to the precinct where they were delivered to the inquest fiscal for further
investigation (TSN, April 11, 1995, p. 8). The arresting officers then executed an affidavit on the incident and made a
request for the National Bureau of Investigation to conduct examination of the drugs seized (TSN, May 3, 1995, p. 2).
The NBI Report confirmed the drugs seized to be marijuana weighing five (5) kilos (ibid., p. 3)."
On February 15, 1995, the City Prosecutor charged appellant with the crime of illegal possession of drugs under the
following Information:[3]
"That on or about the 12th day of February 1995 in Kalookan City, M.M. and within the jurisdiction of this Honorable
Court, the above-named accused, without having been authorized by law, did then and there wilfully, unlawfully and
feloniously have in his possession, custody and control 5.208 kgs. of Marijuana, knowing the same to be a prohibited
drugs (sic).
CONTRARY TO LAW." Ky-calr
On March 1, 1995, appellant, duly assisted by counsel de oficio, entered a plea of not guilty.[4]
During trial, the prosecution presented as its witnesses (1) PO2 Bismark Gaviola, the poseur-buyer, (2) SPO2 Romeo
Baldonado, one of the police officers who took part in the buy-bust operation, and (3) Juliet Gelacio Mahilum, a
forensic chemist at the National Bureau of Investigation (NBI). Mahilum testified that she conducted three types of
examination on the five (5) bricks of marijuana flowering tops (chemical examination, microscopic examination, and
chromatographic examination) and that each of the five (5) bricks gave positive results for marijuana. [5]
For the defense, appellant and Angelo Bernales, a boarder at appellants house, testified. Their version of the incident
is as follows:[6]
"JOEL ELAMPARO y FONTANILLA, the accused herein, gave a very different version of the incident. At around 6:00
to 7:30 in the morning of February 12, 1995, he was at their house when somebody knocked at their door. His father
opened the same and was informed that somebody was looking for him. He went out and saw Erwin Spencer with
handcuffs and being held by an arresting officer. He likewise sighted PO3 Bismark Gaviola holding a big box. When he
persistently questioned Erwin Spencer as to why he was arrested, the arresting officers got mad at him prompting

After trial, the court rendered its decision, [7] disposing as follows:
"WHEREFORE, premises considered, this Court finds accused JOEL ELAMPARO Y FONTANILLA, GUILTY beyond
reasonable doubt for violation of Section 8, Art. II of R.A. 6425, and is hereby sentenced to suffer the penalty of
RECLUSION PERPETUA and a fine of NINE MILLION (P9,000,000.00) PESOS, pursuant to Section 17 of the Death
Penalty. With Costs.
SO ORDERED."
Hence, the present appeal. Appellant now contends that the trial court erred in - [8]
I.
GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES AND DISREGARDING
THE THEORY OF THE DEFENSE.
II.
FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF SECTION 4
[SHOULD BE SEC. 8] OF R.A. 6425.
III.
CONTENDING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE OFFENSE CHARGED, THE TRIAL
COURT GRAVELY ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE OF MINORITY. Jjs-c
In his brief, appellant assails the credibility of the prosecution witnesses. He contends that it is highly unusual for
arresting officers to act on an information of an unknown source without confirming the veracity of the report, and that
it is incredible that a peddler of marijuana would be so brazen as to approach total strangers and offer to sell them
marijuana. Appellant insists that he was charged with illegal possession of marijuana because he failed to pay the
police officers the amount of P15,000.00 for his release, unlike Spencer, who paid said amount. Appellant assails the
legality of his arrest inside the house of his father for failure of the apprehending officers to secure a search warrant.
Lastly, appellant contends that if found guilty, the privileged mitigating circumstance of minority should be appreciated
in his favor.
The Office of the Solicitor General, for the State, contends that further surveillance was unnecessary because the
police "asset" had personal knowledge of the open buying and selling of "marijuana" in the area, having purchased his
"marijuana" a few hours before reporting the matter to the police. Appellant also misrepresented himself in saying that
Spencer was released without charges considering that a separate investigation was conducted against the latter. The
OSG contends that appellants arrest was an incident to a lawful hot pursuit made against Spencer. Appellant, in the
course of the pursuit was surprised in plain view to be repacking the five (5) bricks of marijuana. The OSG concedes,
however, that the privileged mitigating circumstance of minority should be appreciated in favor of appellant.
Considering the assigned errors and the foregoing contentions, we find that here the issues pertain, first, to the
assessment of credibility of witnesses; second, the validity of appellants arrest; and third, the correctness of the
penalty imposed by the trial court.

As to the first issue, it is well-settled that the assessment of credibility of witnesses is within the province of the trial
court which had an opportunity to observe the witnesses and their demeanor during their testimonies. Unless the trial
court overlooked substantial facts which would affect the outcome of the case, we accord the utmost respect to their
findings of facts. As compared to the baseless disclaimers of appellant, the narration of the incident by the prosecution
witnesses appears worthy of belief, coming as it does from law enforcers who are presumed to have regularly
performed their duty in the absence of proof to the contrary.[9]Esm

A: Because the door was already open.

Appellants claims that it is highly suspect that Spencer would offer to sell marijuana to total strangers. However, in
many cases, drug pushers did sell their prohibited articles to prospective customers, be they strangers or not, in
private as well as in public places, even in the daytime. Indeed, some drug pushers appear to have become
exceedingly daring, openly defiant of the law. Hence, what matters is not the existing familiarity between the buyer and
the seller, or the time and venue of the sale, but the fact of agreement as well as the act constituting sale and delivery
of prohibited drugs.[10] As found a quo, it was the consummated sale between PO2 Gaviola and Spencer which led to
the eventual arrest of appellant.

Q: Where was it placed, this five (5) packed (sic) of marijuana?

As to the warrantless search, Section 2 Article III of the 1987 Constitution prohibits a search and seizure without a
judicial warrant. Further, Section 3 thereof provides that any evidence obtained without such warrant is inadmissible
for any purpose in any proceeding.
However, not being absolute, the right against unreasonable searches and seizures is subject to exceptions. Thus, for
example, Section 12 of Rule 126, of the Rules on Criminal procedure, provides that a person lawfully arrested may be
searched for "dangerous weapons or anything which may be used as proof of the commission of an offense, without a
search warrant."
Five generally accepted exceptions to the right against warrantless searches and seizures have also been judicially
formulated, viz: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4)
customs searches, and (5) waiver by the accused themselves of their right against unreasonable search and seizure.
[11]
marinella
Considering its factual milieu, this case falls squarely under the plain view doctrine. In People v. Doria, 301 SCRA 668,
710-711 (1999), we held that
"Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure
even without a search warrant and may be introduced in evidence. The "plain view" doctrine applies when the
following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an
intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is
inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime,
contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its
discovery inadvertent."
When Spencer wrenched himself free from the grasp of PO2 Gaviola, he instinctively ran towards the house of
appellant. The members of the buy-bust team were justified in running after him and entering the house without a
search warrant for they were hot in the heels of a fleeing criminal. Once inside the house, the police officers cornered
Spencer and recovered the buy-bust money from him. They also caught appellant in flagrante delicto repacking the
marijuana bricks which were in full view on top of a table. PO2 Gaviola testified as to the circumstances of appellants
arrest as follows [12]

Q: When you entered the house, what happened inside the house?
A: We saw Joel Elamparo, sir. He was then repacking five (5) bricks of marijuana wrapped in a newspaper.

A: It was placed on top of the table, sir.

Q: Was Joel Elamparo alone when you saw him repacking these five (5) bricks of marijuana?
A: He has some companions in the house, his wife, 2 other women, his father and there was one man there who was
a boarder.
Q: Now you said that you saw Joel Elamparo repacking five bricks of marijuana, now who was his companion in
repacking the same?
A: He was alone, sir.
Hence, appellants subsequent arrest was likewise lawful, coming as it is within the purview of Section 5 (a) of Rule
113 of the 1985 Rules on Criminal Procedure, to wit:
"Sec. 5. Arrest without warrant, when lawful. A peace officer or a private person may, without a warrant, arrest a
person:
(a)
When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;
..."
Section 5 (a) is commonly referred to as the rule on in flagrante delicto arrests.[13] Here two elements must concur: (1)
the person to be arrested must execute an overt act indicating the he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.
[14]
Thus, when appellant was seen repacking the marijuana, the police officers were not only authorized but also dutybound to arrest him even without a warrant. ella
Although the caption of the Information charges the appellant with violation of Section 4 of Article II of Republic Act No.
6425, as amended by Republic Act No. 7659,[15] otherwise known as the death penalty law, which refers to the sale,
administration, delivery, distribution and transportation of prohibited drugs, the body of the Information charges
appellant with the crime of illegal possession of prohibited drugs under Section 8 of Article II of R.A. No. 6425, as
amended by R.A. No. 7659. We have held that it is not the designation of the offense in the Information that is
controlling but the allegations therein which directly apprise the accused of the nature and cause of the accusation
against him.[16] Appellant having been fully apprised of the elements of the crime of illegal possession of prohibited
drugs, he may properly be convicted of the crime of illegal possession of marijuana.

PUBLIC PROSECUTOR EULOGIO MANANQUIL, JR.

Q: Now how were you able to enter the house?
PO2 GAVIOLA: nigel

In drug cases, the quantity of prohibited drugs involved is determinative of the imposable penalty. Section 20 of R.A.
No. 6425, as amended by Section 17 of R.A. No. 7659, provides that when the quantity of indian hemp or marijuana is
750 grams or more, as in this case, the penalty shall be reclusion perpetua to death and fine ranging from five hundred
thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00).

Appellant having been born on January 9, 1978, [17] was only 17 years, 1 month, and 3 days old, at the time of the
commission of the crime on February 12, 1995. Beginning with our decision in People v. Simon, [18] and reiterated in a
number of decisions thereafter, the Court has recognized the suppletory application of the rules on penalties in the
Revised Penal Code to the Dangerous Drugs Act after the amendment of the latter by Republic Act No. 7659.
Appellant being a minor over fifteen and under eighteen at the time of the commission of the crime, he is entitled to a
reduced penalty due to the privileged mitigating circumstance of minority under Article 13 (2) of the Revised Penal
code. Article 68 (2) of the Revised Penal Code provides that the penalty next lower than that prescribed by law shall
be imposed, but always in the proper period. Applying the provisions of Article 61 (2) of the Revised Penal Code which
prescribes the rules for graduating penalties, the imposable penalty on appellant is the penalty next lower in degree
immediately following the lesser of the penalties prescribed in the respective graduated scale. The penalty next lower
in degree than reclusion perpetua is reclusion temporal. There being no generic mitigating or aggravating
circumstances, the penalty ofreclusion temporal shall be imposed in its medium period. Applying the Indeterminate
Sentence Law, the minimum shall be within the range of the penalty next lower in degree which isprision mayor. No
fine is imposable in this case, for it is imposed as a conjunctive penalty only if the penalty is reclusion perpetua to
death.[19]alonzo
WHEREFORE, the decision of the Regional Trial Court, Caloocan City, Branch 121, in Criminal Case No. C-48478
(95) finding appellant JOEL ELAMPARO Y FONTANILLA guilty beyond reasonable doubt of the crime of illegal
possession of drugs is hereby AFFIRMED WITH MODIFICATION that he is hereby sentenced to suffer the
indeterminate penalty of ten (10) years and one (1) day of prision mayor as minimum, and seventeen (17) years, four
(4) months and one (1) day of reclusion temporal, as maximum. Costs against appellant.
SO ORDERED.
[G.R. No. 109250. September 5, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORIEL LACERNA y CORDERO & MARLON
LACERNA y ARANADOR, accused.

The undersigned accuses NORIEL LACERNA Y CORDERO and MARLON LACERNA Y ARANADOR of a violation of
Section 4 Art. II, in relation to Section 21, Art. IV of Republic Act 6425, as amended by Presidential Decree No. 1675,
xxx
That on or about September 12, 1992, in the City of Manila, Philippines, the said accused, not being authorized by
law to sell, deliver or give away to another or distribute any prohibited drug, did then and there wilfully, unlawfully and
jointly sell, deliver or give away to another the following, to wit:
Eighteen (18) blocks of marijuana
flowering tops - weight 18.235 kilograms
which is a prohibited drug.
When the case was called for arraignment on October 7, 1992, appellant and his co-accused appeared without
counsel but they alleged that they had engaged the services of a certain Atty. Kangleon. Thus, the trial court
provisionally appointed Atty. Rodolfo P. Libatique of the Public Attorneys Office as counsel de oficio, in case Atty.
Kangleon did not appear for the arraignment on October 28, 1992. [5] Because the alleged counsel de parte failed to
show up during the arraignment on that date, Atty. Libatique assisted the accused who pleaded not guilty. [6]
After trial on the merits, the court a quo promulgated the assailed Decision, the dispositive portion of which reads: [7]
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
I. The guilt of the accused Marlon Lacerna having been established beyond reasonable doubt for the crime of
violation of Section 4 of RA 6425, as amended, he is found guilty of the same, sentencing him to life imprisonment and
to pay a fine of P20,000. With costs.

MARLON LACERNA y ARANADOR, accused-appellant.

DECISION
PANGANIBAN, J.:
The unrelenting and pervading war against illegal drugs has absorbed the attention of all branches of government,
both national and local, as well as media, parents, educators, churches and the public at large. This case is one more
intrepid battle in such all-out war. Herein appellant seeks acquittal on the ground that his acts did not constitute the
crime of giving away prohibited drugs penalized by Section 4 of Republic Act No. 6425, as amended (The Dangerous
Drugs Act). Nonetheless, he cannot escape the law because the very same deeds, which appellant admits to have
performed, show his culpability for illegal possession of prohibited drugs -- penalized in Section 8 of R.A. 6425, as
amended -- which is necessarily included in the crime charged in the Information.
Statement of the Case
This ruling is explained by the Court as it resolves this appeal from the Decision, [1] dated February 24, 1993, of the
Regional Trial Court of Manila, Branch 16, [2] convicting Appellant Marlon Lacerna y Aranador of violation of Section 4
of Republic Act No. 6425, as amended x x x.
Asst. City Prosecutor of Manila Juan O. Bermejo, Jr. charged appellant and Noriel Lacerna in an Information, [3] dated
September 16, 1992, which reads as follows:[4]

II. The guilt for the crime charged of accused Noriel Lacerna not having been established beyond reasonable doubt
he is hereby ACQUITTED. The warden of the Manila City Jail is ordered to release his person, unless held on other
charges.
The evidence seized in this case is to remain in the custody of the NBI Director as Drugs Custodian of the Dangerous
Drugs Board. (RA 425, Sec. 36; Supreme Court Circular No. 9 dated July 18, 1973) to be properly disposed of after
the final disposition of this case.
Hence, only Marlon Lacerna (his co-accused having been acquitted) interposed this appeal direct to the Supreme
Court in view of the life penalty imposed.[8]
The Facts
Version of the Prosecution
The prosecution presented the following witnesses: PO3 Carlito P. Valenzuela, Forensic Chemist Aida A. Pascual, and
PO3 Rafael Melencio. Their testimonies are summarized by the Solicitor General in the Appellees Brief as follows: [9]
On September 12, 1992, Police Officer 3 (PO3) Carlito P. Valenzuela, a member of the Mobile Patrol Division of the
Western Police District (WPD), was assigned to man the checkpoint and patrol the area somewhere along the
sidestreets of Radial Road near Moriones Street. The assignment to monitor strategic places in the city and
barangays of Manila was a direct order from General Nazareno. Thus, he and his companion PO3 Angelito Camero
went about cruising the area in their Mobile Patrol car, with PO3 Valenzuela at the helm. At about 2:00 p.m., appellant

and co-accused, who were aboard a taxicab, passed by PO3 Valenzuelas place of assignment, which was then heavy
with traffic, looking suspicious (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 3-4; Nov. 20, 1992, pp. 2-7).
Appellant was seated beside the taxi driver while co-accused was seated at the left back seat of the taxi. When PO3
Valenzuela looked at the occupants of said taxi, the latter bowed their heads and slouched, refusing to look at
him. Feeling that something was amiss, PO3 Valenzuela and his companion stopped the vehicle, signaling the driver
to park by the side of the road (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 3-4).
PO3 Valenzuela and his co-police officer asked permission to search the vehicle. As the occupants readily agreed,
the police officers went about searching the luggages in the vehicle which consisted of a knapsack and a dark blue
plastic grocery bag. They asked appellant what the contents of the plastic bag were. Co-accused Noriel Lacerna
immediately answered that the bag contained his vomit (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 4-5).
Skeptical of what appellant and co-accused disclosed as regards the contents of the plastic bag, PO3 Valenzuela
made a hole in the bag and peeped inside. He found several blocks wrapped in newspaper, with the distinct smell of
marijuana emanating from it. PO3 Valenzuela opened one of the boxes and saw dried marijuana leaves. He told
appellant and co-accused that the contents of the bag were marijuana, which co-accused readily affirmed. According
to both Lacernas, the bag was a padala of their uncle. Specifically, they claimed that the bag was sent by their uncle,
who happened to be in Baguio City, for shipment to Iloilo (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 5-7; Nov. 20,
1992, pp. 8-10).
Appellant and co-accused, and the plastic bag containing blocks of marijuana were brought by PO3 Valenzuela and
PO3 Camero to the WPD Headquarters on UN Avenue, Manila. [10] At about 9:00 p.m. of the same day, both appellant
and co-accused were turned over to PO3 Rafael Melencio for investigation while the blocks were turned over to Lt. de
Soto (tsn., PO3 Melencio, Dec. 11, 1992, pp. 3-5. 20).
Lt. de Soto counted the blocks of marijuana, numbering eighteen (18) in all. Each block was wrapped in
newspaper. After seeing what the contents of the blocks were, the specimens (Exhs. B to B-19) were brought to the
National Bureau of Investigation (NBI) for further examination. [11] On the other hand, PO3 Melencio investigated
appellant and co-accused, informing them of their constitutional rights during a custodial investigation. Thereafter, he
prepared the Affidavit of Apprehension and the Booking Sheet and Arrest Report (Exhs. A, G, List of Exhibits, pp. 1,
15; tsn., PO3 Melencio, Dec. 11, 1992, pp. 15-24).
NBI Forensic Chemist Aida A. Pascual examined the eighteen (18) confiscated blocks which tested positive of
containing marijuana (Exhs. C, F to F-9. List of Exhibits, pp. 2-14; tsn., A. Pascual, Dec. 2, 1992, pp. 2-5).
Version of the Defense
Appellant sets up the defense of denial, alleging that the blue plastic bag was owned by his uncle who requested him
to bring it to Iloilo. He also denied knowing that it contained marijuana. In his Brief prepared by the Public Attorneys
Office, he narrated his version of the factual circumstances of this case, as follows: [12]
On September 12, 1992, at about 2:00 P.M., accused Marlon and Noriel Lacerna were riding in a taxicab on their way
to (the) North Harbor to board a boat bound for Iloilo City. While plying along Pier 15 their taxicab was flagged down
by a patrol mobile car. Accused Marlon Lacerna (appellant herein) was sitting in front while accused Noriel Lacerna
was at the back of the taxicab. The accused carried two bags. One bag contained their personal belongings and the
other bag contained things which their uncle Edwin Lacerna asked them to bring along. When their taxicab was
stopped, the two policemen in the Mobile car requested them that they and their baggage be searched. Confident that
they have not done anything wrong, they allowed to be searched. During the (search), the two accused were not
allowed to alight from the taxicab. The knapsack bag which contained their clothes was first examined in front of
them. The second bag was taken out from the taxi and was checked at the back of the taxicab. The accused were
not able to see the checking when the policemen brought the plastic bag at the back of the taxi. After checking, the
policemen told them its positive. The accused were (asked) to alight and go to the patrol car. They were brought to
the WPD Headquarters at United Nations. While there, they were brought inside a room. They asked what wrong
they have done but the policemen told them to wait for Major Rival. At about 8:00 oclock P.M., Major Rival talked to

them and asked them where the baggage came from and they answered that it was given to them by their
uncle. Then Major Rival asked them to hold the marijuana and pictures were taken. Later, they were brought inside
the cell where they were maltreated by the Kabo. The Kabo forced them to admit ownership of the
marijuana. Noriel was boxed on the chest, blindfolded and a plastic (bag) was placed on his neck and was
strangled. The mauling took place for about 30 minutes inside the toilet. They refused to sign the Booking and Arrest
Report but they impressed their fingerprint on a white bond paper. They were brought by Melencio to the Inquest
Prosecutor at the City Hall. On the way to the Inquest Prosecutor, Melencio told them to admit the charge against
them before the Inquest Fiscal, because if they will deny, something (would happen) to them in the afternoon and
Melencio even uttered to them vulva of your mother. Because they were apprehensive and afraid, they admitted the
charge before the Inquest Fiscal.
(Appellant) Marlon Lacerna first met his uncle Edwin Lacerna at Munoz Market. The second time was on September
11, 1992, when his uncle went to his brothers house in Caloocan City and requested him to bring his (uncle) personal
belongings upon learning that he (Marlon) is leaving for Iloilo city the next day, September 12, 1992. He told his uncle
to bring his personal belongings either in the evening of that day or the following day at the (Grand) Central (Station),
Monumento because he was going to buy a ticket for Noriel as he intend (sic) to bring the latter with him in going
home to the province. His uncle already gave a ticket for him. When he and Noriel (arrived) at the Grand Central at
about 10:00 oclock A.M. on September 12, 1992, their uncle was already there. The latter placed the plastic bag
besides their baggages. They no longer inspected the contents of the bag as the same was twisted and knotted on
top. After getting a ticket from the office of Don Sulpicio Lines, Marlon told Noriel to hail a taxi and then they
proceeded to the pier.
(Appellants) purpose in going home to Iloilo was to get all the requirements needed in his application to enter the
Marines.
Accused Noriel just arrived in Manila three days before September 12, 1992 to look for a job and was staying with
(appellant) at Caloocan City. In the evening of September 11, 1992, (appellant) requested him to come xxx with him to
Iloilo and assured him that he (would) be the one to pay for (Noriels) fare. (TSN., January 6, 1993, pp. 3-23; January
8, 1993, pp. 2-12; January 11, 1993, pp. 2-18; January 20, 1992, pp. 2-6; January 22, 1993, pp. 2-14)
Ruling of the Trial Court
The court a quo observed that appellant could not be convicted of delivering prohibited drugs because the
Information did not allege that he knowingly delivered marijuana. Neither could he be convicted of transporting or
dispatching in transit such prohibited drugs because these acts were not alleged in the Information. The trial court
mused further that appellant could not be convicted of selling marijuana because the elements constituting this crime
were not proven. However, the Information charged appellant with giving away to another prohibited drugs, a charge
which was different from delivery defined under Section 2 (f) [13] of R.A. 6245, as amended. Citing People vs. Lo Ho
Wing,[14] the trial court ruled that giving away to another is akin to transporting prohibited drugs, a malum
prohibitum established by the mere commission of said act. Thus, the court a quo convicted appellant of giving away
marijuana to another on the following premise: [15]
It is not denied by (appellant) that he did give to his co-accused cousin Noriel Lacerna the bundled 18 blocks of
marijuana who thereupon seated himself at the rear of the taxi with the marijuana. His claim that he did not know the
contents of the blue plastic bag can hardly be believed because it is within judicial notice that the marijuana contents
readily emits a pungent odor so characteristic of marijuana as what happened when the 18 blocks were displayed in
open Court. But as stated, guilty knowledge is not required by the phrase GIVE AWAY TO ANOTHER (Sec. 4). It
was clearly established that he gave the stuff to another, that is, to his co-accused Noriel Lacerna. The law does not
distinguish as to whether the word another refers to a third person other than a co-accused or to a co-accused. The
information, as in the case at bar, need not allege guilty knowledge on the part of Marlon Lacerna in giving away to
another the marijuana. (Appellant) should, therefor be found culpable for violating Section 4 of RA 6425, as amended,
as charged for giving away to another the marijuana.

Accused Noriel Lacerna, on the other hand, was acquitted for insufficiency of evidence. The court a quo reasoned
that it cannot be said that he did give away to another the marijuana for it was (appellant) who gave the marijuana to
(Noriel). Besides, unlike appellant who was urbanized in mannerism and speech, Noriel Lacerna
manifested probinsyano traitsand was, thus, unlikely to have dealt in prohibited drugs.

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

The Issues
Appellant objects to the trial courts Decision and assigns the following errors:

[16]

I
The lower court erred in making a sweeping statement that the act of giving away to another() is not defined under
R.A. 6425 specifically requiring knowledge what intent one (sic) is passing is a dangerous drug, as contradistinguished
from the term deliver; where knowledge is required.
II
The lower court erred in not giving credence to the assertion of accused-appellant that he had no knowledge that what
were inside the plastic bag given to him by his uncle were marijuana leaves.
III
The trial court erred in convicting accused-appellant despite failure of the prosecution to prove his guilt beyond
reasonable doubt.

The Constitution further decrees that any evidence obtained in violation of the provision mentioned is inadmissible in
evidence:
SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the preceding section shall be inadmissible for any purpose in any
proceeding.
However, not being absolute, this right is subject to legal and judicial exceptions. The Rules of Court, Section 12 of
Rule 126, provides that a person lawfully arrested may be searched for dangerous weapons or anything which may
be used as proof of the commission of an offense, without a search warrant.
Five generally accepted exceptions to the rule against warrantless arrest have also been judicially formulated as
follows: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs
searches, and (5) waiver by the accused themselves of their right against unreasonable search and seizure. [18] Search
and seizure relevant to moving vehicles are allowed in recognition of the impracticability of securing a warrant under
said circumstances. In such cases however, the search and seizure may be made only upon probable
cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or
other vehicle contains an item, article or object which by law is subject to seizure and destruction. [19] Military or police
checkpoints have also been declared to be not illegal per se as long as the vehicle is neither searched nor its
occupants subjected to body search, and the inspection of the vehicle is merely visual. [20]

The Courts Ruling

After meticulously reviewing the records of the case and taking into account the alleged errors cited above and the
argument adduced in support thereof, the Court believes that the issues can be restated as follows: (1) Was
appellants right against warrantless arrest and seizure violated? (2) Was the trial court correct in convicting appellant
for giving away to another 18 blocks of marijuana? and (3) May the appellant be held guilty of illegal possession of
prohibited drugs? The Court answers the first two questions in the negative and the third in the affirmative.
First Issue: Appellants Right Against
Warrantless Search and Seizure
The defense argues that the bricks of marijuana were inadmissible in evidence as they were obtained through illegal
search and seizure. Appellant alleges that at the time of the search and seizure, he and his co-accused were not
committing any crime as they were merely riding a taxicab on the way to Pier 15, North Harbor in Manila. Hence, the
precipitate arrest and seizure violated their constitutional right and the marijuana seized constituted fruits of the
poisonous tree.
The Solicitor General disagrees, contending that the search and seizure were consistent with recent jurisprudential
trend liberalizing warrantless search and seizure where the culprits are riding moving vehicles, because a warrant
cannot be secured in time to apprehend the mobile target.
Both contentions are inaccurate. In the recent case of People vs. Cuison,[17] this Court reiterated the principles
governing arrest, search and seizure. To summarize, let us begin with Section 2, Article III of the 1987 Constitution
which provides:

In the case at bar, the taxicab occupied by appellant was validly stopped at the police checkpoint by PO3
Valenzuela. It should be stressed as a caveat that the search which is normally permissible in this instance is limited
to routine checks -- visual inspection or flashing a light inside the car, without the occupants being subjected to
physical or body searches. A search of the luggage inside the vehicle would require the existence of probable cause.
[21]

In applicable earlier Decisions, this Court held that there was probable cause in the following instances: (a) where the
distinctive odor of marijuana emanated from the plastic bag carried by the accused; [22] (b) where an informer positively
identified the accused who was observed to have been acting suspiciously; [23] (c) where the accused fled when
accosted by policemen;[24] (d) where the accused who were riding a jeepney were stopped and searched by policemen
who had earlier received confidential reports that said accused would transport a large quantity of marijuana; [25] and (e)
where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports
by a deep penetration agent or spy -- one who participated in the drug smuggling activities of the syndicate to which
the accused belonged -- that said accused were bringing prohibited drugs into the country.[26]
In the case at hand, however, probable cause is not evident. First, the radio communication from General Nazareno,
which the arresting officers received and which they were implementing at that time, concerned possible cases of
robbery and holdups in their area.[27] Second, Noriel Lacernas suspicious reactions of hiding his face and slouching in
his seat when PO3 Valenzuelas car passed alongside the taxicab might have annoyed the latter, or any other law
enforcer, and might have caused him to suspect that something was amiss. But these bare acts do not constitute
probable cause to justify the search and seizure of appellants person and baggage. Furthermore, the Claudio ruling
cannot be applied to this case because the marijuana was securely packed inside an airtight plastic bag and no
evidence, e.g., a distinctive marijuana odor, was offered by the prosecution.
Nonetheless, we hold that appellant and his baggage were validly searched, not because he was caught in flagrante
delicto, but because he freely consented to the search. True, appellant and his companion were stopped by PO3
Valenzuela on mere suspicion -- not probable cause -- that they were engaged in a felonious enterprise. But

Valenzuela expressly sought appellants permission for the search. Only after appellant agreed to have his person
and baggage checked did the actual search commence. It was his consent which validated the search, waiver being a
generally recognized exception to the rule against warrantless search. [28]
We are aware that this Court in Aniag, Jr. vs. COMELEC outlawed a search based on an implied acquiescence,
because such acquiescence was not consent within the purview of the constitutional guaranty, but was merely passive
conformity to the search given under intimidating and coercive circumstances. [29] In the case before us, however,
appellant himself who was urbanized in mannerism and speech expressly said that he was consenting to the search
as he allegedly had nothing to hide and had done nothing wrong. [30] In his brief, appellant explicitly, even if awkwardly,
reiterated this: Confident that they [the accused] have not done anything wrong, they allowed to be searched. This
declaration of appellant is a confirmation of his intelligent and voluntary acquiescence to the search. The marijuana
bricks were, therefore, obtained legally through a valid search and seizure. They were admissible in evidence; there
was no poisonous tree to speak of.
Second Issue: Did Appellant
Give Away the Prohibited Drug?
The trial court justified the conviction of appellant for giving away to another the prohibited drugs, because he literally
handed to Noriel the plastic bag containing marijuana, manually transferring the plastic bag from the front seat to the
backseat of the taxicab. We hold, however, that this is not the act penalized by the Dangerous Drugs Act of 1972.
Section 4 of R.A. 6425, as amended, the violation of which is charged in the Information, penalizes any person who,
unless authorized by law, shall sell, administer, deliver, give awayto another, distribute, dispatch in transit or transport
any prohibited drug, or shall act as a broker in any of such transactions.
The phrase give away is commonly defined as to make a present of; to donate, or to make a sacrifice. [31] As used in
a statute making it an offense to sell, give away, or otherwise dispose of liquor without a license, this phrase was
construed as extending only to a disposition in ejusdem generis with a sale or a gift.[32] It is synonymous with to
furnish, a broad term embracing the acts of selling and giving away with the intent of transferring ownership. Selling
by itself is one distinct mode of committing the offense, and furnishing is intended only to include other modes of
affording something to others besides selling it. [33]
As distinguished from delivery, which is an incident of sale, giving away is a disposition other than a sale. It is,
therefore, an act short of a sale which involves no consideration. The prohibited drug becomes an item or
merchandise presented as a gift or premium (giveaway), where ownership is transferred.
According to appellant, he gave the plastic bag and the knapsack to Noriel because the latter got into the taxicab first
and because there was more room in the backseat than in the front. By handing the plastic bag to Noriel, appellant
cannot be punished for giving away marijuana as a gift or premium to another. In Cuison,[34] this Court acquitted an
accused of carrying and transporting prohibited drugs because the act per se of handing over a baggage at the
airport cannot in any way be considered criminal.
Further, adopting the trial courts interpretation would lead to absurd conclusions. Following the trial courts line of
reasoning, Noriel should have been held liable for the same crime when he gave the plastic bag to PO3 Valenzuela for
the latters inspection. And yet, the trial court inexplicably acquitted him. Valenzuela would similarly be criminally
culpable as he testified that he turned over the plastic bag to his superior, Lt. de Soto. It is a well-settled rule that
statutes should receive a sensible construction so as to give effect to the legislative intention and to avoid an unjust or
an absurd conclusion.[35]
Third Issue:
May Appellant Be Convicted

of Illegal Possession?
Appellants exoneration from giving away a prohibited drug to another under Section 4 of the Dangerous Drugs Act
does not, however, spell freedom from all criminal liability. A conviction for illegal possession of prohibited drugs,
punishable under Section 8 of the same Act, is clearly evident.
In People vs. Tabar,[36] the Court convicted appellant of illegal possession under Section 8 of said Act, although he was
charged with selling marijuana under Section 4, Article II thereof. [37]
The prevailing doctrine is that possession of marijuana is absorbed in the sale thereof, except where the seller is
further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale
and which are probably intended for some future dealings or use by the seller. [38]
Possession is a necessary element in a prosecution for illegal sale of prohibited drugs. It is indispensable that the
prohibited drug subject of the sale be identified and presented in court. [39] That the corpus delicti of illegal sale could
not be established without a showing that the accused possessed, sold and delivered a prohibited drug clearly
indicates that possession is an element of the former. The same rule is applicable in cases of delivery of prohibited
drugs and giving them away to another.
In People vs. Manzano,[40] the Court identified the elements of illegal sale of prohibited drugs, as follows: (1) the
accused sold and delivered a prohibited drug to another, and (2) he knew that what he had sold and delivered was a
dangerous drug. Although it did not expressly state it, the Court stressed delivery, which implies prior possession of
the prohibited drugs. Sale of a prohibited drug can never be proven without seizure and identification of the prohibited
drug, affirming that possession is a condition sine qua non.
It being established that illegal possession is an element of and is necessarily included in the illegal sale of prohibited
drugs, the Court will thus determine appellants culpability under Section 8.
From the penal provision under consideration and from the cases adjudicated, the elements of illegal possession of
prohibited drugs are as follows: (a) the accused is in possession of an item or object which is identified to be a
prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed
the prohibited drug.[41]
The evidence on record established beyond any doubt that appellant was in possession of the plastic bag containing
prohibited drugs, without the requisite authority. The NBI forensic chemists identification of the marijuana or Indian
hemp was conclusive.
Appellant protests the trial courts finding that he knew that the plastic bag contained marijuana. The lower court ruled
that appellant could not have possibly missed the pervasive pungent smell emitted by marijuana which was duly noted
when the marijuana was exhibited in open court. This reasoning, however, is not supported by the evidence; the
plastic bag, at the time of the search and seizure, was twisted and tied at the top, and thus airtight. PO3 Valenzuela
did not even notice this pervasive characteristic smell until he poked a hole in the plastic bag and unwrapped the
newspaper covering one of the marijuana bricks.
It is well-settled that criminal intent need not be proved in the prosecution of acts mala prohibita. On grounds of public
policy and compelled by necessity, courts have always recognized the power of the legislature, as the greater master
of things, to forbid certain acts in a limited class of cases and to make their commission criminal without regard to the
intent of the doer.[42] Such legislative enactments are based on the experience that repressive measures which depend
for their efficiency upon proof of the dealers knowledge or of his intent are of little use and rarely accomplish their
purposes; besides, the prohibited act is so injurious to the public welfare that, regardless of the persons intent, it is the
crime itself.[43]
This, however, does not lessen the prosecutions burden because it is still required to show that the prohibited act was
intentional.[44] Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not

have consciously intended to commit a crime; but if he did intend to commit an act, and that act is, by the very nature
of things, the crime itself, then he can be held liable for the malum prohibitum.[45] Intent to commit the crime is not
necessary, but intent to perpetrate the act prohibited by the special law must be shown. InBayona, the Court declared:
[46]

xxx The law which the defendant violated is a statutory provision, and the intent with which he violated it is
immaterial. x x x x The act prohibited by the Election Law was complete. The intention to intimidate the voters or to
interfere otherwise with the election is not made an essential element of the offense. Unless such an offender actually
makes use of his revolver, it would be extremely difficult, if not impossible, to prove that he intended to intimidate the
voters.
The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the
prohibited act was intentionally done. Care must be exercised in distinguishing the difference between the intent to
commit the crime and the intent to perpetrate the act. * * * (U.S. vs. Go Chico, 14 Phil., 128).
In illegal possession of prohibited drugs under Section 8 of the Dangerous Drugs Act, the prosecution is not excused
from proving that possession of the prohibited act was done freely and consciously, which is an essential element of
the crime.
In the case at bar, appellant was found to have in his possession a plastic bag containing 18 kg of marijuana formed
into 18 bricks which were separately wrapped. His possession thereof gives rise to a disputable presumption under
Section 3[j], Rule 131 of the Rules of Court,[47] that he is the owner of such bag and its contents. His bare,
unpersuasive, feeble and uncorroborated disavowal -- that the plastic bag was allegedly given to him by his uncle
without his knowing the contents -- amounts to a denial which by itself is insufficient to overcome this presumption.
[48]
Besides, this defense, unless substantiated by clear evidence, is invariably viewed with disfavor by courts, for it can
just as easily be concocted. Verily, it is a common and standard defense ploy in most prosecutions involving
dangerous drugs.[49]

This is an original petition, filed in this court, for the writs of injunction and prohibition. It appears from the record that
on April 30, 1919, one Ramon Gayanilo, corporal of the Philippine Constabulary, presented to the judge of the Court of
First Instance of Iloilo an application for search warrant, the said Ramon Gayanilo stating in his application; "That in
the house of Chino Uy Kheytin, Sto. Nio St., No. 20, Iloilo, under the writing desk in his store, there is kept a certain
amount of opium." The application was subscribed and sworn to by the said complainant before the Honorable L. M.
Southworth, judge of the Twenty-third Judicial District.
Upon that application the said judge, on the same day, issued a search warrant in the following terms:
The United States, to any officer of the law.
Whereas on this day proof, by affidavit, having been presented before me by Corporal Ramon Gayanilo, Philippine
Constabulary, that there is probable cause to believe that in the house of Chino Uy Kheytin, Sto. Nio St., No. 20,
under the desk for writing in his store there is kept a certain amount of opium.
Therefore, you are hereby commanded during day or night to make an immediate search on the person of Uy Kheytin
or in the house, Sto. Nio St., No. 20, for the following property opium and, if you find the same or any part thereof, to
bring it forthwith before me in the Court of First Instance of Iloilo.
Witness my hand this 30th day of April, 1919.
(Sgd.) L. M. SOUTHWORTH,
Judge of the Court of Iloilo.

Further, the trial court did not give credence to appellants denial. It is axiomatic that appellate courts accord the
highest respect to the assessment of witnesses credibility by the trial court, because the latter was in a better position
to observe their demeanor and deportment on the witness stand. [50] The defense failed to present sufficient reasons
showing that the trial court had overlooked or misconstrued any evidence of substance that would justify the reversal
of its rejection of appellants defense of denial.

Armed with that search warrant, the respondent M. S. Torralba, lieutenant of the Philippine Constabulary,
accompanied by some of his subordinates, on the same day (April 30th) searched the house of the petitioner Uy
Kheytin and found therein 60 small cans of opium. They wanted to search also the bodega on the ground-floor of the
house, but Uy Kheytin positively denied that it was his or that he rented it. Lieutenant Torralba wanted to be sure, and
for this reason he placed a guard in the premises to see that nothing was removed therefrom, and then went away to
find out who the owner of the bodega was. The next morning he learned from the owner of the house, one Segovia, of
the town of Molo, that the Chinaman Uy Kheytin was the one who was renting the bodega. Thereupon Lieutenant
Torralba and his subordinates resumed the search and then and there found and seized the following articles:

Appellant is, therefore, liable for illegal possession of prohibited drugs under Section 8 of the Dangerous Drugs Act. [51]

No. 2. - One wrap of paper containing a broken bottle of opium liquid, which is kept in a tin box No. 1.

WHEREFORE, the assailed Decision is hereby MODIFIED. Appellant is CONVICTED of illegal possession of
prohibited drugs under Section 8 of R.A. 6425; SENTENCED, in accordance with the Indeterminate Sentence Law, to
eight (8) years as minimum to twelve (12) years as maximum; and ORDERED to pay a fine of twelve thousand pesos
(P12,000.00). Costs de oficio.

No. 3. - One wrap of paper containing an opium pipe, complete, one opium container, one wrap of opium ashes, one
rag soaked in opium and one thimble with opium.

SO ORDERED.
G.R. No. 16009
UY KHEYTIN, ET AL., petitioners,
vs.
ANTONIO VILLAREAL, Judge of First Instance for the Twenty-third Judicial District, ET AL., respondents.
Crossfield & O'Brien for petitioners.
Attorney-General Paredes & Assistant Attorney-General Santos for respondents.

No. 4. - One leather hand bag containing 7 small bottle containing opium, with two cedulas belonging to Tian Liong,
with key.
No. 5. - One wooden box containing 75 empty cans, opium containers.
No. 6. - One tin box containing 23 small empty cans, opium containers.
No. 7. - One cardboard box containing 3 pieces of wood, one old chisel, one file, one piece of soldering lead, one box
of matches, 5 pieces of iron plates, and several other tin plates.
No. 8. - One roll of 7 sheets of brass.

JOHNSON, J.:
No. 9. - Three soldering outfits.

No. 10. - One hammer.

No. 11. - One Chinese scale for opium.
No. 12. - Twelve small bottles empty.
No. 13. - Two bottles containing opium.
No. 14. - One bundle of Chinese books of accounts with several personal letter of Chine Uy Kheytin.
No. 15. - One tin box containing 60 cans of molasses, with 1 small bottle containing molasses.
Thereafter a criminal complaint was filed in the court of the justice of the peace of Iloilo against all the petitioners
herein, charging them with a violation of the Opium Law. They were duly arrested, and a preliminary investigation was
conducted by the justice of the peace, after which he found that there was probable cause for believing that the crime
complained of had been committed and that the defendants were the persons responsible therefor. The cause was
duly transmitted to the Court of First Instance.
While said cause was in the Court of First Instance, pending the filing of a complaint by the provincial fiscal, the
defendants, petitioners herein, through their attorney, filed a petition in the Court of First Instance, asking for the return
of "private papers, books and other property" which the Constabulary officers had seized from said defendants, upon
the ground that they had been so seized illegally and in violation of the constitutional rights of the defendants. It was
urged (1) that the search warrant of April 30th was illegal because the requisites prescribed by the General Orders No.
58 had not been complied with in its issuance; (2) that the searches and seizures made on May 1st had been made
without any semblance of authority and hence illegal; and (3) that the seizure of the defendants' books and letters was
a violation of the provisions of the Jones Law providing that no person shall be compelled to testify against himself,
and protecting him against unreasonable searches and seizures.
After a hearing upon said motion, the Honorable Antonio Villareal, judge, in a very carefully prepared opinion, reached
the conclusion that the searches and seizures complained of had been legally made, and consequently, denied the
defendants' petition.
Thereafter and on November 22, 1919, the said defendants, petitioners herein, filed the present petition in this court,
praying as follows:
Wherefore, in view of the foregoing allegations, it is respectfully prayed that a preliminary injunction issue.
First, restraining the respondent judge, and his successors from making any cognizance of any action of any kind
which has or may be brought against these petitioners which have resulted directly or indirectly from the unlawful
searches and seizures above-mentioned;
Second, restraining the respondent clerk of the court, the respondent fiscal, the respondent commandant of the
Constabulary, and the successors of any of them, and the assistants of any of them, from any further examination of
the private papers, books, and other property unlawfully seized as above alleged; from making or using the same for
the purpose or in such a manner that the character or reputation of these petitioners might be injured; from making or
using any copies, memorandum, notes, or extracts obtained from the books, papers, etc., so seized; from making any
examinations of any of the property thus obtained or from using any reports or from publishing in any manner any
reports already prepared as a result of the examination of such property; or from making any other use of the property
and papers so obtained until orders are received from this court regarding the disposition of the same.
It is further requested, that a writ of prohibition issue, restraining the respondent judge from at any time taking
cognizance of any action or prosecution growing out of the unlawful searches and seizures above-mentioned, and

directing such judge or his successor to order the immediate return to these petitioners of all of the papers and other
property thus unlawfully obtained, together with all copies, extracts, memorandum, notes, photographs, reports,
samples, or evidence obtained by reason of such searches and seizures whereby the reputation and character of
petitioners may be further damaged; furthermore enjoining all of the respondents and their assistants from divulging
any of the secrets or information which they have thus unlawfully obtained from these petitioners; and especially
ordering the respondent judge to dismiss all actions or prosecutions already filed before him or which may hereafter
come before him as a result of the unlawful acts herein alleged.
I
THE SEARCH WARRANT OF APRIL 30TH
The petitioners contend that the search warrant of April 30, 1919, was illegal, (1) because it was not issued upon either
of the grounds mentioned in section 96 of General Orders No. 58, and (2) because the judge who issued it did not
determine the probable cause by examining witnesses under oath, a required by section 98 of said General Orders
No. 58.
Section 96 of General Orders No. 58 is as follows:
SEC. 96. It (a search warrant) may be issued upon either of the following grounds:
1. When the property was stolen or embezzled.
2. When it was used or when the intent exists to use it as the means of committing a felony.
In support of their first contention the petitioners argue that the property ordered to be seized, namely, opium, under
the said search warrant, had not been stolen or embezzled, nor had it been used or intended to be used as the means
of committing a felony; that the word "felony" is applicable only to a serious crime which is malum per se and not to
one which is merely malum prohibitum, such as the possession of opium.
For the purpose of this decision we deem it unnecessary to draw the distinction between the words "felony" and
"misdemeanor" a used in the common law. Suffice it to say that, whatever may be the technical common-law meaning
of the word "felony," which is used in paragraph 2 of section 96 above quoted, we believe it would be the height of
absurdity to hold, upon technical grounds, that a search warrant is illegal which is issued to search for and seize
property the very possession of which is forbidden by law and constitutes a crime. Opium is such property. "Searchwarrants have heretofore been allowed to search for stolen goods, for goods supposed to have been smuggled into
the country in violation of the revenue laws, for implements of gaming or counterfeiting, for lottery tickets or prohibited
liquors kept for sale contrary to law, for obscene books and paper kept for sale or circulation, and for powder or other
explosive and dangerous material so kept as to endanger the public safety." (Cooley on Constitutional Limitations, 7th
ed., p. 432.)
In support of their second contention, the petitioners invoke section 98 of General Orders No. 58, which provides a
follow:
SEC. 98. The judge or justice must, before issuing the warrant, examine on oath the complainant and any witnesses
he may produce and take their depositions in writing.
Section 97 provides that "a search warrant shall not issue except for probable cause" and section 98 above quoted
provides the manner in which that probable cause shall be determined by the judge issuing the warrant. In the present
case, however, the judge did not examine any witness under oath but relied solely upon the sworn application of the
Constabulary officer in determining whether there was probable cause. In that application the complainant swore
positively: "That in the house of Chino Uy Kheytin, Sto. Nio St., No. 20, Iloilo, under the writing desk in his store, there
is kept a certain amount of opium." This statement was found to be true by the subsequent finding and seizure of a
considerable quantity of opium in the place mentioned. The question now is, whether the omission of the judge to

comply with the requirements of section 98 would, under the circumstances, justify the court in declaring that the
search warrant in question was illegal and ordering the return of the opium found and seized under said warrant.
A search warrant may be likened to a warrant of arrest. The issuance of both is restricted by the same provision of the
Jones Law (sec. 3) which is as follows:
That no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched and the person or thing to be seized.
A person, then, is protected from unreasonable arrests just as much as he is protected from unreasonable searches.
But suppose he happened to be arrested without any warrant, or upon a warrant which had been issued by a judge
without first properly determining whether there was probable cause, and upon investigation it should be found, from
his own admission, that he was the author of the crime, - should he be released upon the ground that he had not been
legally arrested? In the case of Ker vs. Illinois (119 U. S., 436) Ker having committed the crime of larceny, escaped
and went to Peru. He was kidnapped in Peru and brought back to the State of Illinois without any pretense of authority.
Passing upon the question of the constitutionality of the arrest of Ker, the Supreme Court of the United States,
speaking through Mr. Justice Miller, said:
We do not intend to say that there may not be proceedings previous to the trial in regard to which the prisoner could
invoke in some manner the provisions of this clause of the Constitution; but for mere irregularities in the manner in
which he may be brought into the custody of the law, we do not think he is entitled to say that he should not be tried at
all for the crime with which he is charged in a regular indictment. He may be arrested for a very heinous offense by
persons without any warrant, or without any previous complaint, and brought before a proper officer, and this may be
in some sense said to be "without due process of law." But it would hardly be claimed that after the case had been
investigated, and the defendant held by the proper authorities to answer for the crime, he could plead that he was first
arrested "without due process of law." (Followed in U. S. vs. Grant and Kennedy, 18 Phil., 122, 146; U. S. vs. Wilson, 4
Phil., 317.)
In the present case there was an irregularity in the issuance of the search warrant in question in that the judge did not
first examine the complainant or any witnesses under oath, as required by section 98 of General Orders No. 58. But
the property sought to be searched for and seized having been actually found in the place described by the
complainant, reasoning by analogy from the case of an improper arrest, we are of the opinion that that irregularity is
not sufficient cause for ordering the return of the opium found and seized under said warrant, to the petitioners, and
exonerating the latter.
II
THE SEARCH MADE ON MAY 1ST
Petitioners content that this was made without any search warrant and without any authority of law; that the search
warrant of April 30th could not be used on May 1st because that warrant had been executed on the day of its
issuance. In support of this contention counsel for the petitioners, in the lower court, argued that:
While it is true that a warrant is good for 10 days after the date of issuance, this cannot be interpreted to mean that a
search warrant can be used every day for 10 days, and for a different purpose each day. This would be absurd. It is
admitted, for sake of argument, that if upon a search, under a legally issued warrant, some other prohibited articles
than those named in the warrant should be found, these articles might be seized. Also, it might possibly be true, that if
a warrant was issued to search for a certain article and it was not found after the first search, that another search
could be made sometime within the 10 days. But this is certainly the furthest possible extreme the doctrine could be
carried. It certainly could not be interpreted to allow a search to be made, and after the articles for which the warrant
was issued had been seized, to use this same warrant as authority to make another search.
We agree with counsel that a search warrant cannot be used every day for ten days, "and for a different purpose each
day," and that after the articles for which the warrant was issued have been seized the same warrant cannot be used
as authority to make another search. But this argument is not applicable to the facts in this case. It appears from the
oral evidence adduced during the hearing of the petitioners' motion in the court below that the search for opium, the

property mentioned in the warrant, was not completed on April 30th; it was interrupted by the necessity to ascertain
who the owner of the bodega on the ground-floor was, because the petitioner Uy Kheytin falsely disclaimed ownership
thereof. In other words, the search of May 1st was not made "for a different purpose," nor could it be considered
"another search," but was really a continuation of the search begun on April 30th. This is shown by the fact that during
the interval between the two searches the premises in question were guarded by Constabulary soldiers, and the
petitioners were made to understand on April 30th that the authorities were not yet through with the search and would
continue the same as soon as they found out that the bodega was also occupied by the petitioner Uy Kheytin. We are,
therefore, of the opinion that the search made on May 1st was authorized under the search warrant of April 30th.
III
THE SEIZURE OF BOOKS, LETTERS, ETC.
The important question that remains to be decided is whether, under a search warrant for opium, the officers of the law
were authorized to seize books, personal letters, and other property having a remote or no connection with opium. The
respondent M. S. Torralba, lieutenant of the Constabulary, testified that he seized these articles because he believed
or suspected that they had some relation with the opium in question; in other words, he thought that they might be
used as evidence against the petitioners when they are prosecuted for a violation of the Opium Law. The respondents
contend that this was a sufficient justification under the law for the seizure of such articles under the same warrant for
opium.
We are of the opinion that the respondent's contention in untenable. Both the Jones Law (sec. 3) and General Orders
No. 58 (sec. 97) specifically require that a search warrant should particularly describe the place to be searched and
the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those,
and only those, particularly described in the search warrant - to leave the officers of the law with no discretion
regarding what articles they shall seize, to the end that "unreasonable searches and seizures" may not be made, - that
abuses may not be committed. That this is the correct interpretation of this constitutional provision is borne out by
American authorities.
In order to comply with the constitutional provisions regulating the issuance of search warrants, the property to be
seized under a warrant must be particularly described therein and no other property can be taken thereunder. The
goods to be seized must be described with such certainty as to identify them, and the description must be so particular
that the officer charged with the execution of the warrant will be left with no discretion respecting the property to be
taken. . . . Under a warrant to search a person for stolen goods, the officer cannot lawfully take from the person a
letter, such letter not being particularly described in the warrant as property to be searched for. (24 R. C. L., 714, 715.)
It is a violation of the declaration of rights respecting searches and seizures for an officer, while searching one's
person under a search warrant for stolen goods, to take from it, against the party's will, a letter written to him. (State
vs. Slamon, 87 Am. St. Rep., 711.)
We have said that if the officer follows the command of his warrant, he is protected; and this is so even when the
complaint proves to have been unfounded. But if he exceed the command by searching in places not described
therein, or by seizing persons or articles not commanded, he is not protected by the warrant, and can only justify
himself as in other cases where he assumes to act without process. Obeying strictly the command of his warrant, he
may break open outer or inner doors, and his justification does not depend upon his discovering that for which he is to
make search. (Cooley on Constitutional Limitations, 7th ed., p. 434)
That the officers of the law believed that the books, papers, etc., which they seized might be used as evidence against
the petitioners herein a criminal action against them for a violation of the Opium Law, is no reason or justification under
the law for the seizure: First, because they were not "particularly described" or even mentioned in the search warrant;
second, because, even if they had been mentioned in the search warrant, they could not be legally seized, for a
search warrant cannot be used for the purpose of obtaining evidence; and third, because to compel a person to
produce his private papers to be used in evidence against him would be equivalent to compelling him to be a witness
against himself.
1. The authorities for the first proposition have already been given above.

2. It may be said that Books of account, private documents, and private papers are property which men may lawfully possess. It is not
believed that the stature (subsection 2 of section 96, G. O. 58) was intended to cover property of this class. Granting
that property of which men may lawfully possess themselves has been used in the commission of a crime and not
possessed nor created purely for the purpose of committing a crime, and not likely to be used again, then certainly its
seizure can only be for the purpose of using the same as evidence to prove the commission of the crime already
committed. This purpose is not contemplated by the provision of the law. The finding of evidence can not be the
immediate reason for issuing the search warrant. To use a search warrant for the purpose of obtaining possession of
property for this purpose would be an "unreasonable" use of the remedy by search warrant, which is prohibited by law.
(Regidor vs. Araullo, 5 Off. Gaz., 955, 961, 962; U. S. vs. De los Reyes and Esguerra, 20 Phil., 467.)

Therefore, it is hereby ordered and decreed that each and all of the respondents herein, their assistants or
successors, be, and they hereby are, forbidden from examining or making any use of said books, letters, telegrams,
etc., namely, the articles described in items Nos. 7, 8, 9, 10, 12, 14, and 15 of the sheriff's return (Exhibit 3,
reproduced at the top of page 3 of this decision 1) and they are hereby ordered to immediately return the said articles
to the petitioners. So ordered.
Araullo and Villamor, JJ., concur.
Mapa, C.J., concurs in the result.
Separate Opinions

Judge Cooley in his work on Constitutional Limitations, 7th ed., p. 431, says:

AVANCEA, J., concurring and dissenting:

The warrant is not allowed for the purpose of obtaining evidence of an intended crime; but only after the lawful
evidence of an offense actually committed. Nor even then is it allowable to invade one's privacy for the sole purpose of
obtaining evidence against him, except in a few special cases where that which is the subject of the crime is supposed
to be concealed, and the public or the complainant has an interest in it on its destruction.

I concur with the decision except as to the part which declares that the search warrant was irregularly issued
MOIR, J., concurring and dissenting:

3. In the case of Boyd vs. United States (116 U. S., 616), the Supreme Court of the United States, speaking through
Mr. Justice Bradley, said:

In concurring in the result in this decision, I desire to state that I do not concur in that part of the decision which says
that the judge did not comply with the requirement of section 98 of General Orders No. 58 before issuing an order of
arrest. That section reads:

The seizure or compulsory production of a man's private papers to be used in evidence against him is equivalent to
compelling him to be a witness against himself, and, in a prosecution for a crime, penalty or forfeiture, is equally within
the prohibition of the Fifth Amendment.

The judge or justice must, before issuing the warrant, examine on oath the complainant and any witnesses he may
produce and take their depositions in writing.

Both amendments (fourth and fifth) relate to the personal security of the citizen. They nearly run into and mutually
throw light upon each other. When the thing forbidden in the Fifth Amendment, namely, compelling a man to be a
witness against himself, is the object of a search and seizure of his private papers, it is an "unreasonable search and
seizure" within the Fourth Amendment.
Search and seizure of a man's private papers to be used in evidence for the purpose of convicting him of a crime,
recovering a penalty, or of forfeiting his property, is totally different from the search and seizure of stolen goods,
dutiable articles on which the duties have not been paid, and the like, which rightfully belong to the custody of the law.
(Se also Silverthorne Lumber Co. vs. United States, decided Jan. 26, 1920, by the Supreme Court of the United
States.)
The seizure of a person's private papers, to be used in evidence against him, is equivalent to compelling him to be a
witness against himself. (State vs. Slamon, 73 Vt., 212; 87 Am. St. Rep., 711.)

It appears that complainant in this case was a Constabulary corporal. He made affidavit before the judge of First
Instance when the search warrant was issued. It does not appear that he presented any witnesses whose depositions
were to be taken.
General Orders No. 58 expressly provides, in section 99 thereof,
If the judge or justice is thereupon satisfied of the existence of facts upon which the application is based, or that there
is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the following
form:
...........................................................}
Province of ........................................
The United States to any ......................., or policeman in the Province of ...............................,

From all of the foregoing our conclusions are:

Proof, by affidavit, having this day been made before me by, etc. etc.
1. That although in the issuance of the search warrant in question the judge did not comply with the requirements of
section 98 of General Orders No. 58, the petitioners are not entitled to the return of the opium and its paraphernalia
which were found and seized under said warrant, and much less are they entitled to be exonerated because of such
omission of the judge.
2. That the search made on May 1st was a continuation of the search begun on the previous day, and, therefore, did
not require another search warrant.
3. That the seizure of the petitioner's books, letters, telegrams, and other articles which have no inherent relation with
opium and the possession of which is not forbidden by law, was illegal and in violation of the petitioners' constitutional
rights.

This court says, on page 8 of the decision: [[1]]

In the present case there was an irregularity in the issuance of the search warrant in question in that the judge did not
first examine the complainant or any witnesses under oath, as required by section 98 of General Orders No. 58. But
the property sought to be searched for and seized having been actually found in the place described by the
complainant, reasoning by analogy from the case of an improper arrest, we are of the opinion that that irregularity is
not sufficient cause for ordering the return of the opium found and seized under said warrant, to the petitioners, and
exonerating the latter.

We do not think there was nay irregularity.

The affidavit required by law was made. It is a general practice to issue search warrants on a single affidavit. To
require more than one or to require witnesses to be presented, would add to the law and would defeat the very object
of a search warrant, which is to seize evidence of crime before it can be destroyed. Publicity, which would ordinarily
follow the presentation of witnesses or even getting more than one affidavit, would invite, if not assure, a failure.
If one witness may be sufficient to convict a man of the gravest crime, certainly one affidavit should be sufficient for a
judge to issue a search warrant upon.

RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO R. ZUO, in his
capacity as Chief State Prosecutor, the Panel of Investigating Prosecutors composed of EMMANUEL Y.
VELASCO, JOSELITA C. MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A. WAGA
(Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate for Investigation and
Detective Management (DIDM), YOLANDA G. TANIGUE, in her capacity as Acting Executive Officer of DIDM,
the DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE (PNP), Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 175013

Judging from the quantity of opium captured, all the articles mentioned in the decision were used by the petitioners for
unlawful purposes; i.e., the carrying on of a trade in opium. Liquid opium is necessarily put up in bottles and other
small receptacles, and it would seem that the metal found was for making small containers for the opium. The writer
does not know why the molasses was present, but it is most frequently present where there is any considerable
quantity of opium found.
It would seem that what petitioners really want are the Chinese account book and the letters, and the reason for their
ardent desire to get them can easily be imagined.

June 1, 2007

CRISPIN B. BELTRAN, Petitioner,

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

We must follow the decisions quoted, and hold that this book and the letters should be returned, and to this I agree,
but we must assume that everything else was used in and about the sale of opium, and they should not be returned.

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

G.R. Nos. 172070-72

June 1, 2007

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

CASAMBRE,Petitioners,
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C.
MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A.
MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the Department of
Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY
RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief, Philippine
National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G. TANIGUE,Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 172074-76

June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIO, CRISPIN B. BELTRAN,
and RAFAEL V. MARIANO, Petitioners,
vs.

Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza
(Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casio (Casio), and Rafael V.
Mariano (Mariano),1 are members of the House of Representatives representing various party-list groups. 2Petitioners
in G.R. Nos. 172070-72 are private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to
Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati.
G.R. No. 175013 (The Beltran Petition)
Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24 February
2006 declaring a "State of National Emergency," police officers 3 arrested Beltran on 25 February 2006, while he was
en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested without a warrant
and the arresting officers did not inform Beltran of the crime for which he was arrested. On that evening, Beltran was
subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the Revised
Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the
occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltrans
arresting officers who claimed to have been present at the rally. The inquest prosecutor 4 indicted Beltran and filed the
corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC). 5
The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second
inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State prosecutors 6 from the DOJ
conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of Yolanda
Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal
Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy

Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDGs investigation
implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders and promoters"
of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly by
members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas (MKP), which
have formed a "tactical alliance."
On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran and
San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information with the RTC Makati. The
Information alleged that Beltran, San Juan, and other individuals "conspiring and confederating with each other, x x x,
did then and there willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as
Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with
the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted
government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under
Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).
Beltran moved that Branch 137 make a judicial determination of probable cause against him. 8 Before the motion could
be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch 146 under Judge
Encarnacion Jaja-Moya (Judge Moya).
In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran. 9 Beltran sought
reconsideration but Judge Moya also inhibited herself from the case without resolving Beltrans motion. Judge Elmo M.
Alameda of Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006 denying Beltrans
motion.
Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to enjoin
Beltrans prosecution.
In his Comment to the petition, the Solicitor General claims that Beltrans inquest for Rebellion was valid and that the
RTC Makati correctly found probable cause to try Beltran for such felony.
G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)
Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them to
appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its attachment." Prior to their receipt of
the subpoenas, petitioners had quartered themselves inside the House of Representatives building for fear of being
subjected to warrantless arrest.
During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later
identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to his
affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media members
present during the proceedings. The panel of prosecutors 10 gave petitioners 10 days within which to file their counteraffidavits. Petitioners were furnished the complete copies of documents supporting the CIDGs letters only on 17
March 2006.

Acting on petitioners prayer for the issuance of an injunctive writ, the Court issued a status quo order on 5 June 2006.
Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution finding probable cause to
charge petitioners and 46 others with Rebellion. The prosecutors filed the corresponding Information with Branch 57 of
the RTC Makati, docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch
146), charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a
Rebellion.12 Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin the
prosecution of Criminal Case No. 06-944.
In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary investigation of
petitioners was not tainted with irregularities. The Solicitor General also claims that the filing of Criminal Case No. 06944 has mooted the Maza petition.
The Issues
The petitions raise the following issues:
1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and (b) whether
there is probable cause to indict Beltran for Rebellion; and
2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from continuing with
the prosecution of Criminal Case No. 06-944.13
The Ruling of the Court
We find the petitions meritorious. On the Beltran Petition
The Inquest Proceeding against Beltran for Rebellion is Void.
Inquest proceedings are proper only when the accused has been lawfully arrested without warrant. 14 Section 5, Rule
113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected,
thus:
Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has committed it; and
xxxx

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

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered
to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.
The joint affidavit of Beltrans arresting officers15 states that the officers arrested Beltran, without a warrant, 16 for
Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted as he did conduct
an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Beltran
to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void.
None of Beltrans arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have
personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable

cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they
saw and heard Beltran make an allegedly seditious speech on 24 February 2006. 17

1. That there be a (a) public uprising and (b) taking arms against the Government; and
2. That the purpose of the uprising or movement is either

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

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

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

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

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

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

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

b) note down the disposition on the referral document;

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

c) prepare a brief memorandum indicating the reasons for the action taken; and
d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action.
Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor but
the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be served
on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena
or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn
statements of the complainant and his witnesses and other supporting evidence. (Emphasis supplied)
For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5,
Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest void. 19 Beltran would have been entitled to a
preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which
effectively took the place of such proceeding.
There is No Probable Cause to Indict
Beltran for Rebellion.

The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the
affidavits and other documents 25 attached to the CIDG letters. We have gone over these documents and find merit in
Beltrans contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of the
documents consists of affidavits, some of which were sworn before a notary public, executed by members of the
military and some civilians. Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20 Febuary
2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006, 27 none of the affidavits mentions Beltran. 28 In his
affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casio, Maza,
Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia,
Batangas and that after the passengers alighted, they were met by another individual who looked like San Juan. For
his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the CPPs "10 th Plenum"
in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members
used were purchased partly from contributions by Congressional members, like Beltran, who represent party-list
groups affiliated with the CPP.
The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public
uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia,
Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the
affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in the
DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltrans
alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion.

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

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

Rebellion under Article 134 of the Revised Penal Code is committed

In his Comment to Beltrans petition, the Solicitor General points to Fuentes affidavit, dated 25 February 2006, 31as
basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding
meetings Beltran and the other petitioners attended in 2005 and 2006 in which plans to overthrow violently the Arroyo
government were allegedly discussed, among others.

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

The claim is untenable. Fuentes affidavit was not part of the attachments the CIDG referred to the DOJ on 27
February 2006. Thus, the panel of inquest prosecutors did not have Fuentes affidavit in their possession when they
conducted the Rebellion inquest against Beltran on that day. Indeed, although this affidavit is dated 25 February 2006,
the CIDG first presented it only during the preliminary investigation of the other petitioners on 13 March 2006 during
which Fuentes subscribed to his statement before respondent prosecutor Velasco.

Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC
Makati Fuentes affidavit as part of their Comment to Beltrans motion for judicial determination of probable cause.
Such belated submission, a tacit admission of the dearth of evidence against Beltran during the inquest, does not
improve the prosecutions case. Assuming them to be true, what the allegations in Fuentes affidavit make out is a
case for Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion
under Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a mere
preparatory step to commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged this,
since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy
to Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and others conspired
to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it nevertheless found probable
cause to try Beltran for Rebellion based on the evidence before it.
The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including
Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the
minutes state that a certain "Cris" attended the alleged meeting, there is no other evidence on record indicating that
"Cris" is Beltran. San Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken, denies
knowing Beltran.
To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The Information
in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the Information validly
charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there is no allegation in the
Information that he is a leader or promoter of the Rebellion. 33 However, the Information in fact merely charges Beltran
for "conspiring and confederating" with others in forming a "tactical alliance" to commit rebellion. As worded, the
Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a bailable offense. 34
On the Ladlad and Maza Petitions
The Preliminary Investigation was Tainted
With Irregularities.
As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a practice
rooted on public interest as the speedy closure of criminal investigations fosters public safety. 35However, such relief in
equity may be granted if, among others, the same is necessary (a) to prevent the use of the strong arm of the law in
an oppressive and vindictive manner 36 or (b) to afford adequate protection to constitutional rights. 37 The case of the
petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions.
The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is
outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus:
Procedure.The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in
such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no
ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint
and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have
been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to
specify those which he intends to present against the respondent, and these shall be made available for examination
or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or
photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for
his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion
to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10)
day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness.
The parties can be present at the hearing but without the right to examine or cross-examine. They may, however,
submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from
the expiration of the period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient
ground to hold the respondent for trial. (Emphasis supplied)
Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the
constitutional right to liberty of a potential accused can be protected from any material damage," 38 respondent
prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112 which
provides that the complaint (which, with its attachment, must be of such number as there are respondents) be
accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence or unavailability, before a notary public.
Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as
complaints39 and accepted the affidavits attached to the letters even though some of them were notarized by a notary
public without any showing that a prosecutor or qualified government official was unavailable as required by Section
3(a) of Rule 112.
Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if there
are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall "issue a
subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued
subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of the
complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDG to present a
masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to
distribute copies of Fuentes affidavit not to petitioners or their counsels but to members of the media who covered the
proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It was
only four days later, on 17 March 2006, that petitioners received the complete copy of the attachments to the CIDG
letters.1a\^/phi1.net
These uncontroverted facts belie respondent prosecutors statement in the Order of 22 March 2006 that the
preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal Procedure." 40 Indeed, by
peremptorily issuing the subpoenas to petitioners, tolerating the complainants antics during the investigation, and
distributing copies of a witness affidavit to members of the media knowing that petitioners have not had the
opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation but also
lent credence to petitioners claim that the entire proceeding was a sham.

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

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ELIAS LOVEDIORO y CASTRO, defendant-appellant.

Contrary to the submission of the Solicitor General, respondent prosecutors filing of the Information against petitioners
on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72 and 17207476. Our power to enjoin prosecutions cannot be frustrated by the simple filing of the Information with the trial
court.1a\^/phi1.net

KAPUNAN, J.:

On Respondent Prosecutors Lack of Impartiality

Off-duty policeman SPO3 Jesus Lucilo was walking along Burgos St., away from the Daraga, Albay Public Market
when a man suddenly walked beside him, pulled a .45 caliber gun from his waist, aimed the gun at the policeman's
right ear and fired. The man who shot Lucilo had three other companions with him, one of whom shot the fallen
policeman four times as he lay on the ground. After taking the latter's gun, the man and his companions boarded a
tricycle and fled. 1

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

The incident was witnessed from a distance of about nine meters by Nestor Armenta, a 25 year old welder from Pilar,
Sorsogon, who claimed that he knew both the victim and the man who fired the fatal shot. Armenta identified the man
who fired at the deceased as Elias Lovedioro y Castro, his nephew (appellant's father was his first cousin) and alleged
that he knew the victim from the fact that the latter was a resident of Bagumbayan.

A Final Word

Lucilo died on the same day of massive blood loss from multiple gunshot wounds on the face, the chest, and other
parts of the body. 2 On autopsy, the municipal health officer established the cause of death as hypovolemic shock. 3

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

As a result of the killing, the office of the provincial prosecutor of Albay, on November 6, 1992 filed an Information
charging accused-appellant Elias Lovedioro y Castro of the crime of Murder under Article 248 of the Revised Penal
Code. The Information reads:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or
subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or
favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence
to the established procedure may be publics perception of the impartiality of the prosecutor be
enhanced.44 1a\^/phi1.net
WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the
Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court, Makati
City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April
2006 issued by respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to DISMISS
Criminal Case Nos. 06-452 and 06-944.
SO ORDERED.

That on or about the 27th day of July, 1992, at more or less 5:30 o'clock in the afternoon, at Burgos Street,
Municipality of Daraga, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, together with Gilberto Longasa, who is already charged in Crim. Case No. 5931 before RTC, Branch
I, and three (3) others whose true identities are at present unknown and remain at large, conniving, conspiring,
confederating and helping one another for a common purpose, armed with firearms, with intent to kill and with
treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously fire and shoot one SPO3
JESUS LUCILO, a member of the Daraga Police Station, inflicting upon the latter multiple gunshot wounds causing his
death, to the damage and prejudice of his legal heirs.
After trial, the court a quo found accused-appellant guilty beyond reasonable doubt of the crime of Murder. The
dispositive portion of said decision, dated September 24, 1993 states:
WHEREFORE, in view of all the foregoing considerations, this Court finds the accused ELIAS LOVEDIORO guilty
beyond reasonable doubt as principal, acting in conspiracy with his co-accused who are still at large, of the crime of
murder, defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences him to suffer the
penalty of Reclusion Perpetua with all the accessories provided by law; to pay the heirs of the deceased SPO3 Jesus
Lucilo through the widow, Mrs. Remeline Lucilo, the amount of Fifty Thousand (P50,000.00) Pesos representing the
civil indemnity for death; to pay the said widow the sum of Thirty Thousand (P30,000.00) Pesos representing
reasonable moral damages; and to pay the said widow the sum of Eighteen Thousand Five Hundred Eighty-Eight
(P18,588.00) Pesos, representing actual damages, without subsidiary imprisonment however, in case of insolvency on
the part of the said accused.
With costs against the accused.

G.R. No. 112235 November 29, 1995

SO ORDERED.

Hence, the instant appeal, in which the sole issue interposed is that portion of trial court decision finding him guilty of
the crime of murder and not rebellion.
Appellant cites the testimony of the prosecution's principal witness, Nestor Armenta, as supporting his claim that he
should have been charged with the crime of rebellion, not murder. In his Brief, he asseverates that Armenta, a police
informer, identified him as a member of the New People's Army. Additionally, he contends that because the killing of
Lucilo was "a means to or in furtherance of subversive ends," 4 (said killing) should have been deemed absorbed in the
crime of rebellion under Arts. 134 and 135 of the Revised Penal Code. Finally, claiming that he did not fire the fatal
shot but merely acted as a look-out in the liquidation of Lucilo, he avers that he should have been charged merely as a
participant in the commission of the crime of rebellion under paragraph 2 of Article 135 of the Revised Penal Code and
should therefore have been meted only the penalty of prison mayor by the lower court.
Asserting that the trial court correctly convicted appellant of the crime of murder, the Solicitor General avers that the
crime committed by appellant may be considered as rebellion only if the defense itself had conclusively proven that the
motive or intent for the killing of the policeman was for "political and subversive ends." 5 Moreover, the Solicitor
General contends that even if appellant were to be convicted of rebellion, and even if the trial court had found
appellant guilty merely of being a participant in a rebellion, the proper imposable penalty is not prision mayor as
appellant contends, but reclusion temporal, because Executive Order No. 187 as amended by Republic Act
No. 6968, the Coup D'etat Law, prescribes reclusion temporal as the penalty imposable for individuals found guilty as
participants in a rebellion.
We agree with the Solicitor General that the crime committed was murder and not rebellion.
Under Art. 134 of the Revised Penal Code, as amended by Republic Act No. 6968, rebellion is committed in the
following manner:
[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or
other armed forces, or depriving the Chief Executive or the Legislature wholly or partially, of any of their powers or
prerogatives. 6
The gravamen of the crime of rebellion is an armed public uprising against the government. 7 By its very nature,
rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within
predetermined bounds. 8 One aspect noteworthy in the commission of rebellion is that other acts committed in its
pursuance are, by law, absorbed in the crime itself because they acquire a political character. This peculiarity was
underscored in the case of People v. Hernandez, 9 thus:
In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be
committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as
common, like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory
of the Philippine Islands or any part thereof," then it becomes stripped of its "common" complexion, inasmuch as,
being part and parcel of the crime of rebellion, the former acquires the political character of the latter.
Divested of its common complexion therefore, any ordinary act, however grave, assumes a different color by being
absorbed in the crime of rebellion, which carries a lighter penalty than the crime of murder. In deciding if the crime
committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done
in furtherance of a political end. The political motive of the act should be conclusively demonstrated.
In such cases, the burden of demonstrating political motive falls on the defense, motive, being a state of mind which
the accused, better than any individual, knows. Thus, in People v. Gempes, 10 this court stressed that:
Since this is a matter that lies peculiarly with (the accused's) knowledge and since moreover this is an affirmative
defense, the burden is on them to prove, or at least to state, which they could easily do personally or through
witnesses, that they killed the deceased in furtherance of the resistance movement.

From the foregoing, it is plainly obvious that it is not enough that the overt acts of rebellion are duly proven. Both
purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of
rebellion legally does not exist. In fact, even in cases where the act complained of were committed simultaneously with
or in the course of the rebellion, if the killing, robbing, or etc., were accomplished for private purposes or profit, without
any political motivation, it has been held that the crime would be separately punishable as a common crime and would
not be absorbed by the crime rebellion. 11
Clearly, political motive should be established before a person charged with a common crime alleging rebellion in
order to lessen the possible imposable penalty could benefit from the law's relatively benign attitude towards
political crimes. Instructive in this regard is the case of Enrile v.
Amin, 12 where the prosecution sought to charge Senator Juan Ponce Enrile with violation of P.D. No. 1829, 13 for
allegedly harboring or concealing in his home Col. Gregorio Honasan in spite of the senator's knowledge that Honasan
might have committed a crime. This Court held, against the prosecution's contention, that rebellion and violation of P.D
1829 could be tried separately 14 (on the principle that rebellion is based on the Revised Penal Code while P.D. 1829 is
a special law), that the act for which the senator was being charged, though punishable under a special law, was
absorbed in the crime of rebellion being motivated by, and related to the acts for which he was charged in Enrile
vs. Salazar (G.R. Nos. 92163 and 92164) a case decided on June 5, 1990. Ruling in favor of Senator Enrile and
holding that the prosecution for violation of P.D. No. 1829 cannot prosper because a separate prosecution for rebellion
had already been filed and in fact decided, the Court said:
The attendant circumstances in the instant case, however constrain us to rule that the theory of absorption in rebellion
cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in
furtherance of the political offense. 15
Noting the importance of purpose in cases of rebellion the court in Enrile vs. Amin further underscored that:
[I]ntent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or
concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is
completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it
should be deemed to form part of the crime of rebellion instead of being punished separately.
It follows, therefore, that if no political motive is established and proved, the accused should be convicted of the
common crime and not of rebellion. In cases of rebellion, motive relates to the act, and mere membership in an
organization dedicated to the furtherance of rebellion would not, by and of itself, suffice.
The similarity of some of the factual circumstances of People v. Ompad, Jr., 16 to the instant case is striking. Two
witnesses, both former NPA recruits identified the accused Ompad, alias "Commander Brando," a known hitman of the
NPA, as having led three other members of the NPA in the liquidation of Dionilo Barlaan, a military informer, also in a
rebel infested area. In spite of his notoriety as an NPA hitman, Ompad was merely charged with and convicted of
murder, not rebellion because political motive was neither alleged nor proved.
As stated hereinabove, the burden of proof that the act committed was impelled by a political motive lies on the
accused. Political motive must be alleged in the information. 17 It must be established by clear and satisfactory
evidence. In People v. Paz and Tica we held:
That the killing was in pursuance of the Huk rebellion is a matter of mitigation or defense that the accused has the
burden of proving clearly and satisfactorily. The lone uncorroborated assertion of appellant that his superiors told him
of Dayrit being an informer, and his suspicion that he was one such, is neither sufficient or adequate to establish that
the motivation for the killing was political, considering appellant's obvious interest in testifying to that effect. 18
Similarly, in People v. Buco, 19 the Court stressed that accused in that case failed to establish that the reason for the
killing of their victim was to further or carry out rebellion. The evidence adduced by the defense therein simply showed
that appellant Francisco Buco was ordered by Tomas Calma, alias "Commander Sol" to kill municipal mayor Conrado
G. Dizon. However, the evidence likewise showed that Calma was induced by an acquaintance, a civilian, to order the

killing on account of private differences over a ninety (90) hectare piece of land. The court attributed no political motive
for the killing, though committed by known members of the Hukbalahap movement. 20

A I just came to know his name when I reached home and heard it radio, that he is JESUS LUCILO. (sic)
Q What is your participation in the group?

People v. Dasig 21 has a factual milieu almost similar to the instant case. There, the Court held that "the act of killing a
police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or
an act done in furtherance of a rebellion." In Dasig the Court however noted that the accused, who was charged with
murder, not only admitted his membership with the NPA but also executed an extrajudicial confession to the effect that
he was a member of an NPA "sparrow unit," a fact to which even the Solicitor General, in his brief therein was in
agreement. The Solicitor General's brief in Dasig which this Court favorably quoted, noted that:
[T]he sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly
constituted government. It is therefore not hard to comprehend that the killing of Pfc. Manatad was committed as a
means to or in furtherance of the subversive ends of the NPA. 22
By contrast, the Solicitor General vigorously argues for a different result in the case at bench. He states that accusedappellant's belated claims to membership in the NPA were not only insubstantial but also self serving 23an averment to
which, given a thorough review of the circumstances of the case, we fully agree. He states:
[In the case cited] the appellants, admittedly members of the NPA, clearly overcame the burden of proving motive or
intent. It was shown that the political motivation for the killing of the victim was the fact that Ragaul was suspected as
an informer for the PC. The perpetrators even left a letter card, a drawing on the body of Ragaul as a warning to
others not to follow his example. It is entirely different in the case at bar where the evidence for the appellant merely
contains self-serving assertions and denials not substantial enough as an indicia of political motivation in the killing of
victim SPO3 Jesus Lucilo. 24
In the case at bench, the appellant, assisted by counsel, admitted in his extrajudicial confession to having participated
in the killing of Lucilo as follows:
Q What was that incident if any, please narrate?
A July 27, 1992 at more or less 12:00 noon. I am at home, three male person a certainalias ALWIN, ALIAS SAMUEL
and the other one unknown to me, fetched me and told me to go with them, so I asked them where, Alwin handed me
a hand gun and same he stopped/call a passenger jeepney and told me board on said jeepney. (sic)
Q Please continue.
A Upon reaching Daraga, Albay fronting Petron Gasoline Station, we alighted on said jeep, so we walk towards
Daraga Bakery we stopped walking due to it is raining, when the rain stopped we continue walking by using the road
near the bakery. (sic)
Q When you reached Daraga bakery, as you have said in Q. 7 you used the road near the bakery where did you
proceed?
A I am not familiar with that place, but I and my companion continue walking, at more less 4:30 P.M. July 27, 1992 one
of my companion told us as to quote in Bicol dialect, to wit: "AMO NA YADI AN TINAMPO PALUWAS" (This is the
place towards the poblacion), so, I placed myself just ahead of a small store, my three (3) companions continue
walking towards poblacion, later on a policeman sporting white T-shirt and a khaki pant was walking towards me, while
the said policeman is nearly approaching me, ALWIN shot the said policeman in front of the small store, when the said
policeman fell on the asphalted road, ALWIN took the service firearm of the said policeman, then we ran towards the
subdivision, then my two (2) companions commanded a tricycle then we fled until we reached a hill wherein there is a
small bridge, thereafter Ka Samuel took the handgun that was handed to me by them at Pilar, Sorsogon. (sic)
Q Do you know the policeman that was killed by your companion?

A Look-out sir.
Q I have nothing more to asked you what else, if there is any? (sic)
A No more sir. 25
It bears emphasis that nowhere in his entire extrajudicial confession did appellant ever mention that he was a member
of the New People's Army. A thorough reading of the same reveals nothing which would suggest that the killing in
which he was a participant was motivated by a political purpose. Moreover, the information filed against appellant,
based on sworn statements, did not contain any mention or allusion as to the involvement of the NPA in the death of
SPO3 Lucilo. 26 Even prosecution eyewitness Nestor Armenta did not mention the NPA in his sworn statement of
October 19, 1992. 27
As the record would show, allegations relating to appellant's membership in the NPA surfaced almost merely as an
afterthought, something which the defense merely picked up and followed through upon prosecution eyewitness
Armenta's testimony on cross-examination that he knew appellant to be a member of the NPA. Interestingly, however,
in the same testimony, Armenta admitted that he was "forced" to pinpoint appellant as an NPA member. 28 The logical
result, of course, was that the trial court did not give any weight and credence to said testimony. The trial court, after
all, had the prerogative of rejecting only a part of a witness' testimony while upholding the rest of it. 29 While
disbelieving the portion of Armenta's testimony on appellant's alleged membership in the NPA, the trial court correctly
gave credence to his unflawed narration about how the crime was committed. 30 Such narration is even corroborated in
its pertinent portions, except as to the identity of the gun wielder, by the testimony of the appellant himself.
In any case, appellant's claim regarding the political color attending the commission of the crime being a matter of
defense, its viability depends on his sole and unsupported testimony. He testified that, upon the prodding of aliasAlwin
and alias Samuel, he joined the NPA because of the organization's
goals. 31 He claimed that his two companions shot Lucilo because he "had offended our organization," 32 without,
however, specifying what the "offense" was. Appellant claimed that he had been a member of the NPA for five months
before the shooting incident. 33
As correctly observed by the Solicitor General, appellant's contentions are couched in terms so general and nonspecific 34 that they offer no explanation as to what contribution the killing would have made towards the achievement
of the NPA's subversive aims. SPO3 Jesus Lucilo, a mere policeman, was never alleged to be an informer. No acts of
his were specifically shown to have offended the NPA. Against appellant's attempts to shade his participation in the
killing with a political color, the evidence on record leaves the impression that appellant's bare allegations of
membership in the NPA was conveniently infused to mitigate the penalty imposable upon him. It is of judicial notice
that in many NPA infested areas, crimes have been all-too-quickly attributed to the furtherance of an ideology or under
the cloak of political color for the purpose of mitigating the imposable penalty when in fact they are no more than
ordinary crimes perpetrated by common criminals. In Baylosis v. Chavez, Jr., Chief Justice Narvasa aptly observed:
The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or deranged
individuals, is a reality that cannot be ignored or belittled. Their activities, the killings and acts of destruction and
terrorism that they perpetrate, unfortunately continue unabated despite the best efforts that the Government authorities
are exerting, although it may be true that the insurrectionist groups of the right or the left no longer pose a genuine
threat to the security of the state. The need for more stringent laws and more rigorous law-enforcement, cannot be
gainsaid. 35
In the absence of clear and satisfactory evidence pointing to a political motive for the killing of SPO3 Jesus Lucilo, we
are satisfied that the trial court correctly convicted appellant of the crime of murder. 36 It is of no moment that a single
eyewitness, Nestor Armenta, sealed his fate, for it is settled that the testimony of one witness, if credible and positive,

is sufficient to convict. 37 Against appellant's claims that he acted merely as a look-out, the testimony of one witness,
his blood relative, free from any signs of impropriety or falsehood, was sufficient to convict the accused. 38Moreover,
neither may lack of motive be availing to exculpate the appellant. Lack or absence of motive for committing a crime
does not preclude conviction, there being a reliable eyewitness who fully and satisfactorily identified appellant as the
perpetrator of the felony. 39 In the case at bench, the strength of the prosecution's case was furthermore bolstered by
accused-appellant's admission in open court that he and the eyewitness, his own uncle, bore no grudges against each
other.40
Finally, treachery was adequately proved in the court below. The attack delivered by appellant was sudden, and
without warning of any kind. 41 The killing having been qualified by treachery, the crime committed is murder under Art.
248 of the Revised Penal Code. In the absence of any mitigating and aggravating circumstances, the trial court was
correct in imposing the penalty of reclusion perpetua together with all the accessories provided by law.
WHEREFORE, PREMISES CONSIDERED, the trial court's decision dated September 14, 1993, sentencing the
accused of Murder is hereby AFFIRMED, in toto.
SO ORDERED.
G.R. No. L-6025

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
----------------------------G.R. No. L-6026

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First Instance of Manila,
Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs. Amado V. Hernandez, et al., and
Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the charge
is for Rebellion with Multiple Murder, Arsons and Robberies; the appellants are Amado V. Hernandez, Juan J. Cruz,
Genaro de la Cruz, Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson and
Andres Baisa, Jr. were among those sentenced in the judgment appealed from, but they have withdrawn their appeal.
In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders, arsons and kidnappings; the
accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all appealed but Andres Balsa, Jr. withdrew
his appeal.
The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said date and continuously thereafter, until the
present time, in the City of Manila, Philippines, and the place which they had chosen as the nerve center of all their
rebellious activities in the different parts of the Philippines, the said accused, conspiring, confederating and
cooperating with each other, as well as with the thirty-one (31) defendants charged in Criminal Cases Nos. 19071,
14082, 14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and also with others

whose whereabouts and identities are still unknown, the said accused and their other co-conspirators, being then high
ranking officers and/or members of, or otherwise affiliated with the Communist Party of the Philippines (P.K.P.), which
is now actively engaged in an armed rebellion against the Government of the Philippines thru act theretofore
committed and planned to be further committed in Manila and other places in the Philippines, and of which party the
"Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly known as the "Hukbalahaps" (Huks), unlawfully and
did then and there willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command
the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and take arms against
the Republic of the Philippines, or otherwise participate in such armed public uprising, for the purpose of removing the
territory of the Philippines from the allegiance to the government and laws thereof as in fact the said "Hukbong
Mapagpalaya Ng Bayan" or "Hukbalahaps" have risen publicly and taken arms to attain the said purpose by then and
there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachments as well
as innocent civilians, and as a necessary means to commit the crime of rebellion, in connection therewith and in
furtherance thereof, have then and there committed acts of murder, pillage, looting, plunder, arson, and planned
destruction of private and public property to create and spread chaos, disorder, terror, and fear so as to facilitate the
accomplishment of the aforesaid purpose, as. follows, to wit: (Enumeration of thirteen attacks on government forces or
civilians by Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June, 1946, April 28,
1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29,
1950.)
II. That during the period of time and under the same circumstances herein-above indicated the said accused in the
above-entitled case, conspiring among themselves and with several others as aforesaid, willfully, unlawfully and
feloniously organized, established, led and/or maintained the Congress of Labor Organizations (CLO), formerly known
as the Committee on Labor Organizations (CLO), with central offices in Manila and chapters and affiliated or
associated labor unions and other "mass organizations" in different places in the Philippines, as an active agency,
organ, and instrumentality of the Communist Party of the Philippines (P.K.P.) and as such agency, organ, and
instrumentality, to fully cooperate in, and synchronize its activities as the CLO thus organized, established, led
and/or maintained by the herein accused and their co-conspirators, has in fact fully cooperated in and synchronized its
activities with the activities of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) and other organs, agencies, and
instrumentalities of the Communist Party of the Philippines (P.K.P.), to thereby assure, facilitate, and effect the
complete and permanent success of the above-mentioned armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres Baisa, Jr. and
Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and continuously up to the
present time, in the City of Manila, the seat of the government of the Republic of the Philippines, which the herein
accused have intended to overthrow, and the place chosen for that purpose as the nerve center of all their rebellious
atrocities in the different parts of the country, the said accused being then high ranking officials and/or members of the
Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) otherwise or
formerly known as the "Hukbalahaps" (HUKS), the latter being the armed forces of said Communist Party of the
Philippines; having come to an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270,
14315, 14344 of the Court of First Instance of Manila and decided to commit the crime of rebellion, and therefore,
conspiring and confederating with all of the 29 accused in said criminal cases, acting in accordance with their
conspiracy and in furtherance thereof, together with many others whose whereabouts and identities are still unknown
up to the filing of this information, and helping one another, did then and there willfully, unlawfully and feloniously
promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan", (HMB) or the Hukbalahaps
(HUKS) to rise publicly and take Arms against the Government or otherwise participate therein for the purpose of
overthrowing the same, as in fact, the said "Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen
publicly and taken arms against the Government, by then and there making armed raids, sorties and ambushes,
attacks against police, constabulary and army detachment, and as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof, by then and there committing wanton acts of murder,
spoilage, looting, arson, kidnappings, planned destruction of private and public buildings, to create and spread
terrorism in order to facilitate the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of thirteen
attacks on Government forces or civilians by Huks on May 6, 1946. August 6, 1946, April 10, 1947, May 9, 1947,
August 19, 1947, June 1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950,
March 28, 1950 and March 29, 1950).
A joint trial of both cases was held, after which the court rendered the decision subject of the present appeals.

APPEAL OF AMADO V. HERNANDEZ

After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following: (1) that he is a
member of the Communist Party of the Philippines and as such had aliases, namely, Victor or Soliman; (2) that he was
furnished copies of "Titis", a Communist publication, as well as other publications of the Party; (3) that he held the
position of President of the Congress of Labor Organizations; (4) that he had close connections with the Secretariat of
the Communist Party and held continuous communications with its leaders and its members; (5) that he furnished a
mimeographing machine used by the Communist Party, as well as clothes and supplies for the military operations of
the Huks; (6) that he had contacted well-known Communists coming to the Philippines and had gone abroad to the
WFTU conference Brussels, Belgium as a delegate of the CLO, etc. Evidence was also received by the court that
Hernandez made various speeches encouraging the people to join in the Huk movement in the provinces.
The court also found that there was a close tie-up between the Communist Party and the Congress of Labor
Organizations, of which Hernandez was the President, and that this Congress was organized by Hernandez in
conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos, Guillermo Capadocia, etc.
We will now consider the nature and character of both the testimonial as well as the documentary evidence,
independently of each other, to find out if the said evidence supports the findings of the court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party in the month of October, 1947, at the offices of
the Congress of Labor Organizations at 2070 Azcarraga in the presence of Guillermo Capadocia, Ramon Espiritu,
Pedro Castro, Andres Balsa, etc. As a Communist he was given the pseudonyms of Victor and Soliman, and received
copies of the Communist paper "Titis". He made various speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in which he announced that
the people will soon meet their dear comrade in the person of Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which occasion Balgos told
Goufar that the PKM, CLO and the Huks are in one effort that the PKM are the peasants in the field and the Huks are
the armed forces of the Communist Party; and the CLO falls under the TUD of the Communist Party. 1wph1.t
(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the World Federation of Trade
Unions and after arrival from abroad a dinner was given to him by the people of Gagalangin, at which Hernandez
delivered a speech and he said that he preferred to go with the Huks because he felt safer with them than with the
authorities of the Government.
(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the frauds in the 1947 elections,
graft and corruption in the elections and that if improvement cannot be made by the ballots, they could be made by
bullets; and enjoined the people to go to the hills and join Luis Taruc the head of the dissidents in the Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the World Peace at the CLO
headquarters at 330 P. Campa. He attacked the city mayor and incited the people to go to Balintawak and see
Bonifacio there and thereafter join four comrades under the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at 330 P. Campa. He asked
the unemployed to approve a resolution urging the Government to give them jobs. In conclusion he said that if the
Government fails to give them jobs the only way out was to join the revolutionary forces fighting in the hills. He further
said that Mao Tse Tung, leader of the People's Army in China, drove Chiang Kai Shek from his country, and that Luis
Taruc was also being chased by Government forces run by puppets like Quirino, etc.

(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez expressed regret that two
foremost leaders of the CLO, Balgos and Capadocia, had gone to the field to join the liberation army of the HMB,
justifying their going out and becoming heroes by fighting in the fields against Government forces until the ultimate
goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official photographer of the CLO since August,
1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a Huk from 1942 to
1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the president government by force of aims and violence;
thru armed revolution and replace it with the so-called dictatorship of the proletariat the Communist Party carries its
program of armed overthrow of the present government by organizing the HMB and other forms of organization's such
as the CLO, PKM, union organizations, and the professional and intellectual group; the CLO was organized by the
Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the Central Committee of the CLO were also top
ranking officials of the Communist Party; activities undertaken by the TUD - the vital undertaking of the TUD is to see
that the directives coming from the organizational bureau of the Communist Party can be discussed within the CLO
especially the Executive Committee. And it is a fact that since a good majority of the members of the Executive
Committee are party members, there is no time, there is no single time that those directives and decisions of the
organizational department, thru the TUD are being objected to by the Executive Committee of the CLO. These
directives refer to how the CLO will conduct its functions. The executive committee is under the chairmanship of
accused Amado V. Hernandez.
(3) The CLO played its role in the overall Communist program of armed overthrow of the present government and its
replacement by the dictatorship of the proletariat by means of propaganda - by propagating the principles of
Communism, by giving monetary aid, clothing, medicine and other forms of material help to the HMB. This role is
manifested in the very constitution of the CLO itself which expounded the theory of classless society and the
eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution contained in the Fourth Annual
Convention Souvenir Program of the CLO Exh. "V-1579"). Thru propaganda, the CLO promoted the aims of
Communist Party and disseminated Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh. V-1662), founder of Communism
in the Philippines, in the session hall of the CLO headquarters at 2070 Azcarraga and then at 330 P. Campa;
(b) The distribution of foreign communist reading materials such as the World Federation of Trade Union Magazine,
International Union of Students magazine, Voice magazine of the marine cooks of the CLO, World Committee of the
Defenders of the Peace magazine, Free Bulgaria magazine, Soviet Russia Today magazine and World Federation of
Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899, V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the "Titis", "Bisig", Kidlat", which are
Communist Party organs; "The Philippine Labor Demands Justice" and "Hands Off Korea" authored by accused
Amado V. Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by means of organization of
committees in the educational department as well as researches in the Worker's Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist Party thru infiltration of party members and selected
leaders of the HMB within the trade unions under the control of the CLO. The Communist Party thru the CLO assigned
Communist Party leaders and organizers to different factories in order to organize unions. After the organization of the
union, it will affiliate itself with the CLO thru the Communist leaders and the CLO in turn, will register said union with
the Department of Labor; and the orientation and indoctrination of the workers is continued in the line of class struggle.

After this orientation and infiltration of the Communist Party members and selected leaders of the HMB with the trade
unions under the control of the CLO is already achieved and the group made strong enough to carry out its aims, they
will begin the sporadic strikes and the liquidation of anti-labor elements and anti-Communist elements and will create a
so-called revolutionary crisis. That revolutionary crisis will be done for the party to give directives to the HMB who are
fighting in the countrysides and made them come to the city gates. The entry of the HMB is being paved by the
simultaneous and sporadic strikes, by ultimate general strikes thru the management of the CLO.

(d) To Hugh and Eddie, July 8, 1949 Extends greetings to National Union of Marine Cooks and Stewards, states
that labor has one common struggle "the liberation of all the peoples from the chains of tyranny, fascism and
imperialism". (Exh. V-259)

Important Documents Submitted at Trial

(f) Appeal to the Women and Asia. (Exh. V-5-10)

1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was referred to as "Victor" or
"Soliman".

(g) Letter to Julie (Exh. V-2001-2004)

(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter of his sympathies for other
communists, describing his experiences with Communists abroad, telling Julie to dispose of materials that may be sent
by Victor. (Exh. D-2001-2004)
(b) "Paano Maisasagawa, etc." mentions different groups of labor unions of which Victor heads one group,
consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU (Exh. C-2001-2008) Cadres assigned to different
industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez as Victor from co-party members
Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor. (Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press statement was not published in the newspapers. (Exh. C362) Letter was however published by Hernandez in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor. (Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at Pampanga St. to bring to the latter
communications from the Communist Party. (Exh. D-1203) That Soliman was given copies of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be involved with Nacionalista Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has "tendencies of careerism and tendency
to want to deal with leaders of the party"; that he should be asked to choose to go underground or fight legally. (Exh.
F-562)

(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)

(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like Taruc. Tells of reward of
P100,000.00 on Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker condemns Wall Street maneuvers; corruption and graft in Quirino
administration, etc. (Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-79)
(k) Communication of Hernandez to CLO at MRRCO Praises Balgos and Capadocia for joining the Huks. (Exhs. V12-22, V-289)
(l) "Philippine labor Demands Justice" Attacks czars of Wall Street and U.S. Army and Government. (Exh. V-94) .
(m) Letter to Taruc June 28, 1948.-States solidarity among the CLO Huks and PKM. Attacks North Atlantic Pact.
Praises Mao Tse Tung (contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" States of a delegation to Roxas attacking unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" (Exh. V-287)
(p) Article "Hands Off Korea" (Exhs. V-488-494, 495-501, 509-515, W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)
(r) Press statement of Hernandez opposes acceptance of decorations from Greece by Romulo. (Exh. V-72)
3. Other Activities of Hernandez.

(j) Explanation given by Hernandez why he did not join Saulo in going underground. (Exh. V-87) (1) His election as
councilor until December, 1951. (Exhs. V-42, W-9) (2) His election as President of CLO until August of following year.
(Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)

(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he sent to the field. Letters show of
sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks. (Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan for inclusion in Bulosan's book.
(Exh. FF-1)

(b) To SOBSI Jakarta that Filipinos are joining other communist countries of the East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh. W-116-120)

(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed forces. (Photographs, Exhs. X-6 RR54-55A)

(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs, Exhs. T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and Balgos and issued press release about their going
underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh. D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1) that the Communist Party was fully organized as a
party and in order to carry out its aims and policies a established a National Congress, a Central Committee (CC),
Politburo PB, Secretariat (SEC), Organization Bureau (OB), and National Courier or Communication Division (NCD),
each body performing functions indicated in their respective names; (2) that in a meeting held on August 11, 1950 the
SEC discussed the creation of a Military Committee of the Party and a new GHQ, under which on September 29, 1950
the SEC organized a special warfare division, with a technological division; (3) that on May 5, 1950 a body known as
the National Intelligence Division was created, to gather essential military intelligence and, in general, all information
useful for the conduct of the armed struggle (4) that a National Finance Committee was also organized as a part of the
Politburo and answerable to it; (5) that the country was divided into 10 Recos, the 10th Reco comprising the Manila
and suburbs command; (6) that since November, 1949 the CPP had declared the existence of a revolutionary situation
and since then the Party had gone underground and the CPP is leading the armed struggle for national liberation, and
called on the people to organize guerrillas and coordinate with the HMB on the decisive struggle and final overthrow of
the imperialist government; (7) that in accordance with such plan the CPP prepared plans for expansion and
development not only of the Party but also of the HMB; the expansion of the cadres from 3,600 in July 1950 to 56,000
in September 1951, the HMB from 10,800 in July 1950 to 172,000 in September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations for political
purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of the HMB on March 25, 1950.
The HMB attacks that were reported to the PB were those made in May, 1946; June, 1946; April 10, 1947; May 9,
1947; August 19, 1947; August 25, 1950; August 26, 1950; October 15 and 17, 1950; May 6, 1946; August 6, 1946;
April 10, 1947; May 9, 1947; August 19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950;
March 26, 1950; March 29, 1950.
The theory of the prosecution, as stated in the lower court's decision, is as follows:
The evidence does not show that the defendants in these cases now before this Court had taken a direct part in those
raids and in the commission of the crimes that had been committed. It is not, however, the theory of the prosecution
that they in fact had direct participation in the commission of the same but rather that the defendants in these cases
have cooperated, conspired and confederated with the Communist Party in the prosecution and successful
accomplishment of the aims and purposes of the said Party thru the organization called the CLO (Congress of Labor
Organizations).
The Court found that the CLO is independent and separate from the CPP, organized under the same pattern as the
CPP, having its own National Congress, a Central Committee (which acts in the absence of and in representation of
the National Congress), an Executive Committee (which acts when the National Congress and the Executive
Committee are not in session), and seven permanent Committees, namely, of Organization, Unemployment and Public
Relations, Different Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist
Party dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of which Hernandez was
the President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party organ under which it operates was explained by
witness Guillermo S. Calayag, one-time ranking member of the Communist Party and the CLO who typewrites the
"Patnubay sa Education" from a handwritten draft of Capadocia, which is one of the texts used in the Worker's institute

of the CLO. According to him, the CLO plays its role by means of propaganda, giving monetary aid, clothing, medicine
and other material forms of help to the HMB, which constitutes the armed forces of the Communist Party. Propaganda
is done by lectures, meetings, and the organization of committees of the educational department as well as
researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is by allowing the Communist Party leaders to act as
organizers in the different factories in forming a union. These Party Members help workers in the factories to agitate
for the eradication of social classes and ultimately effect the total emancipation of the working classes thru the
establishment of the so-called dictatorship of the proletariat. It is the duty of these Communist Party members to
indoctrinate uninitiated workers in the union to become proselytes of the Communist Party ideology. After the right
number is secured and a union is formed under a communist leader, this union is affiliated with the CLO and this in
turn registers the same with the Department of Labor. The orientation and indoctrination of the masses is continued
with the help of the CLO. The primary objective of the CLO is to create what is called a revolutionary crisis. It seeks to
attain this objective by first making demands from the employers for concessions which become more and more
unreasonable until the employers would find it difficult to grant the same. Then a strike is declared. But the strikes are
only preparation for the ultimate attainment of the Communist goal of armed overthrow of the government. After the
workers in the factories have already struck in general at the behest of the Communist Party thru the CLO a critical
point is reached when a signal is given for the armed forces of the Communist Party, the HMB, to intervene and carry
the revolution now being conducted outside to within the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the crime charged against
him and sentenced him to suffer the penalty of reclusion perpetua with the accessories provided by law, and to pay the
proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially those cited by the Court in its decision and by the
Solicitor General in his brief, discloses that defendant-appellant Amado V. Hernandez, as a Communist, was an active
advocate of the principles of Communism, frequently exhorting his hearers to follow the footsteps of Taruc and join the
uprising of the laboring classes against capitalism and more specifically against America and the Quirino
administration, which he dubbed as a regime of puppets of American imperialism. But beyond the open advocacy of
Communistic Theory there appears no evidence that he actually participated in the actual conspiracy to overthrow by
force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If, as testified to by
Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures, meetings and organization of
committees of education by Communists; if, as stated, the CLO merely allowed Communist Party leaders to act as
organizers in the different factories, to indoctrinate the CLO members into the Communist Party and proselytize them
to the Communist ideology; if, as also indicated by Calayag, the CLO purports to attain the ultimate overthrow of the
Government first by making demands from employers for concessions until the employers find it difficult to grant the
same, at which time a strike is declared; if it is only after the various strikes have been carried out and a crisis is
thereby developed among the laboring class, that the Communist forces would intervene and carry the revolution it
is apparent that the CLO was merely a stepping stone in the preparation of the laborers for the Communist' ultimate
revolution. In other words, the CLO had no function but that of indoctrination and preparation of the members for the
uprising that would come. It was only a preparatory organization prior to revolution, not the revolution itself. The leader
of the CLO therefore, namely Hernandez, cannot be considered as a leader in actual rebellion or of the actual uprising
subject of the accusation. Hernandez, as President of the CLO therefore, by his presidency and leadership of the CLO
cannot be considered as having actually risen up in arms in rebellion against the Government of the Philippines, or
taken part in the conspiracy to commit the rebellion as charged against him in the present case; he was merely a
propagandist and indoctrinator of Communism, he was not a Communist conspiring to commit the actual rebellion by
the mere fact of his presidency of the CLO.
The court below declares that since November 1949 the Communist Party of the Philippines had declared the
existence of the revolutionary situation and since then the Party had gone underground, with the CPP leading the
struggle for national integration and that in the month of January 1950, it was decided by the said Party to intensify the
HMB military operations for political purposes. The court implicates the appellant Hernandez as a co-conspirator in this
resolution or acts of the Communist Party by his mere membership thereto. We find this conclusion unwarranted. The
seditious speeches of Hernandez took place before November, 1949 when the CPP went underground. The court
below has not been able to point out, nor have We been able to find among all acts attributed to Hernandez, any

single fact or act of his from which it may be inferred that he took part in the deliberations declaring the existence of a
revolutionary situation, or that he had gone underground. As a matter of fact the prosecution's evidence is to the effect
that Hernandez refused to go underground preferring to engage in what they consider the legal battle for the cause.

ambitions, that motivated his speeches sympathizing with the Huks. For which reason We hold that the evidence
submitted fails to prove beyond reasonable doubt that he has conspired in the instigation of the rebellion for which he
is held to account in this criminal case.

We have also looked into the different documents which have been presented at the time of the trial and which were
confiscated from the office of the Politburo of the Communist Party. The speeches of Hernandez were delivered before
the declaration by the Communist Party of a state of revolutionary situation in 1949. Neither was it shown that
Hernandez was a member of the Executive Committee, or of the SEC, or of the Politburo of the Communist Party; so
NO presumption can arise that he had taken part in the accord or conspiracy declaring a revolution. In short, there has
been no evidence, direct or indirect, to relate or connect the appellant Hernandez with the uprising or the resolution to
continue or maintain said uprising, his participation in the deliberations leading to the uprising being inferred only from
the fact that he was a communist.

The question that next comes up for resolution is: Does his or anyone's membership in the Communist Party per
se render Hernandez or any Communist guilty of conspiracy to commit rebellion under the provisions of Article 136 of
the Revised Penal Code? The pertinent provision reads:

The practice among the top Communists, as declared by the trial court appears to have been for important members,
if they intend actually to join the rebellion, to go underground, which meant leaving the city, disappearing from sight
and/or secretly joining the forces in the field.

The advocacy of Communism or Communistic theory and principle is not to be considered as a criminal act of
conspiracy unless transformed or converted into an advocacy of action. In the very nature of things, mere advocacy of
a theory or principle is insufficient unless the communist advocates action, immediate and positive, the actual
agreement to start an uprising or rebellion or an agreement forged to use force and violence in an uprising of the
working class to overthrow constituted authority and seize the reins of Government itself. Unless action is actually
advocated or intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy of
the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As a theorist the
Communist is not yet actually considered as engaging in the criminal field subject to punishment. Only when the
Communist advocates action and actual uprising, war or otherwise, does he become guilty of conspiracy to commit
rebellion. Borrowing the language of the Supreme Court of the United States:

The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of September 1, 1950,
to Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out Elias who prefers to work outside. Present problem of fighting
legally to Com. Soliman. If Soliman is prepared for martyrdom, retain him to fight legally. If not, send him out with Elias.
Same goes with Com. Mino and other relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground and joined the underground forces outside the
City, Hernandez remained in the City, engaged in the work of propaganda, making speeches and causing the
publication of such matters as the Communist Party leaders directed him to publish.
That Hernandez refused to go underground is a fact which is further corroborated by the following reasons (excuses)
given by him for not going underground, namely (1) that his term of councilor of the City of Manila was to extend to
December, 1951; and (2) that he was elected President of the CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista Rebels, and reported
to the Politburo that Hernandez "has tendencies of careerism, and tending to want to deal with leaders of the
Nacionalista Party instead of following CPP organizational procedures."
The court below further found that Hernandez had been furnishing supplies for the Huks in the field. But the very
document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p. 49), is to the effect that clothes
and shoes that Hernandez was supposed to have sent have not been received. It is true that some clothes had been
sent thru him to the field, but these clothes had come from a crew member of a ship of the American President Lines.
He also, upon request, sent a portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating
machine received by Hernandez from one Rolland Scott Bullard a crew member of the SS President Cleveland,
appease later to have been forwarded by him to the officers of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant Hernandez, who in turn
issued press releases for which he found space in the local papers. His acts in this respect belong to the category of
propaganda, to which he appears to have limited his actions as a Communist.
The acts of the appellant as thus explained and analyzed fall under the category of acts of propaganda, but do not
prove that he actually and in fact conspired with the leaders of the Communist Party in the uprising or in the actual
rebellion, for which acts he is charged in the information. And his refusal to go underground because of his political
commitments occasioned by his term of election as president of the CLO and the impressions caused by his acts on
the Communist leaders, to the effect that he was in direct communication or understanding with the Nacionalista Party
to which he was affiliated, creates in Us the reasonable doubt that it was not his Communistic leanings but his political

ART. 136. Conspiracy and proposal to commit rebellion or insurrection. The conspiracy and proposal to commit
rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum period and a fine which
shall not exceed 5,000 pesos, and by prision correccional in its medium period and a fine not exceeding 2,000 pesos.

In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be
justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy
of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to
withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an
organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by this Court to be such a
relationship. ... .
What must be met, then, is the argument that membership, even when accompanied by the elements of knowledge
and specific intent, affords an insufficient quantum of participation in the organization's alleged criminal activity, that is,
an insufficiently significant form of aid and encouragement to permit the imposition of criminal sanctions on that basis.
It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that "act"
alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing,
on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the
organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete,
practical impetus given to a criminal enterprise which is lent for instance by a commitment on the part of the
conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his
approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to
further it by any act or course of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of improvement of conditions of
labor through his organization, the CLO. While the CLO of which he is the founder and active president, has
communistic tendencies, its activity refers to the strengthening of the unity and cooperation between labor elements
and preparing them for struggle; they are not yet indoctrinated in the need of an actual war with or against Capitalism.
The appellant was a politician and a labor leader and it is not unreasonable to suspect that his labor activities
especially in connection with the CLO and other trade unions, were impelled and fostered by the desire to secure the
labor vote to support his political ambitions. It is doubtful whether his desire to foster the labor union of which he was
the head was impelled by an actual desire to advance the cause of Communism, not merely to advance his political
aspirations.
Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor has any particular
act on his part been pointed to Us, which would indicate that he had advocated action or the use of force in securing
the ends of Communism. True it is, he had friends among the leaders of the Communist Party, and especially the
heads of the rebellion, but this notwithstanding, evidence is wanting to show that he ever attended their meetings, or

collaborated and conspired with said leaders in planning and encouraging the acts of rebellion, or advancing the cause
thereof. Insofar as the furnishing of the mimeograph machine and clothes is concerned, it appears that he acted
merely as an intermediary, who passed said machine and clothes on to others. It does not appear that he himself
furnished funds or material help of his own to the members of the rebellion or to the forces of the rebellion in the field.

In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the "Katipunan", the purpose
of which was to overthrow the government by force. Each of the defendants on various times solicited funds from the
people of Mexico, Pampanga. The Court held that the defendants were guilty of conspiracy and proposal to commit
rebellion or insurrection and not of rebellion or insurrection itself. Thus, the Court ruled that:

But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the chief of the
rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster the rebellion or the uprising.

From the evidence adduced in this case we are of the opinion that the said defendants are guilty, not of inciting, setting
or foot, or assisting or engaging in rebellion, but rather of the crime of conspiring to overthrow, put down, and destroy
by force the Government of the United States in the Philippine Islands, and therefore we find that said defendants, and
each of them, did, together with others, in the months of February and March, 1903, in the Province of Pampanga,
Philippine Islands, conspire to overthrow, put down, and to destroy by force the Government of the United States in the
Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432, 434.)

We next consider the question as to whether the fact that Hernandez delivered speeches of propaganda in favor of
Communism and in favor of rebellion can be considered as a criminal act of conspiracy to commit rebellion as defined
in the law. In this respect, the mere fact of his giving and rendering speeches favoring Communism would not make
him guilty of conspiracy, because there was no evidence that the hearers of his speeches of propaganda then and
there agreed to rise up in arms for the purpose of obtaining the overthrow of the democratic government as envisaged
by the principles of Communism. To this effect is the following comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que se anunciara la
subasta de consumes se echaran a la calle para conseguir aunque fuera preciso acudir a la fuerza el reparto entre los
vecinos ricos solamente, sera responsable de un delito de conspiracion para la sedicion? El Tribunal Supreme ha
resuelto la negative al casar cierta sentencia de la Audiencia de Valencia, que entendio lo contrario: "Considerando
que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o mas personas se
conciertan para la execution de un delito y resuelven cmeterlo; y no constando que existiera ese concierto en cuanto
a los hechos que se refieren en la tercera pregunta del veredicto, pues en ella solo se habla de los actos de induccion
que el procesado realizo, sin expresar el efecto que la mismo produjo en el animo de las personas a quienes se
dirigian, ni si estas aceptaron o no lo que se las propuso, resulta evidence que faltan los clementos integrantes de la
conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no concrete evidence proving beyond reasonable doubt
that the appellant (Hernandez) actually participated in the rebellion or in any act of conspiracy to commit or foster the
cause of the rebellion. We are constrained, in view of these circumstances, to absolve, as We hereby absolve, the
appellant Amado V. Hernandez from the crime charged, with a proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the information and
were each sentenced to suffer the penalty of 10 years and 1 day of prision mayor, with the accessories provided by
law, and to pay their proportionate share of the costs.
Legal Considerations. Before proceeding to consider the appeals of the other defendants, it is believed useful if not
necessary to lay dawn the circumstances or facts that may be determinative of their criminal responsibility or the
existence or nature thereof. To begin with, as We have exhaustively discussed in relation to the appeal of Hernandez,
we do not believe that mere membership in the Communist Party or in the CLO renders the member liable, either of
rebellion or of conspiracy to commit rebellion, because mere membership and nothing more merely implies advocacy
of abstract theory or principle without any action being induced thereby; and that such advocacy becomes criminal
only if it is coupled with action or advocacy of action, namely, actual rebellion or conspiracy to commit rebellion, or acts
conducive thereto or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising or rebellion to
secure, as the Huks pretend, the liberation of the peasants and laboring class from thraldom. By membership in the
HMB, one already advocates uprising and the use of force, and by such membership he agrees or conspires that force
be used to secure the ends of the party. Such membership, therefore, even if there is nothing more, renders the
member guilty of conspiracy to commit rebellion punishable by law.
And when a Huk member, not content with his membership, does anything to promote the ends of the rebellion like
soliciting contributions, or acting as courier, he thereby becomes guilty of conspiracy, unless he takes to the field and
joins in the rebellion or uprising, in which latter case he commits rebellion.

JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member of the Central Committee of the CLO member
of the Central Committee of the CPP and as such committed to the establishment of the dictatorship of the proletariat
To the same effect is the testimony of Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He should therefore be
absolved of the charges contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and Executive Committee member of the CLO a
communications center of the Communist Party, having been found in possession of letters from Federico Maclang to
Salome Cruz, and solicitor of contributions for the Huks.
Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the Government
Workers Union, receiving copies of the Titis. Calayag testified that he was a member of the Central Committee of the
Communist Party entrusted with the duty of receiving directives of the Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before the Communist Party went underground. We
have been unable to find the evidence upon which the court bases its conclusion that he received contributions for the
Huks. With these circumstances in mind, We are not convinced beyond reasonable doubt that as a Communist he
took part in the conspiracy among the officials of the Communist Party to take part and support the rebellion of the
Huks.
We are, therefore, constrained to absolve him of the charges filed against him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an organized Communist branch in Pasay City, a
member of the Central Committee and Treasurer of the CLO. He admitted his membership and his position as
member of the executive committee and treasurer of the CLO these facts being corroborated by the witness Guillermo
Calayag.
His membership in the Communist Party dates as far back as the year 1945. As a communist, Genaro de la Cruz
received quotas and monetary contributions coming from the areas under his jurisdiction, and one time he made a
receipt from a member from Caloocan at the CLO headquarters at Azcarraga signing the receipt as "Gonzalo" which is
one of his aliases. He also distributed copies of the "Titis" magazine. `

While his membership in the Communist Party plus his having received contributions for the party indicate that he is
an active member, it was not shown that the contributions that he received from Communist Party members were
received around the year 1950 when the Central Committee of the Communist Party had already agreed to conspire
and go underground and support the Huk rebellion. Under these circumstances We cannot find him guilty of
conspiracy to commit rebellion because of the lack of evidence to prove his guilt beyond reasonable doubt.

TEOPISTA VALERIO
The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga, under Casto
Alejandrino, who later became her common-law husband; that her aliases are "Estrella" and "Star"; that she was found
in possession of various documents written to top Communists like Alejandrino, Lava and Romy, as well as a letter
from Taruc congratulating her for the delivers, of a son.

JULIAN LUMANOG
The court found him to be an organizer of HMB among the mill workers, solicited contributions for the HMB and
Central Committee member of the CLO as per Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made to believe that the Party is for the welfare of
the laborers. He also admitted being a member of the Central Committee of the CLO Calayag testified that Lumanog
organized the HMB units of the Communist Party in the Lumber Unions and attended a Communist meeting held by
Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one Nicasio Pamintuan,
one of the members of the HMB Special Unit Trigger Squad) in Manila for the use of the said unit.

Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva Ecija, later Chairman
of the Finance Department, and then promoted to Finance Officer of the Central Luzon Committee. Alicia Vergara, a
Huk courier, testified that she delivered letter from the mountains to Teopista Valerie, who was in turn also a courier.
Without considering the close relationship that she had with top Communist Casto Alejandrino, We are satisfied that
she herself was, aside from being a Huk courier, also a Huk, a member of the HMB from 1942 to 1951. As she was a
Communist and at the same time a member of the HMB, and considering that the HMB was engaged in an uprising to
uproot the legitimate government, there cannot be any question that she was in conspiracy with the other members of
her Party against the constituted government. We hold, therefore, that the evidence proves beyond reasonable doubt
that she is guilty of conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION

Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that by giving his
contributions he actually participated in the conspiracy to overthrow the government and should, therefore, be held
liable for such conspiracy, and should be sentenced accordingly.
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities consisted in
soliciting contributions, in cash and in kind, from city residents for the use of the HMB, turning over said collections to
the Party; that he has given asylum to a wanted Hukbalahap at his house at Juan Luna St., Gagalangin, which house
was used as Military post. The above findings of the court are fully supported by the testimony of Domingo Clarin.
Considering that while he has not actually taken part in the rebellion, he has shown sympathy with the cause by
soliciting contributions for it and had given shelter to the Huks. We feel that the court was fully justified in finding him
guilty, but We hold that he should be declared liable merely as a co-conspirator in the crime of conspiracy to commit
rebellion, and should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having admitted membership in the Communist Party
since 1945; that his duties as a Communist was to help in the office of the National Finance Committee, assorting
papers and written documents; that sometimes he accompanied the purchaser of medicines, shoes, papers, foodstuffs
and clothing to be given to the Huks; that he is a member of the Communication Division of the CPP in Manila, in
charge of distribution of letters or communications; that he admits having written to Salome Cruz, courier of the
Communist Party, when he asked for his necessities, such as money and shoes, etc.
The facts found by the court are sufficiently supported by the communications and evidence submitted by the
prosecution. The exhibits show that he was in constant communication with the communists; serving them as courier.
His oath as a member of the Communist Party was submitted in court and in it he admits obedience to all orders of the
Party and to propagate the stability of the PKP.
Considering that the PKP was engaged in an actual uprising against the constituted Government and that Bayani
Espiritu was in constant communication with the Communist Party and served it as courier, We believe that the court
was fully justified in finding him guilty. However, We believe that not having actually taken up arms in the uprising he
may only be declared guilty of conspiracy to commit rebellion.

In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P. Balgos, Alfredo B.
Saulo and Jacobo Espino was dismissed because they have not been apprehended at the time of the trial.
PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND
REPUBLIC ACT NO. 1700, DISTINGUISHED
In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking aims against the
Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the
Philippines, or any part thereof, etc., a crime defined in Article 134 of the Revised Penal Code; whereas Evangelista
was charged and convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act No. 292).
As the specific charge against appellants is that of rising up in arms in actual rebellion against the Government, they
cannot be held guilty of inciting the people to arms under Article 138, which is a different offense.
On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in any organization
or association committed to subvert the Government, cannot be applied to the appellants because said Act was
approved on June 20, 1957 and was not in force at the time of the commission of the acts charged against appellants
(committed 1945-1950) ; the Anti-Subversion Act punishes participation or membership in an organization committed
to overthrow the duly constituted Government, a crime district from that of actual rebellion with which appellants are
charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V. Hernandez, Juan J.
Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges contained in the information, with their
proportionate share of the costs de oficio. The defendants-appellants Julian Lumanog and Fermin Rodillas in Criminal
Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal
Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion, as defined
and punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby sentenced to suffer
imprisonment for five years, four months and twenty-one days of prision correccional, and to pay a fine of P5,000.00,
with subsidiary imprisonment in case of insolvency and to pay their proportional share of the costs. So ordered.
G.R. No. 92163 June 5, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner
vs.
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR STATE
PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY
PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM,
BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND ALL
PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, respondents.
G.R. No. 92164 June 5, 1990
SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,
vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C.
MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial Court,
Quezon City, Branch 103, respondents.

NARVASA, J.:
Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center
stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its
applicability. To be sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a
marked lack of success-but none, it would Beem, where season and circumstance had more effectively conspired to
attract wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen
quite the kind and range of arguments that are now brought to bear on the same question.
The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile
was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the
strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal
Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel of
prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and
Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio,
and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed
during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to
and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been recommended in
the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was brought to
Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern
Police District, Brig. Gen. Edgardo Dula Torres. 3
On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpusherein
(which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his
constitutional rights in being, or having been:
(a) held to answer for criminal offense which does not exist in the statute books;
(b) charged with a criminal offense in an information for which no complaint was initially filed or preliminary
investigation was conducted, hence was denied due process;
(c) denied his right to bail; and
(d) arrested and detained on the strength of a warrant issued without the judge who issued it first having personally
determined the existence of probable cause. 4

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5On
March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No.
921647 Which had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses
Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall
within the Hernandezruling because-and this is putting it very simply-the information in Hernandez charged murders
and other common crimes committed as a necessary means for the commission of rebellion, whereas the information
against Sen. Enrile et al.charged murder and frustrated murder committed on the occasion, but not in furtherance, of
rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime ("delito complejo")
arising from an offense being a necessary means for committing another, which is referred to in the second clause of
Article 48, Revised Penal Code, and is the subject of the Hernandez ruling, and the compound crime ("delito
compuesto") arising from a single act constituting two or more grave or less grave offenses referred to in the first
clause of the same paragraph, with which Hernandez was not concerned and to which, therefore, it should not apply.
The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution
of the same date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their filing,
within 24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the
Panlilios), respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the
matter of the provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in
both cases. Four Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail
to the Panlilios.
The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No.
92163.
The parties' oral and written pleas presented the Court with the following options:
(a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case
that rebellion cannot absorb more serious crimes, and that under Article 48 of the Revised Penal Code rebellion may
properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral
argument although it is not offered in his written pleadings;
(b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for the
commission, of rebellion, but not to acts committed in the course of a rebellion which also constitute "common" crimes
of grave or less grave character;
(c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course, whether or not
necessary to its commission or in furtherance thereof.
On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that
the doctrine should be re-examined. 10-A In the view of the majority, the ruling remains good law, its substantive and
logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to
warrant a complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President,
exercising her powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No.
942 of the former regime which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art.
142-A) into the Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes
penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon which
graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period
shall be imposed upon the offender."' 11In thus acting, the President in effect by legislative flat reinstated Hernandez as
binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any
sufficiently powerful reason against so doing.
On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its
application to offenses committed as a necessary means for the commission of rebellion and that the ruling should not
be interpreted as prohibiting the complexing of rebellion with other common crimes committed on the occasion, but not
in furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not entirely devoid

of merit, the consensus was that they were not sufficient to overcome what appears to be the real thrust
of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under either of the
aforecited clauses of Article 48, as is made clear by the following excerpt from the majority opinion in that case:
There is one other reason-and a fundamental one at that-why Article 48 of our Penal Code cannot be applied in the
case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that
this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of
rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying
circumstances present, but never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion
temporal in its maximum period to death, depending upon the modifying circumstances present. in other words, in the
absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article
48 said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus,
said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant.
Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a
penalty more severe than that which would be proper if the several acts performed by him were punished separately.
In the words of Rodriguez Navarro:
La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de
1932), esta basado francamente en el principio pro reo.' (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)
We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart
of our Article 48), as amended in 1908 and then in 1932, reading:
Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas
delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que
represents la suma de las que pudieran imponerse, penando separadamente los delitos.
Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado. (Rodriguez Navarro,
Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163)
and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the
penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties
imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to
our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can
be no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing
that the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no
other purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed
separately. The reason for this benevolent spirit of article 48 is readily discernible. When two or more crimes are the
result of a single act, the offender is deemed less perverse than when he commits said crimes thru separate and
distinct acts. Instead of sentencing him for each crime independently from the other, he must suffer the maximum of
the penalty for the more serious one, on the assumption that it is less grave than the sum total of the separate
penalties for each offense. 12
The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandezremains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion.

This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less
adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the
disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the propriety
of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an
offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated
murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said:
In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V.
Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion
allegedly committed by said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that
the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of
rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot
exceed twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this court in
dealing with accused persons amenable to a similar punishment, said defendant may be allowed bail. 13
The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while
technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on
the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the
information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple
rebellion.
Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted?
The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the
National Bureau of Investigation, and that on the strength of said complaint a preliminary investigation was conducted
by the respondent prosecutors, culminating in the filing of the questioned information. 14 There is nothing inherently
irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged in
the initiatory complaint, if warranted by the evidence developed during the preliminary investigation.
It is also contended that the respondent Judge issued the warrant for petitioner's arrest without
first personallydetermining the existence of probable cause by examining under oath or affirmation the complainant
and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is
not the unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows
established procedure by personally evaluating the report and the supporting documents submitted by the
prosecutor. 16 Petitioner claims that the warrant of arrest issued barely one hour and twenty minutes after the case was
raffled off to the respondent Judge, which hardly gave the latter sufficient time to personally go over the voluminous
records of the preliminary investigation. 17 Merely because said respondent had what some might consider only a
relatively brief period within which to comply with that duty, gives no reason to assume that he had not, or could not
have, so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has
been regularly performed.
Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandezas
applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be
considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be
accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition
for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial?
The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have
provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said
respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail,
claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was
denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first
applying to the Court of Appeals if appropriate relief was also available there.

Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent
crime or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his
improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash
brought in the criminal action before the respondent Judge. 18
There thus seems to be no question that All the grounds upon which petitioner has founded the present petition,
whether these went into the substance of what is charged in the information or imputed error or omission on the part of
the prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally justiciable in
the criminal case before said Judge and should have been brought up there instead of directly to this Court.
There was and is no reason to assume that the resolution of any of these questions was beyond the ability or
competence of the respondent Judge-indeed such an assumption would be demeaning and less than fair to our trial
courts; none whatever to hold them to be of such complexity or transcendental importance as to disqualify every court,
except this Court, from deciding them; none, in short that would justify by passing established judicial processes
designed to orderly move litigation through the hierarchy of our courts. Parenthentically, this is the reason behind the
vote of four Members of the Court against the grant of bail to petitioner: the view that the trial court should not thus be
precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter, denied an opportunity to
correct its error. It makes no difference that the respondent Judge here issued a warrant of arrest fixing no bail.
Immemorial practice sanctions simply following the prosecutor's recommendation regarding bail, though it may be
perceived as the better course for the judge motu proprio to set a bail hearing where a capital offense is charged. 19 It
is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to claim the right to a
bail hearing and thereby put to proof the strength or weakness of the evidence against him.

to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it cannot be conveniently
utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such
change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation.
Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its
province.
WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned
information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as
charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right.
The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are
ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is
fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall
become functus oficio. No pronouncement as to costs.
SO ORDERED.
Cruz, Gancayco and Regalado, JJ., concur.
Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163.
Cortes and Grio-Aquino, JJ., are on leave.

It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar
situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the
regular manner just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may
have hoped to avoid by coming directly to this Court.
Not only because popular interest seems focused on the outcome of the present petition, but also because to wash
the Court's hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the
Court now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said
petition interdicted the ordered and orderly progression of proceedings that should have started with the trial court and
reached this Court only if the relief appealed for was denied by the former and, in a proper case, by the Court of
Appeals on review.
Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the
present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the
original competence of the lower courts. What has thus far been stated is equally applicable to and decisive of the
petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of petitioner Enrile in
factualmilieu and is therefore determinable on the same principles already set forth. Said spouses have uncontestedly
pleaded 20 that warrants of arrest issued against them as co-accused of petitioner Enrile in Criminal Case No. 9010941, that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken
into custody and detained without bail on the strength of said warrants in violation-they claim-of their constitutional
rights.
It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality that
justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled
by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even
the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as
the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these
days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even
claimed by so-called rebels to be part of, an ongoing rebellion.
It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City
seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national
economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades,
remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only
served to strengthen its pronouncements.
I take exception to the view, however, that habeas corpus was not the proper remedy.
Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been
plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime
which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious
offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus,
no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.
Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have
brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion
before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas
Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals,
24 SCRA 663).

It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a
Court.
The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to
have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.
The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or
confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ
ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a
court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the
prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a
case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis
emphasis].
The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail
inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner
stands accused of and for which he was denied bail is non-existent in law.
While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking
cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding.
The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas
corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state
action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through
barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers
(Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied].
The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence
of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact
that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner.

First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no
such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a
rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property
constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple.
Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and
even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently
rejected by this Court.
Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the
new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However,
President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She
thereby erased the crime of rebellion complexed with murder and made it clear that theHernandez doctrine remains
the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by
the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a
decree which, according to the repeal order, is violative of human rights.
Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of
this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our
declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until
the Supreme Court reversed itself.
And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the
information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in
outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb
dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to
make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of
the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of
a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of
rebellion.
This argument is puerile.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the
remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for
being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others
enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory
decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of reexamining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of
the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be
complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a
penalty for its commission. That function is exclusively for Congress.
I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the
defective informations filed by the prosecutors should have been treated.
I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to
bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come
to us.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of
rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be
broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the
destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes
the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution
also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian
economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are
all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single
act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu
of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion
and is part of the rebellion.
The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the
warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was
compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply
an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established
procedure based on a well-known Supreme Court ruling.
All courts should remember that they form part of an independent judicial system; they do not belong to the
prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous
manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw
it out. Or, at the very least and where possible, make it conform to the law.

A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently
followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in
the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any
processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore
precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to this
Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been
the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their
arrest for a non-existent crime.
The principle bears repeating:
Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the
legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to
this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the
significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a
municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the
other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion,
it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court.
What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial
hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56
[1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was
reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel
need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last
word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from
whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of
First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA
226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services,
Inc. v. NLRC, 125 SCRA 577 [1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of
the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in
the minds of the prosecutors, not in the records of the case.
I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the
oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was
not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the
answer was that the evidence would be submitted in due time to the trial court.
The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these
petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The
absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural
houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio
youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts
recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are coconspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners
served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without
reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown.
In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous
bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group
photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of
conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of
food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of
a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing
Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would
be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the
due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State.
More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our
country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the
pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that
no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula
or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions
obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear
dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should
not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be
a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up
to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so.
(id., pp. 461- 462)
Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging
simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show
only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is
a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The
prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under
our rulings, does not exist, those informations should be treated as null and void. New informations charging the
correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the
Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.
The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If
the Government feels that the current situation calls for the imposition of more severe penalties like death or the
creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a
non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand
reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship
between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of
rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How
Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put
together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by
rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of
(i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the
territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or
depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time,
Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which

appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government,
destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful
purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular
modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or
particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept
of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of
rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the
political or social objective of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the
results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion,
may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately
from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and
Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the
case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity principle (Article 4, Civil
Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon
the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions
construing statutory norms give specific shape and content to such norms. In time, the statutory norms become
encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex
v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the
law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new
judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36
years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous
for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270
[1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect
of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a
judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an
offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process
clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260
[1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason
that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the
first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however,
open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming
the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms which do not
distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90
[1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a
man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring
exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the
new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or
counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as
interpreted by the Court in the Hernandez and subsequent cases. To formulate the question ill these terms would
almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several
Members today.
Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first
time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused
than the simple application of the Hernandez doctrine that murders which have been committed on the occasion of
and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion.
I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court.
The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should
at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted
and well-settled principles of criminal law and jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all
common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the
latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion" (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communistinspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects
on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers
of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their
consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain
aspect of the Hernandez doctrine that needs clarification.
With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have
further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on
the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of
rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case
that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the
resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the
operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the
Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the
commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in
the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our
country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an
element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an
element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the
complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against
Government forces and property in the course of rebellion are properly considered indispensable overt acts of
rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed
against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be
necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the
said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government
forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps
and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an
unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the
rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not
indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.
The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by
staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced
a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code.
Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of
rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of
its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the
traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as
applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully
without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping,

robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where
murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction
referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be
painstakingly considered as the Court should have done in the case of herein petitioners.
I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the
majority on the broad application of the Hernandez doctrine.

At any rate, the government need only amend the information by a clerical correction, since an amendment will not
alter its substance.
I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when
we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of
P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment,
because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again
when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the
case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner.
I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we
have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently,habeas
corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a
bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's
constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when
filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings.
It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the
Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114).
Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail.
Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our
jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant
petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems
reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the
respondent trial court (Section 14, Rule 102).
Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to
our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in
the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further
proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the
said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly
settled in the tomes of our jurisprudence as correct doctrine.
As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to
arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property,
physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3whether
committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that
rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms
because exactly, rebellion includes murder, among other possible crimes.
I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as
constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a
surplusage, because in any case, the crime of rebellion is left fully described. 4

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion."
I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the
complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."
The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In
theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial
court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the
Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion
complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is
confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners
have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion can
be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower
court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C.
Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed
with murder, and multiple frustrated murder does not exist.
And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down
theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an
information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That
information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in
substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as
null and void as the information on which they are anchored. And, since the entire question of the information's validity
is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective,even under
procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).
I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or
"baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and
properinformation, for this entire exercise to merit the serious consideration of the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for
rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City,
DISMISSED.
Consequently, the petitioners should be ordered permanently released and their bails cancelled.

Paras, J., concurs.

barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers
(Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied].
The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence
of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact
that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner.

Separate Opinions
MELENCIO-HERRERA, J., concurring:
I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades,
remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only
served to strengthen its pronouncements.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the
remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for
being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others
enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory
decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of reexamining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of
the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

I take exception to the view, however, that habeas corpus was not the proper remedy.
Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been
plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime
which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious
offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus,
no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.
Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have
brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion
before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas
Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals,
24 SCRA 663).
It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a
Court.
The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to
have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.
The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or
confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ
ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a
court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the
prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a
case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis
emphasis].
The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail
inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner
stands accused of and for which he was denied bail is non-existent in law.
While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking
cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding.
The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas
corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state
action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be
complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a
penalty for its commission. That function is exclusively for Congress.
I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the
defective informations filed by the prosecutors should have been treated.
I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to
bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come
to us.
First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no
such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a
rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property
constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple.
Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and
even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently
rejected by this Court.
Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the
new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However,
President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She
thereby erased the crime of rebellion complexed with murder and made it clear that theHernandez doctrine remains
the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by
the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a
decree which, according to the repeal order, is violative of human rights.
Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of
this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our
declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until
the Supreme Court reversed itself.

And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the
information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in
outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb
dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to
make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of
the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of
a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of
rebellion.
This argument is puerile.
The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of
rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be
broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the
destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes
the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution
also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian
economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are
all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single
act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu
of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion
and is part of the rebellion.
The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the
warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was
compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply
an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established
procedure based on a well-known Supreme Court ruling.
All courts should remember that they form part of an independent judicial system; they do not belong to the
prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous
manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw
it out. Or, at the very least and where possible, make it conform to the law.
A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently
followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in
the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any
processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore
precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to this
Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been
the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their
arrest for a non-existent crime.
The principle bears repeating:
Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the
legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to
this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the
significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a
municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the
other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion,
it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court.
What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial
hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56
[1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was
reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel

need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last
word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from
whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of
First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA
226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services,
Inc. v. NLRC, 125 SCRA 577 [1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of
the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in
the minds of the prosecutors, not in the records of the case.
I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the
oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was
not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the
answer was that the evidence would be submitted in due time to the trial court.
The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these
petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The
absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural
houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio
youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts
recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are coconspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners
served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without
reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown.
In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous
bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group
photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of
conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of
food.
The Court in Salonga stressed:
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of
a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing
Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would
be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the
due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State.
More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our
country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the
pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that
no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula
or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions
obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear
dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should
not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be
a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up
to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so.
(id., pp. 461- 462)

Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging
simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show
only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is
a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The
prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under
our rulings, does not exist, those informations should be treated as null and void. New informations charging the
correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the
Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.
The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If
the Government feels that the current situation calls for the imposition of more severe penalties like death or the
creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a
non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand
reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship
between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of
rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How
Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put
together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by
rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of
(i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the
territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or
depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time,
Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which
appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government,
destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful
purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular
modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or
particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept
of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of
rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the
political or social objective of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the
results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion,
may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately
from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and
Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the
case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity principle (Article 4, Civil
Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon
the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions
construing statutory norms give specific shape and content to such norms. In time, the statutory norms become
encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex
v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the

law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new
judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36
years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous
for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270
[1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect
of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a
judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an
offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process
clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260
[1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]).
It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason
that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the
first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however,
open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming
the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms which do not
distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90
[1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a
man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring
exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the
new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or
counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as
interpreted by the Court in the Hernandez and subsequent cases. To formulate the question ill these terms would
almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several
Members today.
Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first
time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused
than the simple application of the Hernandez doctrine that murders which have been committed on the occasion of
and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion.
I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court.
The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should
at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted
and well-settled principles of criminal law and jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all
common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the
latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion" (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communistinspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-reaching effects
on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers
of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their
consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain
aspect of the Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have
further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on
the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of
rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case
that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the
resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the
operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the
Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the
commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in
the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our
country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an
element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an
element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the
complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against
Government forces and property in the course of rebellion are properly considered indispensable overt acts of
rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed
against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be
necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the
said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government
forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps
and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an
unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the
rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not
indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.
The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by
staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced
a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code.
Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of
rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of
its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the
traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as
applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully
without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping,
robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where
murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction
referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be
painstakingly considered as the Court should have done in the case of herein petitioners.
I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the
majority on the broad application of the Hernandez doctrine.

It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the
Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114).
Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail.
Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our
jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant
petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems
reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the
respondent trial court (Section 14, Rule 102).
Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to
our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in
the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further
proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the
said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly
settled in the tomes of our jurisprudence as correct doctrine.
As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to
arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property,
physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3whether
committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that
rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms
because exactly, rebellion includes murder, among other possible crimes.
I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as
constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a
surplusage, because in any case, the crime of rebellion is left fully described. 4
At any rate, the government need only amend the information by a clerical correction, since an amendment will not
alter its substance.
I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when
we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of
P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment,
because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again
when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the
case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner.
I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we
have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently,habeas
corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a
bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's
constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when
filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion."
I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the
complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In
theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial
court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the
Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion
complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is
confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners
have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion can
be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower
court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C.
Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed
with murder, and multiple frustrated murder does not exist.
And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down
theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an
information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That
information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in
substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as
null and void as the information on which they are anchored. And, since the entire question of the information's validity
is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective,even under
procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).
I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or
"baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and
properinformation, for this entire exercise to merit the serious consideration of the courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for
rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City,
DISMISSED.
Consequently, the petitioners should be ordered permanently released and their bails cancelled.

G.R. No. 93335 September 13, 1990

JUAN PONCE ENRILE, petitioner,
vs.
HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of Makati, Branch 135, HON. IGNACIO M.
CAPULONG, Presiding Judge of Regional Trial Court of Makati, Branch 134, Pairing Judge, SPECIAL
COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE, State Prosecutor FERDINAND ABESAMIS
and Asst. City Prosecutor EULOGIO MANANQUIL; and PEOPLE OF THE PHILIPPINES,respondents.
Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.:

Together with the filing of an information charging Senator Juan Ponce Enrile as having committed rebellion
complexed with murder 1 with the Regional Trial Court of Quezon City, government prosecutors filed another
information charging him for violation of Presidential Decree No. 1829 with the Regional Trial Court of Makati. The
second information reads:
That on or about the 1st day of December 1989, at Dasmarias Village, Makati, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, having reasonable ground to believe or suspect that
Ex-Col. Gregorio "Gringo" Honasan has committed a crime, did then and there unlawfully, feloniously, willfully and
knowingly obstruct, impede, frustrate or delay the apprehension of said Ex. Lt. Col. Gregorio "Gringo" Honasan by
harboring or concealing him in his house.
On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a warrant of arrest
pending personal determination by the court of probable cause, and (b) to dismiss the case and expunge the
information from the record.
On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge Omar Amin, denied
Senator Enrile's Omnibus motion on the basis of a finding that "there (was) probable cause to hold the accused Juan
Ponce Enrile liable for violation of PD No. 1829."
On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the Information on the
grounds that:
(a) The facts charged do not constitute an offense;
(b) The respondent court's finding of probable cause was devoid of factual and legal basis; and
(c) The pending charge of rebellion complexed with murder and frustrated murder against Senator Enrile as alleged
co-conspirator of Col. Honasan, on the basis of their alleged meeting on December 1, 1989 preclude the prosecution
of the Senator for harboring or concealing the Colonel on the same occasion under PD 1829.
On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for alleged lack of
merit and setting Senator Enrile's arraignment to May 30, 1990.
The petitioner comes to this Court on certiorari imputing grave abuse of discretion amounting to lack or excess of
jurisdiction committed by the respondent court in refusing to quash/ dismiss the information on the following grounds,
to wit:
I. The facts charged do not constitute an offense;
II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed meeting on 1 December 1989 is
absorbed in, or is a component element of, the "complexed" rebellion presently charged against Sen. Enrile as alleged
co-conspirator of Col. Honasan on the basis of the same meeting on 1 December 1989;
III. The orderly administration of Justice requires that there be only one prosecution for all the component acts of
rebellion;
IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of Presidential Decree No. 1829;
V. No preliminary investigation was conducted for alleged violation of Presidential Decree No. 1829. The preliminary
investigation, held only for rebellion, was marred by patent irregularities resulting in denial of due process.

On May 20, 1990 we issued a temporary restraining order enjoining the respondents from conducting further
proceedings in Criminal Case No. 90-777 until otherwise directed by this Court.
The pivotal issue in this case is whether or not the petitioner could be separately charged for violation of PD No. 1829
notwithstanding the rebellion case earlier filed against him.
Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the rebellion case filed
against the petitioner on the theory that the former involves a special law while the latter is based on the Revised
Penal Code or a general law.
The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515 [1956]) the rulings
of which were recently repeated in the petition for habeas corpus of Juan Ponce Enrile v. Judge Salazar,(G.R. Nos.
92163 and 92164, June 5, 1990). The Enrile case gave this Court the occasion to reiterate the long standing
proscription against splitting the component offenses of rebellion and subjecting them to separate prosecutions, a
procedure reprobated in the Hernandez case. This Court recently declared:
The rejection of both options shapes and determines the primary ruling of the Court, which thatHernandez remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means to its commission or as an unintended effect of an activity that commutes rebellion.
(Emphasis supplied)
This doctrine is applicable in the case at bar. If a person can not be charged with the complex crime of rebellion for the
greater penalty to be applied, neither can he be charged separately for two (2) different offenses where one is a
constitutive or component element or committed in furtherance of rebellion.
The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which states:
SECTION 1. The penalty of prison correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos or
both, shall be imposed upon any person who knowingly or wilfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:
xxx xxx xxx
(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or
suspect has committed any offense under existing penal laws in order to prevent his arrest, prosecution and
conviction.

In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio "Gringo" Honasan in his house in the presence
of about 100 uniformed soldiers who were fully armed, can be inferred that they were co-conspirators in the failed
December coup. (Annex A, Rollo, p. 65; Emphasis supplied)
As can be readily seen, the factual allegations supporting the rebellion charge constitute or include the very incident
which gave rise to the charge of the violation under Presidential Decree No. 1829. Under the Department of Justice
resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion complexed with murder and multiple frustrated
murder but there could be 101 separate and independent prosecutions for harboring and concealing" Honasan and
100 other armed rebels under PD No. 1829. The splitting of component elements is readily apparent.
The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan. Necessarily,
being in conspiracy with Honasan, petitioners alleged act of harboring or concealing was for no other purpose but in
furtherance of the crime of rebellion thus constitute a component thereof. it was motivated by the single intent or
resolution to commit the crime of rebellion. As held in People v. Hernandez, supra:
In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be
committed to achieve a political purpose. The decisive factor is the intent or motive. (p. 536)
The crime of rebellion consists of many acts. It is described as a vast movement of men and a complex net of intrigues
and plots. (People v. Almasan [CA] O.G. 1932). Jurisprudence tells us that acts committed in furtherance of the
rebellion though crimes in themselves are deemed absorbed in the one single crime of rebellion. (People v. Geronimo,
100 Phil. 90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v. Rodriguez, 107 Phil. 659 [1960]; People v. Lava,
28 SCRA 72 [1969]). In this case, the act of harboring or concealing Col. Honasan is clearly a mere component or
ingredient of rebellion or an act done in furtherance of the rebellion. It cannot therefore be made the basis of a
separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is instructive:
In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its very nature
partakes of a deed or physical activity as opposed to a mental operation. (Cramer v. U.S., ante) This deed or physical
activity may be, and often is, in itself a criminal offense under another penal statute or provision. Even so, when the
deed is charged as an element of treason it becomes Identified with the latter crime and can not be the subject of a
separate punishment, or used in combination with treason to increase the penalty as article 48 of the Revised Penal
Code provides. Just as one can not be punished for possessing opium in a prosecution for smoking the Identical drug,
and a robber cannot be held guilty of coercion or trespass to a dwelling in a prosecution for robbery, because
possession of opium and force and trespass are inherent in smoking and in robbery respectively, so may not a
defendant be made liable for murder as a separate crime or in conjunction with another offense where, as in this case,
it is averred as a constitutive ingredient of treason.
The prosecution tries to distinguish by contending that harboring or concealing a fugitive is punishable under a special
law while the rebellion case is based on the Revised Penal Code; hence, prosecution under one law will not bar a
prosecution under the other. This argument is specious in rebellion cases.

xxx xxx xxx

The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col. Honasan by giving
him food and comfort on December 1, 1989 in his house. Knowing that Colonel Honasan is a fugitive from justice,
Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended. And because of such failure the
petitioner prevented Col. Honasan's arrest and conviction in violation of Section 1 (c) of PD No. 1829.
The rebellion charges filed against the petitioner in Quezon City were based on the affidavits executed by three (3)
employees of the Silahis International Hotel who stated that the fugitive Col. Gregorio "Gringo" Honasan and some
100 rebel soldiers attended the mass and birthday party held at the residence of the petitioner in the evening of
December 1, 1989. The information (Annex "C", p. 3) particularly reads that on "or about 6:30 p.m., 1 December, 1989,
Col. Gregorio "Gringo" Honasan conferred with accused Senator Juan Ponce Enrile accompanied by about 100 fully
armed rebel soldiers wearing white armed patches". The prosecution thereby concluded that:

In the light of the Hernandez doctrine the prosecution's theory must fail. The rationale remains the same. All crimes,
whether punishable under a special law or general law, which are mere components or ingredients, or committed in
furtherance thereof, become absorbed in the crime of rebellion and can not be isolated and charged as separate
crimes in themselves. Thus:
This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence,
are absorbed by the same and cannot be punished either separately therefrom or by the application of Article 48 of the
Revised Penal Code. ... (People v. Hernandez, supra, at p. 528)
The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These
common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping etc. as provided in the Revised
Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of
absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which
are perpetrated in furtherance of the political offense.

The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan is too intimately
tied up with his allegedly harboring and concealing Honasan for practically the same act to form two separate crimes
of rebellion and violation of PD No. 1829.

In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his being prosecuted in
the rebellion case. With this ruling, there is no need for the Court to pass upon the other issues raised by the
petitioner.

Clearly, the petitioner's alleged act of harboring or concealing which was based on his acts of conspiring with Honasan
was committed in connection with or in furtherance of rebellion and must now be deemed as absorbed by, merged in,
and Identified with the crime of rebellion punished in Articles 134 and 135 of the RPC.

WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is QUASHED. The writ of
preliminary injunction, enjoining respondent Judges and their successors in Criminal Case No. 90-777, Regional Trial
Court of Makati, from holding the arraignment of Sen. Juan Ponce Enrile and from conducting further proceedings
therein is made permanent.

Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common
crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses,
and assume the political complexion of the main crime of which they are mere ingredients, and consequently, cannot
be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver
penalty. (People v. Hernandez, supra, p. 541)
In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and convicted of the crime
of rebellion, faced an independent prosecution for illegal possession of firearms. The Court ruled:
An examination of the record, however, discloses that the crime with which the accused is charged in the present case
which is that of illegal possession of firearm and ammunition is already absorbed as a necessary element or ingredient
in the crime of rebellion with which the same accused is charged with other persons in a separate case and wherein
he pleaded guilty and was convicted. (at page 662)
xxx xxx xxx
[T]he conclusion is inescapable that the crime with which the accused is charged in the present case is already
absorbed in the rebellion case and so to press it further now would be to place him in double jeopardy. (at page 663)
Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the Court had the
occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an alleged member of the New
Peoples Army (NPA), was charged with illegal possession of firearms and ammunitions in furtherance of subversion
under Section 1 of PD 1866. In his motion to quash the information, the petitioner based his arguments on
the Hernandez and Geronimo rulings on the doctrine of absorption of common in rebellion. The Court, however,
clarified, to wit:
... in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms
and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION
WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR
SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez,
Geronimo and Rodriguez find no application in this case.
The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866 because no
separate prosecution for subversion or rebellion had been filed. 3 The prosecution must make up its mind whether to
charge Senator Ponce Enrile with rebellion alone or to drop the rebellion case and charge him with murder and
multiple frustrated murder and also violation of P.D. 1829. It cannot complex the rebellion with murder and multiple
frustrated murder. Neither can it prosecute him for rebellion in Quezon City and violation of PD 1829 in Makati. It
should be noted that there is in fact a separate prosecution for rebellion already filed with the Regional Trial Court of
Quezon City. In such a case, the independent prosecution under PD 1829 can not prosper.
As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not charged with
rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate,
the motive for the act is completely different. But if the act is committed with political or social motives, that is in
furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished
separately.

SO ORDERED.
G.R. No. 81567 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and
RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER
AGUIRRE, respondents.
G.R. Nos. 84581-82 October 3, 1991
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.
G.R. Nos. 84583-84 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON
CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIO, LT. COL. REX D. PIAD, T/SGT.
CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp
Crame, Quezon City, respondents.
G.R. No. 83162 October 3, 1991
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA:
VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents.
G.R. No. 85727 October 3, 1991
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.
G.R. No. 86332 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO
NAZARENO,petitioner,
vs.

THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT.
JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO
AROJADO, respondents.
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.
We find no merit in the motions for reconsideration.
It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under
the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons
from unlawful restraint. 4Therefore, the function of the special proceedings of habeas corpus is to inquire into the
legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released.

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering
decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance
with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such
arrests also in accordance with law.

The Solicitor General for the respondents.

RESOLUTION

There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo
without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests
witho warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid arrest,
without warrant, can be conducted.

PER CURIAM:p

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which
read:

Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration
of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the
following dispositive part:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a
person:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond
for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.
The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule as
many misunderstood it to do that mere suspicion that one is Communist Party or New People's Army member is a
valid ground for his arrest without warrant. Moreover, the decision merely applied long existing lawsto the factual
situations obtaining in the several petitions. Among these laws are th outlawing the Communist Party of the Philippines
(CPP) similar organizations and penalizing membership therein be dealt with shortly). It is elementary, in this
connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected
representative of the people not the Court that should repeal, change or modify them.
In their separate motions for reconsideration, petitioners, in sum, maintain:
1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying
on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests
violated the constitutional rights of the persons arrested;
2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;
3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the
Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions
and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not
comply with the requirements on admissibility of extrajudicial admissions;
4. That the assailed decision is based on a misappreciation of facts;

(a) When, in his presence, the person to he arrested has committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the
person to be arrest has committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it
can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested
because Dural was arrested for being a member of the New People's Army, an outlawed organization, where
membership penalized, 7 and for subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, 8 a
continuing offense, thus:
The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes
and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith
under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the
common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of
organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST,
simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several
persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM
policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a
"sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot
other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion
like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e.
adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on

an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding
objective of overthrowing organized government is attained.
Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in
the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter.
Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of
Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid
arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the
arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is
the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on
"personal knowledge of facts" acquired by the arresting officer or private person.
It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause,
which means an actual belief or reasonable grounds of suspicion 9

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information
charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial
Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as
distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and
sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple(G.R.
Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were
searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives
and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright
arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a
few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing
them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by
announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody
of the authorities.
More specifically, the antecedent facts in the "in flagrante" cases are:

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion
that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10 A
reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest. 11
These requisites were complied with in the Umil case and in the other cases at bar.
In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital,
Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a
"sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information
further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered
two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road
hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's
name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South
City Homes, Bian, Laguna. 12
Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was
being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on
actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said
hospital. The actual facts supported by circumstances are: first the day before, or on 31 January 1988, two (2)
CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second
a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes
Hospital for a gunshot wound; third as the records of this case disclosed later, "Ronnie Javellon" and his address
entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural.
In fine, the confidential information received by the arresting officers merited their immediate attention and action and,
in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential
information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually
received from the attending doctor and hospital management in compliance with the directives of the law, 14 and,
therefore, came from reliable sources.
As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make
the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in
good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that
the arresting officers did not appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest,
without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule
113.

1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the
CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz
Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of
this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search
warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then
confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications
equipment, and he admitted that he was a ranking member of the CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988,
and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the
rebel group.
3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his
possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found
subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18
4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when
they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them,
subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess
them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises
ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject
of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence
and Investigation found ammunitions and subversive documents in the car of Ocaya. 20
It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which
compelled the military agents to make the arrests without warrant was the information given to the military authorities
that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by
the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and
Benito Tiamzon as residents or occupants thereof.
And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra,
Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was
true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was
duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named
Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were

unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were
unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their
membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former
comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations
were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests
without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not
appear to have been ill-motivated or irregularly performed.
With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural,
Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the
military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official
duty and a cause for disciplinary action against the peace officers involved.
For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and
judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to
prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure.
The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met.
This rule is founded on an overwhelming public interest in peace and order in our communities.
In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section
5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for
which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the
peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without
warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth
in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent
and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the
arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil
Code 26 and/or for other administrative sanctions.
In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of
certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay
Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he
said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)
and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22
November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November
1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the
above-quoted language which, in the perception of the arresting officers, was inciting to sedition.
Many persons may differ as to the validity of such perception and regard the language as falling within free speech
guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the
merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was
uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered,
or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at
times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not
conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to
P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before
arraignment asked the court a quo for re-investigation, the peace officers did not appear. Because of this
development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against
Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was
killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28
December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso
Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December
1988), the police agents arrested Nazareno, without warrant, for investigation. 29
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made
only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28
December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing
of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite
the lapse of fourteen (14) days to prevent possible flight.
As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted
several facts and events surrounding his arrest and detention, as follows:
. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno,
Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati,
Metro Manila. The case is dock eted therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an
order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was
granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13
January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial
Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the
petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Bian,
Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in
the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati,
Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso
Nazareno (presumably because of the strength of the evidence against him).
This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against
them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual
circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or
whimsical arrests.
Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and
sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is
pending as of this date ( CA-G.R. No. still undocketed).
Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an
extrajudicial admission.
In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the
case ofAmelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in
her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as
well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these
admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the
arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested
were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of
Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the
offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of
persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the
merits.
As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds
no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national
security and liability are still directly challenged perhaps with greater vigor from the communist rebels. What is
important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will
promptly look into and all other appropriate courts are enjoined to do the same the legality of the arrest without
warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met,
then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be
made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted,
with the least delay, as warranted by the evidence.
A Final Word
This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive
is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the
questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with
the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable
cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts
and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is
important is that the Court be right.
ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL.
SO ORDERED.

In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any 'continuing offense,' but
for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang sa magkagulo na." Apparently, such statement
was, in the perception of the arresting officers, inciting to sedition. While not conceding the validity of such perception,
realizing that it is indeed possible that Espiritu was merely exercising his right to free speech, the resolution
nonetheless supports the authority of peace officers "only for purposes of the arrest."
I find this position to be adverse to the very essence of the resolution which sanctions warrantless arrests provided
they are made in accordance with law. In the first place, Espiritu mav not be considered as having "just committed" the
crime charged. He allegedly first uttered seditious remarks at the National Press Club in the afternoon of November
12, 1988. The second allegedly seditious remark aforequoted was made at around 5:00 o'clock in the same afternoon
(Decision, pp. 23-24). Under these circumstances, the law enforcement agents had time, short though it might seem,
to secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered as covered by Section 5(b)
of Rule 113 which allows warrantless arrests "when an offense has in fact just been committed."
The same observation applies with greater force in the case of Nazareno who was arrested 14 days after the
commission of the crime imputed to him.
Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what particular provision of law
had beeri violated by the person arrested. True it is that law en.orcement agents and even prosecutors are not all
adept at the However, errneous perception, not to mention ineptitude among their ranks, especially if it would result in
the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the
pre-trial or trial on the merits" (Resolution., p. 18) that he was exercising a right which the arresting officer considered
as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law
enforcers wrongly perceived his action.
Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested without a warrant duly
issued by the proper authority. By its nature, a single act of urging others to commit any of the acts enumerated in
Article 142 of the Revised Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is
aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs. People, 90 Phil, 524 [1951]),
it should be remembered that any of the prohibited acts in Article 142 may infringe upon the fundamental freedoms of
speech and expression. There arises, therefore, the necessity of balancing interests; those of the State as against
those of its individual citizen. Here lies the urgency of judicial intervention before an arrest is made. Added to this is the
subjectivity of the determination of what may incite other people to sedition. Hence, while the police should act swiftly
when a seditious statement has been uttered in view of the jeopardy it may cause the government, speedy action
should consist not in warrantless arrests but in securing warrants for such arrests.

Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ., concur.
On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be underscored that anyone
who undertakes such arrest must see to it that the alleged violator is knowing member of a subversive organization as
distinguished from a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a
subversive may be arrested even if has not committed overt act of overthrowing the government such as bombing of
government offices trie assassination of government officials provided there is probable cause to believe that he is in
the roll of members of a subversive organization. It devolves upon the accused to prove membership by force or
ciorcion. Certainly, one may not be in such a roll without undergoing the concious act of enlistment.

Separate Opinions

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive evaluation of the motions
for reconsideration of the said decision, I am inclined to agree with the, majority's resolution on said motions for
reconsideration except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for the crime of
inciting to sedition and petitioner Alfredo Nazareno for the crime of murder.

It bears repeating theat warrantless arrests are governed by law and subject to stringent application. Section 5, Rule
113 of the Rules on Criminal Procedure now requires that an offense "has in fact just been committed. "connotes
immediacy in point of time and excludes cases under the old rule where an offense 'has in fact been committed' no
how long ago. Similarly, the arrestor must have 'personal knowledge of the facts indicating that the [arrestee] has
committed it' (instead of just 'reasonable ground believe that the [arrestee] has committed it' under the old rule)."
(Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).
I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without warrants. In People
vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court considered as illegal the warrantless arrest
of a subversive not based on the arresting officer's personal knowledge such subversion and held that any rule on
arrests witho warrants must be strictly construed. We categorically state therein that warrantless arrests should
"clearly fall within the situations when securing a warrant be absurd or is manifestly unnecessary was provided by the

Rules" (144 SCRA at 14). Moreover. "it is not enough that there is reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact or actually (has just) been committed first. That crime has
actually been committed is an essential precondition. It is not enough to suspect that a crime may have been
committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only
to the identity of the perpetrator. (Supra, at p. 15).
Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out the procedure to
be observed the moment a person is arrested:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the
person to be arrested has committed it.
xxx xxx xxx

At the time a person is arrested, it shall be the duty of the arresting officer to imform him of the reason for the arrest
and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and
to counsel, and that any statement he might make could be used against him. The person shall have the right to
communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if
possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is
accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the
person arressted, by any person on his behalf, or appointed by the court upon petition on his behalf, or appointed the
court upon the petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived
but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole or in part shall be inadmissible evidence.
(121 SCRA at 554).

Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the tendency should be
to declare the warrantless arrest illegal.

These judicial pronouncements must be observed by everyone concerned: the military and civilian components of the
government tasked with law enforcement as well as the ordinary citizen who faces a situation wherein civic duty
demands his intervention to preserve peace in the community.

This impresses me as Court validation of a clear infringement of an individual's freedom of speech. "Inciting to
sedition" is a term over which the most learned writers and jurists will differ when applied to actual cases. I doubt if
there are more than a handful of policemen in the whole country who would know the full dimensions of the fine
distinctions which separate the nation's interest in the liberty to fully anfd freely discuss matters of national importance
on one hand and the application of the clear and present danger rule as the test when claims of national security and
public safety are asserted, on the other. In fact, the percentage of knowledgeability would go down further if we
consider that "inciting to sedition" requires the ability to define, among other (1) what kinds of speeches or writings fall
lander the term "inciting" (2) the meaning of rising publicly and tumultously; (3,) when does a certain effort amount to
force, intimidation. or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a scurrilous
libel against the Philippines. If we allow public speakers to be picked up simply because what they say is irritating or
obnoxious to the ears of a peace officer or critical of government policy and action, we will undermine all
pronouncements of this Court on the need to protect that matrix of all freedoms, which is freedom of expression. At the
very least, a warrant of arrest after a preliminary examination by a Judge is essential in this type of offense.

I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with a political or
ideological element. Such abuses are more often than not, triggered by the difficulty in finding evidence that could
stand judicial scrutiny to pinpoint a subversive, police officers usually have to make long persistent surveillance.
However, for the orderly administration of government and the maintenance of peace and order in the country, good
faith should be reposed on the officials implementing the law. After all, we are not wanting in laws to hold any offending
peace officer liable both administratively and criminally for abuses in the performance of their duties. Victims of abuses
should resort to legal remedies to redress their grievances.
If existing laws are inadequate, the policy-determining branches of the government may be exhorted peacefully by the
citizenry to effect positive changes. This Court, mandated b the Constitution to uphold the law, can only go as far as
inter pruting existing laws and the spirit behind them. Otherwise, we hail be entering the dangerous ground of judicial
legislation.
GUTIERREZ, JR., J., concurring and dissenting:
The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is disturbing whenever
the Court leans in the direction of order instead of liberty in har cases coming before us.
People all over the world are fast accepting the theory that only as a society encourages freedom and permits dissent
can it have lasting security and real progress, the theory that enhancing order through constraints on freedom is
deceptive because restrictions on liberty corrode the very values Govenment pretends to promote. I believe we should
move with the people of the world who are fast liberating themselves.
I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant, to wit:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a
person:

Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque, Wilfredo
Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the petitioners were arrested after
having been apprehended while in possession of illegal firearms and ammunitions. They were actually committing a
crime when arrested. I concur in the denial of their motions for reconsideration.
I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was arrested while urging
jeepnev and bus drivers to join a strike of transport workers on the ground that that was inciting to sedition.

Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations regarding "continuing
oftenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention
of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt
acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion
and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can
jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The
grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be
Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are
critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the
Government.
The belief of law enforcement authorities, no matter how well grounded on past events, that the petitioner would
probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why
the authorities preferred to bide their time, await the petitioner's surfacing from underground, and pounce on him with
no legal authority instead of securing warrants of arrest for his apprehension. The subsequent conviction of a person
arrested illegally does not the warrantless arrest.
In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that Narciso Nazareno was one
of the killers came to the attention of peace officers only on December 28, 1988 or fourteen (14) days later. To say that
the offense "has in fact just been committed" even if 14 days have lapsed is to stretch Rule 11 3 on warrantless arrests
into ridiculous limits. A warrant of arrest is essential in this case. I vote to grant the motion for reconsideration.

The subsequent conviction of a person arrested illegally does not reach back into the past and render legal what was
illegal. The violation of the constitutional right against illegal seizures is not cured by the fact that the arrested person
is indeed guilty of the offense for which he was seized. A government of laws must abide by its own Constitution.
CONSIDERING THE FOREGOING, I VOTE TO:
(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R. No. 83162;
(2) GRANT the motion for reconsideration in G.R. No. 85727;
(3) GRANT the motion for reconsideration in G.R. No. 86332;and
(4) GRANT the motion for reconsideration in G.R. No. 81567.
CRUZ, J., Separate Opinion:
I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who were arrested
inflagrante, or subsequently posted bail or chose to remain in the custody of the military, or voluntarily permitted the
search of the house without warrant. I do not think that under the applicable circumstances the petitioners can validly
complain that they are being unlawfully detained.
But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile, 121 SCRA 472, to
justify the warrantless arrest and detention of the other petitioners on the ground that they were apprehended for the
continuing offenses of rebellion and other allied crimes.
We find in the said decision this partltularly disturbing observation, which was quoted with approval in the
originalponencia:
The arrest of persons involved in the rebellion, whether as its fighting armed elements, or for committing non-violent
acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest,
therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a
judge of the existence of probable cause before the issuance of arrest and the granting of bail of the offense is
bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons
committing overt acts of violence against govenment forces, or any other milder acts but equally in pursuance of the
rebellious movement. (Emphasis supplied.)
The treatment suggested envisions an actual state of war and is justified only when a recognition of beuigerency is
accorded by the legitimate government to the rebels, resulting in the application of the laws of war in the regulation of
their relations. The rebels are then considered alien enemies-to be treated as prisoners of war when captured-and
cannot invoke the municipal law of the legitimate government they have disowned. It is in such a situation that the
processes of the local courts are not observed and the rebels cannot demand the protection of the Bill of Rights that
they are deemed to have renounced by their defiance of the government.
But as long as that recognition has not yet been extended, the legitimate govenment must treat the rebels as its
citizens, subject to its municipal law and entitled to all the rights provided thereunder, including and especially those
guaranteed by the Constitution. Principal among these in our country are whose embodied in the Bill of Rights,
particularly those guaranteeing due process, prohibiting unreasonable searches and seizures, allowing bail, and
presuming the innocence of the accused. The legitimate government cannot excuse the suppression of these rights by
the "exigencies" of an armed conflict that at this time remains an intemal matter governed exclusively by the laws of
the Republic of the Philippines.

Treatment of the rebels as if they were foreign invaders or combatants is not justified in the present situation as
our government continues to prosecute them as violators of our own laws. Under the doctrine announced in GarciaPadilla, however, all persons suspected as rebels are by such suspicion alone made subject to summary arrest no
different from the unceremonious capture of an enemy soldier in the course of a battle. The decision itself says that the
arrest "need not follow the usual procedure in the prosecution of offenses" and "the absence of a judicial warrant is no
impediment" as long as the person arrested is suspected by the authorities of the "continuing offense" of subversion or
rebellion or other related crimes. International law is thus substituted for municipal law in regulating the relations of the
Republic with its own citizens in a purely domestic matter.
As for the duration of the offenses, the decision contained the following pronouncement which this Court has also
adopted as its own:
. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other
crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart
from the common offenses, aside front their essentially involving a massive conspiracy of nationwide manitude.
(Emphasis supplied.)
The beginning of the "continuing offense" may be arbitrarily fixed by the authorities, usually by simply placing the
suspect "under surveillance," to lay the basis for his eventual apprehension. Once so placed, he may at any time be
arrested without warrant on the specious pretext that he is in the process of committing the "continuing offense," no
matter that what he may be actuallly doing at the time is a perfectly innocent act.
In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act of undergoing
medical treatment. The fiction was indulged that he was even then, as he lay supine in his sickbed, engaged in the
continuing offense of rebellion against the State. In further justification, the Court says that the arresting officers acted
on "confidential information" that he was in the hospital, which information "was found to be true." This is supposed to
have validated the determination of the officers that there was "probable cause" that excused the absence of a
warrant.
My own impression is that probable cause must be established precisely to justify the issuance of a warrant, not
to dispense with it; moreover, probable cause must be determined by the judge issuing the warrant, not the arresting
officer who says it is not necessary.
In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly seditious remarks made
by him the day before. The Court says his case is not covered by the Garcia-Padilla doctrine but approves the arrest
just the same because the remarks were supposed to continue their effects even to the following day. The offense was
considered as having been just committed (to make it come under Rule 113, Section 5, of the Rules of Court) despite
the considerable time lapse.
It was worse in the case of Nazareno, who was also arrested without warrant, and no less than fourteen days after the
killing. In sustaining this act, the Court says that it was only on the day of his arrest that he was identified as one of the
probable killers, thus suggesting that the validity of a warrantless arrest is reckoned not from the time of the
commission of an offense but from the time of the Identification of the suspect.
Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter "has committed, is
actually committing, or is attempting to commit an offense" or when an offense "has in fact just been committed." The
requirement of immediacy is obvious from the word "just," which, according to Webster, means "a very short time ago."
The arrest must be made almost immediately or soon after these acts, not at any time after the suspicion of the
arresting officer begins, no matter how long ago the offense was committed.
I am also uneasy over the following observations in the present resolution which I hope will not be the start of another
dangerous doctrine:

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as
well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these
admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon wmch the
arresting officers based their arrests without warrant, are supported by probable cause, i.e., that the persons arrested
were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of
Court.
I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt, G.R. No. 91107,
June 19, 1991, where I noted: "The conclusion that there was probable cause may have been influenced by the
subsequent discovery that the accused was carrying a prohibited drug. This is supposed to justify the soldier's
suspicion. In other words, it was the fact of illegal possession that retroactively established the probable cause that
validated the illegal search and seizure. It was the fruit of the poisonous tree that washed clean the tree itself."
I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases
before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the
Marcos dictatorship. It seems some of us have short memories of that repressive regime, but I for one am not one to
forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who,
out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology
and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less
than any other person in this country. That is what democracy is all about.
FELICIANO, J., concurring and dissenting:
I concur in the result reached by the majority in the Resolution disposing of the Motion for Reconsideration.
At the same time, however, I feel compelled to dissent from certain statements made by the majority principally
concerning the applicability of the "continuing crimes" doctrine to the problem of arrests without warrants. It seems
clear that these statements are really obiter dicta, since they are quite unnecessary for sustaining the actual results
reached in the majority Resolution. This was summarily pointed out in my very brief statement concurring in the result
reached in the original Decision of the Court dated 9 July 1990. The subsequent developments in several of the cases
here consolidated, which are carefully detailed in the majority Resolution, make this even clearer. Nonetheless, the
majority Resolution has taken the time and trouble expressly to reiterate the "continuing crimes" doctrine as applicable
in respect of warrantless arrests. Although the above statements are obiter, they have been made and, I believe, need
to be addressed to some extent and the inter-relation of the "continuing crimes" doctrine with constitutional rights
explored.
1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures of persons. Article III
Section 2 of the Constitution reads:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. (Emphais supplied)
Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual members of society,
must, as a general rule, be preceded by the securing of a warrant of arrest, the rendition of which complies with the
constitutional procedure specified in Article III Section 2. Arrests made without a warrant issued by a judge after
complying with the constitutional procedure, are prima facie unreasonable seizures of persons within the meaning of
Article III Section 2.

2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests are unreasonable
seizures of persons. Those exceptions are, in our day, essentially found in Section 5(a) and (b) of Rule 113 of the
Rules of Court. Section 5(a) and (b) mark out the situations where an officer of the law, or a private person for that
matter, may lawfully arrest a person without previously securing a warrant of arrest. The full text of Section 5, Rule 113
follows:
Sec. 5. Arrest without warrant, when lawful. A peace officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from
one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered
to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.
3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall that judicial
interpretation and application of Section 5(a) and (b) must take those provision for what they are: they
areexceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to such a norm must be strictly
construed so as not to render futile and meaningless the constitutional rule requiring warrants of arrests before the
persons of individuals may be lawfully constrained and seized. The ordinary rule generally applicable to statutory
provisions is that exceptions to such provisions must not be stretched beyond what the language in which they are
cast fairly warrants, and all doubts should be resolved in favor of the general provision, rather than the
exception. 1 This rule must apply with special exigency and cogency where we deal, not with an ordinary statutory
provision, but with a constitutional guarantee. 2 Exceptions to such a guarantee must be read with especial care and
sensitivity and kept within the limits of their language so to keep vital and significant the general constitutional norms
warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:
II. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and
privileges of the court. these constitutional guaranties should be given a liberal construction or a strict construction in
favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by
them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the
proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants
must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14
Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)
held that:
. . . All illegal searches and seizures are unreasonable whith lawful ones are reasonable. 4
In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:
There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it
came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the
appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither
was he commit ting any act which could be described as subversive. He was, in fact plowing his field at the time of the
arrest.
The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a
most basic and fundamental one. The statute or rule which allows exceptions the requirement of warrants of arrest is
strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is
manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or
extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and
set back a basic right so often vilated and so deserving of full protection. 6 (emphasis supplied)
4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the presence of the
arresting officer. The fact of the occurrence of the offense, or of the attempt to commit an offense, in the presence of
the arresting officer, may be seen to be the substitute, under the circumstances, for the securing of a warrant of arrest.
In such situation, there is an obvious need for immediate, even instantaneous, action on the part of the arresting
officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may,
moreover, be seen to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The
term "presence" in this connection is properly and restrictively construed to relate to acts taking place within the optical
or perhaps auditory perception of the arresting officer. 7 If no overt, recognizably criminal, acts occur which are
perceptible through the senses of the arresting officer, such officer could not, of course, become aware at all that a
crime is being committed or attempted to be committed in his presence. 8 It is elementary that purely mental or
psychological phenomena, not externalized in overt physical acts of a human person, cannot constitute a crime in our
legal system. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be
an actus reus. If no such overt acts are actually taking place in the presence or within the sensor perception of the
arresting officer, there would, in principle, be ample time to go to a magistrate and ask for a warrant of arrest. There
would, in other words, not be that imperious necessity for instant action to prevent an attempted crime, to repress the
crime being committed, or to capture the doer of the perceive criminal act, the necessity which serves as the
justification in law of warrantless arrests under Section 5(a).
5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be sustained under this
subsection: 1) the offense must have "just been committed" when the arresting officer arrived in the scene; and 2) the
officer must have "personal knowledge" of facts indicating tha the person to be arrested has committed the offense. In
somewhat different terms, the first requirement imports that th effects or corpus of the offense which has just been
committed are still visible: e.g. a person sprawled on the ground, dead of gunshot wound; or a person staggering
around bleeding profusely from stab wounds. The arresting officer may not ha seen the actual shooting or stabbing of
the victim, and thereto the offense can not be said to have been committed "in [his] presence." The requirement
of "personal knowledge" on the part of the arresting officer is a requirement that such knowledge must have been
obtained directly from sense perception the arresting officer. That requirement would exclude informtion conveyed by
another person, no matter what his reputation for, truth and reliability might be. 9 Thus, where the arresting officer
comes upon a person dead on the street and sees a person running away with a knife from where the victim is
sprawled the ground, he has personal knowledge of facts which render it highly probable that the person fleeing was
the doer of the criminal deed. The arresting officer must, in other words, perceive through his own senses some act
which directly connects the person to be arrested with the visible effects or corpus of a crime which has "just been
committed."
6. The use of the words "has in fact just been committed" underscores the requirement that the time interval between
the actual commission of the crime and the arrival of the arresting officer must be brief indeed. In the first place, the
word "just" was fairly recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in order to
underscore the point here being made. In the second place, a latitudinarian view of the phrase "has in fact just been
committed" would obviously render pointless the requirement in Section 5(a) that the crime must have been committed
"[in] the presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14-days after
the occurrence of the killing with which he was charged along with other persons, cannot by any standard be justified
under Section 5(b). In G.R. No. 81567, Dural was arrested without warrant while being treated in a hospital the day
after the shooting of the policemen in which he was suspected to have been a participant. While 1-day may be
substantially different from 14-days, still it must be pointed out that at the time Dural was arrested in the hospital, the
killing of the two (2) policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could not
reasonably be said to have been just committed. There was no showing, nor did the Court require it, that the arresting
officers had been in "hot pursuit" of Dural beginning at the scene of the killing and ending the next day in the hospital.

7. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer who is determining
"probable cause" right at the scene of the crime, is in a sense more exacting than the standard imposed by the
Constitution upon the judge who, in the seclusion of his chambers, ascertains "probable cause" by examining the
evidence submitted before him. The arresting officer must himself have "personal knowledge"; the magistrate may rely
upon the personal knowledge of the witnesses examined by or for him in issuing a warrant of arrest. In the present
Resolution, the majority begins with noting the requirement of "personal knowledge" in Section 5(b), but winds up in
the next page with a very diluted standard of "reasonable belief and "good faith" on the part of the arresting officers.
The stricter standard is properly applicable to the officers seizing a person without a warrant of arrest, for they are
acting in derogation of a constitutional right. That the person unlawfully arrested without a warrant may later turn out to
be guilty of the offense he was suspected of in the first place is, course, quite beside the point. Even a person secretly
guilty some earlier crime is constitutionally entitled to be secure from warrantless arrest, unless he has in fact
committed physically observable criminal acts in the presence of the arresting officer or hadjust committed such acts
when the arresting officer burst upon the scene.
8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing crimes," shows that doctrine is
here being used as a substitute for the requirement under Section 5(a) that the offense "has in fact just been
presence of the arresting officer arrived, but rather because the person to be arrested is suspected of having
committed a crime in the future. The pertinent portion of the majority Resolution reads:
. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF ARREST, simply because he was,
at the time of arrest, confined in the St. Agnes Hospital. . . . That Dural had shot the two (2) policemen in Caloocan
City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity,
would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It
is in this sense that subversion like rebelion (or insurrection) is perceived here as a continuing offense. Unlike other
so-called "common" offenses, i.e., adultery, murder, arson, etc., which generally end upon their
commission,subversion and rebellion are anchored on an ideological base which compels the repetition of the same
acts of lawlessness and violence until the overriding objectives of overthrowing organized government is attained.
(Emphasis supplied)
9. I respectfully submit that an examination of the "continuing crimes" doctrine as actually found in our case law offers
no reasonable basis for such use of the dotrine. More specifically, that doctrine, in my submission, does notdispence
with the requirement that overt acts recognizably criminal in character must take place in the presence of the arresting
officer, or must have just been committed when the arresting officer arrived, if the warrantless arrest it to be lawful. The
"continuing crimes" doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile10 does not sustain
warrantless arrests of person to be arrested is, as it were, merely resting in between specific lawless and commit the
moment he gets an opportunity to do so.
Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two (2) problems: the
first problem is that of determination of whether or not a particular offense was committed within the territorial
jurisdiction of the trial court; the second problem is that of determining whether a single crime or multiple crimes were
committed where the defense of double jeopardy is raised.
10. In respect of the first problem, the gist of our case law is that where some of the ingredients or elements of an
offense taken place within the territorial jurisdiction of one court and some other ingredients or elements of the same
offense occur in the territory of another court, (e.g., estafa or malversation) either one of the two courts has jurisdiction
to try the offense. Where all of the essential elements of a crime take place within the territory of one court but "by
reason of he very nature of the offense committed" the violation of the law is deemed to be "continuing," then the court
within whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try a person charged with
such offense. In the latter case, the offense is deemed to be continuing because some or all of the elements
constituting the offense occurred within jurisdiction of the second court (e.g., kidnapping and illegal detention; libel;
evasion of service of sentence). The criminal acts are regarded as repeated or as continuing within the province or city
where the defendant was found and arrested. 11 Clearly, overt acts of the accussed constituting elements of the crime
charged must be shown to have been committed within the territorial jurisdiction of the court where he is charged.
11. Turning to the second type of problem, the question is normally presented in terms of whether one crime or
multiple crimes were committed by the accused. Where the series of acts actually alleged and proven to have been
committed by the accused constituted only one and the same crime, the defense of double jeopardy becomes

available where a second information is filed covering acts later in the series. Upon the other hand, where the acts of
the accused constituted discrete, multiple offenses, each act comprising a distinct and separate offense, the double
jeopardy defense is non-available. 12 The point worth stressing is that in passing upon the issue relating to the unity or
multiplicity of offense committed, the overt acts of the accused constitutive either of the single offense or of the plural
offenses, must be shown.
12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in
our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against
warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to
have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to
dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested
in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes"
doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite
beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal dentention
or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a
subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in
themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for
instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" 13
a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other
document of the organization;
b) Subjecting himself to the discipline of such association or organization in any form whatsoever;
c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms;
xxx xxx xxx
f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise
thereof;
xxx xxx xxx
h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and
purposes of such association or organization;
xxx xxx xxx
k) Participating in any was in the activities, planning action, objectives, or purposes of such association or
organization;
xxx xxx xxx
It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the
law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill
of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals.
Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities
which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer
ineptness or excess of zeal, the very freedoms which make our polity worth protecting and saving.
REGALADO, J.: Separate Opinion:

While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such concurrence, I wish
to unburden myself of some reservations on the rationale adopted in G.R. No. 86332.
It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988, while Nazareno's
arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of
Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was
probably one of those guilty in the killing of Bunye II."
I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing a peace officer or
a private person to effect a warrantless arrest, specifically conditions that grant of authority upon the situation "(w)hen
an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be
arrested has committed it."
It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in the 1985 Rules of
Criminal Procedure, the particular revision of paragraph (b) of the aforesaid section consisted in imposing the
requirements that the person making the arrest has personal knowledge of the facts indicating that the arrestee is
responsible for an offense which has just been committed.
Now, according to the resolution, "the records show that in the morning of 14 December 1988, Romulo Bunye II was
killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5 o'clock in the morning of 28 December
1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one
of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police
agents arrested Nazareno, without warrant, for investigation."
Since, clearly, the arresting police agents merely acted upon the information imparted by one of the suspects, Ramil
Regala, the resolution has emasculated the requirement in Section 5(b) that the person making the arrest must have
had personal knowledge of factual indications regarding the complicity or liability of the arrestee for the crime. Yet, that
amendment requiring such personal knowledge must have been designed to obviate the practice in the past of
warrantless arrests being effected on the basis of or supposed reliance upon information obtained from third persons
who merely professed such knowledge or, worse, concocted such reports for variant reasons not necessarily founded
on truth.
Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may result from
imputations based on dubious motives, it is now required that the crime must have just been committed. The recency
contemplated here, in relation to the making of the warrantless arrest, is the time when the crime was in fact
committed, and not the time when the crime was in fact committed, and not the time when the person making the
arrest learned or was informed of such commission. Otherwise, at the risk of resorting to reductio ad absurdum, such
warrantless arrests could be validly made even for a crime committed, say, more than a year ago but of which the
arresting officer received information only today.
The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section
5(b), must have been dictated by the consideration, among others, that by reason of such recency of the criminal
occurrence, the probability of the arresting officer acquiring personal and/or reliable knowledge of such fact and the
identity of the offender is necessarily enhanced, if not assured. The longer the interval, the more attenuated are the
chances of his obtaining such verifiable knowledge. In the case under consideration, the obtention of information of a
crime committed fourteen (14) days earlier necessarily undermines the capacity of the arresting officer to ascertain the
reliability of the information he is acting upon and to acquire personal knowledge thereof after such verification.
It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable cause and it was not
whimsical, at least, in this instance. It is correct to say that prevailing conditions affecting national security and stability
must also be taken into account. However, for the reasons above elucidated, I take exception to the conclusion that
the conditions in Section 5(b) of Rule 113 had been complied with in this case. It is true that the corresponding
information was filed against Nazareno shortly after his arrest but that, precisely, is another cause for controversy.
Definitely, if the rules on arrest are scrupulously observed, there would be no need for the usual invocation of Ilagan as
a curative balm for unwarranted incursions into civil liberties.

SARMIENTO, J.: dissenting:

I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority has not shown why the arrests
in question should after all be sustained.
According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant and that his arrest
was sufficient compliance with the provisions of Section 5, paragraph (b), Rule 113, of the Rules of Court. According to
the majority, he, Dural, was after all committing an offense (subversion being supposedly a continuing offense) and
that the military did have personal knowledge that he had committed it. "Personal knowledge," according to the
majority, is supposedly no more than "actual belief or reasonable grounds . . . of suspicion," and suspicion is
supposedly reasonable:
. . . when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong
in themselves to create the probable cause of guilty of the person to be arrested. A reasonable suspicion therefore
must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 2
As I said, I dissent.
First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order
No. 276, in relation to Republic Act No. 1700, 3 is made up of "overt acts." 4 In People vs. Ferrer 5 this Court defined
"overt acts" as follows:
. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in
court, as the law alone, without more would suffice to secure their punishment. But the undeniable fact is that their
guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party
knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific
intent to further its basic objective, i.e., to overthrow the existing government by force, deceit, and other illegal means
and place the country under the control and domination of a foreign power.
As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as Ferrer has taken pains to
explain, the law requires more than mere membership in a subversive organization to make the accused liable. I
respectfully submit that for purposes of arrest without a warrant, that above "overt acts" should be visible to the eyes of
the police officers (if that is possible), otherwise the accused can not be said to be committing any offense within the
contemplation of the Rules of Court, to justify police action, and otherwise, we would have made "subversion" to mean
mere "membership" when, as Ferrer tells us, subversion means more that mere membership.
I find strained that majority's interpretation of "personal knowledge," as the majority would interpret it, as no more than
"actual belief or reasonable suspicion," that is, "suspicion . . . based on actual facts . . . [and] founded on probable
cause, coupled with good faith . . . " 6 I submit that personal knowledge means exactly what it says that the peace
officer is aware that the accused has committed an offense, in this case, membership in a subversive organization with
intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then Section 6) spoke
of simple "reasonable ground" which would have arguably encompassed "actual belief or suspicion . . . coupled
with good faith" referred to by the majority. Section 5(b) as amended, however, speaks of "personal knowledge"; I
respectfully submit that to give to "personal knowledge" the same meaning as "reasonable ground" is to make the
amendment as useless exercise.
What, furthermore, we have here was a mere "confidential information" that a "sparrow man" had been wounded and
was recuperating in the hospital, and that that person was Rolando Dural. Clearly, what we have is second-hand,
indeed, hearsay, information, and needless to say, not personal knowledge.
I would like to point out that in the case of People vs. Burgos 7 this Court rejected a similar arrest because of lack of
personal knowledge, and, as the Court held, "[w]hatever knowledge was possessed by the arresting officers came in
its entirety from the information furnished by [another] . . ." 8 I do not see how We can act differently here.

I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-taken. Santos involved a
prosecution for coercion (against a peace officer for affecting an arrest without a warrant). Santos, however, did in fact
affirm the illegality of the arrest but absolved the peace officer on grounds of good faith. Santos did not say that so
long as he, the peace officer, was acting in good faith, as the majority here says that the military was acting in good
faith, the arrest is valid. Quite to the contrary, Santos suggested that notwithstanding good faith on the part of the
police, the arrest is nevertheless subject to question.
As far as the information leading to the arrest of Dural is concerned, the majority would quite evidently swallow the
version of the military as if in the first place, there truly was an information, and that it was reliable, and that "it was
found to be true;" 10 and as if, in the second place, the hospital authorities (the alleged informants) could have legally
tipped the military under existing laws. We have, it should be noted, previously rejected such a species of information
because of the lack of "compulsion for [the informant] to state truthfully his charges under pain of criminal
prosecution." 11 Here, it is worse, because we do not even know who that informant was.
The majority is apparently unaware that under Executive Order No. 212, amending Presidential Decree No. 169,
hospital establishments are required to report cases of acts of violence to "government health authorities" not to the
military.
I am concerned that if the military were truly armed with reliable information and if it did have personal knowledge to
believe that Dural had committed an offense, there was no reason for the military to ignore the courts, to which the
Constitution after all, gives the authority to issue warrants. As People vs. Burgos held:
More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the
accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they
had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a
real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the
whereabouts of the accused were unknown. 12
I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Caspile,
and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked up under similar circumstances. As the
majority points out, the military had (again) acted on a mere tip-the military had no personal knowledge (as I
elaborated what personal knowledge means). Second, I do not think that the majority can say that since Amelia
Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly admitted), immediatearrests were "prudent" and
necessary. As I said, that Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely,
the subject of controversy. I think it is imprudent for this Court to pass judgment on the guilt of the petitioners-since
after all, and as the majority points out, we are talking simply of the legality of the petitioner's arrests.
More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military, and evidently, the
Court is not bound by bare say-so's. Evidently, we can not approve an arrest simply because the military says it is a
valid arrest (the accused being "NPA's anyway") that would be abdication of judicial duty and when, moreover, the
very basis of the claim rests on dubious "confidential information."
According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence of the
accused. I certainly hope not, after the majority referred to Rolando Dural as a "sparrow man" and having Amelia
Roque, et al. admit to being NPA's."
It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial that the guilt of the
accused still has to be established, since meanwhile, the accused are in fact being deprived of liberty. Arrest to me, is
something to crow about, even if in the opinion of the majority, it is nothing to crow about (a mere "administrative
measure").
I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos. 85727;
86332). Espiritu was supposedly picked up for inciting to sedition, in uttering supposedly, on November 22, 1988, the
following:

Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13

Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to sedition" a continuing
offense. Obviously, the majority is not saying that it is either, but that:
. . . Many persons may differ as to the validity of such perception and regard the language as falling within free speech
guaranteed by the Constitution. But, then, Espiritu has not lost the right to insist, during the trial on the merits, that he
was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the
authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon
thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times,
the Court has, in this case, titled the scale in favor of authority but only for purposes of the arrest (not conviction). Let it
be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. 14
And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected speech, but
apparently, that is also of no moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as
far as arrests are concerned, "the Court has, in this case, titled in favor of authority," 15 and (3) we have, anyway,
given a reduced bail to the accused.
First, that the accused's statement is in the category of free speech is not only plain to my mind, it is a question I do
not think the majority can rightly evade in these petitions without shirking the Court's constitutional duty. It is to my
mind plain, because it does not contain enough "fighting words" recognized to be seditious. 16 Secondly, it is the very
question before the Courtwhether or not the statement in question constitutes an offense for purposes of a
warrantless arrest. It is a perfectly legal question to my mind and I am wondering why we can not answer it.
What the majority has not answered, as I indicated, is that inciting to sedition is in no way a continuing offense, and as
I said, the majority is not apparently convicted that it is, either. Of course, the majority would anyway force the issue:
"But the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon
thereafter, is still another thing." 17 First, Espiritu was picked up the following day, and in no way is "the following day"
"soon thereafter". Second, we would have stretched the authority of peace officers to make warrantless arrests for
acts done days before. I do not think this is the contemplation of the Rules of Court.
As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of flight or escape" 19 and there
was no impediment for the military to go through the judicial processes, as there was none in the case of Burgos.
In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime about to be committed or had
just been committed," and unless there existed an urgency as where a moving vehicle is involved, instant police action
can not be justified.
"In the balancing of authority and freedom," states the majority, "the Court has, in this case, titled in favor of authority
but only for purposes of the arrest (not conviction)." 21 It is a strange declaration, first, because it is supported by no
authority (why the Court should "tilt" on the side of Government), and second, because this Court has leaned, by
tradition, on the side of liberty as the custodian of the Bill of Rights even if we were talking of "simple" arrests.
I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in this case," 22 as if to say that
normally, this Court would have tilted the scales the other way. I do not understand why these cases are apparently,
special cases, and apparently, the majority is not telling us neither. I am wondering why, apart from the fact that these
cases involved, incidentally, people who think differently from the rest of us.
The majority goes on:
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made
only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28
December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing
of Bunye II. 23

With all due respect, I do not think that the majority is aware of the serious implications of its pronouncement on
individual rights (and statutory construction in general), and I feel I am appropriately concerned because as a member
of the Court, I am co-responsible for the acts of my colleagues and I am afraid that I may, rightly or wrongly, be in time
made to defend such an indefensible pronouncement.
Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the authorities
must have "personal knowledge."
In no way can an offense be said to have been "just committed" fourteen days after it was in fact (allegedly)
committed. In no way can the authorities be said to have "personal knowledge" two weeks thereafter; whatever
"personal knowledge" they have can not possibly be "personal knowledge" of a crime that had "just been committed;"
whatever "personal knowledge" they have is necessarily "personal knowledge" of a crime committed two weeks
before.
In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of the Rules.
I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I am saying it, (or
worse, that I am "coddling criminals"). I am not saying that a suspected criminal, if he can not be arrested without a
warrant, can not be arrested at all but that the military should first procure a warrant from a judge before effecting
an arrest. It is not too much to ask of so-called law enforcers.
As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by
way of an exception, precisely, to the general rule, mandated by the Constitution no less, that arrests may be done
only through a judicial warrant. As it is, the majority has in fact given the military the broadest discretion to act, a
discretion the law denies even judges 24 today it is fourteen days, tomorrow, one year, and sooner, a decade. I
submit that a year, a decade, would not be in fact unreasonable, following the theory of the majority, since the military
can claim anytime that it "found out only later," as the majority did not find it unreasonable for the Capital Command to
claim that it "came to know that Nazareno was probably one of those guilty in the killing of Bunye II" 25and none of
us can possibly dispute it.
I would like to stress strongly that we are not talking of a simple "administrative measure" alonewe are talking
ofarrests, of depriving people of libertyeven if we are not yet talking of whether or not people are guilty. That we are
not concerned with guilt or innocence is hardly the point, I respectfully submit, and it will not minimize the significance
of the petitioners' predicament.
With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia Roque, et al., ignored the
fact that Buenaobra's alleged "admission" (actually, an uncounselled confession) was precisely, the basis for
Buenaobra's arrest. It is to beg the question, I respectfully submit, to approve the military's action for the reason that
Buenaobra confessed, because Buenaobra confessed for the reason that the military, precisely, pounced on him. I am
not to be mistaken for prejudging Buenaobra's innocence (although it is supposed to be presumed) but I can not
imagine that Buenaobra would have voluntarily proclaimed to the military that he was an NPA courier so that the
military could pounce on him.
I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have been better days. I do not see
how this court can continuously sustain them "where national security and stability are still directly challenged perhaps
with greater vigor from the communist rebels." 28 First and foremost, and as the majority has conceded, we do not
know if we are in fact dealing with "Communists." The case of Deogracias Espiritu, for one, hardly involves subversion.
Second, "Communism" and "national security" are old hat the dictator's own excuses to perpetuate tyranny, and I
am genuinely disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on supposed
grounds that can not be possibly justified in a regime that respects the rule of law that the Presidential Commitment
Order (PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective arrest
(Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor "national security" are valid grounds for
warrantless arrests under Section 5(b) of Rule 113.

I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent jurisprudence (e.g., People
vs. Burgos, supra), they are relics of authoritarian rule that can no longer be defended, if they could have been
defended, in Plaza Miranda or before our own peers in the bar.
"What is important," says the majority, "is that every arrest without warrant be tested as to its legality, via habeas
corpus proceedings." 29 I supposed that goes without saying. But it is also to patronize the petitioners and simply, to
offer a small consolation, when after all, this Court is validating their continued detention. 30 With all due respect, I
submit that it is nothing for which the public should be elated.

The victims belonged to neighborhood and union organizations;

Since February, 1986, 532 of those illegally arrested were women;
From January to June 1990, 361 children were detained for no apparent reason;
One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing, shellings,
and food blockades undertaken by the military since 1988. 34

A Final Word
As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate one principle: The
State has no right to bother citizens without infringing their right against arbitrary State action. "The right of the
people," states the Constitution, "to be secure in their persons, houses, papers, and effects against unreasonable
searchers and seizures of whatever nature and for any purpose shall be inviolable . . . ." 31 "The State," the Charter
likewise states, "values the dignity of every human person and guarantees full respect for human rights." 32 The
Constitution states the general rule the majority would make the exception the rule, and the rule the exception. With
all due respect, this is not what constitutionalism is all about.
I submit that the "actual facts and circumstances" the majority refers to are, in the first place, doubtful, the "actual facts
and circumstances" being no more than "confidential information" (manufactured or genuine, we have no way of
telling) and in the second place, any information with which the military (or police) were armed could no more than be
hearsay, not personal, information. I submit that the "actual facts and circumstances" the majority insists on can not
justify the arrests in question under Section 5(b) of Rule 113, the rule the majority insists is the applicable rule.

It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also disappointed that it
is the portrait of the Court I am soon leaving. Nonetheless, I am hopeful that despite my departure, it will not be too
late.
Motions denied.
G.R. No. 109266 December 2, 1993
MIRIAM DEFENSOR SANTIAGO, petitioner,
vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE OF THE
PHILIPPINES, respondents.
Amado M. Santiago, Jr. for petitioner.

Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso Nazareno are concerned;
certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was arrested one day after the act, allegedly, inciting
to sedition; Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority would approve the
police's actions nonetheless because the police supposedly "found out only later." I submit that the majority has read
into Section 5(b) a provision that has not been written there.

The Solicitor General for the People of the Philippines.

"More than the allure of popularity of palatability to some groups," concludes the majority, "what is important is that the
Court be right." 33

QUIASON, J.:

Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability. Umil is a
question, on the contrary, of whether or not the military (or police), in effecting the arrests assailed, had complied with
the requirements of law on warrantless arrests. Umil is a question of whether or not this Court, in approving the
military's actions, is right.

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the Resolution dated March
3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Francis Garchitorena of the
Sandiganbayan, disqualified from acting in said criminal case; and (b) the Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against petitioner (Rollo, pp. 2-35 and pp. 3694).

In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture, hamletting,
bombings, saturation drives, and various human rights violations increase in alarming rates. In its update for October,
1990, the Task Force Detainees of the Philippines found:

On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with violation of Section
3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly committed
by her favoring "unqualified" aliens with the benefits of the Alien Legalization Program (Rollo, p. 36).

An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;
Four thousand four hundred eight (4,408) political detentions from January, 1989 to September, 1990, 4,419, illegally;
Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated salvage, and 109
remained missing after their arrest;
Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were wounded;

On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R. No. 99289-99290
(Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from proceeding with Criminal Case No.
16698 on the ground that said case was intended solely to harass her as she was then a presidential candidate. She
alleged that this was in violation of Section 10, Article IX-C of the Constitution which provides that "(b)ona
fide candidates for any public office shall be free from any form of harassment and discrimination." The petition was
dismissed on January 13, 1992.
On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which motion was set for
hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).

On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is a member, set
the criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)
On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a pending motion for
inhibition, and that petitioner intended to file a motion for a bill of particulars (Rollo, pp. 43-44).

I cannot, for example accept the legal morality of Sandiganbayan Justice Francis Garchitorena who would stop Miriam
Defensor Santiago from going abroad for a Harvard scholarship because of graft charges against her. Some of the
most perfidious Filipinos I know have come and gone, left and returned to these shores without Mr. Garchitorena
kicking any kind of rumpus. Compared to the peccadilloes of this country's outstanding felons, what Miriam is accused
of is kindergarten stuff. The Sandiganbayan Supremo got a lot of headlines for stopping Miriam but I contend this is
the kind of perverse morality we can do without (Rollo, p. 156).

On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the arraignment (Rollo, p. 45).

The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads as follows:

On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The motion stated that while
the information alleged that petitioner had approved the application or legalization of "aliens" and gave them indirect
benefits and advantages it lacked a list of the favored aliens. According to petitioner, unless she was furnished with the
names and identities of the aliens, she could not properly plead and prepare for trial.

(c) Mrs. Santiago has never informed any court where her cases are pending of her intention to travel, whether the
Regional Trial Court where she is charged with soliciting donations from people transacting with her office at
Immigration or before the Sandiganbayan where she is charged with having favored unqualified aliens with the
benefits of the Alien Legalization Program nor even the Supreme Court where her petition is still pending (Rollo, p.
158).

On November 12, 1992 and upon motion of petitioner in G.R.

No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the Sandiganbayan (First Division) to
reset the arraignment to a later date and to dispose of the two incidents pending before it (Re: disqualification of
Presiding Justice Garchitorena and the motion for the bill of particulars).
At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated categorically that
they would file only one amended information against petitioner.
However, on December 8, 1992, the prosecution filed a motion to
admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126).
On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March 11, 1993, denying
the motion for his disqualification (Rollo, pp. 151-164).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32 Amended
Informations and ordering petitioner to post the corresponding bail bonds within ten days from notice (Rollo, pp. 165185). Petitioner's arraignment on the 32 Amended Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).
Hence, the filing of the instant petition.
Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March 25, 1993, ordering
Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case until the question of his disqualification
is finally resolved by this Court and from enforcing the resolution dated March 11, 1993, ordering petitioner to post bail
bonds for the 32 Amended Informations and from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).
Re: Disqualification of the Sandiganbayan Presiding Justice
The petition for disqualification of Presiding Justice Garchitorena is based on the publication of is letter in the July 29,
1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the conclusions he
has subconsciously drawn in his public statements . . . when he sits in judgment on the merits of the case . . ." (Rollo,
pp. 16-17).
The letter in question was written in response to an item in Teodoro Benigno's column in the July 22, 1992 issue of
the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-departure order against petitioner.
Benigno wrote that said order reflected a "perverse morality" of the Sandiganbayan and the lack of "legal morality" of
its Presiding Justice, thus:

In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena that petitioner had
been charged before the Sandiganbayan "with having favored unqualified aliens with the benefits of the Alien
Legalization Program."
The statement complained of was just a restatement of the Information filed against petitioner in Criminal Case No.
16698 in connection with which the hold-departure order was issued. Said Information specified the act constituting
the offense charged, thus:
That on or about October 17, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the
jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being then the Commissioner of the
Commission on Immigration and Deportation, with evident bad faith and manifest partiality, did then and there willfully,
unlawfully and criminally approve the application for legalization of aliens who arrived in the Philippines after January
1, 1984 in violation of Executive Order No. 324 dated April 13, 1988 which does not allow the legalization of the same,
thereby causing undue injury to the government and giving unwarranted benefits and advantages to said aliens in the
discharge of the official and administrative functions of said accused (Rollo, p. 36).
It appears that petitioner tried to leave the country without first securing the permission of the Sandiganbayan,
prompting it to issue the hold-departure order which Benigno viewed as uncalled for. The letter of Presiding Justice
Garchitorena, written in defense of the dignity and integrity of the Sandiganbayan, merely stated that all persons facing
criminal charges in court, with no exception, have to secure permission to leave the country. Nowhere in the letter is
the merit of the charge against petitioner ever touched. Certainly, there would have been no occasion for the letter had
Benigno not written his diatribe, unfair at that, against the Sandiganbayan.
Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan sits in three
divisions with three justices in each division. Unanimity among the three members is mandatory for arriving at any
decision of a division (P.D. No. 1606, Sec. 5). The collegiate character of the Sandiganbayan thus renders baseless
petitioner's fear of prejudice and bias on the part of Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA
688 [1969] ).
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional rights to due process were violated by reason of the delay in the
termination of the preliminary investigation. According to her, while the offense was allegedly committed "on or before
October 17, 1988", the information was filed only on May 9, 1991 and the amended informations on December 8, 1992
(Rollo, p. 14).
Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was an
unexplained inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issues
involved therein.

In the case at bench, there was a continuum of the investigatory process but it got snarled because of the complexity
of the issues involved. The act complained of in the original information came to the attention of the Ombudsman only
when it was first reported in the January 10, 1989 issue of the Manila Standard. Immediately thereafter, the
investigatory process was set in motion. The investigation was first assigned to Special Prosecutor Gualberto dela
Llana but on request of petitioner herself the investigation was first assigned to Special Prosecutor Gualberto dela
Llana but on request of petitioner herself the investigation was re-assigned to the Office of the Deputy Ombudsman for
Luzon. The case was handled by a panel of four prosecutors, who submitted a draft resolution for the filing of the
charges on March 29, 1990. The draft resolution had to undergo the hierarchy of review, normal for a draft resolution
with a dissenting vote, until it reached the Ombudsman in March 1991.
We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698 (G.R. Nos.
99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary investigation and
the filing of the information against her in those petitions. a piece-meal presentation of issues, like the splitting of
causes of action, is self-defeating.
Petitioner next claims that the Amended Informations did not charge any offense punishable under Section 3 (e) of
R.A. No. 3019 because the official acts complained of therein were authorized under Executive Order No. 324 and that
the Board of Commissioners of the Bureau of Investigation adopted the policy of approving applications for legalization
of spouses and unmarried, minor children of "qualified aliens" even though they had arrived in the Philippines after
December 31, 1983. she concludes that the Sandiganbayan erred in not granting her motion to quash the informations
(Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People v. Supnad, 7
SCRA 603 [1963] ). Therefore, petitioner admitted hypothetically in her motion that:
(1) She was a public officer;
(2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines after January 1,
1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and

The use of the distinctive term "or" connotes that either act qualifies as a violation of Section 3 (a). In other words the
act of giving any private party any unwarranted benefit, advantage or preference is not an indispensable element of
the offense of "causing any undue injury to any party" as claimed by petitioners although there may be instances
where both elements concur.
Re: Delito continuado
Be that as it may, our attention was attracted by the allegation in the petition that the public prosecutors filed 32
Amended Informations against petitioner, after manifesting to the Sandiganbayan that they would only file one
amended information (Rollo, pp. 6-61). We also noted that petitioner questioned in her opposition to the motion to
admit the 32 Amended Informations, the splitting of the original information (Rollo, pp. 127-129). In the furtherance of
justice, we therefore proceed to inquire deeper into the validity of said plant, which petitioner failed to pursue with vigor
in her petition.
We find that, technically, there was only one crime that was committed in petitioner's case, and hence, there should
only be one information to be file against her.
The 32 Amended Informations charge what is known as delito continuado or "continued crime" and sometimes
referred to as "continuous crime."
In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the concept ofdelito
continuado has been a vexing problem in Criminal Law difficult as it is to define and more difficult to apply.
According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed during a period of
time; unity of penal provision violated; and unity of criminal intent or purpose, which means that two or more violations
of the same penal provisions are united in one and same instant or resolution leading to the perpetration of the same
criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality there is only one
crime in the mind of the perpetrator (Commentaries on the Revised Penal Code, 1957 ed., p. 102; Penal Science and
Philippine Criminal Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one criminal intent or resolution (Criminal Law,
1988 ed. pp. 53-54).

(5) She acted in "evident bad faith and manifest partiality in the execution of her official functions."
Applying the concept of delito continuado, we treated as constituting only one offense the following cases:
The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of R.A. No. 3019.
The claims that the acts complained of were indeed authorized under Executive Order No. 324, that petitioner merely
followed in good faith the policy adopted by the Board of Commissioners and that the aliens were spouses or
unmarried minor children of persons qualified for legalization of stay, are matters of defense which she can establish at
the trial.
Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue injury to any party,
including the Government," there are two ways of violating Section 3 (e) of R.A. No. 3019. These are: (a) by causing
undue injury to any party, including the Government; and (b) by giving any private party any unwarranted benefit,
advantage or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:

(1) The theft of 13 cows belonging to two different owners committed by the accused at the same time and at the
same period of time (People v. Tumlos, 67 Phil. 320 [1939] ).
(2) The theft of six roosters belonging to two different owners from the same coop and at the same period of time
(People v. Jaranillo, 55 SCRA 563 [1974] ).
(3) The theft of two roosters in the same place and on the same occasion (People v. De Leon, 49 Phil. 437 [1926] ).
(4) The illegal charging of fees for services rendered by a lawyer every time he collects veteran's benefits on behalf of
a client, who agreed that the attorney's fees shall be paid out of said benefits (People v. Sabbun, 10 SCRA 156
[1964] ). The collection of the legal fees were impelled by the same motive, that of collecting fees for services
rendered, and all acts of collection were made under the same criminal impulse (People v. Lawas, 97 Phil. 975
[1955] ).

On the other hand, we declined to apply the concept to the following cases:
(1) Two estafa cases, one of which was committed during the period from January 19 to December 1955 and the other
from January 1956 to July 1956 (People v. Dichupa, 113 Phil. 306 [1961] ). The said acts were committed on two
different occasions.
(2) Several malversations committed in May, June and July, 1936, and falsifications to conceal said offenses
committed in August and October 1936. The malversations and falsifications "were not the result of only one purpose
or of only one resolution to embezzle and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ).
(3) Two estafa cases, one committed in December 1963 involving the failure of the collector to turn over the
installments for a radio and the other in June 1964 involving the pocketing of the installments for a sewing machine
(People v. Ledesma, 73 SCRA 77 [1976] ).
(4) 75 estafa cases committed by the conversion by the agent of collections from customers of the employer made on
different dates (Gamboa v. Court of Appeals, 68 SCRA 308 [1975]).
The concept of delito continuado, although an outcry of the Spanish Penal Code, has been applied to crimes
penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered following up claims for war
veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964] ).
Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws, unless the latter provide
the contrary. Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to
crimes punished under special laws.
The question of whether a series of criminal acts over a period of time creates a single offense or separate offenses
has troubled also American Criminal Law and perplexed American courts as shown by the several theories that have
evolved in theft cases.
The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of several things, whether
belonging to the same or different owners, at the same time and place constitutes but one larceny. Many courts have
abandoned the "separate larceny doctrine," under which there is a distinct larceny as to the property of each victim.
Also abandoned was the doctrine that the government has the discretion to prosecute the accused or one offense or
for as many distinct offenses as there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).

The 32 Amended Informations reproduced verbatim the allegation of the original information, except that instead of the
word "aliens" in the original information each amended information states the name of the individual whose stay was
legalized.
At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they would file only one
amended information embodying the legalization of stay of the 32 aliens. As stated in the Order dated November 12,
1992 of the Sandiganbayan (First Division):
On the matter of the Bill of Particulars, the prosecution has conceded categorically that the accusation against Miriam
Defensor Santiago consists of one violation of the law represented by the approval of the applications of 32 foreign
nationals for availment (sic) of the Alien Legalization Program. In this respect, and responding directly to the concerns
of the accused through counsel, the prosecution is categorical that there will not be 32 accusations but only one . . .
(Rollo, p. 59).
The 32 Amended Informations aver that the offenses were committed on the same period of time, i.e., on or about
October 17, 1988. The strong probability even exists that the approval of the application or the legalization of the stay
of the 32 aliens was done by a single stroke of the pen, as when the approval was embodied in the same document.
Likewise, the public prosecutors manifested at the hearing the motion for a bill of particulars that the Government
suffered a single harm or injury. The Sandiganbayan in its Order dated November 13, 1992 stated as follows:
. . . Equally, the prosecution has stated that insofar as the damage and prejudice to the government is concerned, the
same is represented not only by the very fact of the violation of the law itself but because of the adverse effect on the
stability and security of the country in granting citizenship to those not qualified (Rollo, p. 59).
WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the Sandiganbayan (First Division)
is AFFIRMED and its Resolution dated March 11, 1993 in Criminal Case No. 16698 is MODIFIED in the sense that the
Office of the Special Prosecutor of the Office of the Ombudsman is directed to consolidate the 32 Amended
Informations (Criminal Cases Nos. 18371 to 18402) into one information charging only one offense under the original
case number, i.e., No. 16698. The temporary restraining order issued by this Court on March 25, 1993 is LIFTED
insofar as to the disqualification of Presiding Justice Francis Garchitorena is concerned.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Puno, JJ., concur.

The American courts following the "single larceny" rule, look at the commission of the different criminal acts as but one
continuous act involving the same "transaction" or as done on the same "occasion" (State v. Sampson, 157 Iowa 257,
138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539).
An American court held that a contrary rule would violate the constitutional guarantee against putting a man in
jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed that the doctrine is a
humane rule, since if a separate charge could be filed for each act, the accused may be sentenced to the penitentiary
for the rest of his life (Annotation, 28 ALR 2d 1179).

Separate Opinions

In the case at bench, the original information charged petitioner with performing a single criminal act that of her
approving the application for legalization of aliens not qualified under the law to enjoy such privilege.
The original information also averred that the criminal act : (i) committed by petitioner was in violation of a law
Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government, and (iii) was done on a single
day, i.e., on or about October 17, 1988.

VITUG, J., concurring and dissenting:

While I share the view expressed by Mr. Justice Florentino P. Feliciano in his dissent from the majority opinion
inMiriam Defensor-Santiago vs. Conrado Vasquez, et al. (205 SCRA 162), the decision in said case, however, having
become final, has, in my view, the effect of foreclosing the issues there involved.

Accordingly, in this petition now at bench (G.R. No. 109266, I vote with the majority in simply directing, for the reasons
expressed for the Court by
Mr. Justice Camilo D. Quiason, the consolidation of the thirty-two Amended Informations into a single Information.

Philippines after January 1, 1984, but who were the spouses or minor children of qualified aliens the latter being
alien spouses or parents who had entered the Philippines before January 1, 1984 and who were themselves qualified
for waiver of passport requirements under Executive Order No. 324 to apply for waiver of passport requirements
and, after compliance with requirements of Executive Order No. 324, approved such "legalization."

FELICIANO, J., dissenting:

I dissent from the opinion written for the majority by Mr. Justice Quiason, to the extent that that opinion directed the
Office of the Special Prosecutor of the Office of the Ombudsman to consolidate the thirty-two (32) Amended
Informations (Criminal Cases Nos. 18371 and 18402) into one Information under the original case number, i.e., No.
16698.

Executive Order No. 324 is not itself a statute prescribing penal sanctions for certain acts. Thus, disregard of
Executive Order No. 324 would not, by itself, give rise to criminal liability. The criminal information in this case in effect
links up Executive Order No. 324 with Section 3(e) of Republic Act No. 3019, known as the Anti-Graft and Corrupt
Practices Act. Section 3(e) of the Anti-Graft Act reads as follows:
xxx xxx xxx

I believe that the Court should order the Sandiganbayan to dismiss the thirty-two (32) Amended Informations, for that
court seriously erred in not granting petitioner's Motion to Quash those Informations. The grounds for my submission in
this respect were spelled out in detail in my dissenting opinion 1 in Miriam Defensor-Santiago v.Conrado M. Vasquez,
Ombudsman, et al. (205 SCRA 162 at 174-180 [1992] ), which I beg leave to reproduce here:
The information filed before the Sandiganbayan in Criminal Case No. 16698 charges the petitioner as follows:
That on or about October 17, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the
jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being the Commissioner of the Commission
on Immigration and Deportation, with evident bad faith and manifest partiality, did then and there, willfully, unlawfully
and criminally approve the application for legalization of aliens who arrived in the Philippines after January 1, 1984 in
violation of Executive Order No. 324 dated April 13, 1988 which does not allow the legalization of the same, thereby
causing undue injury to the government and giving unwarranted benefits and advantage to the said aliens in the
discharge of the official and administrative functions of said accused.
Contrary to law.
Essentially, the above information charges that petitioner had, in violation of the provisions of Executive Order No. 324
approved applications for legalization of the stay of aliens who had arrived in the Philippines after January 1, 1984.
The information takes the position that the Executive Order "does not allow the legalization of the same."
Executive Order No. 324 entitled "Waiving Passport Requirements for Immigrants under Certain Conditions," dated
April 13, 1988, was promulgated pursuant to section 47 (A)(3) of C.A. No. 613, as amended, the Philippine
Immigration Act of 1940, which provides that

It must be noted, firstly, that petitioner, as the then Commissioner of Immigration and Deportation, was expressly
authorized and obliged by Executive Order No. 324 to apply and administer and enforce its provisions. Indeed,
petitioner was authorized to issue rules and regulations to implement that Executive Order (paragraph 16). Secondly,
the application and administration of Executive Order No. 324 involve, not ministerial or mechanical acts, but rather
the exercise of judgment and discretion, adjudicatory and hence quasi-judicial in nature. Thirdly, and perhaps most
notably, paragraphs 11 and 12 of the Executive Order provide as follows:
11. Except as provided in Paragraph 12, herein, the Commissioner of Immigration and Deportation may waive
exclusion grounds under the Immigration Act in the cases of individual aliens for humanitarian purposes to assure
family unity or for the public interest.
12. The following grounds for exclusion may not be waived by the Commissioner of Immigration and Deportation,
namely, (a) those relating to criminals; (b) those relating to aliens likely to become public charges; (c) those relating to
drug offenses, except for so much of those provisions as relates to a single offense of simple possession of marijuana;
and (d) those relating to national security and members of subversive organization.
xxx xxx xxx
(Emphasis supplied)
Paragraph 11, it will be seen, expressly authorizes petitioner to waive grounds for exclusion of aliens under the
Immigration Act in two (2) cases: (a) "for humanitarian purposes to assure family unity;" and (b) "for the public
interest." Under Section 29 (a) of the Philippine Immigration Act of 1940, as amended, the classes of aliens excluded
from entry into the Philippines include:

Notwithstanding the provisions of this Act, the President is authorized:

(17) Persons not properly documented for admission as may be required under the provisions of this Act. 2
(a) when the public interest to warrants:
xxx xxx xxx
(3) to waive the passport requirements for immigrants, under such conditions as he may prescribe.
Executive Order No. 324 provides that an alien may apply with the Commissioner of Immigration and Deportation for
waiver of passport beginning on a date to be designated by the Commissioner. The Order provides, among other
things, that the alien "must establish that he entered the Philippines before January 1, 1984 and that he has resided
continuously in the Philippines in an unlawful status from such date to the filing of his application."
Petitioner is charged with having unlawfully waived the passport requirements of certain aliens who arrived after
January 1, 1984. It is clear from the record of this case, especially of the preliminary investigation conducted by the
Office of the Special Prosecutor, that petitioner herself stated that she had allowed aliens who had arrived in the

Upon the other hand, paragraph 12 specifies the categories of persons in whose cases no waiver of grounds of
exclusion may be granted.
It will be seen that the acts of petitioner, which the information assumes to be criminal in nature, constituted official
acts of petitioner done in the course of applying, interpreting and construing Executive Order No. 324. There is no
question that the applications for waiver of passport requirements by the spouses and minor children of qualified aliens
were admitted and approved by petitioner "for humanitarian purposes to assure family unity." It is also not disputed
that the said alien spouses and minor children did not fall under any of the (non-waivable) excluded classes listed in
paragraph 12 of Executive Order No. 324. It is similarly undisputed that no one has pretended that petitioner
had any personal or corrupt interest in any of the cases of alien spouses and minor children of qualified aliens she had
acted upon. No one has suggested, for instance that the feesspecified in paragraph 9 of Executive Order No. 324
either were not collected by petitioner and converted to her own use. It may be noted, incidentally, that paragraph 9
expressly authorizes the Commissioner "in her discretion, [to] charge a lower fee for the spouse and minor children
below 21 years old of the applicant." The criminal information, as noted above, included an allegation of "evident bad
faith and manifest partiality." It is clear, however, that the facts brought out in the preliminary investigation offered

absolutely no basis for such an allegation which actually a conclusion offered by the Special Prosecutor, much like the
words "wilfully, unlawfully and criminally" which are recited redundantly in the criminal information here. Again, the
facts disclosed in the preliminary investigation showed no undue injury, "to the Government and no unwarranted
benefit or advantage" to the aliens outside of the simple acceptance and approval of the applications for waiver of
passport requirements (so called "legalization") by petitioner. In other words, if the interpretation or construction given
by petitioner to Executive Order
No. 324 is correct i.e., that applications for waiver of passport requirements by alien wives and minor children,
arriving after January 1, 1984, of qualified aliens who had themselves arrived in the Philippines before January 1, 1984
and who were otherwise eligible under the terms and conditions of Executive Order No. 324 may be granted for
humanitarian purposes in the interest of allowing or restoring family unity there would be no "injury," let alone an
"undue injury," to the Government. Neither can the benefit of waiver of passport requirements in the cases of such
spouses and minor children of qualified aliens be deemed to be an "unwarranted" benefit to such aliens if petitioner's
interpretation of Executive Order
No. 324 be held to be correct.
It is a rule too firmly established to require documentation that contemporaneous interpretations of a statute or
implementing regulation by the executive or administrative officials precisely charged with the implementation of such
a stature or regulation, are entitled to great weight and respect from the courts. This Court itself has in many instances
deferred to such interpretations rendered by such administrative officers. (See, e.g., Ramos v. Court of Industrial
Relations, 21 SCRA 1282 [1967]; Salavaria v. Buenviaje, 81 SCRA 722 [1978]; Asturias Sugar Central, Inc. v.
Commissioner of Customs, 29 SCRA 617 [1969]; University of the Philippines v. Court of Appeals, 37 SCRA 54 [1971];
Lim Hao Ting v. Central Bank, 104 Phil. 573 [1958] ). But even if an administrative interpretation be ultimately found to
be incorrect as a matter of law by this Court, the official responsible for such interpretation is not, for that reason alone,
to be held liable personally, whether civilly or criminally or administratively. It is just as firmly settled that to impose
liability upon the public officer who has so acted, something far graver that error of law or error of judgment must be
clearly shown and that is corrupt personal intentions, personal malice or bad faith. (See generally Marcelo v.
Sandiganbayan, 185 SCRA 346 [1990]). As noted above, no such allegations were made during the preliminary
investigation in Criminal Case No. 16698.
My submission, with respect, is that whether the acts admittedly done by petitioner were criminal in nature, is a legal
question, on which petitioner in effect asks us to rule in this Petition. I believe, further, that there is nothing to prevent
this Court from addressing and ruling on this legal issue. There is no real need for proof of any additional essential
facts apart from those already admitted by petitioner. It seems to me that a public officer is entitled to have legal
questions like that before this Court resolved at the earliest possible opportunity, that a public officer should not be
compelled to go through the aggravation, humiliation and expense of the whole process of criminal trial, if the legal
characterization of the acts charged as criminal is the very issue at stake.
I respectfully submit, still further, that the acts charged do not, as a matter of law, constitute a crime.Indeed, if the acts
which petitioner admits having done constitute a criminal offense, very serious consequences would follow for the
administration of law and government rules and regulations in general. For the thrust of the criminal information here
would appear to be that public officers interpret and apply statutory and regulatory provisions at their own peril and at
the risk of criminal liability, notwithstanding the absence of any corrupt intent to profit personally by any such
interpretation and application. (Emphasis in the penultimate and ultimate paragraphs supplied)

# Separate Opinions
VITUG, J., concurring and dissenting:
While I share the view expressed by Mr. Justice Florentino P. Feliciano in his dissent from the majority opinion
inMiriam Defensor-Santiago vs. Conrado Vasquez, et al. (205 SCRA 162), the decision in said case, however, having
become final, has, in my view, the effect of foreclosing the issues there involved.
Accordingly, in this petition now at bench (G.R. No. 109266, I vote with the majority in simply directing, for the reasons
expressed for the Court by Mr. Justice Camilo D. Quiason, the consolidation of the thirty-two Amended Informations
into a single Information.
FELICIANO, J., dissenting:
I dissent from the opinion written for the majority by Mr. Justice Quiason, to the extent that that opinion directed the
Office of the Special Prosecutor of the Office of the Ombudsman to consolidate the thirty-two (32) Amended
Informations (Criminal Cases Nos. 18371 and 18402) into one Information under the original case number, i.e., No.
16698.
I believe that the Court should order the Sandiganbayan to dismiss the thirty-two (32) Amended Informations, for that
court seriously erred in not granting petitioner's Motion to Quash those Informations. The grounds for my submission in
this respect were spelled out in detail in my dissenting opinion 1 in Miriam Defensor-Santiago v.Conrado M. Vasquez,
Ombudsman, et al. (205 SCRA 162 at 174-180 [1992] ), which I beg leave to reproduce here:
The information filed before the Sandiganbayan in Criminal Case No. 16698 charges the petitioner as follows:
That on or about October 17, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the
jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being the Commissioner of the Commission
on Immigration and Deportation, with evident bad faith and manifest partiality, did then and there, willfully, unlawfully
and criminally approve the application for legalization of aliens who arrived in the Philippines after January 1, 1984 in
violation of Executive Order No. 324 dated April 13, 1988 which does not allow the legalization of the same, thereby
causing undue injury to the government and giving unwarranted benefits and advantage to the said aliens in the
discharge of the official and administrative functions of said accused.
Contrary to law.

The Information, quoted internally above, was filed in Criminal Case

No. 16698 back in 1 May 1991. approximately two-and-a-half (2-1/2) years later, the proceedings before the
Sandiganbayan are still going on, and indeed appear to me to be back where the case was at the time the original
Information was filed. Had this Court ruled on the legal question which petitioner in effect had asked us to rule
inSantiago v. Vasquez (supra), the case should be terminated by now, one way or the other. Once more, I respectfully
submit that a public officer should not be compelled to go through the aggravation, humiliation and expense of the
whole process of criminal trial, if the legal nature of the acts charged as criminal is the very issue at stake.
I vote to grant the Petition for Certiorari and to require the Sandiganbayan to dismiss the thirty-two (32) Amended
Informations.
Romero, J., concurs.

Essentially, the above information charges that petitioner had, in violation of the provisions of Executive Order No. 324
approved applications for legalization of the stay of aliens who had arrived in the Philippines after January 1, 1984.
The information takes the position that the Executive Order "does not allow the legalization of the same."
Executive Order No. 324 entitled "Waiving Passport Requirements for Immigrants under Certain Conditions," dated
April 13, 1988, was promulgated pursuant to section 47 (A)(3) of C.A. No. 613, as amended, the Philippine
Immigration Act of 1940, which provides that
Notwithstanding the provisions of this Act, the President is authorized:
(a) when the public interest to warrants:

xxx xxx xxx

Upon the other hand, paragraph 12 specifies the categories of persons in whose cases no waiver of grounds of
exclusion may be granted.

(3) to waive the passport requirements for immigrants, under such conditions as he may prescribe.
Executive Order No. 324 provides that an alien may apply with the Commissioner of Immigration and Deportation for
waiver of passport beginning on a date to be designated by the Commissioner. The Order provides, among other
things, that the alien "must establish that he entered the Philippines before January 1, 1984 and that he has resided
continuously in the Philippines in an unlawful status from such date to the filing of his application."
Petitioner is charged with having unlawfully waived the passport requirements of certain aliens who arrived after
January 1, 1984. It is clear from the record of this case, especially of the preliminary investigation conducted by the
Office of the Special Prosecutor, that petitioner herself stated that she had allowed aliens who had arrived in the
Philippines after January 1, 1984, but who were the spouses or minor children of qualified aliens the latter being
alien spouses or parents who had entered the Philippines before January 1, 1984 and who were themselves qualified
for waiver of passport requirements under Executive Order No. 324 to apply for waiver of passport requirements
and, after compliance with requirements of Executive Order No. 324, approved such "legalization."
Executive Order No. 324 is not itself a statute prescribing penal sanctions for certain acts. Thus, disregard of
Executive Order No. 324 would not, by itself, give rise to criminal liability. The criminal information in this case in effect
links up Executive Order No. 324 with Section 3(e) of Republic Act No. 3019, known as the Anti-Graft and Corrupt
Practices Act. Section 3(e) of the Anti-Graft Act reads as follows:
xxx xxx xxx
It must be noted, firstly, that petitioner, as the then Commissioner of Immigration and Deportation, was expressly
authorized and obliged by Executive Order No. 324 to apply and administer and enforce its provisions. Indeed,
petitioner was authorized to issue rules and regulations to implement that Executive Order (paragraph 16). Secondly,
the application and administration of Executive Order No. 324 involve, not ministerial or mechanical acts, but rather
the exercise of judgment and discretion, adjudicatory and hence quasi-judicial in nature. Thirdly, and perhaps most
notably, paragraphs 11 and 12 of the Executive Order provide as follows:
11. Except as provided in Paragraph 12, herein, the Commissioner of Immigration and Deportation may waive
exclusion grounds under the Immigration Act in the cases of individual aliens for humanitarian purposes to assure
family unity or for the public interest.
12. The following grounds for exclusion may not be waived by the Commissioner of Immigration and Deportation,
namely, (a) those relating to criminals; (b) those relating to aliens likely to become public charges; (c) those relating to
drug offenses, except for so much of those provisions as relates to a single offense of simple possession of marijuana;
and (d) those relating to national security and members of subversive organization.
xxx xxx xxx
(Emphasis supplied)
Paragraph 11, it will be seen, expressly authorizes petitioner to waive grounds for exclusion of aliens under the
Immigration Act in two (2) cases: (a) "for humanitarian purposes to assure family unity;" and (b) "for the public
interest." Under Section 29 (a) of the Philippine Immigration Act of 1940, as amended, the classes of aliens excluded
from entry into the Philippines include:
(17) Persons not properly documented for admission as may be required under the provisions of this Act. 2

It will be seen that the acts of petitioner, which the information assumes to be criminal in nature, constituted official
acts of petitioner done in the course of applying, interpreting and construing Executive Order No. 324. There is no
question that the applications for waiver of passport requirements by the spouses and minor children of qualified aliens
were admitted and approved by petitioner "for humanitarian purposes to assure family unity." It is also not disputed
that the said alien spouses and minor children did not fall under any of the (non-waivable) excluded classes listed in
paragraph 12 of Executive Order No. 324. It is similarly undisputed that no one has pretended that petitioner
had any personal or corrupt interest in any of the cases of alien spouses and minor children of qualified aliens she had
acted upon. No one has suggested, for instance that the feesspecified in paragraph 9 of Executive Order No. 324
either were not collected by petitioner and converted to her own use. It may be noted, incidentally, that paragraph 9
expressly authorizes the Commissioner "in her discretion, [to] charge a lower fee for the spouse and minor children
below 21 years old of the applicant." The criminal information, as noted above, included an allegation of "evident bad
faith and manifest partiality." It is clear, however, that the facts brought out in the preliminary investigation offered
absolutely no basis for such an allegation which actually a conclusion offered by the Special Prosecutor, much like the
words "wilfully, unlawfully and criminally" which are recited redundantly in the criminal information here. Again, the
facts disclosed in the preliminary investigation showed no undue injury, "to the Government and no unwarranted
benefit or advantage" to the aliens outside of the simple acceptance and approval of the applications for waiver of
passport requirements (so called "legalization") by petitioner. In other words, if the interpretation or construction given
by petitioner to Executive Order
No. 324 is correct i.e., that applications for waiver of passport requirements by alien wives and minor children,
arriving after January 1, 1984, of qualified aliens who had themselves arrived in the Philippines before January 1, 1984
and who were otherwise eligible under the terms and conditions of Executive Order No. 324 may be granted for
humanitarian purposes in the interest of allowing or restoring family unity there would be no "injury," let alone an
"undue injury," to the Government. Neither can the benefit of waiver of passport requirements in the cases of such
spouses and minor children of qualified aliens be deemed to be an "unwarranted" benefit to such aliens if petitioner's
interpretation of Executive Order
No. 324 be held to be correct.
It is a rule too firmly established to require documentation that contemporaneous interpretations of a statute or
implementing regulation by the executive or administrative officials precisely charged with the implementation of such
a stature or regulation, are entitled to great weight and respect from the courts. This Court itself has in many instances
deferred to such interpretations rendered by such administrative officers. (See, e.g., Ramos v. Court of Industrial
Relations, 21 SCRA 1282 [1967]; Salavaria v. Buenviaje, 81 SCRA 722 [1978]; Asturias Sugar Central, Inc. v.
Commissioner of Customs, 29 SCRA 617 [1969]; University of the Philippines v. Court of Appeals, 37 SCRA 54 [1971];
Lim Hao Ting v. Central Bank, 104 Phil. 573 [1958] ). But even if an administrative interpretation be ultimately found to
be incorrect as a matter of law by this Court, the official responsible for such interpretation is not, for that reason alone,
to be held liable personally, whether civilly or criminally or administratively. It is just as firmly settled that to impose
liability upon the public officer who has so acted, something far graver that error of law or error of judgment must be
clearly shown and that is corrupt personal intentions, personal malice or bad faith. (See generally Marcelo v.
Sandiganbayan, 185 SCRA 346 [1990]). As noted above, no such allegations were made during the preliminary
investigation in Criminal Case No. 16698.
My submission, with respect, is that whether the acts admittedly done by petitioner were criminal in nature, is a legal
question, on which petitioner in effect asks us to rule in this Petition. I believe, further, that there is nothing to prevent
this Court from addressing and ruling on this legal issue. There is no real need for proof of any additional essential
facts apart from those already admitted by petitioner. It seems to me that a public officer is entitled to have legal
questions like that before this Court resolved at the earliest possible opportunity, that a public officer should not be
compelled to go through the aggravation, humiliation and expense of the whole process of criminal trial, if the legal
characterization of the acts charged as criminal is the very issue at stake.
I respectfully submit, still further, that the acts charged do not, as a matter of law, constitute a crime.Indeed, if the acts
which petitioner admits having done constitute a criminal offense, very serious consequences would follow for the
administration of law and government rules and regulations in general. For the thrust of the criminal information here
would appear to be that public officers interpret and apply statutory and regulatory provisions at their own peril and at
the risk of criminal liability, notwithstanding the absence of any corrupt intent to profit personally by any such
interpretation and application. (Emphasis in the penultimate and ultimate paragraphs supplied)

The Information, quoted internally above, was filed in Criminal Case

No. 16698 back in 1 May 1991. approximately two-and-a-half (2-1/2) years later, the proceedings before the
Sandiganbayan are still going on, and indeed appear to me to be back where the case was at the time the original
Information was filed. Had this Court ruled on the legal question which petitioner in effect had asked us to rule
inSantiago v. Vasquez (supra), the case should be terminated by now, one way or the other. Once more, I respectfully
submit that a public officer should not be compelled to go through the aggravation, humiliation and expense of the
whole process of criminal trial, if the legal nature of the acts charged as criminal is the very issue at stake.
I vote to grant the Petition for Certiorari and to require the Sandiganbayan to dismiss the thirty-two (32) Amended
Informations.

member of the bar of the Philippine Islands and as a private individual, and to expose him to public hatred, contempt
and ridicule, compose, print, edit, publish, and circulate and procure to be composed, printed, edited, published, and
circulated in said newspapers issue of the above mentioned date, September 25, 1913, a certain false and malicious
defamation and libel in the English language of and concerning the said Ramon Sotelo, which reads as follows.
:jgc:chanrobles.com.ph
"OWNERS FIRED BUILDING TO COLLECT INSURANCE. CRIMINAL CHARGES FOLLOW CIVIL SUIT.
"Conspiracy divulged in three sworn statements made by members of the party after a family disagreement.
Sensational statement sworn to. Mystery of Calle ODonnell fire solved and papers served.
"Conspiracy to defraud the insurance company.

Romero, J., concurs.

"The building was fired to collect the amount of insurance.

[G.R. No. 9726. December 8, 1914. ]

"The movable furniture of value was removed before the fire.

THE UNITED STATES, Plaintiff-Appellee, v. CARSON TAYLOR, Defendant-Appellant.

"The full amount of the insurance was collected, and the conspiracy was a success.

C. W OBrien, for Appellant.

"The above is the gist of the sworn statements of Vicente Sotelo and Eugenio Martin in connection with the fire that
destroyed house No. 2157 Calle ODonnell on April 4.

Solicitor-General Corpus, for Appellee.

SYLLABUS
1. LIBEL AND SLANDER; PUBLICATION; EDITOR, AUTHOR, PROPRIETOR, MANAGER. Section 6 of the Libel
Law (Act No. 277) provides a punishment only for the "author, editor, or proprietor," for the publication of a libel in a
newspaper. In the present case no person was represented to be either the "author, the editor, or the proprietor" of the
newspaper in which the alleged libel was published. The proof shows that the defendant was the "manager." There
was not a word of proof showing that as "manager" he was the author of the article published or the editor or the
proprietor of the newspaper. The "manager" of a newspaper may be the author of the articles published or the editor or
the publisher of the newspaper. His exact relation to the newspaper or publication is a matter of proof. He can not
avoid responsibility as the "author, editor, or proprietor" by using some other term or word, when, as a matter of fact,
he is the "author, editor, or proprietor." The "author, editor, or proprietor" of a newspaper or publication can not avoid
responsibility by simply calling himself the "manager" or "printer." He can not wear the toga of "author, editor, or
proprietor" and hide his responsibility by giving himself some other name. While the terms "author, editor, and
proprietor" of a newspaper are terms well defined, the particular words "author, editor, or proprietor" are not material or
important, further than they are words which are intended to show the relation of the responsible party to the
publication. That relation may as well exist under some other name or denomination.

DECISION

JOHNSON, J. :
This was an action for criminal libel.

"The case in question is a sensational one to say .he least, and the court is being petitioned to set aside the ruling and
cite the parties to show cause why they should not be cited to answer charges of conspiracy to defraud.
"On April 4, 1913, the house located at 2157 Calle ODonnell was destroyed by fire. The house was insured for
P5,000, the contents for an additional P5,000, with the West of Scotland Insurance Association, of which Lutz & Co.
are the local agents, with an additional P1,500 with Smith, Bell & Co.
"The full amount of the insurance on the property was paid by the agents of the insurance companies and the matter
apparently dropped from the records.
"Then there was internal trouble and information began to leak out which resulted in sensational statements to the
effect that the destruction of the property had been an act of incendiarism in order to collect the insurance. Then there
was an investigation started and it resulted in sworn statements of the three persons above mentioned.
"Notarial returns were made yesterday by the sheriff, based on the sworn statements and the parties are cited to
appear in court and show cause.
"The investigation also showed that the furniture, which was supposed to be in the house at the time of the
conflagration and which was paid for by the insurance agents, sworn statements having been made that it was
destroyed in the fire, was in a certain house in Montalban, where it was identified upon the sworn statements of the
above mentioned. Implicated in the charges of conspiracy and fraud is the name of the attorney for the plaintiff who
made affidavit as to the burning of the house and against whom criminal proceedings will be brought as well as
against the original owners.
"Attorney Burke, who represents Lutz & Co. in the proceedings, was seen last night and asked for a statement as to
the case. Mr. Burke refused to talk on the case and stated that when it came to trial it would be time enough to obtain
the facts.
"The present action came before the court on a motion of Attorney Burke to set aside the judgment, which, in the
original case, gave the owners of the property judgment for the amount of the insurance.

The complaint alleged:jgc:chanrobles.com.ph

"That on the 25th day of September, 1913, the said Carson Taylor, being then and there the acting editor and
proprietor, manager, printer, and publisher in the city of Manila, Philippine Islands, of a certain daily bilingual
newspaper, edited in the English and Spanish languages, and known as the Manila Daily Bulletin, a paper of large
circulation throughout the Philippine Islands, as well as in the United States and other countries in all of which both
languages are spoken and written, having as such the supervision and control of said newspaper, did then and there
willfully, feloniously, maliciously, and with intent to impeach the honesty, virtue, and reputation of one Ramon Sotelo as

"Attorney Burke filed the sworn statements with the court and the notarial returns to the same were made yesterday
afternoon, the sworn statements as to the burning of the house being in the hands of the sheriff.
"It was stated yesterday that a criminal action would follow the civil proceedings instituted to recover the funds in the
case entitled on the court records, Maria Mortera de Eceiza and Manuel Eceiza versus the west of Scotland
Association, Limited, No. 10191 on the court records.

"It might be stated also that Eugenio Martin was one of the plaintiffs in the recent suit brought against Ex Governor W.
Cameron Forbes for lumber supplied for his Boston home.
"That in this article is contained the following paragraph. to wit:jgc:chanrobles.com.ph
" . . .Implicated in the charges of conspiracy and fraud is the name of the attorney for the plaintiff who made affidavit
as to the burning of the house and against whom criminal proceedings will be brought as well as against the original
owners, by which the said accused meant to refer and did refer to the said Ramon Sotelo, who then and there was the
attorney for the plaintiff in the case aforesaid, No. 10191 of the Court of First Instance of the city of Manila, and so was
understood by the public who read the same; that the statements and allegations made in said paragraph are wholly
false and untrue, thus impeaching the honesty, virtue and reputation of the said offended party as a member of the bar
of the Philippine Islands and as a private individual, and exposing him to public hatred, contempt and ridicule. Contrary
to law."cralaw virtua1aw library
Upon said complaint the defendant was arrested, arraigned, plead not guilty, was tried, found guilty of the crime
charged, and sentenced by the Honorable George N. Hurd, judge, to pay a fine of P200. From that sentence the
defendant appealed to this court and made the following assignment of error:jgc:chanrobles.com.ph
"First. The court erred in finding that the defendant was responsible for and guilty of the alleged libel.
"Second. The court erred in finding that the defendant was the proprietor and publisher of the Manila Daily Bulletin.
"Third. The court erred in finding that the alleged libelous article was libelous per se.
"Fourth. The court erred in holding that the article was libelous, while finding that there was no malice.
"Fifth. The court erred in finding that the alleged libelous article referred to attorney Ramon Sotelo.
"Sixth. The court erred in finding that Ramon Sotelo was attorney for the plaintiffs in case No. 10191, when the alleged
libel was published."cralaw virtua1aw library
After a careful examination of the record and the arguments presented by the appellant, we deem it necessary to
discuss only the first and second assignments of error.
In the Philippine Islands there exist no crimes such as are known in the United States and England as common law
crimes. No act constitutes a crime here unless it is made so by law. Libel is made a crime here by Act No. 277 of the
United States Philippine Commission. Said Act (No. 277) not only defines the crime of libel and prescribes the
particular conditions necessary to constitute it, but it also names the persons who may be guilty of such crime. In the
present case the complaint alleges that the defendant was, at the time of the publication of said alleged article "the
acting editor, proprietor, manager, printer, publisher, etc. etc. of a certain bilingual newspaper, etc., known as the
Manila Daily Bulletin, a paper of large circulation throughout the Philippine Islands, as well as in the United States
and other countries."cralaw virtua1aw library
It will be noted that the complaint charges the defendant as "the acting editor, proprietor, manager, printer, and
publisher." From an examination of said Act No. 277, we find that section 6 provides that: "Every author, editor, or
proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in
any part of said book or number of each newspaper or serial as fully as if he were the author of the same."cralaw
virtua1aw library
By an examination of said article, with reference to the persons who may be liable for the publication of a libel in a
newspaper, we find that it only provides for the punishment of "the author, editor, or proprietor." It would follow,
therefore, that unless the proof shows that the defendant in the present case is the "author, editor, or proprietor" of the
newspaper in which the libel was published, he can not be held liable.
In the present case the Solicitor-General in his brief said that "No person is represented to be either the author,
editor, or proprietor." That statement of the Solicitor-General is fully sustained by the record. There is not a word of
proof in the record showing that the defendant was either the "author, the editor, or the proprietor." The proof shows
that the defendant was the "manager." He must, therefore, be acquitted of the crime charged against him, unless it is
shown by the proof that he, as "manager" of the newspaper, was in some way directly responsible for the writing,
editing, or publishing of the matter contained in said alleged libelous article. The prosecution presented the

newspaper, the "Manila Daily Bulletin," for the purpose of showing the relation which the defendant had to it. That was
the only proof presented by the prosecution to show the relation which the defendant had to the publication of the libel
in question. From an examination of the editorial page of said exhibit, we find that it shows that the "Manila Daily
Bulletin" is owned by the "Bulletin Publishing Company," and that the defendant was its manager. There is not a word
of proof in the record which shows what relation the manager had to the publication of said newspaper. We might, by a
series of presumptions and assumptions, conclude that the manager of a newspaper has some direct responsibility
with its publication. We believe, however, that such presumptions and assumptions, in the absence of a single letter of
proof relating thereto, would be unwarranted and unjustified. The prosecuting attorney had an opportunity to present
proof upon that question. Either because he had no proof or because no such proof was obtainable, he presented
none. It certainly is not a difficult matter to ascertain who is the real person responsible for the publication of a
newspaper which is published daily and has a wide circulation in a particular community. No question was asked the
defendant concerning his particular relation to the publication of the newspaper in question. We do not desire to be
understood in our conclusions here as holding that the "manager" or the "printer" may not, under certain conditions
and proper proof, be held to be the "author, editor, or proprietor" of a newspaper. He may denominate himself as
"manager" or "printer" simply, and be at the same time the "author, editor, or proprietor" of the newspaper. He can not
avoid responsibility by using some other term or word, indicating his relation to the newspaper or the publication,
when, as a matter of fact, he is the "author, the editor, or the proprietor" of the same. His real relation to the said
publication is a matter of proof. The Solicitor-General, in his brief, says that the defendant used the word "manager"
with the hope of evading legal responsibility, as the Libel Law places the responsibility for publishing a libel, on "every
author, editor, or proprietor of any book, etc." Had the prosecuting attorney in the trial of the cause believed that the
defendant, even though he called himself the "manager" was, in fact, the "author, editor, or proprietor" of said
publication, he should have presented some proof supporting that contention. Neither do we desire to be understood
as holding that simply because a person connected with the publication of a newspaper who calls himself the
"manager" or "printer" may not, in fact and at the same time, be the "author, editor, or proprietor." The "author, editor,
or proprietor" can not avoid responsibility for the writing and publication of a libelous article, by simply calling himself
the "manager" or the "printer" of a newspaper. That, however, is a question of proof. The burden is upon the
prosecution to show that the defendant is, by whatever name he may call himself, in truth and in fact, the "author,
editor, or proprietor" of a newspaper. The courts cannot assume, in the absence of proof, that one who called himself
"manager" was in fact the "author, editor, or proprietor." We might assume, perhaps, that the manager" of a
newspaper plays an important part in the publication of the same by virtue of the general signification of the word
"manager." Men can not, however, be sentenced upon the basis of a mere assumption. There must be some proof.
The word "manage" has been defined by Webster to mean "to have under control and direction; to conduct; to guide;
to administer; to treat; to handle." Webster defines "manager" to be "one who manages; a conductor or director; as,
the manager of a theater." A manager, as that word is generally understood, we do not believe includes the idea of
ownership. Generally speaking it means one who is representing another as an agent. That being true, his powers and
duties and obligations are generally defined by contract. He may have expressed as well as implied powers, but
whatever his powers and duties are they must be dependent upon the nature of the business and the terms of his
contract. There is no fixed rule which indicates particularly and definitely his duties, powers and obligations. An
examination into the character of the business and the contract of his employment must be made for the purpose of
ascertaining definitely what his duties and obligations are. His exact relation is always a matter of proof. It is incumbent
upon the prosecution in a case like the present, to show that whatever title, name or designation the defendant may
bear, he was, in fact, the "author, the editor, or the proprietor" of the newspaper. If he was in fact the "author, editor, or
proprietor," he can not escape responsibility by calling himself the "manager" or "printer." It is the relation which he
bears to the publication and not the name or title which he has assumed, which is important in an investigation. He can
not wear the toga of author or editor and hide his responsibility by giving himself some other name. While the terms
"author, editor, and proprietor" of a newspaper are terms well defined, the particular words "author, editor, or
proprietor" are not material or important, further than that they are words which are intended to show the relation of the
responsible party to the publication. That relation may as well exist under some other name or denomination.
For the foregoing reasons. therefore, there being no proof whatever in the record showing that the defendant was the
"author, the editor, or the proprietor" of the newspaper in question, the sentence of the lower court must be reversed,
the complaint dismissed and the defendant discharged from the custody of the law, with costs de officio. So ordered.

[G.R. No. L-17855. March 4, 1922. ]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. GRACIANO L. CABRERA ET
AL., Defendants-Appellants.

Vicente Sotto for Appellants.

Acting Attorney-General Tuason for Appellee.
SYLLABUS

1. MURDER; INSTANT CASE. Seventy-seven members of the Philippine Constabulary who, to avenge a fancied
wrong, murdered six members of the police force of the city of Manila among them the respected Captain William E.
Wichman, assistant chief of police, and two private citizens, and gravely wounded three other civilians, found guilty of
the crime of murder. The eleven sergeants and corporals among the Constabulary soldiers are sentenced therefor to
the death penalty, and the sixty-six private soldiers are sentenced therefor to cadena perpetua computed at forty
years imprisonment.

13. ID.; ID.; CRIMES OF SEDITION AND MURDER CONTRASTED. Sedition is not the same offense as murder.
Sedition is a crime against public order; murder is a crime against persons. Sedition is a crime directed against the
existence of the State, the authority of the government, and the general public tranquillity; murder is a crime directed
against the lives of individuals. (U.S. v. Abad [1902], 1 Phil., 437.) Sedition in its more general sense is the raising of
commotions or disturbances in the state; murder at common law is where a person of sound mind and discretion
unlawfully kills any human being, in the peace of the sovereign with malice aforethought, express implied.
14. ID.; ID. The ruling of the trial court in not allowing the defense of double jeopardy in the instant case held not to
constitute reversible error. The defendants may have been tried for the same act or acts; they have not been put in
jeopardy for the same offense.
DECISION
MALCOLM, J. :

2. ID.; CREDIBILITY OF WITNESSES. The Supreme Court will not interfere with the judgment of the trial court in
passing upon the credibility of the opposing witnesses, unless there appears in the record some fact or circumstance
of weight and influence which has been overlooked or the significance of which has been misinterpreted.
3. CRIMINAL LAW; CONFESSIONS; ADMISSION OF EXHIBITS C TO C-76 OF INSTANT CASE. The admission
by the trial court of Exhibits C to C-76 of the prosecution in the instant case, held not to constitute reversible error.
4. ID.; ID.; ID. Section 4 of Act No. 619, entitled "An Act to promote good order and discipline in the Philippines
Constabulary," and reading: "No confession of any person charged with crime shall be received as evidence against
him by any court of justice unless it be first shown to the satisfaction of the court that it was freely and voluntarily made
and not the result of violence, intimidation, threat, menace, or of promises or offers of reward or leniency," was
repealed by the first Administrative Code. But the same rule of jurisprudence continues without the law.
5. ID.; ID.; ID. The true test of admissibility is that the confession is made freely, voluntarily, and without compulsion
or inducement of any sort.

No more serious violation of the criminal law of these Islands and no more wanton defiance of the law by the very men
whose sworn duty it was to enforce the law, has ever been brought before this court than is now presented for
consideration in this case. To avenge a fancied wrong, members of the Philippine Constabulary murdered six
members of the police force of the city of Manila, among them the respected Captain William E. Wichman, assistant
chief of police, and two private citizens, and gravely wounded three other civilians.
To the task of reviewing the facts, of preparing an opinion on the pertinent issues, and of rendering judgment, if no
reversible error be found, regarding the appropriate penalty, we now propose to address ourselves.
STATEMENT OF THE CASE AND OF THE FACTS

6. ID.; ID.; ID. If the confession is freely and voluntarily made, it constitutes one of the most effectual proofs in the
law against the party making it.
7. ID.; ID.; ID. The burden of proof that the confession was not voluntarily made or was obtained by undue pressure
is on the accused. (U.S. v. Zara [1921], 42 Phil. 308.)
8. ID.; CONSPIRACY. The declaration of the trial court that there was a conspiracy between the accused in the
instant case held not to constitute reversible error. It is incontestable that all the defendants were imbued with the
same purpose, which was to avenge themselves on the police force of the city of Manila.
9. ID.; ID. It is a primary rule that if two or more persons combine to perform a criminal act, each is responsible for
all the acts of the others done in furtherance of the common design; and "the result is the same if the act is divided into
parts and each person proceeds with his part unaided."cralaw virtua1aw library
10. ID.; ID.; PROOF OF. Conspiracies are generally proved by a number of definite acts, conditions, and
circumstances which vary according to the purposes to be accomplished. If it be proved that the defendants pursued
by their acts the same object, one performing one part and another part of the same, so as to complete it, with a view
to the attainment of that same object, one will be justified in the conclusion that they were engaged in a conspiracy to
effect that object.
11. CONSTITUTIONAL LAW; DOUBLE JEOPARDY. The prohibition in Philippine organic and statutory law relating
to double jeopardy is against a second jeopardy for the same offense. To entitle a defendant to plead successfully
former jeopardy, the offense charged in the two prosecutions must be the same in law and in fact. The test is not
whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same
offense.
12. ID.; ID. The same acts may violate two or more provisions of the criminal law. When they do, a prosecution
under one will not bar a prosecution under another.

On December 13, 1920, policemen of the city of Manila arrested a woman who was a member of the household of a
Constabulary soldier stationed at the Santa Lucia Barracks in this city. The arrest of the woman was considered by
some of the Constabulary soldiers at Santa Lucia Barracks as an outrage committed by the policemen, and it instantly
gave rise to friction between members of the Manila police department and members of the Philippine Constabulary.
The next day, December 14, at about sunset, a policeman named Artemio Mojica posted on Calle Real, in the District
of Intramuros, city of Manila, had an encounter with various Constabulary soldiers which resulted in the shooting of
private Macasina of the Constabulary. Private Macasinag was seriously, and, as afterwards appeared, mortally
wounded.
The encounter between policeman Mojica and other companions of the Manila police force and private Macasinag and
other companions of the Constabulary, with its grave consequences for a Constabulary soldier, engendered a deep
feeling of resentment on the part of the soldiers at Santa Lucia Barracks. This resentment was soon converted into a
desire for revenge against the police force of the city of Manila. The officers of the Constabulary appear to have been
aware of the state of excitement among the soldiers at Santa Lucia Barracks because almost immediately after the
shooting of private Macasinag, Captain Page, the commanding officer of the barracks, increased the number of
guards, and confined all the soldiers in the barracks.
During the afternoon of the next day, December 15, 1920, a rumor spread among the soldiers in Santa Lucia Barracks
to the effect that policeman Mojica was allowed to continue on duty on the streets of Intramuros and that private
Macasinag had died as a consequence of the shot he received the night before. This rumor contributed in no small
degree in precipitating a movement for reprisal by the Constabulary soldiers against the policemen.
At about 7 oclock in the evening of the same day, December 15, 1920, corporal Ingles of the Fourth Company
approached private Nicolas Torio who was then the man in charge of quarters, and asked him to let the soldiers out
through the window of the quarters of the Fourth Company. Private Torio was easily persuaded to permit private
Francisco Garcia of the Second Company to saw out the window bars of the quarters in his charge, and to allow

soldiers to escape through the window with rifles and ammunition under the command of their sergeants and
corporals. When outside of the quarters, these soldiers divided into groups for attack upon the city police force.
One platoon of Constabulary soldiers apparently numbering about ten or twelve, on Calle Real, Intramuros fired in the
direction of the intersection of Calles Real and Cabildo where an American policeman named Driskill was stationed,
and was talking with a friend named Jacumin, a field clerk in the United States Army. These two men were shot and
died soon afterwards. To the credit of policeman Driskill be it said, that although in a dying condition and in the face of
overwhelming odds, he valiantly returned the fire with his revolver. Jacumin was killed notwithstanding that in response
to the command of the Constabulary, "Hands up!," he elevated both arms.
A street car happened to stop at this time at the corner of Calles Real and Cabildo. Without considering that the
passengers in the car were innocent passersby, the Constabulary squad fired a volley into the car, killing instantly the
passenger named Victor de Torres and gravely wounding three other civilian passengers, Gregorio Cailles, Vicente
Antonio, and Mariano Cortes. Father Jose Tahon, a priest of the Cathedral of Manila, proved himself of here on this
occasion for, against the command of the Constabulary, he persisted in persuading them to cease firing and advanced
in order that he might administer spiritual aid to those who had been wounded.
The firing on Calle Real did not end at that time. Some minutes later, Captain William E. Wichman, assistant chief of
police of the city of Manila, riding in a motorcycle driven by policeman Saplala, arrived at the corner of Calles Real and
Magallanes in Intramuros, and a volley of shots by Constabulary soldiers resulted in the instantaneous death of
Captain Wichman and the death shortly afterwards of patrolman Saplala.
About the same time, a police patrol came from the Meisic police station. When it was on Calle Real near Cabildo, in
Intramuros, it was fire upon by Constabulary soldiers who had stationed themselves in the courtyard of the San
Agustin Church. This attack resulted in the death of patrolmen Trogue and Sison.

of those of them who took one step forward. I believe that some seventy-two (72) took one step forward as admitting
that they took part in the shooting on the night before. I then asked if they brought with them ammunition or arms not
belonging to them. They answered viva voce that each one of them carried their own arms and ammunition. I asked
them if there was any one who was with them the night before but who was not present that morning; whereupon, one
or two soldiers mentioned the names of some who were not then present. That is how the total number of those who
left and who were not in the Barracks reached seventy-seven (77)."cralaw virtua1aw library
The statements of the seventy-seven soldiers were taken in writing during the afternoon of the same day, December
16. The questionnaire prepared by the fiscal of the city of Manila was the same for each soldier, and was filled out
either in English or Spanish. The questions and answers were, however, when requested by the soldiers, translated
into their dialects. Each statement was signed by the soldier making it in the presence of either two or three
witnesses.
Although the answers to the questions contained in these statements vary in phraseology, in substance they are the
same. One of them, the first in numerical order, that of sergeant Graciano L. Cabrera, taken in Spanish and interpreted
into Tagalog, may be selected as typical of the rest, and is here literally transcribed:jgc:chanrobles.com.ph
"1. Give your name, age, status, occupation, and residence. Graciano L. Cabrera, 24 years of age, single, sergeant
of the first company of the General Service of the Constabulary, residing in Santa Lucia Barracks.
"2. To what company of the Philippine Constabulary do you belong? First company, General Service of the
Constabulary.
"3. Where were you garrisoned yesterday afternoon, December 15, 1920? In the Santa Lucia Barracks.
"4. Did you leave the barracks at about 7 oclock yesterday evening? Yes, sir.

Another platoon of the Constabulary, between thirty and forty in number, had, in the meantime, arranged themselves in
a firing line on the Sunken Gardens on the east side of Calle General Luna opposite the Aquarium. From this
advantageous position the Constabulary fired upon the motorcycle occupied by sergeant Armada and driven by
policeman Policarpio who with companions were passing along Calle General Luna in front of the Aquarium going in
the direction of Calle Real, Intramuros. As a result of the shooting, the driver of the motorcycle, policeman Policarpio,
was mortally wounded. This same platoon of Constabulary soldiers fired several volleys indiscriminately into the
Luneta police station, and the office of the secret service of the city of Manila across Calles General Luna and Padre
Burgos, but fortunately no one was injured.
General Rafael Crame, Chief of the Constabulary, and Captain Page, commanding officer of the Santa Lucia
Barracks, rounded up some of the soldiers in the streets of Manila, and other soldiers one after another returned to the
Barracks where they were disarmed. No list of the names of these soldiers was, however, made.
In the morning of the next day, December 16, 1920, Colonel Lucien R. Sweet of the Constabulary, in compliance with
orders from General Crame, and assisted by other Constabulary officers, and later by the fiscals of the city of Manila,
commenced an investigation of the events of the night before. He first ordered that all the soldiers in Santa Lucia
Barracks, at that time numbering some one hundred and eighty, be assembled on the parade grounds, and when this
was done, the soldiers were separated into their respective companies. Then Colonel Sweet, speaking in English, with
the assistance of Captain Silvino Gallardo, who interpreted his remarks into Tagalog, made two brief statements. The
first was, in effect: "Those of you who for one reason or another left the Barracks last night, may step forward."
Responding to this order, nearly one hundred moved to the front. Thereupon, Colonel Sweet said to these: "For the
good of the body to which you belong, of your companions, and of yourselves, those who participated in the riot last
night may take another step forward." Seventy-three soldiers then advanced a step. The names of four others who
took part but who were not present were taken down by Captain Gallardo.
What occurred on the occasion above described can best be told in the exact language of Colonel
Sweet:jgc:chanrobles.com.ph
"After conferring or speaking among themselves, for probably two minutes, I inferred or observed from their attitude
that they were waiting for a call to order. Accordingly, I called them to order and some eighty-five took one step
forward. After that I called them to attention; I advised them that for the good of themselves and of their companions
who did not participate in the shooting of the night before, for the good of the body and also of all parties interested,
those who took part in the shooting of the night before should take another step forward. I spoke so rapidly that it is
impossible for me to repeat exactly what I told them that morning. I spoke to them that morning approving the decision

"5. For what reason, and where did you go? We went in search of the policemen and secret service men of Manila.
It has been sometime now since we have been having a standing grudge against the police of Manila. The wife of one
of our comrades was first arrested by the policemen an then abused by the same; and not content with having abused
her, they arrested two soldiers of the Constabulary, falsely accusing them of keeping women of bad reputation; after
this incident, came the shooting of Macasinag, a shooting not justified, because we have come to know that
Macasinag did nothing and the policemen could have arrested him if they desired. Moreover, the rumor spread among
us that the police department of Manila had given orders to the policemen to fire upon any constabulary soldier they
found in the streets, and we believe that the rumor was not without foundation since we noticed that after the
Macasinag affair, the policemen of Manila, contrary to the usual practice, were armed with carbines or shot-guns. For
this reason we believed that if we did not put an end to these abuses of the policemen and secret service men, they
would continue abusing the Constabulary. And as an act of vengeance we did what we had done last night.
"6. How did you come to join your companions who rioted last night? I saw that almost all the soldiers were jumping
through the window and I was to be left alone in the barracks and so I followed.
"7. Who asked you to join it? Nobody.
"8. Do you know private Crispin Macasinag, the one who was shot by the Manila police the night before last on Calle
Real? Yes, sir, I know him because he was our comrade.
"9. Were you offended at the aggression made on the person of said soldier? Indeed, yes, not only was I offended,
but my companions also were.
"10. State how many shots you fired, if any, during the riot last night. I cannot tell precisely the number of shots I
fired because I was somewhat obfuscated; all I can assure you is that I fired more than once.
"11. Do you know if you hit any policeman or any other person? If so, state whether the victim was a policeman or a
civilian. I cannot tell whether I hit any policeman or any civilian.
"12. State the streets of the city where you fired shots. I cannot give an exact account of the streets where I fired my
gun. I had full possession of my faculties until I reached calle Victoria; afterwards, I became aware that I was bathed
with perspiration only upon reaching the barracks.

"13. What arms were you carrying and how much ammunition or how may cartridges did you use? I carried a
carbine; I cannot tell precisely the number of cartridges I used; however, I placed in my pocket the twenty cartridges
belonging to me and I must have lost some on the way.
"14. How did you manage to leave the barracks? By the window of the quarters of the Fourth Company through the
grating which I found cut off.
"15. Are the above statements made by you, voluntarily, freely, and spontaneously given? Yes, sir.
"16. Do you swear to said statements although no promise of immunity is made to you? Yes, sir; I confirm them,
being true.

OPINION
An assignment of six errors is made by counsel for the defendants and appellants. Two of the assignments of error
merit little or no consideration. Assignments of error 5 and 6 (finding their counterpart in assignment of error No. 2 in
the sedition case), in which it is attempted to establish that Vicente Casimiro, Juan Noromor, Salvador Gregorio,
Paciano Cana, Juan Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugenio, Patricio Bello, Baldomero Rodriguez,
Roberto Palabay, Roque Ebol, Ildefonso de la Cruz, Cipriano Lizardo, Francisco Garcia, Genaro Elayda, Hilario
Hibalar, Primitivo E. Vallado, Maximo Perlas and Benigno Tagavilla did not leave the Santa Lucia Barracks on the night
of the tragedy, is predicated on the special defense raise in the lower court for these defendants and which was found
untenable by the trial court. Any further discussion of this question falls more appropriately under our consideration of
assignment of error No. 3, relating to the conspiracy between the accused.

"G. L. CABRERA.
"Witnesses:jgc:chanrobles.com.ph

Assignment of error No. 4 relating to the judge deciding the case without taking into consideration the transcript of the
stenographic notes in the case for sedition does not constitute reversible error. Counsel for the defendants is the first
to admit by stipulation that the facts in the two cases are substantially the same.

"S. GALLARDO.
"LAURO C. MAIQUEZ."cralaw virtua1aw library
The defendants were charged in one information filed in the Court of First Instance of the city of Manila with the crime
of sedition, and in another information filed in the same court, with the crimes of murder and serious physical injuries.
The two cases were tried separately before different judges of first instance. In the sedition case, which came on for
trial first, all of the accused, with the exception of eight, namely, Francisco Ingles, Juan Noromor, P. E. Vallado,
Dionisio Verdadero, Francisco Garcia, Benigno Tagavilla, Felix Lamsing and Paciano Cana pleaded guilty, but later,
after the first witness for the prosecution had testified, the accused who had pleaded guilty were permitted, with the
consent of the court, to substitute therefor the plea of not guilty. In the murder case, all entered a plea of not guilty. On
petition of the defense, two assessors were chosen to sit with the judge.
The prosecution presented, in making out its case, the seventy-seven confessions of the defendants introduced in
evidence as Exhibits C to C-76, inclusive, and all were identified by the respective constabulary officers, interpreters,
and typists who intervened in taking them. The prosecution further relied on oral testimony, including eyewitness to the
homicides.
The attorneys for the accused presented three defenses. The first defense was that of jeopardy; the second was
based on the contention that the written statements Exhibits C to C-76 were not freely and voluntarily made by the
defendants; and the third defense, in favor of the defendants Vicente Casimiro, Juan Noromor, Salvador Gregorio,
Paciano Cana, Juan Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugnio, Patricio Bello, Baldomero Rodriguez,
Roberto Palabay, Roque Ebol, Ildefonso de la Cruz, Cipriano Lizardo, Franciso Garcia, Genaro Elayda, Hilario Hibalar,
Primitivo E. Vallado, Maximo Perlas, and Benigno Tagavilla, was to the effect that they did not take part in the riot. The
court overruled the special defenses and found that the guilt of the accused had been proved beyond a reasonable
doubt. Thereupon, the court rendered judgment finding all of the defendants guilty of the crimes charged in the
information and sentenced the three sergeants Graciano L. Cabrera, Pascual Magno, and Bonifacio Eugenio, and the
eight corporals, E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarquez, Pedro V. Mateo, Juan
Regalado, Hilario Hibalar and Genaro Elayda, to cadena perpetua (life imprisonment), and each of the remaining
defendants to seventeen years, four months and one day of cadena temporal, all with the accessory penalties
provided by the Penal Code and all to indemnify jointly and severally the heirs of each deceased in the sum of P500,
and to pay a proportional part of the costs.
For the statement of the cases and the facts which has just been made, we are indebted in large measure to the
conspicuously fair and thoughtful decisions of the Hon. Carlos Imperial who presided in the murder case, and of the
Hon. George R. Harvey who presided in the sedition case. As stipulated by the Attorney-General and counsel for the
defendants, the proof is substantially the same in both cases.
In all material respects, we agree with the findings of fact as made by the trial court in this case. The rule is again
applied that the Supreme Court will not interfere with the judgment of the trial court in passing upon the credibility of
the opposing witnesses, unless there appears in the record some fact or circumstance of weight and influence which
has been overlooked or the significance of which has been misinterpreted. (U. S. v. Ambrosio and Falsario [1910], 17
Phil., 295; U.S. v. Remigio [1918], 37 Phil., 599.) In the record of the case at bar, no such fact or circumstance
appears.

The three pertinent issues in this case relate to: (1) The admission of Exhibits C to C-76 of the prosecution
(assignment of error No. 2, murder case; assignment of error No. 1, sedition case); (2) the conspiracy between the
accused (assignment of error No. 3, murder case; assignment of error No. 4, sedition case); and (3) the defense of
double jeopardy (assignment of error No. 1, murder case).
1. THE ADMISSION OF EXHIBITS C TO C-76
Appellants claim that fraud and deceit marked the preparation of the seventy-seven confessions. It is alleged that
some of the defendants signed the confessions under the impression that those who had taken part in the affray would
be transferred to Mindanao, and that although they did not in fact so participate, affirmed that they did because of a
desire to leave Manila; that others stepped forward "for the good of the service" in response to appeals from Colonel
Sweet and other officers; while still others simply didnt understand what they were doing, for the remarks of Colonel
Sweet were made in English and only translated into Tagalog, and their declarations were sometimes taken in a
language which was unintelligible to them. Counsel for the accused entered timely objection to the admission in
evidence of Exhibits C to C-76, and the Attorney-General is wrong in stating otherwise.
Section 4 of Act No. 619 entitled "An Act to promote good order and discipline in the Philippines Constabulary" and
reading: "No confession of any person charged with crime shall be received as evidence against him by any court of
justice unless it be first shown to the satisfaction of the court that it was freely and voluntarily made and not the result
of violence, intimidation, threat, menace, or of promises or offers of reward or leniency," was repealed by the first
Administrative Code. But the same rule of jurisprudence continues without the law. As has been repeatedly announced
by this and other courts, "the true test of admissibility is that the confession is made freely, voluntarily, and without
compulsion or inducement of any sort." If the confession is freely and voluntarily made, it constitutes one of the most
effectual proofs in the law against the party making it. (Wilson v. U.S. [1895], 162 U.S., 613.) The burden of proof that
the confession was not voluntarily made or was obtained by undue pressure is on the accused. (U.S. v. Zara [1921],
42 Phil., 308.)
What actually occurred when the confessions were prepared is clearly explained in the record. The source of the
rumor that the defendants would be transferred to Mindanao if they signed the confessions, is not established. On the
contrary it is established that before the declaration were taken. Lieutenant Gatuslao in response to a query had
shown the improbability of such a transfer. With Military orders given in English and living in the city of Manila where
the dialect is Tagalog, all of the defendants must have understood the substantial part of Colonel Sweets remarks.
What is more important, there could be no misunderstanding as to the contents of the confessions as written down. In
open court, sixty-nine of the defendants reiterated their guilt. The officers who assisted in the investigation were of the
same service as the defendants and would naturally not be inclined to prejudice the rights of their own men.
It must also be remembered that each and every one of the defendants was a member of the Insular police force.
Because of the very nature of their duties and because of their practical experience, these Constabulary soldiers must
have been aware of the penalties meted out for criminal offenses. Every man on such a momentous occasion would
be more careful of his actions than ordinarily and whatever of credulity there is in him, would for the moment be laid
aside. Over and above all desire for a more exciting life, over and above the so-called esprit de corps, is the instinct of
self-preservation which could not but be fully aroused by such stirring incidents too recent to be forgotten as had
occurred in this case, and which would counsel prudence rather than rashness; secretiveness rather than garrulity.

These confessions contain the statements that they were made freely and voluntarily without any promise of immunity.
That such was the case was corroborated by the attesting witnesses whose credibility has not been successfully
impeached.
We rule that the trial court did not err in admitting Exhibits C to C-76 of the prosecution.
2. THE CONSPIRACY BETWEEN THE ACCUSED
The contention of the appellants is that evidence is lacking of any supposed connivance between the accused.
Counsel emphasizes that in answer to the question in the confession, "Who asked you to join in the riot?," each of the
accused answered, "Nobody." The argument is then advanced that the appellants cannot be held criminally
responsible because of the so-called psychology of crowds theory. In other words, it is claimed that at the time of the
commission of the crime the accused were mere automatons obeying the insistent call of their companions and of their
uniform. From both the negative failure of evidence and the positive evidence, counsel would deduce the absence of
conspiracy between the accused.
It is primary rule that if two or more persons combine to perform a criminal act, each is responsible for all the acts of
the others done in furtherance of the common design; and "the result is the same if the act is divided into parts and
each person proceeds with this part unaided." (U.S. v. Maza [1905], 5 Phil., 346; U.S. vs Remigio [1918], 37 Phil., 599;
decision of the supreme court of Spain of September 29, 1833; People v. Mather [1830], 4 Wendell, 229.)
Conspiracies are generally proved by a number of indefinite acts, conditions, and circumstances which vary according
to the purposes to be accomplished. If it be proved that the defendants pursued by their acts the same object, one
performing one part and another part of the same, so as to complete it, with a view to the attainment of that same
object, one will be justified in the conclusion that they were engaged in a conspiracy to effect that object. (5 R. C. L.,
1088.) Applied to the facts before us, it is incontestable that all of the defendants were imbued with the same purpose,
which was to avenge themselves on the police force of the city of Manila. A common feeling of resentment animated
all. A common plan evolved from their military training was followed.
The effort to lead the court into the realm of psychology and metaphysics is unavailing in the face of actualities. The
existence of a joint assent may be reasonably inferred from the facts proved. Not alone are the men who fired the fatal
shots responsible, not alone are the men who admit firing their carbines responsible, but all, having united to further a
common design of hate and vengeance, are responsible for the legal consequences therefor.
We rule that the trial court did not err in declaring that there was a conspiracy between the accused.
3. THE DEFENSE OF DOUBLE JEOPARDY
The constitutional inhibition in the Philippine Bill of Rights is "that no person for the same offense shall twice be put in
jeopardy of punishment." Somewhat in amplification thereof, the Code of Criminal Procedure provides that "When a
defendant shall have been convicted or acquitted or once placed in jeopardy upon an information or complaint, the
conviction, acquittal or jeopardy shall be a bar to another information or indictment for the offense charged, or for an
attempt to commit the same, or for a frustration thereof, or for any offense necessarily therein included of which he
might have been convicted under such complaint or information." (Sec. 26.) The guaranty in Philippine organic and
statutory law relating to double jeopardy has received controlling interpretation both by the Supreme Court of the
Philippines and the Supreme Court of the United States.
The prohibition is against a second jeopardy for the same offense. To entitle a defendant to plead successfully former
jeopardy, the offense charged in the two prosecutions must be the same in law and in fact. The test is not whether the
defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. The
same acts may violate two or more provisions of the criminal law. When they do, a prosecution under one will not bar a
prosecution under another.
In corroboration and in exemplification of the rules pertaining to the subject of double jeopardy, we have only to turn to
leading decisions of the United States Supreme Court on Philippine appeals. In Flemister v. United States [1907], 207
U.S., 372), 1 it was held that treating as two different offenses assaults on two different individuals does not place the
accused twice in jeopardy for the same offense, even if these assaults occurred very near each other in one
continuing attempt to defy the law. In Garcia Gavieres v. United States ([1911], 220 U.S., 338), 2 it was held that the
offenses of behaving in an indecent manner in a public place, open to public view, punishable under municipal

ordinance and of insulting a public officer by deed or word in his presence, contrary to the Penal Code, are not
identical, so that a conviction of the first will bar a prosecution for the other, although the acts and words of the
accused set forth in both charges are the same. The court said that "It is true that the acts and words of the accused
set forth in both charges are the same; but in the second case it was charged, as was essential to conviction, that the
misbehavior in deed and words was addressed to a public official. In this view we are of opinion that while the
transaction charged is the same in each case, the offenses are different." In Diaz v. United States ([1912, 223 U.S.,
442), it was held that the prosecution for homicide of a person previously convicted of an assault and battery from
which the death afterwards ensued does not place the accused twice in jeopardy for the same offense. The court said
that "The homicide charged against the accused in the Court of First Instance and the assault and battery for which he
was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in
law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the
assault and battery."cralaw virtua1aw library
Appellants rely principally on the decision of this Court in the case of United States v. Gustilo ([1911], 19 Phil., 208.) It
was there only held that the possession of a shotgun and a revolver by the same person at the same time and in the
same place, is but one act of possession, one violation of the law, and that a conviction and punishment for the
possession of the one arm is a bar to a prosecution for the possession of the other. (Compare with U.S. v. Capurro
and Weems [1906], 7 Phil., 24, and other Philippine cases.)
The nearest analogy to the two crimes of murder and sedition growing out of practically the same facts, which can be
found in the American authorities, relate to the crimes of assault and riot or unlawful assembly. A majority of the
American courts have held that the offense of unlawful assembly and riot and the offense of assault and battery are
distinct offenses; and that a conviction or an acquittal for either does not bar a prosecution for the other offense, even
though based on the same acts. (Freeland v. People [1588], 16 Ill., 380; U.S. v. Peaco [1835], 27 Fed. Cas., 477;
People v. Vazquez [1905], 9 Porto Rico, 488; contra, State v. Lindsay [1868], 61 N. C., 458.)
It is merely stating the obvious to say that sedition is not the same offense as murder. Sedition is a crime against
public order; murder is a crime against persons. Sedition is a crime directed against the existence of the State, the
Authority of the government, and the general public tranquillity; murder is a crime directed against the lives of
individuals. (U.S. v. Abad [1902], Phil., 437.) Sedition in its more general sense is the raising of commotions or
disturbances in the state; murder at common law is where a person of sound mind and discretion unlawfully kills any
human being , in the peace of the sovereign, with malice aforethought, express or implied.
The offenses charged in the two informations for sedition and murder are perfectly distinct in point of law however
nearly they may be connected in point of fact. Not alone are the offenses eo nomine different, but the allegations in the
body of the informations are different. The gist of the information for sedition is the public and tumultuous uprising of
the constabulary in order to attain by force and outside of legal methods the object of inflicting an act of hate and
revenge upon the persons of the police force of the city of Manila by firing at them in several places in the city of
Manila; the gist of the information in the murder case is that the Constabulary, conspiring together illegally and
criminally killed eight persons and gravely wounded three others. The crimes of murder and serious physical injuries
were not necessarily included in the information for sedition; and the defendants could not have been convicted of
these crimes under the first information.
The evidence required to convict under the first information would not have been sufficient to convict under the
second. Proof of an additional and essential fact; namely the death of one or more human beings, was necessary to
constitute the offense charged in the second information. The defendants may have been tried for the same act or
acts; they have not been put in jeopardy for the same offense.
We rule that the trial court did not err in not allowing the defense of double jeopardy.
JUDGMENT
The persistent efforts of counsel to protect the interests of his clients cannot be permitted to becloud the prominent
facts of the record. This is as clear a case of cold-blooded murder as ever came to our attention. The judicial archives
of the Supreme Court of the Philippine Islands, for the full extent of its existence extending over more than two
decades, can be searched in vain for another case which compares with the instant one either in certainty as to guilt or
in an unwavering necessity for a severe sentence. Not the learned briefs of the counsel for the accused and for the
people, not the eloquent pleas on the one hand for mercy and on the other for conviction, not the application of various
legal authorities, not even the voluminous transcript of the oral testimony, either separately or all combined, constitute
the sole elements which irresistibly move us toward a stern judgment, but the most eloquent pleader for justice to the

dead and safety for the living come from the silent photographs of the dead introduced in evidence under the prosaic
denomination of Exhibits J, K, L, LL, M, N, N, and O. The bloody spot on the execution of an otherwise great
organization must be removed.

such time as shall be fixed by the Judge of First Instance sitting in Sala No. 4 in the city of Manila, and as thus
modified, judgment is affirmed with a proportional part of the costs of this instance against each appellant. So
ordered.

It is a disagreeable duty, therefore, which the members of this court are called upon to perform. But that it is
disagreeable should not of course swerve us from its performance. Were cases of this nature allowed to pass without
condemnation, the lives of mankind would constantly be imperilled and there would be no security in the State, for its
peace and tranquillity would be upset and the authority of the Government would be put at naught by the very agents
of law and order who have sworn to protect it. The courts were instituted precisely to function in times of peril to the
State, to protect the rights of the people, and to mete out punishment of those who have rendered it unsafe for
individuals to live at peace with their fellowmen.

November 29, 1954

With the determination of the trial court as to the circumstances which fix the degree of the penalty, we are, generally
speaking, in accord. The circumstance of evident premeditation was found to exist, thus qualifying the crime as that of
murder. All the actions of the accused demonstrate that their purpose was to kill any members of the city police whom
they should meet. A considerable number of the accused in their confessions gave as the reason for the affray the
desire to revenge themselves on the city police. One of them while marching through the streets was heard to exclaim
"They killed one of us; we will kill ten (policemen) for one." Another was heard to exclaim, "Al cuartel!" and this was
repeated by his companions, "Al cuartel!"
The trial judge found present as circumstances which aggravate criminal liability, that the crime was committed in the
nighttime and that advantage was taken of superior strength, but, resolving the doubt in favor of the accused, was
unable to find that the act was committed with treachery. We concur with His Honor, Judge Imperial. Advantage as
taken of the shades of night in order to better serve the unlawful purpose. Seventy-seven armed Constabulary soldiers
in military formation were vastly superior in number and equipment to the policemen whom they happened to meet.
The trial judge found present no circumstance which would mitigate the criminal liability of the sergeants and
corporals, but did estimate as a mitigating circumstance, in the cases of the privates, that provided by article 11 of the
Penal Code, as amended, relating to the degree of instruction and education of the offenders. Certain members of the
Court entertain an identical opinion, while other members take a contrary view. However, the result will be the same,
since there is not a unanimous vote with regard to the propriety of the imposition of the deaths penalty on the private
soldiers.
Both the trial judge in the sedition case and the trial judge in the murder case found a difference between the situation
of the non-commissioned officers and of the common soldiers. The opinion was expressed by the two judges that the
sergeants and corporals among the defendants deserved a larger measure of punishment than the privates.
Considering the greater experience of he non-commissioned officers and their more responsible positions, we feel that
this is proper appreciation of the facts.
The trial judge found the crimes as falling within the provisions of article 89 of the Penal Code. Certain members of the
court agree. Other members disagree and would make use of the provisions of articles 87 and 88 of the Code. At least
such doubt as exists should be resolved in favor of the accused, and this means that, in conformity with the provisions
of article 87, they are guilty of the crimes of multiple murder with grave injuries. The penalty is then death for the
eleven sergeants and corporals, and cadena perpetua, imprisonment for a maximum period of forty years, for the
sixty-six private soldiers. (See U.S. v. Balaba [1917], 37 Phil., 260.)
The result is to modify the judgment appealed from by sentencing each of the Constabulary soldiers Patricio Rubio,
Mariano Aragon, Silvino Ayangco, Guillermo Inis, Julian Andaya, Crispin Mesaluche, Prudencio Tasis, Silvino Bacani,
Salvador Gregorio, Juan Noromor, Petronilo Antonio, Patricio Bello, Nemesio Decena, Baldomer Rodriguez, P. E.
Vallado, Pedro Layola, Felix Cenon (Liron), Dionisio Verdadero, Francisco Garcia, Domingo Peroche, Florentino
Jacob, Lorenzo Tumboc, Paciano Cana, Domingo Canape, Arcadio San Pedro, Daniel Coralde, Vicente Casimiro,
Casiano Guinto, Nemesion Gamus, Luis Borja, Severino Elefane, Vicente Tabien, Victor Atuel, Venancio Mira, Benigno
Tagavilla, Masaway, Marcos Marquez, Quinto Desierto, Teofilo Llana, Felix Lamsing, Victorino Merto, Timoteo
Opermaria, Bernabe Sison, Eusebio Cerrudo, Julian Acantilado, Maximo Perlas, Ignacio Lechoncito, Pascual Dionio,
Marcial Pelicia, Rafael Nefrada, Cornelio Ilizaga, Zacarias Baile, Roberto Palabay, Roque Ebol, Benito Garcia,
Cipriano Lizardo, Ildefonso de la Cruz, Juan Miranda, Honorio Bautista, Crisanto Salgo, Francisco Luzano, Marcelino
Silos, Graciano Zapata, Felizardo Favinal, Nicanor Perlas, and Gaspar Andrada, to suffer cadena perpetua, computed
as imprisonment for forty years, and by sentencing each of the sergeants and corporals Graciano L. Cabrera, Pascual
Magno, Bonifacio Eugenio, E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarquez, Pedro V. Mateo,
Juan Regalado, Hilario Hibalar, and Genaro Elayda, to suffer the death penalty as provided by law at Bilibid Prison, at

G.R. No. L-5803

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NARCISO UMALI, ET AL., defendants.
NARCISO UMALI, EPIFANIO PASUMBAL and ISIDRO CAPINO, defendants-appellants.
Jose P. Laurel, Cipriano Primicias, Alejo Mabanag, Manuel Concordia, P.M. Stuart Del Rosario, Tomas R. Umali,
Eufemio E. De Mesa and Edmundo T. Zepeda for appellants.
Solicitor General Juan R. Liwag and Solicitor Martiniano P. Vivo for appellee.
MONTEMAYOR, J.:
Narciso Umali, Epifanio Pasumbal, and Isidro Capino are appealing directly to this Tribunal from a decision of the
Court of First Instance of Quezon province finding them guilty of the complex crime of rebellion with multiple murder,
frustrated murder, arson and robbery, and sentencing each of them to "life imprisonment, other accessories of the law,
to indemnify jointly and severally Marcial Punsalan in the amount of P24,023; Valentin Robles in the amount of
P10,000; Yao Cabon in the amount of P700; Claro Robles in the amount of P12,800; Pocho Guan in the amount of
P600; the heirs of Domingo Pisigan in the amount of P6,000; the heirs of Locadio Untalan in the amount of P6,000;
Patrolman Pedro Lacorte in the amount of P500; Lazaro Ortega in the amount of P300; Hilarion Aselo in the amount of
P300; Calixto Rivano in the amount P50; Melecio Garcia in the amount of P60; and Juanito Lector in the amount of
P90, each to pay one fifteenth of the costs, without subsidiary imprisonment in case of insolvency due to the nature of
the principal penalty that is imposed upon them."
The complex crime of which appellants were found guilty was said to have been committed during the raid staged in
the town of Tiaong, Quezon, between 8:00 and 9:00 in the evening of November 14, 1951, by armed men. It is not
denied that such a raid took place resulting in the burning down and complete destruction of the house of Mayor
Marcial Punzalan including its content valued at P24,023; the house of Valentin Robles valued at P10,000, and the
house of one Mortega, the death of Patrolman Domingo Pisigan and civilians Vicente Soriano and Leocadio Untalan,
and the wounding of Patrolman Pedro Lacorte and five civilians; that during and after the burning of the houses, some
of the raiders engaged in looting, robbing one house and two Chinese stories; and that the raiders were finally
dispersed and driven from the town by the Philippine Army soldiers stationed in the town led by Captain Alzate.
To understand the reason for and object of the raid we have to go into the political situation in Tiaong not only shortly
before that raid but one year or two years before it. Narciso Umali and Marcial Punzalan were old time friends and
belonged to the same political faction. In the general elections of 1947 Umali campaigned for Punzalan who later was
elected Mayor of Tiaong. In the elections of 1949 Punzalan in his turn campaigned and worked for Narciso Umali
resulting in the latter's election as Congressman. However, these friendly relations between the two did not endure. In
the words of Punzalan, Narciso Umali who as Congressman regarded himself as the political head and leader in that
region including Tiaong, became jealous because of his (Punzalan's) fast growing popularity among the people of
Tiaong who looked to him instead of Umali for political guidance, leadership, and favors. In time the strain in their
relations became such that they ceased to have any dealings with each other and they even filed mutual accusations.
According to Punzalan, in May 1950, Umali induced about twenty-six special policemen of his (Punzalan's) to flee to
the mountains with their arms and join the Huks, this is in order to discredit Punzalan's administration; that he was
later able to contact two of his twenty-six policemen and tried to persuade them to return to the town and to the
service, but they told him that they and their companions would not surrender except and with through the intervention
of Congressman Umali, and so Punzalan had to seek Umali's intervention which resulted in the surrender of the 26
men with their firearms; that thereafter Umali wanted to have their firearms, claiming that they all belonged to him from

his guerrilla days when he was a colonel, and that after liberation he had merely loaned them to the municipal
authorities of Tiaong to help keep peace and order; and that the refusal of Punzalan to grant Umali's request further
strained their relations, and thereafter Umali would not speak to him even when they happened to meet at parties.
On September 19, 1951, the Chief of Police of Punzalan disarmed four of Umali's men, including his bodyguard Isidro
Capino who were then charged with illegal possession of firearms. Umali interceded for his men and Col. Gelveson,
Provincial Commander, sent a telegram stating that the firearms taken away from the men were licensed. As a result
the complaint was dismissed. This incident was naturally resented by Umali and spurred him to have a showdown with
Punzalan.
Then the elections of 1951 (November 13) approached and Punzalan ran for reelection. To oppose him, and to clip his
political wings and definitely blast his ambition for continued power and influence in Tiaong, Umali picked Epifanio
Pasumbal, his trusted leader.
The pre-election campaign and fight waged by both factions Punzalan and Pasumbal, was intense and bitter, even
ruthless. The election was to be a test of political strength and would determine who was who in Tiaong, Umali or
Punzalan. Umali spoke at political meetings, extolling the virtues of Pasumbal and the benefits and advantages that
would accrue to the town if he was elected, at the same time bitterly attacking Punzalan, accusing him of dishonesty,
corruption in office, abuse of power, etc. At one of those meetings he told the audience not to vote for Punzalan
because he would not be elected and that even if he won the election, he would not sit for blood will flow, and that he
(Umali) had already prepared a golden coffin for him (Punzalan). After denying the charges, in retort, Punzalan would
say that Umali as a Congressman was useless, and that he did not even attend the sessions and that his chair in
Congress had gathered dust, even cobwebs.
To help in the Umali-Pasumbal campaign, Amado Mendoza who later was to play the role of star witness for the
prosecution, was drafted. He was a compadre of Pasumbal and had some experience in political campaigns, and
although he was not exactly a model citizen, being sometimes given to drunkenness, still, he had the gift of speech
and persuasion. In various political meetings he delivered speeches for Pasumbal. He was ever at the back and call of
Umali and Pasumbal, and naturally he frequented the latter's houses or headquarters. The result of the elections
plainly showed that Punzalan was the political master and leader in Tiaong. He beat Pasumbal by an overwhelming
majority of 2,221 votes. Naturally, Umali and Pasumbal were keenly disappointed, and according to the evidence,
adopted measures calculated to frustrate Punzalan's victory, even as prophesied by Umali himself in one of his preelection speeches about blood flowing and gold coffin.
Going back to the raid staged in Tiaong on November 14, 1951, it is well to make a short narration of the happenings
shortly before it, established by the evidence, so as to ascertain and be informed of the reason or purpose of said raid,
the persons, behind it, and those who took part in it. According to the testimony of Amado Mendoza, in the morning of
November 12th, that is, on the eve of the election, at the house of Pasumbal's father, then being used as his electoral
headquarters, he heard Umali instruct Pasumbal to contact the Huks through Commander Abeng so that Punzalan will
be killed, Pasumbal complying with the order of his Chief (Umali) went to the mountains which were quite near the
town and held a conference with Commander Abeng. It would seem that Umali and Pasumbal had a feeling that
Punzalan was going to win in the elections the next day, and that his death was the surest way to eliminate him from
the electoral fight.
The conference between Pasumbal and Commander Abeng on November 12th was witnessed and testified to by
Nazario Anonuevo, a Huk who was under Commander Abeng, and who later took an active part in the raid. In the
evening of the same day, Mendoza heard Pasumbal report to Umali about his conference with Commander Abeng,
saying that the latter was agreeable to the proposition and had even outlined the manner of attack, that the Huks
would enter the town (Tiaong) under Commander Lucio and Aladin, the latter to lead the sector towards the East; but
that Commander Abeng had suggested that the raid be postponed because Pasumbal may yet win the election the
following day, thereby rendering unnecessary the raid and the killing of Punzalan.
Continuing with the testimony of Amado Mendoza, he told the court that as per instructions of Umali he went to the
house of the latter, in the evening of November 14th, the day following the election, with the result of the election
already known, namely, the decisive victory of Punzalan over Pasumbal. He was told by Umali to come with him, and
Pasumbal and the three boarded a jeep with Pasumbal at the wheel. They drove toward the Tiaong Elementary

School and once there he (Mendoza) was left at the school premises with instructions by Umali to wait for Commander
Abeng and the Huks and point to them the house of Punzalan. After waiting for sometime, Abeng and his troops
numbering about fifty, armed with garands and carbines, arrived and after explaining his identity and his mission to
Abeng, he had led the dissidents or part of the contingent in the direction of Punzalan's house and on arriving in front
of the bodega of Robles, he pointed out Punzalan's house and then walked toward his home, leaving the Huks who
proceeded to lie flat in a canal. Before reaching his house, he already heard shots, so, he evacuated his family to their
dugout in his yard. While doing so he and his wife Catalina Tinapunan saw armed men in the lanzones grove just
across the street from their house, belonging to the father of Umali, and among those men they saw Congressman
Umali holding a revolver, in the company of Huk Commander Torio and about 20 armed men. Afterwards they saw
Umali and his companions leave in the direction of Taguan, by way of the railroad tracks.
It would appear from the evidence that the raid was well-planned. As a diversionary measure, part of the attacking
force was deployed toward the camp or station of the Army (part of 8th B.C.T.) in the suburbs and the camp was fired
upon, not exactly to destroy or drive out that Army unit but to keep it from going to the rescue and aid of the main
objective of the raid. The rest of the raiding party went toward Punzalan's house and attacked it with automatic
weapons, hand grenades, and even with bottles filled with gasoline (popularly known as Molotov's cocktail). It was
evident that the purpose of the attack on Punzalan's house was to kill him. Fortunately, however, and apparently
unknown to the attackers and those who designed the raid, at six o'clock that morning of November 14th Punzalan
and his Chief of Police had left Tiaong to go to Lucena, the capital, to report the results of the election to the Governor.
The attack on the house of Punzalan was witnessed and described by several persons, including policemen who
happened to be near the house. Policeman Tomas Maguare who was in front of the house saw Epifanio Pasumbal,
Isidro Umali (brother of Congressman Umali) and Moises Escueta enter the gate of Punzalan's house and take part in
the firing. Policeman Pedro Lacorte who was stationed as guard at the gate of Mayor Punzalan's house recognized
defendant Isidro Capino as one of those firing at the house. Lacorte said that he was guarding the house of Punzalan
when he suddenly heard shots coming from the sides of the house and going over to the place to investigate, he saw
armed men in fatigue and shouting "burn the house of Mayor Punzalan"; that he was hit on the left check and later
Isidro Capino threw at him a hand grenade and he was hit in the right forearm and in the right eye and became
permanently blind in said eye. Mateo Galit, laundryman who was sitting inside a jeep parked in front of the house of
Punzalan recognized defendant Pasumbal as one of the attackers who, once in the yard said ina loud voice as though
addressing somebody in the house "Pare, come down." Mrs. Punzalan who was then inside the house related to the
court that at about eight in the evening while she was resting she heard shots and rapid firing. As a precaution she
took her children to the bathroom. Then she noticed that her house was being fired at because the glass window
panes were being shattered and she heard the explosion of a hand grenade inside the house, followed by flares in the
sala and burning of blankets and mosquito nets in the bedrooms and she noticed the smell of smoke of gasoline.
Realizing the great danger, she and the children ran out of the house and went to hide in the house of a neighbor.
Nazario Aonuevo declared in court that he was a farmer and was picked up and seized by Huk Commander Tommy
sometime in August 1951, and was taken to Mt. Banahaw in Laguna and mustered in the ranks of the Huks; that just
before the elections of November 13, 1951, he saw Pasumbal come to the mountains near Tiaong and talk to
Commander Abeng; that on November 14th by order of Commander Abeng he with other Huks left Mt. Banahaw for
Tiaong; that when they crossed the Osiw River already near Tiaong, they were met by Pasumbal and Capino; that
when they were at the outskirts of the town, he and the party were told by Commander Tommy to attack the 8th BCT
camp in Tiaong to prevent the sending of army help to the town proper; that he took part in firing on the camp which
returned the fire in the course of which he was wounded; and that because of his wound he could not escape with his
companions to the mountains when the Army soldiers dispersed and drove them out of the town and so he was finally
captured by said soldiers.
As to defendants Pasumbal and Capino, their participation in and responsibility for the raid was duly established not
only by the going of Pasumbal on November 12th to the mountains following instructions of Umali, and conferring with
Commander Abeng asking him to raid Tiaong and kill Punzalan, but also by the fact that Pasumbal and Capino in the
afternoon or evening of November 14th met the Huks at the Osiw River as the dissidents were on their way to Tiaong
and later Pasumbal and Capino were seen in the yard of Punzalan firing at the house with automatic weapons and
hand grenades.
What about Umali? His criminal responsibility was also established, tho indirectly. We have the testimony of Amado
Mendoza who heard him instructing Pasumbal to contact Commander Abeng and ask him to raid Tiaong and kill

Punzalan. The rest of the evidence is more or less circumstantial, but nonetheless strong and convincing. No one saw
him take part in the firing and attack on the house of Punzalan; nor was he seen near or around said house. Because
of his important position as Congressman, perchance he did not wish to figure too prominently in the actual raid.
Besides, he would seem to have already given out all the instructions necessary and he could well stay in the
background. However, during the raid, not very far from Punzalan's house he was seen in the lanzonesan of his father,
holding a revolver and in the company of about 20 armed men with Huk Commander Torio, evidently observing and
waiting for developments. Then he and his companions left in the direction of Taguan.
Umali and Pasumbal, however, claim that during the raid, they were in the home of Pasumbal in Taguan, about seven
kilometers away from Tiaong where a consolation party was being held. There is ample evidence however to the effect
that they arrived in Pasumbal's home only around midnight. An Army soldier named Cabalona who happened to be in
Pasumbal's home arriving there earlier in the evening and who was invited to take some refreshments said that he did
not see the two men until they arrived about midnight when the Army reinforcements from Lucena passed by on their
way to Tiaong. Thus, we have this chain of circumstances that does not speak in favor of Umali, or Pasumbal for that
matter. But this is not all. There is the rather strange and unexplained, at least not satisfactorily, behaviour of Umali
and Pasumbal that evening of November 14th. Assuming for a moment as they claim, that the two were not in Tiaong
at the commencement of the raid between 8:00 and 9:00 p.m., and during the whole time the raid lasted, and that they
were all that time in the home of Pasumbal in Taguan, still, according to their own evidence, they were informed by
persons coming or fleeing from Tiaong that there was a raid going on there, and that some houses were burning. As a
matter of fact, considering the promixity of Taguan to Tiaong, a distance of about seven kilometers and the stillness
and darkness of the night, the fire and the glow produced by the burning of three houses and the noise produced by
the firing of automatic weapons and the explosion of the hand grenades and bottles of gasoline, could and must have
been seen and heard from Taguan. The natural and logical reaction on the part of Umali and Pasumbal would have
been to rush to Tiaong, see what had really happened and then render help and give succor to the stricken residents,
including their own relatives. It will be remembered that the houses of the fathers of Umali and Pasumbal were in
Tiaong and their parents and relatives were residing there. And yet, instead of following a natural impulse and urge to
go to Tiaong, they fled in the opposite direction towards Candelaria. And Umali instead of taking the road, purposely
avoided the same and preferred to hike through coconut groves so that upon arriving in Candelaria, he was wet, and
spattered and very tired. Had they wanted to render any help to Tiaong they could have asked the police authorities of
Candelaria to send a rescue party to that town. Or better still, when the army reinforcements from Lucena sent at the
instance of Punzalan, who at about eight or nine that evening was returning to Tiaong from Lucena, found at the barrio
or sitio of Lusakan near Tiaong that there was fighting in the town, he immediately returned to Lucena to get army
reinforcements to relieve his town, was passing by Taguan, where they were, Umali and Pasumbal could have joined
said reinforcements and gone to Tiaong. Instead the two continued on their way to the capital (Lucena) where before
dawn, they went and contacted Provincial Fiscal Mayo, a first cousin of Umali, and Assistant Fiscal Reyes and later
had these two officials accompany them to the Army camp to see Col. Gelveson, not for the purpose of asking for the
sending of aid or reinforcement to Tiaong but presumably to show to the prosecution officials, specially the Army
Commander that they (Umali and Pasumbal) had nothing to do whatsoever with the raid. Umali said he was trying to
avoid and keep clear of Tiaong because he might be suspected of having had some connection with the raid and
might be the object of reprisal. As a matter of fact, according to Umali himself, while still in Taguan that evening and
before he went to Candelaria, somebody had informed him that Col. Legaspi of the Army was looking for him. Instead
of seeking Col. Legaspi and find out what was wanted of him, he left in the opposite direction and fled to Candelaria
and later to Lucena, and the next day he took the train for Manila. This strange act and behaviour of the two men,
particularly Umali, all contrary to impulse and natural reaction, and what other people would ordinarily have done
under the circumstances, prompted the trial court in its decision to repeat the old saying "The guilty man flees even if
no one pursues, but the innocent stands bold as a lion." We might just as well reproduce that portion of the decision of
the trial court, to wit:

. . . Considering the fact that Taguan is very near Tiaong so that even taking it for granted as true, for the sake of
argument, that the said accused were really at the party of Pasumbal on the night in question, that would not prevent
them from being in Tiaong between 8 and 9. Besides, why was it that night the hasag lamp was replaced with candles
when the reinforcements passed through Taguan about midnight of November 14, 1951. Why did Congressman Umali
and company instead of going to Tiaong which was the scene of the attack hurried towards Candelaria, after the
reinforcement has passed and went to the house of Felix Ona walking through a muddy path under the coconut
groves? Why was Umali afraid to pass through the provincial road and preferred a muddy road instead? Was he trying
to conceal himself? Why did Pasumbal and company also go to the house of Ona? Why did they go to the house of
Felix Ona instead of going to the house of Manalo who could have given them better protection? And again why did
Congressman Umali and the other co-accused repaired and sought the company of Fiscal Reyes in going at such an
early hour to the Army authorities, did they fear any reprisal? From whom? Why did Umali go to Manila from Lucena
on November 16, 1951? "The guilty man flees even if no one pursues, but the innocent stands bold as a lion."
At first blush it would appear rather unbelievable that Umali and Pasumbal, particularly the former should seek the aids
of the Huks in order to put down and eliminate their political enemy Punzalan. It would seem rather strange and
anomalous that a member of Congress should have friendly relations with this dissidents whom the Government had
been fighting all these years. But if we study the evidence, it will be found that the reason and the explanation are
there. As already stated, during the Japanese occupation, to further the resistance movement, guerillas were
organized in different parts of the Philippines. One of these was the guerilla unit known as President Quezon's Own
Guerillas (PQOG) operating in the provinces of Tayabas (now Quezon) and Laguna. Umali, Pasumbal, Commander
Abeng and even Punzalan himself were officers in this guerilla unit, Umali attaining the rank of colonel, and Pasumbal
and Punzalan that of Lieutenant-colonel, Pasumbal then being known as "Panzer". After Liberation, Abeng joined the
dissidents, and became a Huk Commander. It was not unnatural that Umali and Pasumbal should continue their
friendship and association with Commander Abeng and seek his aid when convenient and necessary. Umali admitted
that he knew Huk Commander Kasilag. Graciano Ramos, one of the witnesses of the prosecution told the court that
way back in May 1950, in a barrio of San Pablo City he saw Umali confer with Commander Kasilag, which
Commander after the conference told his soldiers including Ramos that Umali wanted the Huks to raid Tiaong, burn
the presidencia and kidnap Punzalan. Of course, the last part of the testimony may be regarded as hearsay, but the
fact is that Umali conferred with a Huk commander as early as 1950. Then we have the fact that on November 18 of
the same year Punzalan wrote to President Quirino denouncing the congressman Umali for fraternizing with the Huks
and conducting a campaign among them in preparation for the elections the following year. And we may also consider
the fact that the town of Tiaong stands at the foothills of Mt. Banahaw where the dissidents under Commander Abeng,
Tommy, Lucio, Aladin, and others had their hideout, so that it was not difficult for residents of Tiaong like Umali and
Pasumbal to communicate and even associate with dissidents in that region.
After carefully considering all the evidence in the case, we are constrained to agree with the trial court that the three
appellants are guilty. Besides, the determination of this case, in great measure, hinges on the credibility of witnesses.
The learned trial court which had the opportunity of observing the demeanor of witnesses on the stand and gauging
their sincerity and evaluating their testimony, decided the Government witnesses, including Amado Mendoza, to be
more credible and reliable. And we find nothing in the record to warrant correction or reversal of the stand and finding
of the trial court on the matter. We have not overlooked the rather belated retraction of Amado Mendoza made on
October 31, 1952, about a year and 9 months after he testified in court. Considering the circumstances surrounding
the making of this affidavit or retraction, the late date at which it was made, the reasons given by him for making it and
the fact that when he testified in court under the observation and scrutiny of the trial court bearing in mind that he was
the star witness for the prosecution and his testimony naturally extremely important, and the trial court after the
opportunity given to it of observing his demeanor while on the witness stand had regarded him as a witness, sincere,
and his testimony truthful, and considering further the case with which affidavits of retraction of this nature are
obtained, we confess that we are not impressed with such retraction of Mendoza.
The last point to be determined is the nature of the offense of offenses committed. Appellants were charged with and
convicted of the complex crime of rebellion with multiple murder, frustrated murder, arson and robbery. Is there such a
complex crime of rebellion with multiple murder, etc? While the Solicitor General in his brief claims that appellants are
guilty of said complex crime and in support of his stand "asks for leave to incorporate by reference" his previous
arguments in opposing Umali's petition for bail, counsel for appellants considered it unnecessary to discuss the
existence or non-existence of such complex crime, saying that the nature of the crime committed "is of no moment to
herein appellants because they had absolutely no part in it whatsoever". For that present, and with respect to this
particular case, we deem it unnecessary to decide this important and controversial question, its consideration and
determination to another case or occasion more opportune, when it is more directly and squarely raised and both
parties given an opportunity to discuss and argue the question more adequately and exhaustively. Considering that,

assuming for the moment that there is no such complex crime of rebellion with murder, etc., and that consequently
appellants could not have been legally charged with, much less convicted of said complex crime, and the information
should therefore, be regarded as having charged more than one offense, contrary to Rule 106, section 12 and Rule
113, section 2 (e), of the Rules of Court, but that appellants having interposed no objection thereto, they were properly
tried for and lawfully convicted if guilty of the several, separate crimes charged therein, we have decided and we rule
that the appellants may properly be convicted of said several and separate crimes, as hereinafter specified. We feel
particularly supported and justified in this stand that we take, by the result of the case, namely, that the prison
sentence we impose does not exceed, except perhaps in actual duration, that meted out by the Court below, which is
life imprisonment.
We are convinced that the principal and main, tho not necessarily the most serious, crime committed here was not
rebellion but rather that of sedition. The purpose of the raid and the act of the raiders in rising publicly and taking up
arms was not exactly against the Government and for the purpose of doing the things defined in Article 134 of the
Revised Penal code under rebellion. The raiders did not even attack the Presidencia, the seat of local Government.
Rather, the object was to attain by means of force, intimidation, etc. one object, to wit, to inflict an act of hate or
revenge upon the person or property of a public official, namely, Punzalan was then Mayor of Tiaong. Under Article
139 of the same Code this was sufficient to constitute sedition. As regards the crime of robbery with which appellants
were charged and of which they were convicted, we are also of the opinion that it was not one of the purposes of the
raid, which was mainly to kidnap or kill Punzalan and destroy his house. The robberies were actually committed by
only some of the raiders, presumably dissidents, as an afterthought, because of the opportunity offered by the
confusion and disorder resulting from the shooting and the burning of the three houses, the articles being intended
presumably to replenish the supplies of the dissidents in the mountains. For these robberies, only those who actually
took part therein are responsible, and not the three appellants herein. With respect to the crime of multiple frustrated
murder, while the assault upon policeman Pedro Lacorte with a hand grenade causing him injuries resulting in his
blindness in one eye, may be regarded as frustrated murder; the wounding of Ortega, Anselo, Rivano, Garcia and
Lector should be considered as mere physical injuries. The crimes committed are, therefore, those of sedition, multiple
murder, arson, frustrated murder and physical injuries. The murders may not be qualified by evident premeditation
because the premedition was for the killing of Punzalan. The result was the killing of three others intended by the
raiders (People vs. Guillen, 47 Off). The killing may, however, be qualified by treachery, the raiders using firearms
against which the victims were defenseless, with the aggravating circumstance of abuse of superior strength. The
three murders may be punished with the penalty of death. However, because of lack of the necessary votes, the
penalty should be life imprisonment.
We deem it unnecessary to discuss the other points raised by the appellants in their brief.
In conclusion, we find appellants guilty of sedition, multiple murder, arson, frustrated murder and physical injuries. For
the crime of sedition each of the appellants is sentenced to 5 years of prision correctional and to pay a fine of P4,000;
for each of the three murders, each of the appellants is sentenced to life imprisonment and to indemnify the heirs of
each victim in the sum of P6,000; and for the arson, for which we impose the maximum penalty provided in Article 321,
paragraph 1, of the Revised Penal Code, for the reason that the raiders in setting fire to the buildings, particularly the
house of Punzalan they knew that it was then occupied by one or more persons, because they even and actually saw
an old lady, the mother of Punzalan, at the window, and in view of the aggravating circumstances of nighttime, each of
the appellants is sentenced to reclusion perpetua and to pay the indemnities mentioned in the decision of the lower
court. It shall be understood, however, the pursuant to the provisions of Article 70 of the Revised Penal Code the
duration of all penalties shall not exceed 40 years. In view of the heavy penalties already imposed and their long
duration, we find it unnecessary to fix and impose the prison sentences corresponding to frustrated murder and
physical injuries; however, the sums awarded the victims (Lacorte, Ortega, Anselo, Rivano, Garcia and Lector), by the
court below will stand. With these modifications, the decision appealed from is hereby affirmed, with costs.

January 27, 1948

G.R. No. L-1800
CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.
Ramon Diokno for petitioner.
City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.
FERIA, J.:
This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of the Coalesced
Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel the latter to issue a permit for the
holding of a public meeting at Plaza Miranda on Sunday afternoon, November 16, 1947, for the purpose of petitioning
the government for redress to grievances on the groun that the respondent refused to grant such permit. Due to
urgency of the case, this Court, after mature deliberation, issued a writ of mandamus, as prayed for in the petition of
November 15, 1947, without prejudice to writing later an extended and reasoned decision.
The right of freedom of speech and to peacefully assemble and petition the government for redress of grievances, are
fundamental personal rights of the people recognized and guaranteed by the Constitutions of democratic countries.
But it a casettled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is
not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal
rights, not injurious to the rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power" which is the power to prescribe regulations, to promote the
health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power
is exercised by the government through its legislative branch by the enactment of laws regulating those and other
constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities, and cities
authorizing their legislative bodies, called municipal and city councils to enact ordinances for the purpose.
The Philippine legislature has delegated the exercise of the police power to the Municipal Board of the City of Manila,
which according to section 2439 of the Administrative Code is the legislative body of the City. Section 2444 of the
same Code grants the Municipal Board, among others, the following legislative power, to wit: "(p)to provide for the
prohibition and suppression of riots, affrays, disturbances, and disorderly assemblies, (u) to regulate the use of streets,
avenues ... parks, cemeteries and other public places" and "for the abatement of nuances in the same," and "(ee) to
enact all ordinances it may deem necessary and proper for sanitation and safety, the furtherance of prosperity and the
promotion of morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants."
Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844 and 1119. Section
of the Revised Ordinances of 1927 prohibits as an offense against public peace, and section 1262 of the same
Revised Ordinance penalizes as a misdemeanor, "any act, in any public place, meeting, or procession, tending to
disturb the peace or excite a riot; or collect with other persons in a body or crowd for any unlawful purpose; or disturb
or disquiet any congregation engaged in any lawful assembly." And section 1119 provides the following:
"SEC. 1119 Free for use of public The streets and public places of the city shall be kept free and clear for the use of
the public, and the sidewalks and crossings for the pedestrians, and the same shall only be used or occupied for other
purposes as provided by ordinance or regulation: Provided, that the holding of athletic games, sports, or exercise
during the celebration of national holidays in any streets or public places of the city and on the patron saint day of any

district in question, may be permitted by means of a permit issued by the Mayor, who shall determine the streets or
public places or portions thereof, where such athletic games, sports, or exercises may be held: And provided,
further, That the holding of any parade or procession in any streets or public places is prohibited unless a permit
therefor is first secured from the Mayor who shall, on every such ocassion, determine or specify the streets or public
places for the formation, route, and dismissal of such parade or procession: And provided, finally, That all applications
to hold a parade or procession shall be submitted to the Mayor not less than twenty-four hours prior to the holding of
such parade or procession."
As there is no express and separate provision in the Revised Ordinance of the City regulating the holding of public
meeting or assembly at any street or public places, the provisions of saif section 1119 regarding the holding of any
parade or procession in any street or public paces may be applied by analogy to meeting and assembly in any street
or public places.
Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse, to grant permit for the holding of a lawful assembly or meeting, parade, or
procession in the streets and other public places of the City of Manila; and the other is that the applicant has the right
to a permit which shall be granted by the Mayor, subject only to the latter's reasonable discretion to determine or
specify the streets or public places to be used for the purpose, with the view to prevent confusion by overlapping, to
secure convenient use of the streets and public places by others, and to provide adequate and proper policing to
minimize the risk of disorder.
After a mature deliberation, we have arrived at the conclusion that we must adopt the second construction, that is
construe the provisions of the said ordinance to mean that it does not confer upon the Mayor the power to refuse to
grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places
where the parade or procession may pass or the meeting may be held.
Our conclusions find support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In
that case, the statute of New Hampshire P.L. Chap. 145, section 2, providing that "no parade or procession upon any
ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the select men
of the town or from licensing committee," was construed by the Supreme Court of New Hampshire as not conferring
upon the licensing board unfetted discretion to refuse to grant the license, and held valid. And the Supreme Court of
the United States in its decision (1941) penned by Chief Justice Hughes firming the judgement of the State Supreme
Court, held that " a statute requiring pewrsons using the public streets for a parade or procession to procure a special
license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or a freedom
of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited,
in the issuance of licenses, to a consideration, the time, place, and manner of the parade and procession, with a view
to conserving the public convenience and of affording an opportunity to provide proper policing and are not invested
with arbitrary discretion to issue or refuse license, ... ."

ordain that no processions shall be allowed upon the streets until a permit shall be obtained from the superintendent of
police, leaving the issuance of such permits to his discretion, since the powers conferred on the council cannot be
delegated by them.
The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104, held the following:
"The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also, in substance, the same,
for the ordinance in that case upon its face committed to the unrestrained will of a single public officer the power to
determine the rights of parties under it, when there was nothing in the ordinance to guide or cintrol his action, and it
was held void because "it lays down no rules by which its impartial execution can be secured, or partiality and
oppression prevented." and that "when we remember that action or nonaction may proceed from enmity or prejudice,
from partisan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and
difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of
being wrought under cover of such a power, for that becomes apparent to every one who gives to the subject a
moment's consideration. In fact, an ordinance which clothes a single individual with such power hardly falls within the
domain of law, and we are constrained to pronounce it inoperative and void." ... In the exercise of police power, the
council may, in its discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress them,
directly or indirectly, by attempting to commit the power of doing so to the mayor or any other officer. The discretion
with which the council is vested is a legal discretion, to be exercised within the limits of the law, and not a discretion to
transcend it or to confer upon any city officer and arbitrary authority, making him in its exercise a petty tyrant."
In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons, or associations
or organizations shall march, parade, ride or drive, in ou upon or through the public streets of the City of Grand Rapids
with musical instrument, banners, flags, ... without first having obtained the consent of the mayor or common council of
said city;" was held by the Supreme Court of Michigan to be unreasonable and void. Said Supreme Court in the
course of the decision held:
". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it is not plainly
unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep order, and
suppress mischief, in accordance with the limitations and conditions required by the rights of the people themselves,
as secured by the principles of law, which cannot be less careful of private rights under the constitution than under the
common law."
"It is quite possible that some things have a greater tendency to produce danger and disorder in cities than in smaller
towns or in rural places. This may justify reasonable precautionary measures, but nothing further; and no inference
can extend beyond the fair scope of powers granted for such a purpose, and no grant of absolute discretion to
suppress lawful action altogther can be granted at all. . . . ."

We can not adopt the alternative construction or constru the ordinance under consideration as conferring upon the
Mayor power to grant or refuse to grant the permit, which would be tantamount to authorizing him to prohibit the use of
the streets and other public places for holding of meetings, parades or processions, because such a construction
would make the ordinance invalid and void or violative of the constitutional limitations. As the Municipal Boards is
empowered only to regulate the use of streets, parks, and the other public places, and the word "regulate," as used in
section 2444 of the Revised Administrative Code, means and includes the power to control, to govern, and to restrain,
but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong Sing vs. City of Manila, 41
Phil., 103), the Municipal Board can not grant the Mayor a power that it does not have. Besides, the powers and duties
of the Mayor as the Chief Executive of the City are executive and one of them is "to comply with and enforce and give
the necessary orders for the faithful performance and execution of laws and ordinances" (section 2434 [b] of the
Revised Administrative Code), the ligislative police power of the Municipal Board to enact ordinances regulating
reasonably the excercise of the fundamental personal rights of the citizens in the streets and other public places, can
not be delgated to the Mayor or any other officer by conferring upon him unregulated discretion or without laying down
rules to guide and control his action by which its impartial execution can be secured or partiality and oppression
prevented.

"It has been customary, from time immemorial, in all free countries, and in most civilized countries, for people who are
assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other
paraphernalia, and with music of various kinds. These processions for political, religious, and social demonstrations
are resorted to for the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce some
effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common
aims, and valuable factors in furthering them. ... When people assemble in riotous mobs, and move for purposes
opposed to private or public security, they become unlawful, and their members and abettors become punishable. . . ."

In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under Rev. ST. Ill. c. 24,
article 5 section 1, which empowers city councils to regulate the use of public streets, the council has no power to

In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance which made it
unlawful for any person, society or club, or association of any kind, to parade any of the streets, with flags, banners, or

"It is only when political, religious, social, or other demonstrations create public disturbances, or operate as a
nuisance, or create or manifestly threaten some tangible public or private mischief, that the law interferes."
"This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and because it leaves the
power of permitting or restraining processions, and thier courses, to an unregulated official discretion, when the whole
matter, if regualted at all, must be permanent, legal provisions, operating generally and impartially."

transparencies, drums, horns, or other musical instruments, without the permission of the city council first had and
obtained. The appellants were members of the Salvation Army, and were prosecuted for a violation of the ordinance,
and the court in holding the ordinance invalid said, "Ordinances to be valid must be reasonable; they must not be
oppressive; they must be fair and impartial; they must not be so framed as to allow their enforcement to rest on official
discretion ... Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship accordingto
the dictates of one's conscience, and the right to parade in a peaceable manner and for a lawful purpose, have been
fostered and regarded as among the fundamental rights of a free people. The spirit of our free institutions allows great
latitude in public parades and emonstrations whether religious or political ... If this ordinance is held valid, then may
the city council shut off the parades of those whose nations do not suit their views and tastes in politics or religion, and
permit like parades of those whose nations do. When men in authority are permitted in their discretion to exercise
power so arbitrary, liberty is subverted, and the spirit of of our free institutions violated. ... Where the granting of the
permit is left to the unregulated discretion of a small body of city eldermen, the ordinance cannot be other than partial
and discriminating in its practical operation. The law abhors partiality and discrimination. ... (19 L.R.A., p. 861)

safety, for the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a permit when
after investigation of all the facts and circumstances pertinent to the application he believes it to be proper to refuse to
issue a permit, is not a valid exercise of the police power. Said Court in the course of its opinion in support of the
conclusion said:

In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of Colorado, in
construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg, which provides: "That it shall be
unlawful for any person or persons or association to use the street of the City of Walsenburg, Colorado for any parade,
procession or assemblage without first obtaining a permit from the Chief of Police of the City of Walsenburg so to do,"
held the following:

"We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not make
comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to
refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can
thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national
affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise
of the right."

"[1] The power of municipalities, under our state law, to regulate the use of public streets is conceded. "35 C.S.A.,
chapter 163, section 10, subparagraph 7. "The privilege of a citizen of the United States to use the streets ... may be
regulated in the interest of all; it is not absolute, but relative, and must be excercised in subordination to the general,
be abridged or denied." Hague, Mayor vs. Committee for Industrial Organization, 307 U.S., 496, 516; 59 S. Ct., 954,
964; 83 Law, ed., 1423.
[2, 3] An excellent statement of the power of a municipality to impose regulations in the use of public streets is found in
the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85 Law, ed. 1049; 133 A.L.R., 1936, in
which the following appears; "The authority of a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties
but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of
travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the
use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted excercise of some civil right which in other circumstances would be entitled to
protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to
disobey the municipal command or sought by that means to direct public attention to an announcement of his
opinions. As regulation of the use of the streets for parades and processions is a traditional excercise of control by
local government, the question in a particular case is whether that control is exerted so as not to deny or
unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion
of public questions immemorially associated with resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451;58 S.
Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515, 516; 59 S.
Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437]; Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S.,
147, 160; 60 S. Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct.,
900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352."
[4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the uncontrolled official discretion of
the chief of police of the municipal corporation to say who shall, who shall not, be accorded the privilege of parading
on its public streets. No standard of regulation is even remotely suggested. Moreover, under the ordinance as drawn,
the chief of police may for any reason which he may entertain arbitrarily deny this privelege to any group. in Cox vs.
New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:
"In the instant case the uncontrolled official suppression of the privilege of using the public streets in a lawful manner
clearly is apparent from the face of the ordinance before us, and we therefore hold it null and void."
The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515, 516;
83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of a permit for a public assembly in or
upon the public streets, highways, public parks, or public buildings of the city and authorizing the director of public

". . . Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the
public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets
and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with
peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides that the Mayor
shall have the power to grant and refuse municipal licenses or permits of all classes, cannot be cited as an authority
for the Mayor to deny the application of the petitioner, for the simple reason that said general power is predicated upon
the ordinances enacted by the Municipal Board requiring licenses or permits to be issued by the Mayor, such as those
found in Chapters 40 to 87 of the Revised Ordinances of the City of Manila. It is not a specific or substantive power
independent from the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is required
to enforce under the same section 2434. Moreover "one of the settled maxims in constitutional law is that the power
conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority,"
except certain powers of local government, specially of police regulation which are conferred upon the legislative body
of a municipal corporation. Taking this into consideration, and that the police power to regulate the use of streets and
other public places has been delegated or rather conferred by the Legislature upon the Municipal Board of the City
(section 2444 [u] of the Administrative Code) it is to be presumed that the Legislature has not, in the same breath,
conferred upon the Mayor in section 2434 (m) the same power, specially if we take into account that its exercise may
be in conflict with the exercise of the same power by the Municipal Board.
Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred, upon the Mayor
the power to grant or refuse licenses and permits of all classes, independent from ordinances enacted by the
Municipal Board on the matter, and the provisions of section 2444 (u) of the same Code and of section 1119 of the
Revised Ordinances to the contrary notwithstanding, such grant of unregulated and unlimited power to grant or refuse
a permit for the use of streets and other public places for processions, parades, or meetings, would be null and void,
for the same reasons stated in the decisions in the cases above quoted, specially in Willis Cox vs. New Hampshire,
supra, wherein the question involved was also the validity of a similar statute of New Hamsphire. Because the same
constitutional limitations applicable to ordinances apply to statutes, and the same objections to a municipal ordinance
which grants unrestrained discretion upon a city officer are applicable to a law or statute that confers unlimited power
to any officer either of the municipal or state governments. Under our democratic system of government no such
unlimited power may be validly granted to any officer of the government, except perhaps in cases of national
emergency. As stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the council is vested is a
legal discretion to be exercised within the limits of the law, and not a discretion to transcend it or to confer upon any
city officer an arbitrary authority making in its exercise a petty tyrant."
It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code apparently in
support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255-261, but evidently the quotation of said
provision was made by the writer of the decision under a mistaken conception of its purview and is an obiter dictum,
for it was not necessary for the decision rendered. The popular meeting or assemblage intended to be held therein by
the Communist Party of the Philippines was clearly an unlawful one, and therefore the Mayor of the City of Manila had
no power to grant the permit applied for. On the contrary, had the meeting been held, it was his duty to have the

promoters thereof prosecuted for violation of section 844, which is punishable as misdemeanor by section 1262 of the
Revised Ordinances of the City of Manila. For, according to the decision, "the doctrine and principles advocated and
urged in the Constitution and by-laws of the said Communist Party of the Philippines, and the speeches uttered,
delivered, and made by its members in the public meetings or gatherings, as above stated, are highly seditious, in that
they suggest and incite rebelious conspiracies and disturb and obstruct the lawful authorities in their duty."
The reason alleged by the respondent in his defense for refusing the permit is, "that there is a reasonable ground to
believe, basing upon previous utterances and upon the fact that passions, specially on the part of the losing groups,
remains bitter and high, that similar speeches will be delivered tending to undermine the faith and confidence of the
people in their government, and in the duly constituted authorities, which might threaten breaches of the peace and a
disruption of public order." As the request of the petition was for a permit "to hold a peaceful public meeting," and there
is no denial of that fact or any doubt that it was to be a lawful assemblage, the reason given for the refusal of the
permit can not be given any consideration. As stated in the portion of the decision in Hague vs. Committee on
Industrial Organization, supra, "It does not make comfort and convenience in the use of streets or parks the standard
of official action. It enables the Director of Safety to refuse the permit on his mere opinion that such refusal will prevent
riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly 'prevent'
such eventualities." To this we may add the following, which we make our own, said by Mr. Justice Brandeis in his
concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107:
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned
women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free
speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe
that the evil to be prevented is a serious one . .
"Those who won our independence by revolution were not cowards. They did not fear political change. They did not
exalt order at the cost of liberty. . .
"Moreover, even imminent danger cannot justify resort to prohibition of these functions essential effective democracy,
unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent
that it would be inappropriate as the means for averting a relatively trivial harm to a society. . . . The fact that speech is
likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the
probability of serious injury to the state. Among freemen, the deterrents ordinarily to be applied to prevent crimes are
education and punishment for violations of the law, not abridgment of the rights of free speech and assembly." Whitney
vs. California, U. S. Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)
In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable objection to the
use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is ordered to issue the corresponding
permit, as requested. So ordered.

excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for
redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting
authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and
punished therefor."
The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista Party in the House of
Representatives; he was the chief campaigner of the said party in the last elections. As the petition comes from a
responsible party, in contrast to Evangelista's Communist Party which was considered subversive, I believe that the
fear which caused the Mayor to deny it was not well founded and his action was accordingly far from being a sound
exercise of his discretion.
BRIONES, M., conforme:
En nombre del Partido Nacionalista y de los grupos oposicionistas aliados, Cipriano P. Primicias, director general de
campaa de las minorias coaligadas en las ultimas elecciones y "Floor Leader" de dichas minorias en la Camara de
Representantes, solicito del Alcalde de Manila en comunicacion de fecha 14 de Noviembre, 1947, permiso "para
celebrar un mitin publico en la Plaza Miranda el Domingo, 16 de Noviembre, 1947, desde las 5:00 p.m. hasta la 1:00
a.m., a fin de pedir al gobierno el remedio de ciertos agravios." Tambien se pedia en la comunicacion licencia para
usar la plataforma ya levantada en dicha Plaza.
El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso tanto para la celebracion del
mitin como para el uso de la plataforma, "en la inteligencia de que no se pronunciaran discursos subversivos, y
ademas, de que usted (el solicitante) sera responsable del mantenimiento de la paz y orden durante la celebracion del
mitin."
Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano E. Fugoso revoco el permiso concedido,
expresandose los motivos de la revocacion en su carta de tal fecha dirigida al Rep. Primicias.
"Sirvase dar por informado dice el Alcalde Fugoso en su carta que despues de haber leido los periodicos
metropolitanos da esta maana en que aparece que vuestro mitin va a ser un 'rally' de indignacion en donde se
denunciaran ante el pueblo los supuestos fraudes electorales perpetrados en varias partes de Filipinas para anular la
voluntad popular, por la presente se revoca dicho permiso.
"Se cree aade el Alcalde que la paz y el orden en Manila sufriran dao en dicho 'rally' considerando que las
pasiones todavia no se han calmado y la tension sigue alta como resultado de la ultima contienda politica.

Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

Separate Opinions
PARAS, J., concurring:
The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774, section 4, amending section 2434,
paragraph (m) of the Revised Administrative Code, the Mayor has discretion to grant or deny the petition to hold the
meeting. (SeeEvangelista vs. Earnshaw, 57 Phil., 255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422, 426, this
Court said:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of

"Segun los mismos periodicos, delegados venidos de provincias y estudiantes de las universidades locales
participaran en el 'rally,' lo cual, a mi juicio, no haria mas que causar disturbios, pues no se puede asegurar que
concurriran alli solamente elementos de la oposicion. Desde el momento en que se mezclen entre la multitud gentes
de diferentes matices politicos, que es lo que probablemente va a ocurrir, el orden queda en peligro una vez que al
publico se le excite, como creo que sera excitado, teniendo en cuenta los fines del mitin tal como han sido anunciados
en los periodicos mencionados.
"Se dice que los resultados de las ultimas elecciones seran protestados. No hay base para este proceder toda vez
que los resultados todavia no han sido oficialmente anunciados.
"Por tanto termina el Alcalde su orden revocatoria la accion de esta oficina se toma en interes del orden publico
y para prevenir la perturbacion de la paz en Manila."

De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que expida inmediatamente el
permiso solicitado. Se pide tambien que ordenemos al Procurador General para que investigue la fase criminal del
caso y formule la accion que justifiquen las circunstancias.
Dada la premura del asunto, se llamo inmediatamente a vista arguyendo extensamente los abogados de ambas
partes ante esta Corte en sus informes orales. 1
El recurso se funda, respecto de su aspecto civil, en el articulo III, seccion 1, inciso 8 de la Constitucion de Filipinas, el
cual preceptua "que no se aprobara ninguna ley que coarte la libertad de la palabra, o de la prensa, o el derecho del
pueblo de reunirse pacificamente y dirigir petiticiones al gobierno para remedio de sus agravios." Con respecto al
posible aspecto criminal del caso se invoca el articulo 131 del Codigo Penal Revisado, el cual dispone que "la pena
de prision correccional en su periodo minimo, se impondra al funcionario publico o empleado que, sin fundamento
legal, prohibiere o interrumpiere una reunion pacifica, o disolviere la misma."
La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten como guardian legal de las
plazas, calles y demas lugares publicos. Se alega que como Alcalde de la Ciudad de Manila tiene plena discrecion
para conceder o denegar el uso de la Plaza Miranda, que es una plaza publica, para la celebracion de un mitin o
reunion, de conformidad con las exigencias del interes general tal como el las interpreta. Especificamente se citan dos
disposiciones, a saber: el articulo 2434 (b), inciso (m) del Codigo Administrativo Revisado, y el articulo 1119, capitulo
118 de la Compilacion de las Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El articulo aludido del
Codigo Administrativo Revisado se lee como sigue:
xxx xxx xxx
"(m) To grant and refuse municipal license or permits of all classes and to revoke the same for violation of the
conditions upon which they were granted, or if acts prohibited by law or municipal ordinance are being committed
under the protection of such licenses or in the premises in which the business for which the same have been granted
is carried on, or for any other good reason of general interest." La ordenanza municipal indicada reza lo siguiente:

cuenta las serias responsabilidades del recurrente como jefe de campaa electoral de las minorias aliadas y como
"Floor Leader" en el Congreso de dichas minorias, parecia que esta consideracion debia pesar decisivamente en
favor de la presuncion de que el mitin seria una asamblea pacifica, de ciudadanos conscientes, responsables y
amantes de la ley y del orden.2
Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las Ordenanzas Revisadas de Manila
no figura el mitin entre las materias reglamentadas, sino solo la procesion o parada por las calles. Esto demuestra, se
sostiene, que cuando se trata de un mitin en una plaza o lugar publico, la concesion del permiso es ineludible y el
Alcalde no tiene ninguna facultad discrecional. Pareceme, sin embargo, que no es necesario llegar a este extremo.
Creo no debe haber inconveniente en admitir que el mitin esta incluido en la reglamentacion, por razones de
conveniencia publica. Verbigracia, es perfectamente licito denegar el permiso para celebrar un mitin en una plaza
publica en un dia y una hora determinados cuando ya previamente se ha concedido de buena fe el uso del mismo
lugar a otro a la misma hora. La prevencion de esta clase de conflictos es precisamente uno de los ingredientes que
entran en la motivacion de la facultad reguladora del Estado o del municipio con relacion al uso de calles, plazas y
demas lugares publicos. Por ejemplo, es tambien perfectamente licito condicionar el permiso atendiendo a su relacion
con el movimiento general del trafico tanto de peatones como de vehiculos. Estas consideraciones de comfort y
conveniencia publica son por lo regular la base, el leit-motif de toda ley u ordenanza encaminada a reglamentar el uso
de parques, plazas y calles. Desde luego que la regla no excluye la consideracion a veces de la paz y del buen orden,
pero mas adelante veremos que este ultimo, para que sea atendible, requiere que exista una situacion de peligro
verdadero, positivo, real, claro, inminente y substancial. La simple conjetura, la mera aprension, el temor mas o
menos exagerado de que el mitin, asamblea o reunion pueda ser motivo de desorden o perturbacion de la paz no es
motivo bastante para denegar el permiso, pues el derecho constitucional de reunirse pacificamente, ya para que los
ciudadanos discutan los asuntos publicos o se comuniquen entre si su pensamiento sobre ellos, ya para ejecer el
derecho de peticion recabando del gobierno el remedio a ciertos agravios, es infinitamente superior a toda facultad
reguladora en relacion con el uso de los parques, plazas y calles.
La cuestion, por tanto, que tenemos que resolver en el presente recurso es bien sencilla. Tenia razon el Alcalde
recurrido para denegar el permiso solicitado por el recurrente, ora bajo los terminos de la ordenanza pertinente, ora
bajo la carta organica de Manila, y sobre todo, bajo el precepto categorico, terminante, expresado en el inciso 8,
seccion 1, del Articulo III de la Constitucion? No constituye la denegacion del permiso una seria conculcacion de
ciertos privilegios fundamentales garantizados por la Constitucion al ciudadano y al pueblo?

La ordenanza municipal indicada reza lo siguiente:

"SEC. 1119. Free for use of public. The streets and public places of the city shall be kept free and clear for the use
of the public, and the sidewalks and crossings for the pedestrians, and the same shall only be used or occupied for
other purposes as provided by the ordinance or regulation: Provided, That the holding of athletic games, sports, or
exercises during the celebration of national holidays in any streets or public places of the city and on the patron saint
day of any district in question, may be permitted by means of a permit issued by the Mayor, who shall determine the
streets or public places, or portions thereof, where such athletic games, sports, or exercises may be held: And
provided, further, That the holding of any parade or procession in any streets or public places is prohibited unless a
permit therefor is first secured from the Mayor, who shall, on every occasion, determine or specify the streets or public
places for the formation, route, and dismissal of such parade or procession: And provided, finally, That all applications
to hold a parade or procession shall be submitted to the Mayor not less than twenty-four hours prior to the holding of
such parade or procession."
Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de indignacion de que habla el Alcalde recurrido
en su carta revocando el permiso ya concedido no consta en la peticion del recurrente ni en ningun documenmento o
manifestacion verbal atribuida al mismo, sino solamente en las columnas informativas de la prensa metropolitana. El
recurrente admite, sin embargo, que el objeto del mitin era comunicar al pueblo la infinidad de telegramas y
comunicaciones que como jefe de campaa de las oposiciones habia recibido de varias partes del archipielago
denunciando tremendas anomalias, escandalosos fraudes, actos vandalicos de terrorismo politico, etc., etc., ocurridos
en las elecciones de 11 de Noviembre; llamar la atencion del Gobierno hacia tales anomalias y abusos; y pedir su
pronta, eficaz y honrada intervencion para evitar lo que todavia se podia evitar, y con relacion a los hechos
consumados urgir la pronta persecucion y castigo inmediato de los culpables y malhechores. De esto resulta evidente
que el objeto del mitin era completamente pacifico, absolutamente legal. No hay ni la menor insinuacion de que el
recurrente y los partidos oposicionistas coaligados que representa tuvieran el proposito de utilizar el mitin para
derribar violentamente al presente gobierno, o provocar una rebelion o siquiera un motin. En realidad, teniendo en

Resulta evidente, de autos, que el recurrido denego el permiso bajo lo que el mismo llama "all-pervading power of the
state to regulate," temiendo que el mitin solicitado iba a poner en peligro la paz y el orden publico en Manila. No se
fundo la denegacion en razones de "comfort" o conveniencia publica, vgr., para no estorbar el trafico, o para prevenir
un conflicto con otro mitin ya previamente solicitado y concedido, sino en una simple conjetura, en un mero temor o
aprension la aprension de que, dado el tremendo hervor de los animos resultante de una lucha electoral harto
reida y apasionada, un discurso violento, una arenga incendiaria podria amotinar a la gente y provocar serios
desordenes. La cuestion en orden es la siguiente: se puede anular o siquiera poner en suspenso el derecho
fundamentalisimo de reunion o asamblea pacifica, garantizado por la Constitucion, por razon de esta clase de
conjetura, temor o aprension? Es obvio que la contestacion tiene que ser decididamente negativa. Elevar tales
motivos a la categoria de razon legal equivaldria practicamente a sancionar o legitimar cualquier pretexto, a colocar
los privilegios y garantias constitucionales a merced del capricho y de la arbitrariedad. Si la vigencia de tales
privilegios y garantias hubiera de depender de las suspicacias, temores, aprensiones, o hasta humor del gobernante,
uno podria facilmente imaginar los resultados desastrosos de semejante proposicion; un partido mayoritario dirigido
por caudillos y liders sin escrupulos y sin conciencia podria facilmente anular todas las libertades, atropellar todos los
derechos incluso los mas sagrados, ahogar todo movimiento legitimo de protesta o peticion, estrangular, en una
palabra, a las minorias, las cuales como sabe todo estudiante de ciencia politica en el juego y equilibrio de
fuerzas que integran el sistema democratico son tan indispensables como las mayorias. Que es lo que todavia
podria detener a un partido o a un hombre que estuviera en el poder y que no quisiera oir nada desagradable de sus
adversarios si se le dejara abiertas las puertas para que, invocando probables peligros o amagos de peligro, pudiera
de una sola plumada o de un solo gesto de repulsa anular o poner en suspenso los privilegios y garantias
constitucionales? No seria esto retornar a los dias de aquel famoso Rey que dijo: "El Estado soy yo," o de aquel
notorio cabecilla politico de uno de los Estados del Sur de America que asombro al resto de su pais con este nefasto
pronunciamiento: "I am the only Constitution around here"? Es inconcebible que la facultad de reglamentar o el
llamado poder de policia deba interpretarse en el sentido de justificar y autorizar la anulacion de un derecho, privilegio
o garantia constitucional. Sin embargo, tal seria el resultado si en nombre de un concepto tan vago y tan elastico
como es el "interes general" se permitiera in terdecir la libertad de la palabra, de la cual los derechos de reunion y de
peticion son nada mas que complemento logico y necesario. Una mujer famosa de Francia 3 en la epoca del terror,

momentos antes de subir al cadalso y colocar su hermoso cuello bajo la cuchilla de la guillotina, hizo historica esta
exclamacion: "Libertad, cuantos crimenes se cometen en tu nombre!" Si se denegara el presente recurso legitimando
la accion del recurrido y consiguientemente autorizando la supresion de los mitines so pretexto de que la paz y el
orden publico corren peligro con ellos, un desengaado de la democracia en nuestro pais acaso exprese entonces su
suprema desilusion parafraseando la historica exclamacion de la siguiente manera: "Interes general, paz, orden
publico, cuantos atentados se cometen en vuestro nombre contra la libertad!"
El consenso general de las autoridades en los paises constitucionalmente regidos como Filipinas, particularmente en
Estados Unidos, es que el privilegio del ciudadano de usar los parques, plazas y calles para el intercambio de
impresiones y puntos de vista sobre cuestiones nacionales si bien es absoluto es tambien relativo en el sentido de
que se puede regular, pero jamas se puede denegar o coartar so pretexto o a guisa de regulacion (Hague vs.
Committee for Industrial Organization, 307 U. S., 515-517). Este asunto, planteado y decidido en 1938, ha venido a
ser clasico en la jurisprudencia americana sobre casos del mismo tipo que el que nos ocupa. La formidable
asociacion obrera Committee for Industrial Organization conocida mas popularmente por la famosa abreviatura CIO,
planteo una queja ante los tribunales de New Jersey contra las autoridades de Jersey City, (a) atacando, por
fundamentos constitucionales, la validez de una ordenanza municipal que regulaba y restringia el derecho de reunion;
y (b) tachando de inconstitucionales los metodos y medios en virtud de los cuales ponian en vigor la ordenanza las
referidas autoridades.
Los hechos del caso, brevemente expuestos, son, a saber: La CIO trataba de celebrar mitines y asambleas publicas
en Jersey City a fin de comunicar a los ciudadanos sus puntos de vista sobre la "National Labor Relations Act." Las
autoridades de la ciudad, comenzando por el Alcalde Hague el famoso cabecilla de la muy notoria maquina politica de
New Jersey, rehusaron consistentemente conceder licencia para dichos mitines bajo la especiosa alegacion de que
los miembros de la organizacion obrera solicitante eran comunistas y del orden publico corria peligro de grave
perturbacion; es decir, casi, casi la misma alegacion que en el presente caso. La denegacion de la licencia se fundaba
en una ordenanza municipal que trataba de reglamentar el derecho constitucional de reunion y asamblea pacifica.
Los tribunales de New Jersey, declarando inconstitucionales la ordenanza en cuestion y los metodos por los cuales se
trataba de poner en vigor, sentenciaron a favor de la CIO permitiendole celebrar los mitines solicitados. Elevado el
asunto en casacion e la Corte Suprema Federal, esta confirmo la sentencia con solo una ligera modificacion. Entre
otros pronunciamientos se dijo que: (a) donde quiera este alojado el titulo sobre las calles, parques y plazas, desde
tiempo inmemorial los mismos siempre se han considerado como un fideicomiso para uso del publico, y desde
tiempos remotos que la memoria no alcanza se han usado siempre para fines de reunion y de intercambio de
impresiones y puntos de vista entre los ciudadanos, asi como para la libre discusion de los asuntos publicos; (b) que
el uso de las calles y plazas publicas para tales fines ha sido siempre, desde la antiguedad, una parte importante y
esencial de los privilegios, inmunidades, derechos y libertades de los ciudadanos; (c) que el privilegio del ciudadano
de los Estados Unidos de usar las calles, plazas y parques para la comunicacion de impresiones y puntos de vista
sobre cuestiones nacionales puede ser regulado en interes de todos; es en tal sentido absoluto pero relativo, y debe
ser ejercitado con sujecion al "comfort" y conveniencia generales y en consonancia con la paz y el buen orden; pero
no puede ser coartado o denegado so pretexto y forma de regulacion; (d) que el tribunal inferior estuvo acertado al
declarar invalida la ordenanza en su faz, pues no hace del "comfort" o conveniencia en el uso de calles y plazas la
norma y patron de la accion official; por el contrario, faculta al Director de Seguridad a rehusar el permiso en virtud de
su simple opinion de que la denegacion es para prevenir motines, trastornos o reuniones turbulentas y desordenadas;
(e) que, de esta manera, y conforme lo demuestra el record, la denegacion puede ser utilizada como instrumento para
la supresion arbitraria de la libre expression de opiniones sobre asuntos nacionales, pues la prohibicion de hablar
producira indudablemente tal efecto: (f) y, por ultimo, que no puede echarse mano de la supresion official del privilegio
para ahorrarse el trabajo y el deber de mantener el orden en relacion con el ejercicio del derecho. En otras palabras,
traduciendo literalmente la fraseologia de la sentencia, aun a riesgo de incurrir en un anglicismo, "no puede hacerse
de la supresion official incontrolada del privilegio un sustituto del deber de mantener el orden en relacion con el
ejercicio del derecho." He aqui ad verbatim la doctrina:
"5. Regulation of parks and streets. "Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from
ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of the citizen of
the United States to use the streets and parks for communication of views on national questions may be regulated in
the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it must not in the guise of regulation be abridged or

denied. We think the court below was right in holding the ordinance . . . void upon its face. It does not make comfort or
convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a
permit on his mere opinion that such refusal will prevent riots, disturbances, or disorderly assemblage. It can thus, as
the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for
the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the
privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right."
(Hague vs. Committee for Industrial Organization, 307 U. S. 496, 515-516.)
Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra Earnshaw, 57 Jur. Fil., 255,
como un precedente en apoyo de la accion del Alcalde recurrido. Pero la similitud es solo en el hecho de que el
entonces Alcalde D. Tomas Earnshaw tambien revoco el permiso previamente concedido al partido comunista que
representaba Crisanto Evangelista para celebrar mitines en Manila, pero las circunstancias en ambos casos son
enteramente diferentes. El Alcalde Earnshaw revoco el permiso despues de una minuciosa investigacion en que se
habian encontrado pruebas indubitables no solo de que en los estatutos y documentos del partido comunista se
preconizaba como uno de sus primordiales objetivos el derribar al gobierno americano en Filipinas gobierno que
ellos calificaban de imperialista y capitalistico sino que de hecho en mitines celebrados con anterioridad los
comunistas habian pronunciado discursos clara y positivamente sediciosos predicando una abierta rebelion e
incitando un alzamiento para liberar, segun ellos, al proletariado filipino de las garras del imperialismo capitalista. La
accion, por tanto, del Alcalde Earnshaw se fundo no en una simple conjetura, en un mero temor o aprension, sino en
la existencia de un peligro inminente, claro, real, sustantivo ingrediente unico y excepcionalisimo que permite una
salvedad suspensiva singularisima en el ejercicio de los privilegios constitucionales de que se trata.
Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. Ni siquiera se ha hecho la mas pequea
insinuacion de que las minorias coaligadas en cuyo nombre se ha pedido la celebracion del mitin en cuestion tuvieran
el proposito de derribar al gobierno por metodos y procedimientos violentos. El mismo Fiscal Villamor, en su informe
oral, admitio francamente la legalidad de la coalicion y de sus fines. Podemos tomar conocimiento judicial de que
esas minorias coaligadas lucharon en todas las provincias y municipios de Filipinas presentando candidatos para
todos los cargos nacionales, provinciales y locales, y de que su candidatura senatorial triunfo en 21 provincias de
las 50 que componen el mapa electoral, y en 5 ciudades con carta especial de las 8 que existen, incluyendose entre
dichas 5 la de Manila, capital del archipielago.
Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta en el caso de Evangelista
contra Earnshaw, sino que por el contrario propugna la balota, no la bala, como el instrumento normal y democratico
para cambiar los gobiernos y las administraciones, lo demuestra, ademas del hecho ya apuntado de que lucho en las
ultimas elecciones prevaliendose de las armas proveidas por la legalidad y sacando partido de los medios de que
disponia frente a la natural superioridad del partido gobernante, lo demuestra, repito, la circunstancia de que despues
de hechas las votaciones y mientras se estaban contando los votos y cuando vio que, segun ella, se habia
escamoteado o se estaba escamoteando la voluntad popular en varias partes mediante engaos, abusos y anomalias
de diferentes clases, no busco la violencia ni recurrio a la accion directa para hallar remedio a sus agravios o
vengarlos, sino que trato de cobijarse bajo la Constitucion reuniendo al pueblo en asamblea magna al aire libre para
comunicar y discutir sus quejas y recabar del gobierno el correspondiente remedio. Y esto lo hizo la coalicion
oficialmente, con todas las rubricas del protocolo, formulando la peticion del mitin el hombre que mejor podia
representarla y ofrecer garantias de legalidad y orden ante los poderes constituidos el recurrente en este caso,
cuya solvencia moral y politica esta doblemente garantida por su condicion de lider de las minorias en el Congreso y
jefe de campaa de las mismas en las pasadas elecciones. Que mejor prueba de legalidad y de propositos pacificos
y ordenados?
Por tanto, las circunstancias han venido a situar al gobierno en una encrucijada: por un lado, el camino angosto de la
represion, de una politica de fuerza y de cordon ferreo policiaco; por otro lado, la amplia avenida de la libertad, una
politica que consista en abrir espitas y valvulas por donde pueda extravasarse no ya la protesta sino inclusive la
indignacion del pueblo, previniendo de esta manera que los vapores mal reprimidos hagan estallar la caldera, o que la
desesperacion lo arrastre a conspirar en la sombra o a confiar su suerte a los azares de una cruenta discordia civil.
Creo que entre ambas politicas la eleccion no es dudosa.
Se alega que antes del 11 de Noviembre, dia de las elecciones, el Alcalde recurrido habia concedido a las minorias
coaligadas permisos para celebrar varios mitines politicos en diferentes sitios de Manila; que en dichos mitines se
habian pronunciado discursos altamente inflamatorios y calumniosos llamandose ladrones y chanchulleros a varios

funcionarios del gobierno nacional y de la Ciudad de Manila, entre ellos el Presidente de Filipinas, el Presidente del
Senado y el mismo recurrido, suscitandose contra ellos la animadversion y el desprecio del pueblo mediante la
acusacion de que han estado malversando propiedades y fondos publicos con grave detrimento del bienestar e
interes generales; que, dado este antecedente, habia motivo razonable para creer que semejantes discursos se
pronunciarian de nuevo, minandose de tal manera la fe y la confianza del pueblo en su gobierno y exponiendose
consiguientemente la paz y el orden a serias perturbaciones, teniendo en cuenta la temperatura elevadisima de las
pasiones, sobre todo de parte de los grupos perdidosos y derrotados.
Estas alegaciones son evidentemente insostenibles. Darles valor equivaldria a instituir aqui un regimen de previa
censura, el cual no solo es extrao sino que es enteramente repulsivo e incompatible con nuestro sistema de
gobierno. Nuestro sistema, mas que de prevencion, es de represion y castigo sobre la base de los hechos
consumados. En otras palabras, es un sistema que permite el amplio juego de la libertad, exigiendo, sin embargo,
estricta cuenta al que abusase de ella. Este es el espiritu que informa nuestras leyes que castigan criminalmente la
calumnia, la difamacion oral y escrita, y otros delitos semejantes. Y parafraseando lo dicho en el citado asunto de
Hague vs. Committee for Industrial Organization, la supresion incontrolada del privilegio constitucional no puede
utilizarse como sustituto de la operacion de dichas leyes.
Se temia dice el recurrido en su contestacion que la probable virulencia de los discursos y la fuerte tension de
los animos pudiesen alterar seriamente la paz y el orden publico. Pero cabe preguntar de cuando aca la
libertad, la democracia no ha sido un peligro, y un peligro perpetuo? En realidad, de todas las formas de gobierno la
democracia no solo es la mas dificil y compleja, sino que es la mas peligrosa. Rizal tiene en uno de sus libros
inmortales una hermosa imagen que es perfectamente aplicable a la democracia. Puede decirse que esta es como la
mar: serena, inmovil, sin siquiera ningun rizo que arrugue su superficie, cuando no lo agita ningun viento. Pero
cuando sopla el huracan lease, Vientos de la Libertad sus aguas se alborotan, sus olas se encrespan, y
entonces resulta horrible, espantosa, con la espantabilidad de las fuerzas elementales que se desencadenan
liberrimamente.
Ha dejado, sin embargo, el hombre de cruzar los mares tan solo porque pueden encresparse y enfurecerse a
veces? Pues bien; lo mismo puede decirse de la democracia: hay que tomarla con todos sus inconvenientes, con
todos sus peligros. Los que temen la libertad no merecen vivirla. La democracia no es para pusilanimes. Menos
cuando de la pusilanimidad se hace pretexto para imponer un regimen de fuerza fundado en el miedo. Porque
entonces el absolutismo se disfraza bajo la careta odiosa de la hipocresia. Ejemplo: los Zares de Rusia. Y ya se sabe
como terminaron.
El Magistrado Sr. Carson describio con mano maestra los peligros de la libertad y democracia y previno el temor a
ellos con las luminosas observaciones que se transcriben a continuacion, expuestas en la causa de Estados Unidos
contra Apurado, 7 Fur. Fil., 440 (1907), a saber:
"Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para protestar contra agravios ya
sean reales o imaginarios porque en esos casos los animos siempre estan excesivamente exaltados, y mientras
mayor sea el agravio y mas intenso el resentimiento, tanto menos perfecto sera por regla general el control
disciplinario de los directores sobre sus secuaces irresponsables. Pero si se permitiese al ministerio fiscal agarrarse
de cada acto aislado de desorden cometido por individuos o miembros de una multitud como pretexto para
caracterizar la reunion como un levantamiento sedicioso y tumultuoso contra las autoridades, entonces el derecho de
asociacion, y de pedir reparacion de agravios seria completamente ilusorio, y el ejercicio de ese derecho en la
ocasion mas propia y en la forma mas pacifica expondria a todos los que tomaron parte en ella, al mas severo e
inmerecido castigo si los fines que perseguian no fueron del agrado de los representantes del ministerio fiscal. Si en
tales asociaciones ocurren casos de desorden debe averiguarse quienes son los culpables y castigarseles por este
motivo, pero debe procederse con la mayor discrecion al trazar la linea divisoria entre el desorden y la sedicion, y
entre la reunion esencialmente pacifica y un levantamiento tumultuoso."
En el curso de los informes se pregunto al Fiscal, defensor del recurrido, si con motivo de los discursos que se dicen
calumniosos y difamatorios pronunciados en los mitines de la oposicion antes de las elecciones ocurrio algun serio
desorden: la contestacion fue negativa. Como se dice mas arriba, en el mitin monstruo que despues se celebro en
virtud de nuestra decision en el presente asunto tampoco ocurrio nada. Que demuestra esto? Que los temores eran
exagerados, por no llamarlos fantasticos; que el pueblo de Manila, con su cordura, tolerancia y amplitud de criterio,
probo ser superior a las aprensiones, temores y suspicacias de sus gobernantes.

La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las garantias constitucionales
sobre la libertad de la palabra y los derechos concomitantes el de reunion y peticion. Se trata de derechos
demasiado sagrados, harto metidos en el corazon y alma de nuestro pueblo para ser tratados negligentemente, con
un simple encogimiento de hombros. Fueron esas libertades las que inspiraron a nuestros antepasados en sus luchas
contra la opresion y el despotismo. Fueron esas libertades la base del programa politico de los laborantes precursores
del '96. Fueron esas libertades las que cristalizaron en la carta organizacional de Bonifacio, generando luego el
famoso Grito de Balintawak. Fueron esas libertades las que despues informaron los documentos politicos de Mabini y
la celebre Constitucion de Malolos. Y luego, durante cerca de medio siglo de colaboracion filipino americana,
fueron esas mismas libertades la esencia de nuestras instituciones, la espina dorsal del regimen constitucional y
practicamente republicano aqui establecido. Nada mejor, creo yo, para historiar el proceso de esas libertades que los
atinados y elocuentes pronunciamientos del Magistrado Sr. Malcolm en la causa de Estados Unidos contra Bustos, 37
Jur. Fil., 764 (1918). Es dificil mejorarlos; asi que opto por transcribirlos ad verbatim a continuacion:
"Hojeando las paginas de la historia, no decimos nada nuevo al afirmar que la libertad de la palabra, tal y como la han
defendido siempre todos los paises democraticos, era desconocida en las Islas Filipinas antes de 1900. Por tanto,
existia latente la principal causa de la revolucion. Jose Rizal en su obra 'Filipinas Dentro de Cien Aos' (paginas 62 y
siguientes) describiendo 'las reformas sine quibus non,' en que insistian los filipinos, dijo:
"El ministro, . . . que quiera que sus reformas sean reformas, debe principiar por declarar la prensa libre en Filipinas, y
por crear diputados filipinos.
"Los patriotas filipinos que estaban en Espaa, por medio de las columnas de La Solidaridad y por otros medios, al
exponer los deseos del Pueblo Filipino, pidieron invariablemente la 'libertad de prensa, de cultos y de asociacion.'
(Vease Mabini, 'La Revolucion Filipina.') La Constitucion de Malolos, obra del Congreso Revolucionario, en su Bill de
Derechos, garantizaba celosamente la libertad de la palabra y de la prensa y los derechos de reunion y de peticion.
"Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una reforma tan sagrada para el
pueblo de estas Islas y a tan alto precio conseguida, debe ampararse ahora y llevarse adelante en la misma forma en
que se protegeria y defenderia el derecho a la libertad.
"Despues sigue el periodo de la mutua colaboracion americano-filipina. La Constitucion de los Estados Unidos y las
de los diversos Estados de la Union garantizan el derecho de la libertad y de la palabra y de la prensa y los derechos
de reunion y de peticion. Por lo tanto, no nos sorprende encontrar consignadas en la Carta Magna de la Libertad
Filipina del Presidente McKinley, sus Instrucciones a la Segunda Comision de Filipinas, de 7 de abril de 1900, que
sientan el siguiente inviolable principio:
"Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los derechos del pueblo para
reunirse pacificamente y dirigir peticiones al Gobierno para remedio de sus agravios."
"El Bill de Filipinas, o sea la Ley del Congreso de 1. de Julio de 1902, y la Ley Jones, o sea la Ley del Congreso de
29 de Agosto de 1916, que por su naturaleza son leyes organicas de las Islas Filipinas, siguen otorgando esta
garantia. Las palabras entre comillas no son extraas para los estudiantes de derecho constitucional, porque estan
calcadas de la Primera Enmienda a la Constitucion de los Estados Unidos que el pueblo americano pidio antes de
otorgar su aprobacion a la Constitucion.
"Mencionamos los hechos expuestos tan solo para deducir la afirmacion, que no debe olvidarse por un solo instante,
de que las mencionadas garantias constituyen parte integrante de la Ley Organica La Constitucion de las Islas
Filipinas.
"Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera palabreria. Las palabras que
alli se emplean llevan consigo toda la jurisprudencia que es de aplicacion a los grandes casos constitucionales de
Inglaterra y America. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1917], 214 U. S., 470.) Y cuales son
estos principios? Volumen tras volumen no bastaria a dar una contestacion adecuada. Pero entre aquellos estan los
siguientes:

"Los intereses de la sociedad y la conservacion de un buen gobierno requieren una discusion plena de los asuntos
publicos. Completa libertad de comentar los actos de los funcionarios publicos viene a ser un escalpelo cuando se
trata de la libertad de la palabra. La penetrante incision de la tinta libra a la burocracia del absceso. Los hombres que
se dedican a la vida publica podran ser victimas de una acusacion injusta y hostil; pero podra calmarse la herida con
el balsamo que proporciona una conciencia tranquila. El funcionario publico no debe ser demasiado quisquilloso con
respecto a los comentarios de sus actos oficiales. Tan solo en esta forma puede exaltarse la mente y la dignidad de
los individuos. Desde luego que la critica no debe autorizar la difamacion. Con todo, como el individuo es menos que
el Estado, debe esperarse que sobrelleve la critica en beneficio de la comunidad. Elevandose a mayor altura que
todos los funcionarios o clases de funcionarios, que el Jefe Ejecutivo, que la Legislatura, que el Poder Judicial que
cualesquiera o sobre todas las dependencias del Gobierno la opinion publica debe ser el constante manantial de la
libertad y de la democracia. (Veanse los casos perfectamente estudiados de Wason vs. Walter, L. R. 4 Q. B., 73,
Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1.)
Ahora que ya somos independientes es obvio que la republica no solo no ha de ser menos celosa que la antigua
colonia en la tenencia y conservacion de esas libertades, sino que, por el contrario, tiene que ser muchisimo mas
activa y militante. Obrar de otra manera seria como borrar de una plumada nuestras mas preciosas conquistas en las
jornadas mas brillantes de nuestra historia. Seria como renegar de lo mejor de nuestro pasado: Rizal; Marcelo H. del
Pilar, Bonifacio, Mabini, Quezon, y otros padres inmortales de la patria. Seria, en una palabra, como si de un golpe
catastrofico se echara abajo la recia fabrica de la democracia filipina que tanta sangre y tantos sacrificios ha costado
a nuestro pueblo, y en su lugar se erigiera el tinglado de una dictadura de opera bufa, al amparo de caciquillos y
despotillas que pondrian en ridiculo el pais ante el mundo . . . Es evidente que no hemos llegado a estas alturas, en la
trabajosa ascension hacia la cumbre de nuestros destinos, para permitir que ocurra esa tragedia.
No nos compete determinar el grado de certeza de los fraudes e irregularidades electorales que la coalicion
minoritaria trataba de airear en el mitin en cuestion con vistas a recabar del gobierno y del pueblo el propio y
correspondiente remedio. Pudieran ser reales o pudieran ser imaginarios, en todo o en parte. Pero de una cosa
estamos absolutamente seguros y es que la democracia no puede sobrevivir a menos que este fundada sobre la base
de un sufragio efectivo, sincero, libre, limpio y ordenado. El colegio electoral es el castillo, mejor todavia, el baluarte
de la democracia. Suprimid eso, y la democracia resulta una farsa.
Asi que todo lo que tienda a establecer un sufragio efectivo 4 no solo no debe ser reprimido, sino que debe ser
alentado. Y para esto, en general para la salud de la republica, no hay mejor profilaxis, no hay mejor higiene que la
critica libre, la censura desembarazada. Solamente se pueden corregir los abusos permitiendo que se denuncien
publicamente sin trabas sin miedo.5 Esta es la mejor manera de asegurar el imperio de la ley por encima de la
violencia.
HILADO, J., dissenting:
Because the constitutional right of assembly and petition for redress of grievances has been here invoked on behalf of
petitioner, it has been considered doubly necessary to expound at length the grounds of my dissent. We are all ardent
advocates of this right, whenever and wherever properly exercisable. But, in considering the legal problem here
presented serenely and dispassionately, as I had to, I arrived at a different conclusion from that of the majority.
(a) Right not absolute but subject to regulation. It should be recognized that this right is not absolute and is subject
to reasonable regulations. (Philippine Constitutional Law by Malcolm and Laurel, 3d ed., p. 407; Commonwealth vs.
Abrahams, 156 Mass., 57, 30 N.E. 79.)
Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not an absolute one. Assemblies are subject
to reasonable regulations."
In the above cited case of Commonwealth vs. Abrahams, which is cited in support of the text on page 407 of the above
cited work on Philippine Constitutional Law by Malcolm and Laurel, the Supreme Judicial Court of Massachusetts
considered and decided a case involving a regulation by the Board of Park Commissioners forbidding all persons "to
make orations, harangues, or loud outcries" in a certain park, under penalty of $20, except upon prior consent of the
board. The defendant requested permission to deliver an oration in the park, which was refused by the board, and

thereafter entered the park, and delivered an "oration or harangue" about ten or fifteen minutes in length. In a criminal
trial of said defendant for violating the rules promulgated by the Board of Park Commissioners, said rules were held
valid and reasonable, and not inconsistent with article 19 of the Bill of Rights (of the Massachusetts Constitution),
providing that "the people have a right, in an orderly and peaceable manner, to assemble to consult upon the common
good, give instructions to their representatives, and to request of the legislative body, by the way of addresses,
petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer." In that case the
defendant admitted that the people would not have the right to assemble for the purposes specified in the public
streets, and might not have such right in the public gardens or on the common, because such an assembly would or
might be inconsistent with the public use for which these places are held. And the Supreme Court of Massachusetts
said:
". . . . The same reasons apply to any particular park. The parks of Boston are designed for the use of the public
generally; and whether the use of any park or a part of any park can be temporarily set aside for the use of any portion
of the public, is for the park commissioners to decide, in the exercise of a wise discretion."
In the above-quoted case it appears from the statement of facts preceding the opinion that within the limits of Franklin
Park, there involved, were large areas not devoted to any special purpose and not having any shrubbery that would be
injured by the gathering thereon of a large concourse of people; that defendant's speech contained nothing
inflammatory or seditious, and was delivered in an ordinary oratorical tone; that at the close of the oration the audience
quietly dispersed; and that no injury of any kind was done to the park. Still, it was held that the regulation under which
the Board of Park Commissioners denied the permission to deliver said oration requested by the defendant was valid
and was not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to the people the "right,
in an orderly and peaceable manner, to assemble to consult upon the common good, give instructions to their
representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress
of the wrongs done them, and of the grievances they suffer."
In the case at bar, the Mayor of Manila had the duty and the power, inter alia, "to grant and refuse municipal . . .
permits of all classes . . . for any (other) good reason of general interest" (Rev. Ad. Code, section 2434 [b]-[m]; italics
ours); and "to comply with and enforce and give the necessary orders for the faithful enforcement and execution of the
laws and ordinances in effect within the jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and among the general
powers and duties of the Municipal Board, whose ordinances the said Mayor was at once bound and empowered to
comply with and enforce, were such as "regulate the use of streets, . . . parks, . . . and other public places." [Ibid.,
section 2444 (u); italics ours.]
Another legal doctrine which should not be lost sight of is that, without abridging the right of assembly and petition, the
government may regulate the use of places public places wholly within its control, and that the state or
municipality may require a permit for public gatherings in public parks and that, while people have the right to
assemble peaceably on the highways and to parade on streets, nevertheless the state may regulate the use of the
streets by requiring a permit (16 C. J. S., p. 642). In our government the state, through the Charter of Manila, has
conferred certain powers pertinent to the subject under consideration upon the City Mayor, and upon the Municipal
Board. Among these is the duty and power of said Mayor "to grant and refuse municipal . . . permits of all classes . . .
for any good reason of general interest" (italics ours), and the power and duty of the Municipal Board "to regulate the
use . . . of street, . . . parks, . . . and other public places . . ." (italics ours), already above discussed.
Plaza Miranda in a way is a public square or plaza, and in another sense, in view of its more frequent public use, is a
public place devoted to traffic between several streets which empty into it within the district of Quiapo. It is a fact of
common knowledge and within the judicial notice of this Court that said plaza is one of the public places constantly
used by an usually great number of people during all hours of the day and up to late hours of the night, both for
vehicular and for pedestrian traffic. It is one of the centers of the city where a heavy volume of traffic during those
hours converges and from which it again proceeds in all directions; and the holding during those hours of a meeting,
assembly or rally of the size and nature of that contemplated by petitioner and those belonging to the Coalesced
Minority Parties when the permit in question was requested from the City Mayor, must have been expected to greatly
inconvenience and interfere with the right of the public in general to devote said plaza to the public uses for which it
has been destined since time immemorial.
The rule may perhaps be more aptly stated by saying that the right of peaceful assembly and petition is not absolute
but subject to regulation as regards the time, place, and manner of its exercise. As to time, it seems evident, for

example, that the State, directly or through the local government of the city or municipality, by way of regulation of the
right of free speech, may validly prohibit the delivery of speeches on public streets near private residences between
midnight and dawn. As to place, we have the example of the instant case involving Plaza Miranda or any other public
place. And as to manner, it is a familiar rule that the freedom of speech does not authorize the speaker to commit
slander or defamation, and that laws and ordinances aimed at preventing such abuses are valid regulations of the
right. Among other cases which may be cited on the same point, we have that of Hague vs. Committee on Industrial
Organization, 307 U. S., 496, 83 Law. ed., 1423, cited in the majority opinion and from which the following passage is
copied from the quotation therefrom in the said opinion:
". . . The privilege of a citizen of the United States to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination
to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied." (Italics ours.)
I construe this declaration of principles by the United States Supreme Court to imply that where the regulatory action is
predicated upon the "general comfort and convenience," and is "in consonance with peace and good order," as in the
instant case, such action is regulation and not "guise of regulation," and therefore does not abridge or deny the right.
(b) No constitutional right to use public places under government control, for exercise of right of assembly and petition,
etc.
Indeed, carefully analyzed, the action taken by the City Mayor was not even a regulation of the constitutional right of
assembly and petition, or free speech, claimed by petitioner, but rather of the use of a public place under the exclusive
control of the city government for the exercise of that right. This, I submit, is a distinction which must be clearly
maintained throughout this discussion. No political party or section of our people has any constitutional right to freely
and without government control make use of such a public place as Plaza Miranda, particularly if such use is a
deviation from those for which said public places have been by their nature and purpose immemorially dedicated. In
other words, the City Mayor did not attempt to have anything to do with the holding of the "indignation rally" or the
delivery of speeches thereat on the date desired at any place over which said mayor had no control his action was
exclusively confined to the regulation of the use of Plaza Miranda for such a purpose and at such a time. Chief Justice
Hughes, speaking for a unanimous court in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:
If a municipality has authority to control the uses of its public streets for parades or processions, as it undoubtedly has,
it can not be denied authority to give consideration, without unfair discrimination, to time, place, and manner in relation
to the other proper uses of the streets. We find it impossible to say that the limited authority conferred by the licensing
provisions of the statute in question as thus construed by the state court contravened any constituional right.
(emphasis ours).
That case was concerened with a prosecution of sixty-eigth "Jehovah's Witnesses" in a municipal court in the State of
New Hampshire for violation of a state statute prohibiting a "parade or procession" upon a public street without a
special license. The appellants invoked the constitutional right of free speech and press, as well as that of the
assembly. The judgment of the municipal court was affirmed by the Supreme Court of New Hampshire and that of the
latter was affirmed by the United States Supreme Court. Among other things, the United States Supreme Court said
that the appellants were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise,
or for issuing invitations to a public meeting, or for holding a public meeting, of for maintaining or expressing religious
beliefs. Their right to do any of these things apart from engaging in a "parade or procession," upon a public street was
not involved in the case. The question of the validity of a statute addressed to any other sort of conduct than that
complained of was declared not to be before the court (85 Law. ed., 1052). By analogy, I may that in the instant case
the constitutional rights of free speech, assmebly, and petition are not before the court but merely the privilege of
petitioner and the Coalesced Minorities to exercise any or all of said rights by using Plaza Miranda, a public place
under the complete control of the city government. In the same case of Cox vs. New Hampshire, supra, Chief Justice
Hughes, in his opinion, used the following eloquent language:
"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order
without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to
impose regulations in order to assure the safety and convenience of the people in the use of public highways has

never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order
upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it can not be disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protectio. One would not be justified in ignoring the familiar red lightbecause he
thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an
announcement of his opinion...." (85 Law. ed., 1052-1053.)
In other words, when the use of public streets or places is involved, public convenience, public safety and public order
take precedence over even particular civil rights. For if the citizen asserting the civil right were to override the right of
the general public to the use of such streets or places, just because it is guaranteed by the constitution, it would be
hard to conceive how upon the same principle that citizen be prevented from using the private property of his neighbor
for the exercise of the asserted right. The constitution, in guaranteeing the right of peaceful assembly and petition, the
right of free speech, etc., does not guarantee their exercise upon public places, any more than upon private premises,
without government regulation in both cases, of the owners' consent in the second.
In Davis vs. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United States Supreme Court, in affirming the
decision of the Supreme Judicial Court of Massachusetts written by Justice Oliver Wendell Holmes, then of the latter
tribunal, quoted from said decision as follows:
"...As representatives of the public it (legislature) may and does excercise control over the use which the public may
make of such places (public parks and streets), and it may and does delegate more or less of such control to the city
or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or
public park is no more an infringement of the rights of the member of the public than for the owner of a private house
to forbid it in his house. When no proprietary right interferes the legislature may end the right of the public to enter
upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the
public use to certain purposes. See Dill. Mun. Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs. vs.
Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70)....".
(c) Authorities cited.--.
I have examined the citations of authorities in the majority opinion. Most of the cases therin cited are, I think,
inapplicable to the oune under consideration, and those which may have some application, I believe reinforce this
dissent. None of them was for mandamus to compel the granting of a permit for holding a meeting, assembly or the
like, upon a public place within the control of the general or local government.
The fact that a law or municipal ordinance under which a person had been prosecuted for delivering a speech without
the required permit, for example, was declared unconstitutional or otherwise void for delegating an unfettered or
arbitrary discretion upon the lisencing authority, thus completely failing to confer the discretion, does not mean that
such person has the right by mandamus to force said authority to grant him the permit. If, in such case, the law or
ordinance, conferring the discretion, is unconstitutional or void, the mandamus suit becomes entirely idle. Such a suit
would involve self-contradictory proposition, for the very idea of a permit is something which may be granted or
witheld. He who has the power to grant permission for the doing of an act necessarily has the correlative power to
deny the permission. A "permit" which under no conditions or circumstances and at no time can be refused needs a
different name.
Willis Cox vs. State of New Hampshire, 312 U. S., 569, was concerned with a statute of the State of New Hampshire
which was construed by the Supreme Court of the same State as not conferring upon the licensing board unfettered
discretion to refuse the license, and was held valid both by said Supreme Court and the Supreme Court of the United
States.
In our case, section 2434 (b)-(m) of the Revised Administrative Code does not confer upon the Mayor of Manila an
unfettered discretion to grant or refuse the permit--his power to grant or to refuse the permit is controlled and limited by
the all important requirement of the same section that whatever his determination, it should be "for any good reason of
general interest.".

In City of Chicago vs. Trotter, 136 Ill., 430, the Supreme Court of the State of Illinois held that the power of City
councils under the state law to regulate the use of the public streets could not be delegated by them, and therefore
could not be delegated to the superintendent of police. But in our case, the power of the City Mayor under the Revised
Administrative Code has not been delegated by the Municipal Board of Manila but has been directly conferred by the
State through its legislature.
In State ex rel. Garrabad vs. Dering, 84 Wis., 585, what was involved was a city ordinance committing to the
unrestrained will of public officer the power to determine the rights of parties under the ordinance without anything (to
guide or control his action.) In our case, as already stated, the city mayor received his power from the State through
the Legislature which enacted the Revised Administrative Code, and moreover, his action therein provided to be
guided and controlled by the already mentioned requirement that whether he grants or refuses a municipal premit of
any class it shall be for some "good reason of general interest," and not as his unfettered will may dictate.
The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared unreasonable and void by the Supreme
Court of Michigan, the ordinance prohibiting certain uses of the public streets of the City of Grand Rapids "without
having first obtained the consent of the Mayor or Common Council of said City." The ordinance did not prescribe any
guide, control or limitation for, of, and to, the exercise of the power thus conferred upon the mayor or common council.
The following passage from the quotation from the decision of the Supreme Court of Michigan made in the majority
opinion would seem to reinforce the stand taken in this dissent.
"...We must therefore construe this Charter and the powers it assumes to grant, so far as it is not plainly
unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep order, and
suppress mischief, in accordance with the limitations and conditions required by the rights of the people themselves,
as secured by the principles of law, which cannot be less careful of private rights under a constitution than under the
common law.
"It is quite possible that some things have a greater tendency to produce danger and disorder in the cities than in
smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing further; and no
inference can extend beyond the fair scope of powers granted for such a purpose and no grant of absolute discretion
to suppress lawful action altogether can be granted at all...." (emphasis ours.)
The instant case is concerned with an "indignation rally" to be held at one of the busiest and most frequented public
places in this big cosmopolitan city, with a present population estimated to be 150 per cent larger than its prewar
population, and the public officer who was being called upon to act on the petition for permit was the chief executive of
the city who was by reason of his office the officer most directly responsible for the keeping and maintenance of peace
and public order for the common good. And as stated elsewhere in this dissent, his power in the premises was not
without control, limitation or guide and, lastly, the action taken by him was not an absolute suppression of the right
claimed but was merely a postponement of the use of a public place for the excercise of that right when popular
passions should have calmed down and public excitement cooled off sufficiently to better insure the avoidance of
public peace and order being undermined.
Rich vs. Mapervill, 42 Ill. Ap., 222, had to do with another city ordinance. The court there held that when men in
authority are permitted in their discretion to excercise "power so arbitrary , liberty is subverted, and the spirit of our free
institution violated." (Emphasis ours.) This is not our case, as the power of the Manila Mayor now under consideration
is not at all arbitrary. It was further held in that case that where the granting of the permit is left to the unregulated
discretion of a small body of city alderman, th ordinance can not be other than partial and discriminating in its practical
operation. The case at bar is radically different for, as already shown, the discretion of the City Mayor here is not
unregulated, for the phrase "any good reason of general interest" is certainly an effective regulatory condition
precedent to the exercise of the power one way or the other. And just as certainly the reasons alleged by the
respondent Mayor for his action stated in his letters dated November 15 and 17, 1947, addressed to petitioner and in
his affidavit Annex 1, seem entirely well founded and well taken, consideration being had of his grave responsibilities
as the immediate keeper of peace and public order in the city. Elsewhere in this dissent we quote from said documents
textually.
On page 13 of the majority opinion there is aquotation of anothe passage from the case of Cox vs. New
Hampshire, supra, which says:

"As regualtion of the use of the streets for parades or processions is a traditional exercise of control by local
government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly
abridge the right of assembly and the opportunities for the communication of thought and the discussion of public
questions immemorially associated with resort to public places.".
The above rule means that if the control exerted does not deny or unwarrantedly abridge the right of assembly, such
control is legally valid. This is precisely our case, since the respondent Mayor neither denied not unwarrantedly
abridged the right asserted by petitioner and his companions. If the postponement of the granting of the permit should
be taken as a denial of the right, then we would practically be denying the discretion of the proper official for it would
be tantamount to compelling him to grant the permit outright, which could necessarily mean that he can never refuse
the permit, for one who cannot even postpone the granting of such permit much less can altogether refuse it.
Hague vs, Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed., 1423, apart from being clearly
distinguishable from the instant case as later demonstrated, contains the passage quoted on page 7 of this dissent,
which decidedly supports it. The distinction between that case and this is that there "the ordinance deals only with the
exercise of the right of assembly for the purpose of communicating views entertained by speakers, and is not a
general measure to promote the public convenience in the use of the streets or parks" (83 Law. ed., 1436); while in the
instant case section 2434 (b)-(m) of the Revised Administrative Code is not solely aimed at prhibition of any particular
act for it likewise provides permission, and in both cases is expressly aimed at promoting the "general interest." .
Cox vs. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is equally in solid support of this dissent as
appears from No. 2 of the syllabus therein:
"A statute requiring persons using the public streets for a parade or procession to procure a special license therefor
from the local authorities is not an unconstitutional abridgement of the rights of assembly or of freedom of speech and
press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of time, place, and manner, of the parade or procession, with a view to
conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with
arbitrary discretion to issue or refuse licenses, but are required to exercise their discretion free from the improper or
inappropriate consideration and from unfair discrimination." (Emphasis ours.)
In empowering and directing the City Mayor to grant or refuse permits "for any...good reason of general interest," the
Revised Administrative Code plainly has in view only the common good and excludes all "improper or inappropriate
considerations" and "unfair discrimination" in the exercise of the granted discretion.
Lastly, as between Hague vs, Committee fro Industrial Organization, supra, and Cox vs. State of New
Hampshire supra, the choice is obvious with regard to their authoritative force, when it is considered that in the former
out of the nine Justices of the United States Supreme Court two did not take part and of the seven who dis only two,
Justices Roberts and Black, subscribed the opinion from which the majority here quote, while in the latter (Cox vs.
State of New Hampshire) the decision was unanimous.
(d) Mandamus unavailable.--- .
Mc Quillin on Municipal Cororations, 2nd ed., Revised, Volume 6, p. 848, section 2714, expresses the rule obtaining in
the United States that the immunity from judicial control appertaining to the Office of the Governor of the State, or to
the Presidency of the United States, does not attach to the mayoralty of a city. But on page 878, section 2728, ha has
the following to say on the unavailability of mandamus to compel the granting of licenses and permits by municipal
officers:
"SEC. 2728. To compel the granting of licenses and permits.--If the issuance of the license or permit is discretionary
with the officer or municipal board, it is clear that it cannot be compelled by mandamus. The cases rarely, if ever,
depart from this well established rule, and in consequence in doubtful cases the judicial decisions uniformly disclose a
denial of the remedy. As already stated, the fundamental condition is that the petition must show a clear legal right to
the writ and a plain neglect of duty on the part of the public officer to perform the act sought to be enforced. For

example, one who seeks to compel a city to issue to him a permit for the erection of a buiding must show compliance
with all valid requirements of the building ordinances and regulations.
"The granting of licenses or permits by municipal or other public authorities, as mentioned, is usually regarded as a
discretionary duty, and hence, ordinarilymandamus will not lie to compel them to grant a license or issue a permit to
one claiming to be entitled thereto, especially where it is not alleged and shown that the exercise of such discretion
was arbitrary. All the court can do is to see that the licensing authorities have proceeded according to law. Their
decision will not be reviewed on its merits. Where, however, refusal to grant a license or to issue a permit, as said
above, is arbitrary or capricious mandamus will lie to compel the appropriate official action...." .
To my mind, the following reasons, alleged by the respondent mayor, negative all element of arbitrariness in his official
action:
"...please be advised that upon reading the metropolitan newspapers this morning wherein it appears that your
meeting will be an indignation rally at which all the supposed election frauds allegedly perpetrated in many parts of the
Philippines for the purpose of overriding the popular will, will be bared before the people, this office hereby revokes the
said permit.
"It is believed that public peace and order in Manila will be undermined at the proposed rally considering the passions
have not as yet subsided and tension remains high as an aftermath of the last political contest.
"According to the same newspapers, delegates from the provinces and students from local universities will particpate
in the said rally which, in my opinion, would only precipitate trouble since no guarantee can be given that only the
opposition elements will be there. The moment the crowd becomes mixed with people of different political colors which
is most likely to happen, public order is exposed to danger once the people are incited, as they will be incited,
considering the purposes for which the meeting will be held as reported in the newspapers above mentioned.
"...." (Mayor's letter dated November 15, 1947.)
"I have the honor to acknowledge receipt of your letter of November 7, 1947, requesting for a permit to hold a public
meeting at Plaza Miranda, Quiapo, on Saturday, November 22, 1947, for the purpose of denouncing the alleged
fraudulent manner in which the last elections have been conducted and the alleged nationwide flagrant violation of the
Election Law, and of seeking redress therefor. It is regretted that for the same reasons stated in my letter of November
15, 1947, your request can not be granted for the present. This Office has adopted the policy of not permitting
meetings of this nature which are likely to incite the people and disrupt the peace until the results of the elections shall
have been officially announced. After this announcement, requests similar to yours will be granted.
"...." (Mayor's letter dated November 17, 1947.)
"That according to Congressman Primicias, the meeting will be an indignation rally for the purpose of denouncing the
alleged fraudulent manner the said elections were conducted and the nationwide falgrant violations of the Election
Law;.
"2. That it is a fact that the returns of the last elections are still being recounted in the City of Manila in the Commission
on Elections, and pending the final announcement of the results thereof, passions, especially on the part of the losing
groups, remain bitter and high;.
"3. That allusions have been made in the metropolitan newspapers that in the case of defeat, there will be minority
resignations in Congress, rebellion and even revolution in the country;.
"4. That I am sure that the crowd that will attend said meeting will be a multitude of people of different and varied
political sentiments;.

"5. ......
"6. That judging from the tenor of the request for permit and taking into consideration the circumstances under which
said meeting will be held, it is safe to state that once the people are gathered thereat are incited, there will surely be
trouble between the opposing elements, commotion will follow, and then peace and order in Manila will be disrupted;
and.
"7. That the denial of said request for permit has been made for no other reasons except to perform my duty as Mayor
of Manila to maintain and preserve peace and order in this City.
8. That I have assured Congressman Primicias that immediately after the election returns shall have been officially
announced, the Nacionalista Party or any party will be granted permit to hold meetings of indignation and to denounce
alleged faruds." (Annex 1, Answer.)
For these and other reasons which could be advanced in corroboration, I am of the considered opinion that the
respondent Mayor had under the law the requisite discretion to grant or refuse the permit requested, and therefore to
revoke that which had previously been granted, and that the reasons for such revocation alleged in his letters dated
November 15 and 17, 1947, to petitioner and in his affidavit Annex 1 were amply sufficient to justify his last action. And
be it distinctly observed that this last action was not an absolute denial of the permit, but a mere postponement of the
time for holding the "rally" for good reasons "of general interest" in the words of section 2434 (b)-(m) of the Revised
Admninistrative Code.
TUASON, J., dissenting:
I join in Mr. Hilado's dissent and wish to add a few remarks.
As Mr. Justice Hilado says, freedom of speech, of the press, and of peaceble assemblage, is only an incidental issue
in this case. No one will contest the proposition that the mayor or the Congress itself may stop the petitioner and his
men from meeting peacebly and venting their grievances in a private place. The main issue rather is the extent of the
right of any group of people to use a public street or a public plaza for a purpose other than that for which it is
dedicated.
The constitutional guaranty of free speech does not prevent the government from regulating the use of places within
its control. A law or ordinance may forbid the delivery of addresses on the public parks, or on the streets as a valid
exrcise of police power. (12 C. J., 954) Rights of assembly and of petition are not absolute rights and are to be
construed with regard to the general law. (16 C.J.S., 640) Indeed, "the privileges of a citizen of the United States to
use the streets and parks for the communication of views on national questions...must be exercised in subordination to
the general comfort and convenience." (Hague vs. Committee for Industrial Organization, 307 U. S., 496, 83 Law. ed.,
1433) And so long as the municpal authorities act within the legitimate scope of their police power their discretion is
not subject to outside interference or judicial revsion or reversal (14 C. J., 931.)
The mayor did not act capriciously or arbitrarily in withholding or postponing the permit applied for by the petitioner. His
reasons were real, based on contemporary events of public knowledge, and his temporary refusal was reasonably
calculated to avoid possible disturbances as well as to adavance and protect the public in the proper use of the most
congested streets and public plaza in an overcrowded city. There was reason to fear disturbances, not from the
petitioner and his men but from elements who had no connection with the holding of the meeting but who, having
gripes, might be easily excited to violence by inflammatory harangues when nerves were on edge. The fact that no
untoward incident occurred does not prove the judiciousness of this Court's resolution. The court is not dealing with an
isolated case; it is laying down a rule of transcendental importance and far-reaching consequences, in the
administration of cities and towns. If nothing happened, it is well to remember that, according to newspapers, 500
policemen were detailed to prevent possible disorder at the gathering. It should also be borne in mind that vehicular
traffic in the vicinity of Plaza Miranda had to be suspended and vehicles had to be rerouted, during and after the
meeting. All of which entailed enormous expense by the city and discomforts to the general public.

No individual citizen or group of citizens certainly has a right to claim the use of a public plaza or public streets at such
great expense and sacrifice on the part of the city and of the rest of the community. Yet, by virtue of this Court's
resolution any person or group of persons invoking political, civil or religious freedom under the constitution is at liberty
to stage a rally or parade or a religious procession, with the mayor powerless to do anything beyond seeing to it that
no two meetings or parades were held in the same place or close to each other. No precedent in the United States,
after whose institutions ours are modelled, approaches this Court's resolution in its disregard of the government's
authority to control public streets and to maintain peace and order. In an infant republic where the state of peace and
order is still far from normal, where the forces of law are far from adequate to cope with lawlessness; in a city where
conditions of traffic are among the worst if not the worst on earth, this Court sets down a principle that outstrips its
prototype in "liberality", forgetting that personal rights can only exist in a properly regulated society. As Mr. Chief
Justice Hughes said in Cox vs. New Hampshire, 61 S. Ct., 762, "Civil liberties, as guaranteed by the Constitution,
imply the existence of an organized society maintaining public order without which liberty itself would be lsot in the
excesses of unrestrained abuses. The authority of the municipality to impose regulations in order to assure the safety
and convenience of the people in the use public highways has never been regarded as inconsistent with civil liberties,
but rather as one of the means of safeguarding the good order upon which they ultimately depend." To be logical,
peddlers and merchants should be given, as a matter of right, the freedom to use public streets and public squares to
ply their trade, for the freedom of expression and of assemblage is no more sacred than the freedom to make a living.
Yet no one has dared make such a claim.
The cases cited in the resolution are not applicable. It will be seen that each of these cases involved the legality of a
law and municipal ordinance. And if in some of said cases a law or an ordinance was declared void, the grounds of
invalidation were either discrimination or lack of authority of the Legislature or the municipal council under the state
constitution or under the law to adopt the contested measure.
As applied to Manila, there are both a law and an ordiance regulating the use of public places and the holding of
meetings and parades in such places. As long as this law and this ordinance are in force the mayor does not only have
the power but it is his sworn duty to grant or refuse a permit according to what he believes is in consonance with
peace and order or is proper to promote the general comfort and convenience of the inhabitants.
The Court says that section 2434 (m) of the Revised Administrative Code "is not a specific of substantive power
independent from the corresponding municipal ordinance which the Mayor, as Chief Executive of the City, is required
to enforceunder the same section 2434." The Court advances the opinion that because section 2444 confers upon the
municipal board "the police power to regulates the use of streets and othe public places," "It is to be presumed that the
Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m), the same power, specially if we
take into account that its exercise may be in conflict with the exercise of the same power by the municipal board.".

This Court has already set at rest the validity, meaning any scope of section 2434 (m) in a unanimous decision with all
the nine members voting, when it sustained the mayor's refusal to grant a permit for a public meeting on a public plaza
to be followed by a parade on public streets. (Evangelista vs. Earnshaw, 57 Phil., 255) The reference to section 2434
(m) in that decision was not an obiter dictum as the majority say. The sole question presented there, as we gather from
the facts disclosed, was the legality of the mayor's action, and the court pointed to section 2434 (m) as the mayor's
authority for his refusal. The fact that the mayor could have denied the petitioner's application under the general power
to prohibit a meeting for unlawful purposes did not make the disposition of the case on the strength of section 2434
(m) obiter dictum. An adjudication on any point within the issues presented by the case cannot be considered a
dictum; and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and
decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any
statement in the opinion as to a matter on which the decision is predicated. Accordingly, a point expressly decided
does not lose its value as a precedent because the disposition of the case is or might have been on some other
ground, or even though, by reason of other points in the case, the result reached might have been the same if the
court had held, on the particular point, otherwise than it did. (1 C. J. S. 314-315.)
But the Court asserts that if the meaning of section 2434 (m) is what this Court said in Evangelista-Earnshaw case,
then section is void. I do not think that that provision is void--at least not yet. Until it is invalidated in the proper case
and in the proper manner, the mayor's authority in respect of the issuance of permits is to be measured by section
2434 (m) and by the municipal ordinance in so far as the ordinance does not conflict with the law. The validity of that
provision is not challenged and is nowhere in issue. It is highly improper, contrary to the elementary rules of practice
and procedure for this Court to say or declare that the provision is void. Moreover, Article VIII, section 10, of the
Constitution provides that "all cases involving the constitutionality of a treaty or a law shall be heard and decided by
the Supreme Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of twothirds of all the members of the court." Only seven voted in favor of the resolution.
1 El letrado Sr. D. Ramon Diokno, en representacion del recurrente, y el Fiscal Auxiliar de Manila D. Julio Villamor, en
representacion del recurrido.
2 Los hechos confirmaron plenamente esta presuncion; el mitin monstruo ques se celebro en la noche del 22 de
Noviembre en virtud de nuestra resolucion concediendo el presente recurso de mandamus-- el mas grande que se
ghaya celebrado jamas en Manila, segun la prensa, y al cual se calcula que assistieron unas 80,000 personas--fue
completamente pacifico y ordenado, no registrandose el menor incidente desagradable. Segun los periodicos, el mitin
fue un magnifico acto de ciudadania militante y responsable, vindicatoria de la fe de todos aquellos que jamas habian
dudado de la sensatez y cultura del pueblo de Manila.
3 Madame Roland.

Section 2434 (m) is written in the plainest language for any casual reader to understand, and it is presumed that it
means what it says. This provision certainly was not inserted in the city charter, which must have been drawn with
painstaking care, for nothing. And I am aware of no constitutional provision or constitutional maxim which prohibits the
delegation by the Legislature of part of its police power affacting local matters, directly upon the mayor instead of
through the municipal board. Nor is there incompatibilty between section 2434 (m) and section 2444 or the ordinance
enacted under the latter. At any rate, section 2434 (m) is of special character while section 2444 is general, so that, if
there is any conflict between section 2434 (m) and the ordinance passed under section 2444, the former is to prevail.

4 En Mejico el lema, la consigna political es: "Sufragio efectivo, sin reelecion." Los que conocen Mejico aseguran que,
merced a esta consigna, la era de las convulsiones y guerras civiles en aquella republica ha pasado definitivamente a
la historia.
5 "No puedo pasar por alto una magistratura que contribuyo mucho a sostener el Gobierno de Roma; fue la de los
censores. Hacian el censo del pueblo, y, ademas, como la fuerza de la republica consistia en la disciplina, la
austeridad de las costumbres y la observacion constante de ciertos ritos, los censores corregian los abusos que la ley
no habia previsto o que el magistrado ordinario no podia castigar...
"El Gobierno de Roma fue admirable, porque desde su nacimiento, sea por el espiritu del pueblo, la fuerza del
Senado o la autoridad de ciertos magistrados, estaba constituido de tal modo, que todo abuso de poder pudo ser
siempre corregido.
"El Gobierno de Inglaterra es mas sabio, porque hay un cuerpo encargado de examinarlo continuamente y de
examinarse a si mismo; sus errores son de suerte que nunca se prolongan, y por el espiritu de atencion que
despiertan en el pais, son a menudo utiles.

"En una palabra: un Gobierno libre, siempre agitado, no podria mantenerse, si no es por sus propias leyes capaz de
corregirse." ("Grandeza y decadencia de los romanos," por Montesquieu, pags. 74, 76 y 77.) .

FERNANDO, J.:p
The question raised in these certiorari proceedings, one to which no authoritative answer has been yielded by past
decisions, is the scope to be accorded the constitutional immunity of senators and representatives from arrest during
their attendance at the sessions of Congress and in going to and returning from the same except in cases of treason,
felony and breach of the peace. 1 Petitioners Manuel Martinez y Festin 2 and Fernando Bautista, Sr.,3 as delegate of
the present Constitutional Convention would invoke what they consider to be the protection of the above constitutional
provision, if considered in connection with Article 145 of the Revised Penal Code penalizing a public officer or
employee who shall, during the sessions of Congress, "arrest or search any member thereof, except in case such
member has committed a crime punishable under [such] Code by a penalty higher than prision mayor." 4 For under the
Constitutional Convention Act, 5 delegates are entitled to the parliamentary immunities of a senator or a
representative. 6 Both petitioners are facing criminal prosecutions, the information filed against petitioner Manuel
Martinez y Festin for falsification of a public document and two informations against petitioner Fernando Bautista, Sr.
for violation of the Revised Election Code. The Solicitor General, on behalf of the respondent Judges in the above
proceedings, 7 would dispute such a contention on the ground that the constitutional provision does not cover any
criminal prosecution being merely an exemption from arrest in civil cases, the logical inference being that insofar as a
provision of the Revised Penal Code would expand such an immunity, it would be unconstitutional or at the very least
inoperative. A careful study of the above constitutional provision, in the light of the proceedings of the Constitutional
Convention, adopting the then well-settled principle under American law and of the purposes to be served by such an
immunity, persuade us that the stand taken by the Solicitor General is correct. These certiorari proceedings cannot
prosper.

G.R. No. L-34022 March 24, 1972

MANUEL MARTINEZ Y FESTIN petitioner,
vs.
THE HONORABLE JESUS P. MORFE OF THE COURT OF FIRST INSTANCE OF MANILA, and THE CITY
WARDEN OF MANILA, respondents.
G.R. Nos. L-34046-7 March 24, 1972
FERNANDO BAUTISTA, SR., petitioner,
vs.
HON. FRANCISCO MA. CHANCO, Presiding Judge, Court of First Instance of Baguio and Benguet, Second
Judicial District, Branch III, et al., respondents.
Estanislao A. Fernandez, Amelito Mutuc, Reynaldo Villar, Alberto K. Jamir Anacleto Badoy, Jr., Emmanuel Santos,
Sedfrey Ordoez, Antonio Tupaz, Arturo Pacificador, Dominador F. Carillo, Antonio Borromeo, Augusto Cesar Espiritu,
Dandy K. Tupaz and Eugene A. Tan for petitioner Manuel Martinez Y Festin.
Remulla, Perez and Estrella, Fernando P. Cabato and Gaudencio N. Floresca for petitioner Fernando Bautista Sr.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Bernardo P. Pardo, Assistant Solicitor
General Rosalio A. de Leon and Solicitor Vicente V. Mendoza for respondents Judges.
Kaulayao V. Faylona, Manuel Imbong, Jacobo Gonzales, Fernando P. Camaya, Jose Tablizo, Romeo Kahayon and
Tomas P. Matic, Jr. for respondents Pulido and Tamayo.

The facts in both petitions for certiorari are not in dispute. Petitioner Martinez y Festin 8 alleged that on June 10, 1971,
an information against him for falsification a public document was filed. Its basis was his stating under oath in his
certificate of candidacy for delegate to that Constitutional Convention that he was born on June 20, 1945, when in truth
and in fact he knew that he was born on June 20, 1946. There was on July 9, 1971, a special appearance on his part
questioning the power of respondent Judge to issue a warrant of arrest and seeking that the information be quashed.
On the same day, there was an order from the lower court suspending the release of the warrant of arrest until it could
act on such motion to quash. Then came on July 22, 1971 an omnibus motion from him, with previous leave of court,
to quash the information, to quash the warrant of arrest, or to hold in abeyance further proceeding in the case. It was
not favorably acted on. On August 21, 1971, respondent Judge rendered an order denying the petitioner omnibus
motion to quash. In his belief that the information and the warrant of arrest in this case are null and void, the petitioner
did not post the required bond. He was arrested by the City Sheriff in the afternoon of September 6, 1971. At the time
of the filing of the petition he was confined at the City Jail in the custody of respondent City Warden of Manila. He was
on his way to attend the plenary session of the Constitutional Convention. Such arrest was against his will and over his
protest. He was arraigned on September 9, 1971. There was at such a time a motion by petitioner to reconsider the
court's order of August 21, 1971. It was denied in open court. On the very same day, he filed the petition
for certiorari and habeas corpus, but having been released thereafter on bail on September 11, 1971, the petition is
now in the nature solely of a certiorari proceeding. 9
As for petitioner Fernando Bautista, Sr., 10 it was alleged that he is a duly elected and proclaimed delegate to the 1971
Constitutional Convention. He took his oath of office and assumed the functions of such office on June 1, 1971. He
has continued since then to perform the duties and discharge the responsibilities of a delegate. Two criminal
complaints, docketed as Criminal Cases Nos. 146(57) and 148(58), were directly filed with the Court of First lnstance
of Baguio and Benguet by a certain Moises Maspil, a defeated delegate-aspirant who placed 15th in the order of votes
garnered against the petitioner, and his co-accused for alleged violation of Section 51 of the Revised Penal Code in
that they gave and distributed free of charge food, drinks and cigarettes at two public meetings, one held in Sablan
and the other in Tuba, both towns being in Province of Benguet. Respondent Presiding Judge conducted the
preliminary investigation of said criminal complaints. Thereafter on August 7, 1971, he issued an order for the filing of
the corresponding informations. Before a warrant of arrest in said criminal cases could be issued, petitioner in a
motion of August 14, 1971 invoked the privilege of immunity from arrest and search, pursuant to Section 15 of
Republic Act No. 6132, otherwise known as the 1971 Constitutional Convention Act, in relation to Sec. 15, Article VI of
the Constitution and Article 145 of the Revised Penal Code. Respondent Judge, on the very same day, issued an
order, holding in abeyance the issuance of a warrant of arrest and setting the hearing of said Motion on August 23,
1971. As scheduled on August 23, 1971, there was a hearing on such motion. Petitioner however did not prevail
notwithstanding his vigorous insistence on his claim for immunity, a warrant of arrest being ordered on the same day.
On September 11, 1971, there was a motion to quash such order of arrest filed by petitioner. He was unsuccessful,
respondent Judge, in an order of said date, ordering his immediate arrest. His petition for certiorari and prohibition was
filed with this Court on September 15, 1971. 11

What is thus sought by petitioners Martinez y Festin and Bautista, Sr. is that the respective warrants of arrest issued
against them be quashed on the claim that by virtue of the parliamentary immunity they enjoy as delegates, ultimately
traceable to Section 15 of Article VI of the Constitution as construed together with Article 145 of the Revised Penal
Code, they are immune from arrest. In the case of petitioner Martinez y Festin, he is proceeded against for falsification
of a public document punishable by prision mayor. 12 As for petitioner Bautista, Sr., the penalty that could be imposed
for each of the Revised Election Code offense, of which he is charged, is not higher than prision mayor. 13
The respondents in the above petitions were required to answer by resolutions of this Court issued on September 10
and September 20, 1971, respectively. An answer on behalf of respondent Judge Jesus P. Morfe in the case of
petitioner Martinez y Festin was filed on September 20, 1971 with an answer in intervention filed by respondent
Executive Sheriff of Manila and the Chief of Warrant Division likewise filed on the same date. His petition was duly
heard on September 14, 1971, Delegate Estanislao A. Fernandez vehemently pressing his claim to immunity.
Thereafter on October 29, 1971, a memorandum, comprehensive in scope and persuasive in its analysis of the
constitutional question presented, was filed on behalf of respondent Judge Morfe by Solicitor General Felix Q. Antonio,
two Assistants Solicitors General Bernardo P. Pardo and Rosalio A. de Leon as well as Solicitor Vicente V. Mendoza. A
memorandum on behalf of President Diosdado Macapagal of the Constitutional Convention, who was given
permission to submit such a pleading, was submitted on March 8, 1972 by the Committee on Legal Affairs of the
Constitutional Convention. 14
As for the petitions of Bautista, Sr., the answer on behalf of respondent Judge was filed on September 29, 1971. When
the matter was heard on October 14, 1971, he appeared through counsel, Delegate Juanito R. Remulla, while
respondent Judge was represented by Assistant Solicitor General Rosalio A. de Leon and Solicitor Vicente V.
Mendoza. With the submission, on October 30, 1971, of an able memorandum on behalf of respondent judge, again,
by the same counsel from the Office of the Solicitor General as well as a carefully-prepared memorandum of petitioner
Bautista, Sr., on December 1, 1971, the matter was deemed submitted for adjudication.
As noted at the outset, certiorari does not lie to quash the warrants of arrest issued against petitioner Martinez y Festin
as well as petitioner Bautista, Sr. Their reliance on the constitutional provision which for them should be supplemented
by what was provided for in the Revised Penal Code is futile. There is no justification then for granting their respective
pleas.
No other conclusion is allowable consistently with the plain and explicit command of the Constitution. As is made clear
in Section 15 of Article VI, the immunity from arrest does not cover any prosecution for treason, felony and breach of
the peace. Treason exists when the accused levies war against the Republic or adheres to its enemies giving them aid
and comfort. 15 A felony is act or omission punishable by law. 16 Breach of the peace covers any offense whether
defined by the Revised Penal Code or any special statute. It is a well-settled principle in public law that the public
peace must be maintained and any breach thereof renders one susceptible to prosecution. Certainly then from the
explicit language of the Constitution, even without its controlling interpretation as shown by the debates of the
Constitutional Convention to be hereinafter discussed, petitioners cannot justify their claim to immunity. Nor does
Article 145 of the Revised Penal Code come to their rescue. Such a provision that took effect in 1932 could not survive
after the Constitution became operative on November 15, 1935. As will be shown, the repugnancy between such an
expansion of the congressional immunity and the plain command of the Constitution is too great to be overcome, even
on the assumption that the penalty to which a public officer will be subjected in the event that he did arrest one entitled
thereto for an offense punishable by less than reclusion temporal suffices to widen its scope. This is so considering not
only the history of such a Constitutional grant of immunity but also its basic purpose and objective.
1. Even if the provision granting the legislative immunity of freedom from arrest were clothed in language less clear, its
history precludes any other interpretation. As submitted to the Constitutional Convention of 1934, the draft proposal
was worded as follows: "The Members of the National Assembly shall in all cases except treason, open disturbance of
public order, or other offense punishable by death or imprisonment of not less than six years, be privileged from arrest
during their attendance at the sessions of the National Assembly, and in going to and returning from the same." On
December 4, 1934, upon its being considered by the Convention, an amendment was proposed by Delegate Aldeguer
so that it would read: "The Members of the National Assembly shall in all cases except treason, felony, and breach of
the peace, be privileged from arrest during their attendance at the sessions of the National Assembly, and in going and
returning from the same." What was sought by him was to retain the provision of the Philippine Autonomy Act of 1916,
with phraseology identical to that found in the American Constitution.

He defended his proposal thus: "My amendment is not new. It is the same phrase granting parliamentary immunity to
the members of the Parliament of England. It is the same phrase granting parliamentary immunity to members of
Congress. It is the same phrase granting parliamentary immunity to members of the various state legislators of the
Union. Now, in reading the draft proposed by the Sub-Committee of Seven, I found out that it is a broad rule. Mr.
President, the question is not whether we should grant privilege of immunity to the members of the National
Assembly ... " 17 He was interrupted by a point of order raised, but he was allowed to continue. He went on: "As I was
saying, Mr. President and Gentlemen of the Convention, the draft gives to the member of the National Assembly more
privileges than what the nature of the office demands. My question is that if the members of the Congress of the
United States, if the members of the Parliament, if the members of the various State Legislatures were able to perform
their functions as members of law-making bodies with the privileges and immunities granted by the phrase "breach of
peace." I wonder why the members of the future National Assembly cannot perform their duties with the same
limitations and with the same privileges. Mr. President and members the Convention, the history of parliamentary
immunity shows that it was never intended to exempt members of the National Assembly from criminal arrest. When
American sovereignty was implanted into these Islands, a new theory of government was implanted too. This theory of
government places every man equal before the eyes of the law. The grant of certain privileges to any set of persons
means the abrogation of this principle of equality before the eyes of the law. Another reason, Mr. President and
Members of the Convention, is this: The State Legislature is the agent of the State. The power or the right of the
Legislature to claim privileges is based on the right of self-preservation. The right of the State to claim privileges is due
to the fact that it has the right to carry its function without obstacle. But we must also remember that any Legislature is
but the agent of the State. The State is the principal. Any crime committed, whether such crime is committed by
a colorum or by a gangster, endangers the State. Giving more privileges to an agent, which is the Legislature, at the
expense of the principal, which is the State, is not a sound policy. So that, Mr. President, and Members of the
Convention, believing that under the phrase "breach of peace", our future members of the Assembly can very well
perform the duties incumbent upon them. I submit my amendment for the consideration of this Convention." 18
Delegate Manuel Roxas on behalf of the sub-committee of seven did not object. As a matter of fact, he was for such
amendment. He considered it "well-founded" and was for such immunity complying "with the wording of the [Philippine
Autonomy Act] in this particular." 19 The Convention readily approved the amendment by acclamation.
It does not admit of doubt therefore that the immunity from arrest is granted by the Constitution was understood in the
same sense it has in American law, there being a similar provision in the American Constitution. 20 Its authoritative
interpretation in the United States was supplied by the Williamson case, a 1908 decision. 21
According to the then Justice, later Chief Justice, White who penned the opinion, "the term "treason, felony and breach
of the peace," as used in the constitutional provision relied upon, excepts from the operation of the privilege all
criminal offenses, ... " 22 He traced its historical background thus: "A brief consideration of the subject of parliamentary
privilege in England will, we think, show the source whence the expression "treason felony, and breach of the peace"
was drawn, and leave no doubt that the words were used in England for the very purpose of excluding all crimes from
the operation of the parliamentary privilege, and therefore to leave that privilege to apply only to prosecutions of a civil
nature." 23 Story's treatise on the Constitution was likewise cited, his view on the matter being quite emphatic: "Now, as
all crimes are offenses against the peace, the phrase "breach of the peace" would seem to extend to all indictable
offenses, as well those which are in fact attended with force and violence, as those which are only constructive
breaches of the peace of the government, inasmuch as they violate its good order." 24
As far as American constitutional law is concerned, both Burdick 25 and Willoughby 26 could use practically identical
appraising such immunity, the former stating that it "is not now of great importance" and the latter affirming that it "is of
little importance as arrest of the person is now almost never authorized except for crimes which fall within the classes
exempt from the priviledge." The state of the American law on this point is aptly summarizedby Cooley: "By common
parliamentary law, the members of the legislature are privileged from arrest on civil process during the session of that
body, and for a reasonable time before and after, to enable them to go to and return from the same." 27 A prosecution
for a criminal offense, is thus excluded from this grant of immunity. So it should be Philippine law, if deference were to
be paid to what was explicitly agreed upon in the Constitutional Convention.
2. Would it make a difference however in the availability of the writs of certiorari sought by petitioners considering that
Article 145 of the Revised Penal Code would impose upon any public officer or employee who shall, while the
Congress is in regular or special session, arrest or charge any member thereof except in case such member has
committed a crime punishable by penalty higher than prision mayor? 28 The assumption here indulged is that the effect

of the above in the Revised Penal Code was to expand the grant of parliamentary immunity under the Philippine
Autonomy Act, although its literal language does not go that far. It is to be remembered, however, that it took effect on
January 1, 1932 before the enforcement of the present Constitution in 1935. Considering that both under the then
organic law, the Philippine Autonomy Act and equally so under the present Constitution, such a more generous
treatment accorded legislators exempting them from arrest even if warranted under a penal law, the question as to
whether it did survive becomes unavoidable. It is our opinion that the answer must be in the negative.

Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

The Constitution is equally explicit on the following point: "All laws of the Philippine Islands shall continue in force until
the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless
inconsistent with this Constitution until amended, altered, modified, or repealed by the Congress of the Philippines,
and all references in such laws to the government or officials of the Philippines shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this Constitution." 29 In People v.
Linsangan 30 decided in December, 1935, barely a month after the Constitution took effect, the continued applicability
of Section 2718 of the Revised Administrative Code that would allow the prosecution of a person who remains
delinquent in the payment of cedula tax, 31 this Court, in its opinion thru the pen of the then Justice, later Chief Justice,
Abad Santos, after setting forth that the Constitution prohibits the imprisonment for debt on non-payment of poll
tax, 32 held: "It seems too clear to require demonstration that section 2718 of the Revised Administrative Code is
inconsistent with section 1, clause 12, of Article III of the Constitution in that, while the former authorizes imprisonment
for non-payment of the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of the Government of
the Commonwealth, said section 2718 of the Revised Administrative Code became inoperative, and no judgment of
conviction can be based thereon." 33

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I),
FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias
"Taba,"respondents.

So it was in De los Santos v. Mallare. 34 Again under the provision of the Revised Administrative Code the President
could remove at pleasure any of the appointive officials under the Charter of the City of Baguio. 35 Relying on such a
provision, the then President Quirino removed petitioner De los Santos who was appointed City Engineer Baguio of on
July 16, 1946, and chose in his place respondent Gil R. Mallare. The Revised Administrative Code was a legislation
that dates back to 1917, 36 eighteen years before the Constitution prohibited any officer or employee in the civil service
being removed or suspended except for cause as provided by law. 37 Again this Court, in the light of aforecited
provision in an opinion of Justice Tuason, held: "So, unlike legislation that is passed in defiance of the Constitution,
assertive and menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a
positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is non-existent,
outlawed and eliminated from the statute book by the Constitution itself by express mandate before the petitioner was
appointed." 38 In the language of the constitutional provision then that portion of Article 145 penalizing a public official
or employee who shall while the Congress is in regular or special session arrest or search any member thereof except
in case he has committed a crime punishable under the Revised Penal Code by a penalty higher than prision mayor is
declared inoperative.

Concepcion, C.J., concurs in the result.

G.R. Nos. L-32613-14 December 27, 1972

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act, 1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any
person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party
or of any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the
respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a
preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the
corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites:

The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a
full recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional
Convention, entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other
force except the dictates of their conscience. Necessarily the utmost latitude in free speech should be accorded them.
When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without
justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during
their attendance in Congress and in going to and returning from the same. There is likely to be no dissent from the
proposition that a legislator or a delegate can perform his functions efficiently and well, without the need for any
transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated like any other
citizen considering that there is a strong public interest in seeing to it that crime should not go unpunished. To the fear
that may be expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the
minority, it suffices to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous
of the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of
course is that the judiciary would main independent. It is trite to say that in each and every manifestation of judicial
endeavor, such a virtue is of the essence.

That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking
leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the
Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the
purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and
domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of
the New People's Army, the military arm of the said Communist Party of the Philippines.

WHEREFORE, the petition for certiorari and habeas corpus by Delegate Manuel Martinez by Festin in L-34022 and
the petitions for certiorari and prohibition by Delegate Fernando Bautista, Sr. in L-34046 and L-34047 are hereby
dismissed. Without pronouncement as to costs.

(c) With the aid of armed men or persons who insure or afford impunity.

That in the commission of the above offense, the following aggravating circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with insult to public authorities;
(b) That the crime was committed by a band; and afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.

Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo
Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as
amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to
collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby
accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO
GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose
identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:
That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the
jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully
and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER
MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became
an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army,
the military arm of the Communist Party of the Philippines; and that all the above-named accused, as such officers
and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one
another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the
government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the
Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following:
1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the
said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the
Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and
toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in barrio
Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government
of the Republic of the Philippines and to established in the Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO
Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting
members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the
purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit,
subversion and/or other illegal means, and establishing in the Philippines a Communist Government.
That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or
persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of
attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him
the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute
void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations
against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action
for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted." 2A bill
of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is the substitution of a legislative for
a judicial determination of guilt. 4 The constitutional ban against bills of attainder serves to implement the principle of

separation of powers 5 by confining legislatures to

rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of
attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the
constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a
legislative intent, suffice to stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars
and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the
country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the
trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the
guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only
issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to
overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the
Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an
organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4,
against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for
definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other
organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and
Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional.
Section 504 provided in its pertinent parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve
(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager,
organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any
labor organization.
during or for five years after the termination of his membership in the Communist Party....
(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than
one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the
Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of
any labor organization. As the Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly
constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact
legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to
bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain
acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to
initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons
have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain
terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring
criminal liability members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our
conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register
as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec.
781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is to apply is set forth in sec.
3 of the Act:
[A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign
government or foreign organization controlling the world Communist movement referred to in section 2 of this title,
and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec.
782 (1958 ed.)
A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify
the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a
general definition. Although the Board has determined in 1953 that the Communist Party was a "Communist-action
organization," the Court found the statutory definition not to be so narrow as to insure that the Party would always
come within it:
In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist
Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at
anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate
means of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court,
as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still
has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party
knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific
intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means
and place the country under the control and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of
knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to
as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct
if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals
of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to
further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be
unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific
intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element of
"membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the
organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal
objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a
bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or
employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the
temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of
attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society which fails to register or remains a
member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux
Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the
Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and
that they are not members of any organization which teaches the overthrow of the Government by force or by any
illegal or unconstitutional method," was upheld by this Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in
such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this
ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United
States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment
of further compensation to individuals named in the Act on the basis of a finding that they had engages in subversive
activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a
labor union, 24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially
noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such
determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oathbound society with a membership of at least twenty to register, and punishing any person who joined or remained a
member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law
applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan
while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the
United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court
said:
The courts below recognized the principle shown in the cases just cited and reached the conclusion that the
classification was justified by a difference between the two classes of associations shown by experience, and that the
difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose
and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of
such a tendency on the part of the other class. In pointing out this difference one of the courts said of the Ku Klux
Klan, the principal association in the included class: "It is a matter of common knowledge that this organization
functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into
the minds of the people;" and later said of the other class: "These organizations and their purposes are well known,
many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no
complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts
said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a
member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the
legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful
purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny
and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful
agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the
danger of certain organizations has been judicially demonstrated," meaning in that state, said: "Benevolent
orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism,
have on the whole justified their existence."
We assume that the legislature had before it such information as was readily available including the published report
of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation,
purposes and activities of the Klu Klux Klan. If so it was advised putting aside controverted evidence that the
order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and
the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile, protestant whites; that in
part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution
of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still
another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our
country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics,
Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and
assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was
taking into its own hands the punishment of what some of its members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In
1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the
objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the
Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently,

in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of
Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the
New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the
existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus
been and still are engaged in rebellion against the Government of the Philippines.

and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of
the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of
purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law expressly
provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by
the Act are thereforenot inescapable.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition
against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement
follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed,
"frequently a bill of attainder was ... doubly objectionable because of its ex post factofeatures. This is the historic
explanation for uniting the two mischiefs in one
clause 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is
also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that
it cannot be a bill of attainder." 31

III. The Act and the Requirements of Due Process

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of
Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los
Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the
effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become
a member of or affiliated with any group, society, association, organization or party which advises, advocates or
teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of California.
In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply
restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter
Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in
1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any
group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the United States.
... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett
case did not declare general and prospectively operative standards of qualification and eligibility for public
employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background, the statutewas held to have
imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe
demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare
inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of
1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is
describedwith such particularity that, in probability, few organizationswill come within the statutory terms. Legislatures
may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be
engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in
the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the
prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully
and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an
organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of
guilt of the members of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression
and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the
hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a
substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful
investigations and then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto
overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit,
subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to
alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present
andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in
direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special legislation
to cope withthis continuing menace to the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe
statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper
account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial
distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of
legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement
problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require supplementation
by rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the
meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by
fact in each case is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing
them.
A conventional formulation is that legislative facts those facts which are relevant to the legislative judgment will
not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while
adjudicativefacts those which tie the legislative enactment to the litigant are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are
seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The
recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950
(that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist
movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S.
Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof
extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v. New York, 291
U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we accept them, as
we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to
existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must
recognize that thepower of Congress to regulate Communist organizations of thisnature is
extensive. 39

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a
metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in
metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a
totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt
once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow
of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently
intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by
the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the
Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild
interpretation which the appellant wouldhave us impute to the language." 45
IV. The Act and the Guaranty of Free Expression

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain to require
elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a
society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As
Chief Justice Vinson so aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial
governmentsis without force where the existing structure of government provides for peaceful and orderly change. We
rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its
logical conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit
acts intended tooverthrow the government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and
substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end
can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished
from nominalmembership, hasbeen held as a sufficient basis for penalizing membershipin a subversive
organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to the organization; and when membership is
acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or
retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is engaged.

44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the
Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly,
willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties
prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist
Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also be
deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an
oversight rather than to deliberateomission.

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother
illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst
knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and
heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions
in his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe
Anti-Subversion Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate,
orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or is a member of,
or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof
Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for
emplymentby the United States or any department or agencythereof, for the five years next following his
conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and
itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what purports to be a
politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy,
should receive anygreater degree of protection from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand
the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe
U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet
consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of
judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom
tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual
freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step
removedfrom the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace
more than one subject which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads:

And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe
Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal
means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien
power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in
the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor
similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby
illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose
is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States
or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations,
Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be
known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject
matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in
place of theexisting Government and not merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a
valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its
operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin
order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor
prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand
belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The
Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof
the crime of joining the Communist Party of the Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of
the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian
regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so
knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led
Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for
the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c)
that he did so willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe
Philippines or of any other subversive association: weleave this matter to future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are
herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.

Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of
the Anti-Subversion Act. 1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress
of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding
portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their
constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of
attainder clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of
freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which they may be
exposed, compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe
ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence
had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the
overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those
now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with
force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and
weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then,
and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character.
It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof
free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew
legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be
enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem
the tide of subversive activities, in whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by
the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later
Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights
quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial.
(Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by
which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the
witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him
devoid of allheritable quality of acquiring and disposing property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed.
366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder,
like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt
decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak
unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable
members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or
political, without judicial trial are billsof attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby
the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals
must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a
sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in
their professions without theoath, they were criminally liable. The United States Supreme Court condemned the
provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation
of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable
was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment
without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the
meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body,
inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of
thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof

trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise;
and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses
of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings
was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state
to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the
right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question
thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses,
insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof
these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally
open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held
guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less
within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the
deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of
justice by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a
motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to
such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the
applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by
the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that
such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland
could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15,
1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath
requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was
announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a
punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of
the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the
Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave
had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the
Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like
prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in
that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under
consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it
was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for
the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of
their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the
Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November
15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated
except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional
enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work
on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date.
Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican
Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the
Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents
wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically
affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution
barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this
Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be
lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of
attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in
Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing
beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the
propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily
ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof

attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere
to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the LaborManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as
anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a
longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a
centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's
Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a onecountindictment returned in a district court of California withservicing as a member of an executive board of a
labororganization while a member of the Communist Party, inwillful violation of the above provision. The question ofits
validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court,
the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the
opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder
indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was
desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates
that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition,
but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the
judicialfunction, or more simply trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief
Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand
Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce
Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such
positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the
Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain
acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to
initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have
committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the
personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability
members of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl
Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice
Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the
American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill
of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may
not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the
individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a
designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the
registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or
controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding must be madeafter
full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination
whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity
constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for
the ascertainment of particularly personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the
framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the
ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland
doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of
course, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in
Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as
shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be
totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their
conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to
proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the
Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing
Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power.
20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe

Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who,
judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive
to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American
Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute.
It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist Party of the
Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked.
Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the
Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual
libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted
thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then,
didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives
of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those
conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies
toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother
way. The apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to
be, but not at the expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one
can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can
take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to
those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content
of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are
devoid of too much significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the
realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be
silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their
studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be
doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such
adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to
affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this
union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of
opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook:
"Without holding the right to theexpression of heresy at any time and place to be absolute for even the right to nonheretical speech cannot beabsolute it still seems wise to tolerate the expression evenof Communist, fascist and
other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to
acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion.
The state has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty
shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting
the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter
of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental
purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental
personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an
areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily
broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the
applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm
hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed
above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly
serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the
American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that

this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the
existing structureof government it may be hoped that these ideas willbring about. Now, when this country is trying to
spreadthe high ideals of democracy all over the world ideals that are revolutionary in many countries seems to
be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that
areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of
democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal
securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make
allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity
ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought
thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and
partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and
theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe
Colonies to want a nation of their own. The Father ofthe Constitution James Madison said, in speakingof the
Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe
Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In
my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by
attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more
than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its
campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against
the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of
securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave
the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish
people for nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe
conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree
speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the
challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of
those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought
of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure
susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what
previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It
can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to
outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a
greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to
reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a
realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the
propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial
measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may
not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for
those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at
least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic
illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the
embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the
basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently
bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at
least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been
more impressively set forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion
of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of
the Anti-Subversion Act. 1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress
of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding
portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their
constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of
attainder clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of
freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which they may be
exposed, compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe
ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence
had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the
overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those
now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with
force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and
weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then,
and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character.
It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I am not
presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof
free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew
legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be
enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem
the tide of subversive activities, in whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by
the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later
Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights
quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial.
(Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by
which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the
witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him
devoid of allheritable quality of acquiring and disposing property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed.
366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder,
like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt
decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak
unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable
members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or
political, without judicial trial are billsof attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby
the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals
must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a
sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in
their professions without theoath, they were criminally liable. The United States Supreme Court condemned the
provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation
of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable
was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment
without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the
meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body,

inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of
thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof
trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise;
and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses
of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings
was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state
to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the
right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question
thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses,
insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof
these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally
open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held
guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less
within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the
deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of
justice by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a
motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to
such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the
applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by
the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that
such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland
could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15,
1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath
requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was
announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a
punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of
the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the
Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave
had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the
Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like
prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in
that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under
consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it
was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for
the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of
their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the
Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November
15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated
except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional
enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work
on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date.
Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican
Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the
Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents
wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically
affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution
barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this
Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be
lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of
attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in
Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing
beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the

propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily
ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof
attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere
to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the LaborManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as
anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a
longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a
centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's
Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a onecountindictment returned in a district court of California withservicing as a member of an executive board of a
labororganization while a member of the Communist Party, inwillful violation of the above provision. The question ofits
validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court,
the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the
opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder
indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was
desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates
that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition,
but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the
judicialfunction, or more simply trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief
Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand
Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce
Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such
positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the
Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain
acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to
initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have
committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the
personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability
members of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl
Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice
Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to the Cummingsprinciple. Had the
American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill
of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may
not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the
individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a
designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the
registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or
controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding must be madeafter
full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination
whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity
constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for
the ascertainment of particularly personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the
framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the
ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland
doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of
course, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in
Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as
shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be
totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their
conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to
proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the
Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing

Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power.
20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe
Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who,
judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive
to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American
Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute.
It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist Party of the
Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked.
Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the
Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual
libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted
thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then,
didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives
of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those
conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies
toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother
way. The apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to
be, but not at the expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one
can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can
take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to
those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content
of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are
devoid of too much significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the
realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be
silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their
studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be
doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such
adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to
affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this
union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of
opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook:
"Without holding the right to theexpression of heresy at any time and place to be absolute for even the right to nonheretical speech cannot beabsolute it still seems wise to tolerate the expression evenof Communist, fascist and
other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to
acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion.
The state has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty
shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting
the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter
of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental
purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental
personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an
areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily
broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the
applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm
hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed
above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly

serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the
American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that
this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the
existing structureof government it may be hoped that these ideas willbring about. Now, when this country is trying to
spreadthe high ideals of democracy all over the world ideals that are revolutionary in many countries seems to
be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that
areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of
democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal
securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make
allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity
ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought
thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and
partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and
theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe
Colonies to want a nation of their own. The Father ofthe Constitution James Madison said, in speakingof the
Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe
Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In
my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by
attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more
than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its
campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against
the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of
securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave
the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish
people for nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe
conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree
speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the
challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of
those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought
of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure
susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what
previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It
can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to
outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a
greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to
reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a
realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the
propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial
measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may
not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for
those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at
least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic
illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the
embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the
basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently
bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at
least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been
more impressively set forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion
of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

FIRST DIVISION
[G.R. No. L-8611. June 28, 1956.]
SEVERINO P. JUSTO, Petitioner, vs. THE COURT OF APPEALS, Respondent.

DECISION
REYES, J.B.L., J.:
This is an appeal from the decision of the Court of Appeals affirming the judgment of the Court of First Instance of
Ilocos Norte finding Petitioner Severino P. Justo guilty of the crime of assault upon a person in authority.
The Court of Appeals found the following facts to have been established.
The offended party Nemesio B. de la Cuesta is a duly appointed district supervisor of the Bureau of Public Schools,
with station at Sarrat, Ilocos Norte. Between 9: 00 and 10: 00 a.m. on October 16, 1950, he went to the division office
in Laoag, Ilocos Norte, in answer to a call from said office, in order to revise the plantilla of his district comprising the
towns of Sarrat and Piddig. At about 11:chanroblesvirtuallawlibrary25 a.m., De la Cuesta was leaving the office in
order to take his meal when he saw the Appellant conversing with Severino Caridad, academic
supervisor. Appellant requested De la Cuesta to go with him and Caridad to the office of the latter. They did and in the
office of Caridad, the Appellant asked about the possibility of accommodating Miss Racela as a teacher in the district
of De la Cuesta. Caridad said that there was no vacancy, except that of the position of shop teacher. Upon hearing
Caridads answer, the Appellant sharply addressed the complainant thus: Shet, you are a double crosser. One who
cannot keep his promise. The Appellant then grabbed a lead paper weight from the table of Caridad and challenged
the offended party to go out. TheAppellant left Caridads office, followed by De la Cuesta. When they were in front of
the table of one Carlos Bueno, a clerk in the division office, De la Cuesta asked the Appellant to put down the paper
weight but instead the Appellant grabbed the neck and collar of the polo shirt of the complainant which was torn.
Carlos Bueno separated the protagonists, but not before the complainant had boxed the Appellant several times.
(Petitioners Brief, pp. 17-18).
The present appeal is directed against that part of the decision of the Court of Appeals which
says:chanroblesvirtuallawlibrary
cralaw It is argued by Counsel, however, that when the complainant accepted the challenge to a fight and followed
the Appellant out of the room of Mr. Caridad, the offended party was no longer performing his duty as a person in
authority. There is no merit in this contention. The challenge was the result of the heated discussion between the
complainant and the Appellant occasioned by the latters disappointment when he was told that Miss Racela could not
be accommodated in the district of the former as there was no more vacancy in said district except that of a shop
teacher. Be this as it may, when the Appellant grabbed the neck and collar of the shirt of the complainant, which is
actually laying hands upon a person in authority, he did so while the latter was engaged in the performance of his
duties as the occasion of such performance, to wit:chanroblesvirtuallawlibrary his failure to accommodate Miss Racela
as a teacher in his district as he had supposedly promised theAppellant. (Petitioners Brief, pp. 22-23.)
Petitioner argues:chanroblesvirtuallawlibrary

(1) that when the complainant accepted his challenge to fight outside and followed him out of the room of Mr. Caridad
where they had a verbal clash, he (complainant) disrobed himself of the mantle of authority and waived the privilege of
protection as a person in authority; chan roblesvirtualawlibraryand
(2) that the Court of Appeals erred in not holding that there was no unlawful aggression onPetitioners part because
there was a mutual agreement to fight.
Neither argument is tenable. The character of person in authority is not assumed or laid off at will, but attaches to a
public official until he ceases to be in office. Assuming that the complainant was not actually performing the duties of
his office when assaulted, this fact does not bar the existence of the crime of assault upon a person in authority; chan
roblesvirtualawlibraryso long as the impelling motive of the attack is the performance of official duty. This is apparent
from the phraseology of Article 148 of our Revised Penal Code, in penalizing attacks upon person in authority while
engaged in the performance of official duties or on occasion of such performance, the words on occasion signifying
because or by reason of the past performance of official duty, even if at the very time of the assault no official duty
was being discharged (People vs. Garcia, 20 Phil., 358; chan roblesvirtualawlibrarySent. of the Tribunal Supremo of
Spain, 24 November 1874; chan roblesvirtualawlibrary26 December 1877; chan roblesvirtualawlibrary13 June 1882
and 31 December 1896).

VILLA-REAL, J.:
This is an appeal taken by the accused Leon Acierto from the judgment of the Court of First Instance of Ilocos Norte,
convicting him of the crime of assault upon a public officer, defined and punished in article 251, in connection with the
last paragraph of article 250 of the old Penal Code, with the mitigating circumstance of passion and obfuscation, not
offset by any aggravating circumstance, and sentencing him two years, eleven months, and eleven days of prision
correccional, a fine of 1,000 pesetas, the accessory penalties of the law, with subsidiary imprisonment in case of
insolvency at the rate of one day for every P2.50, and the costs of the prosecution.
In support of his appeal, the appellant assigns the following alleged errors as committed by the court a quo in its
decision, to wit:
1. The lower court erred in not finding that the accused-appellant Leon Acierto acted in self-defense in preventing or
repelling with his fists, the unlawful attack begun by the alleged offended party, Hipolito Velasco.
2. The lower court also erred in finding the accused-appellant guilty of the crime of assault upon a public officer,
defined and punished in article 251 of the Penal code in connection with the last paragraph of article 250 hereof.

Thus, the Supreme Court of Spain has ruled that:chanroblesvirtuallawlibrary

No es razon apreciable para dejar de constituir el delito de atentado el que no estuviera el guarda en el termino en
que ejercia sus funciones, pues resultado que se ejecuto con ocasion de ellas, esta circunstancias siempre es
suficiente, por si sola, para constituir el atentado, sin tener en cuenta el sitio en que haya ocurrido. (Sent. 13 de Junio
de 1882) (1 Hidalgo, Codigo Penal, 642- 643).
No other construction is compatible with the evident purpose of the law that public officials and their agents should be
able to discharge their official duties without being haunted by the fear of being assaulted or injured by reason thereof.
The argument that the offended party, De la Cuesta, cannot claim to have been unlawfully attacked because he had
accepted the accuseds challenge to fight, overlooks the circumstance that as found by the Court of Appeals, the
challenge was to go out, i.e., to fight outside the building, it not being logical that the fight should be held inside the
office building in the plain view of subordinate employees. Even applying the rules in duelling cases, it is manifest that
an aggression ahead of the stipulated time and place for the encounter would be unlawful; chan
roblesvirtualawlibraryto hold otherwise would be to sanction unexpected assaults contrary to all sense of loyalty and
fair play. In the present case, assuming that De la Cuesta accepted the challenge of the accused, the facts clearly
indicate that he was merely on his way out to fight the accused when the latter violently lay hands upon him. The
acceptance of the challenge did not place on the offended party the burden of preparing to meet an assault at any time
even before reaching the appointed place for the agreed encounter, and any such aggression was patently
illegal. Appellants position would be plausible if the complaining official had been the one who issued the challenge to
fight; chan roblesvirtualawlibrarybut here the reverse precisely happened.

3. Lastly, the lower court erred in not acquitting the accused-appellant, Leon Acierto, of all criminal liability for the crime
with which he was charged.
The prosecution attempted to prove the following facts:
At about 10 o'clock on the morning of March 2, 1931, while the offended party, Hipolito Velasco, duly appointed
postmaster for the municipality of Bacarra, Province of Ilocos Norte, was in his office situated in the municipal building,
counting two rolls of twenty-peso bills amounting in all to P4,000, the accused, Leon Acierto, entered the office without
the postmaster's noticing it, and stood behind him. Without saying a word, the accused took one of the rolls, but the
postmaster caught hold of his hand and took away the money, saying: "Get out of here, Lawyer, because we have
plenty of work". The defendant moved away towards the north, and the postmaster, believing he had gone, began to
count the money again; but the accused came back to his side, and as he did not want to be disturbed, he put the
money in the safe, took the key to the office, and as he was going towards the door, said to the accused: "Be so good
as to leave now, Lawyer". The other answered: "I don't want to. You may close it". He said this with his hands in his
trouser's pockets, and was walking about the room. When he came to the door of the office, the postmaster again told
the accused: "Be so good as to leave now, Lawyer". The accused gave the same answer. For the third time the
offended party said to the defendant: "Go away now," and the latter answered: "I don't want to leave." Displeased with
this answer, the offended party approached the defendant quietly, and took hold of his left hand to conduct him
outside. Whereupon the lawyer hit him in the right eye with his fist, leaving him stunned, and making him lose his
balance. When he recovered, the accused again hit him, first in the right frontal region, and then below the left eye.
The offended party shouted for help, and a member of the municipal police, as well as his office companions, came
up. As a result of the blows he had sustained, the offended party suffered an ecchymosis in the orbit of the left eye,
and another in the frontal region, which took seven days to heal completely.

We find no reversible error in the decision appealed from, and the same is hereby affirmed. Costs against Appellant.
November 28, 1932

G.R. No. 36595

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LEON ACIERTO, defendant-appellant.
Federico D. Cadiz for appellant.
Attorney-General Jaranilla for appellee.

Testifying in his own behalf, the accused said that on the morning of March 2, 1931, he had gone to the post office of
Bacarra to collect his correspondence, and approached the postmaster, the offended party herein, Hipolito Velasco,
who was counting bank bills on his table, and being close friend, he gave him one or two little slaps on the back; that
as the man paid no attention, he slapped the table; that the postmaster then got up angrily and said: "Don't you come
around with your jokes; I may stick a knife into you." The accused was hurt by this taunt, and began to walk away. The
postmaster then got up, put the papers in the safe, and when the accused was already within two meters of the door,
passed by him and blocked his way, and said with a gesture of threat: "Get out, you, I say." That as the accused would
not budge, he rushed at him, caught his right arm, and pushed him forward, giving him a blow on the right temple; that
the accused then returned the blow, giving rise to a fist fight between the two until a policeman came and separated
them, and took them outside the hall; that the offended party had not told him to leave his office or was he answered in
the manner attributed to him.

The trial court, who saw and heard the witnesses testify, gave more credit to the testimony for the prosecution than
that for the defense. There is no doubt that in spite of his intimacy with the offended party, the accused had no right to
enter the latter's office and disturb him while in the performance of his duty, counting money he had received from
Manila. But taking into account the circumstances of the case and the friendship between the two, it may be supposed
that the defendant was joking, and the offended party happened to be in irritable mood, on account of the work he had,
and it degenerated into a real fight, having been provoked by the herein accused.
The court a quo found the accused guilty of the crime of assault upon a public officer, defined and punished in article
251, in connection with the last paragraph of article 250, of the old Penal Code. The Attorney-General considers the
act to constitute two crimes: assault upon an agent of authority, defined in article 249, paragraph 2, and punished in
the last paragraph of article 250 of the Penal Code; and slight physical injuries, defined and punished in article 587 of
the same code.
September 3, 1908
The first question to decide in the present appeal is whether one offended party, Hipolito Velasco, as postmaster of
Bacarra, Ilocos Norte, who was discharging his duties at the time of the assault, is merely a public officer, or is an
agent of authority besides.
In People vs. Ramos (p. 462, ante), by Justice Imperial, it was held:
From the above-quoted provisions of law we believe it may be deduced that the provincial treasurer is a person in
authority within the province where he exercises his jurisdiction, and that the municipal treasurer, being his deputy ex
officio, is an agent of authority, and not a person in authority, as this word is employed in the Penal Code under which
the information against the appellant was filed.
The postmaster of a municipality is an agent of the Director of Posts, and as such is in charge of the custody of the
Government funds that come into his hands by virtue of the transactions with the public in postal matters, telegrams,
savings bank, and so forth, and like a municipal treasurer is an agent of a person in authority in addition to being a
public officer, inasmuch as the Director of Posts is a person in authority who by law exercises jurisdiction of his own in
postal and telegraphic matters.
Since the offended party, Hipolito Velasco was an agent of a person in authority when he was attacked, the defendant
herein having laid hands upon him, the crime of which the latter is guilty is assault upon an agent of a person in
authority, defined and punished in the last paragraph of article 250, in connection with paragraph 2 of article 249 of the
Penal Code, the penalty fixed by law being prision correccional in the minimum and medium degrees, and a fine not
less than 375 pesetas or more than 3,750pesetas, and this penalty must be imposed in the medium degree because
there is no modifying circumstance present.
The same offense is punished in article 148 of the Revised Penal Code, the penalty fixed being that of prision
correccional in the minimum degree, and a fine not exceeding P500 which is less severe than the penalty prescribed
by the old Penal Code for the same crime, and in accordance with article 22 of the Revised Penal Code, and the
accused not being an habitual criminal, the penalty provided by article 148 above-mentioned must be imposed.
With regard to the physical injuries sustained by the offended party from the attack, they, being light in character are to
be considered as inherent in the, assault, for it cannot be supposed that in laying hands upon a person, no harm or
injury will be caused.
In view of the foregoing considerations, we are of opinion and so hold: (1) That a postmaster is an agent of a person in
authority; and (2) that the slight physical injuries sustained by such an agent as a result of the defendant's laying
hands upon him, are inherent in the offense of assault upon an agent of a person in authority.
Wherefore, the judgment appealed from is modified, and the accused-appellant is held to be guilty of assault upon an
agent of a person in authority, and sentenced to suffer one year, one month, and eleven days of prision correccional,
and to pay a fine of P100, with subsidiary imprisonment in case of insolvency, plus costs. So ordered.

G.R. No. 4367

THE UNITED STATES, plaintiff-appellee,
vs.
SALVADOR VALLEJO, ET AL., defendants-appellants.
Chicote & Miranda and Manly & McMahon for appellants.
Attorney-General Araneta for appellee.
TRACEY, J.:
On the 17th of May, 1907, in consequence of a complaint of a public disturbance lodged by the Januario Duran with
the police authorities of Polangui, in the province of Albay, the officer in charge at the city hall sent to municipal
policemen, named Tranquilino Saravillo and Dalmacio Sabio to the place of the disturbance, which was the house of
Salvador Vallejo, and the narrative of the policemen Sabio as to what occurred there is as follows:
The guard said to us, "Go to San Diego and get the people who are making a scandal there." I immediately went
following Tranquilino, to the house of Salvador Vallejo. While we were still on the ground we heard the shouts of
Vallejo. He was running from one side to the other of his house. When I approach the house of Vallejo I heard the
words in a loud voice, Matza, turco, tesorero municipal secretaryo de . . . (using obscenity which it is unnecessary to
quote). We were about five rods distant. When he spoke those words he was upstairs in his house at the window.
Tranquilino and I and a great many other people were near the house. We were in front of the house looking and
listening. There are other house there, but none immediately opposite. We immediately went up the steps to arrest the
accused Vallejo. On arriving on the top of the stairs I knocked on the door, we heard Vallejo asked, "Who is it?," and I
said, "municipal police." Thereupon Vallejo immediately came to the door to meet us, and as he approached us he
said ". . . (another obscene expression), policias municipales." He stopped inside the doorway and asked us, "Have
you any warrant to come in?" I replied that we had none, and then he immediately struck Tranquilino Saravillo with his
fist, and immediately afterwards he struck me also. When I felt him strike me here in the cheek and I dodged and stuck
him with my club. When he attempted to strike me again of his fist I caught his right hand. I said to Salvador Vallejo,
"You are arrested". We arrested because he did not come with us but resisted. Then Blas Ausina came out and threw
his arms around Vallejo's body and dragged him away from us, and immediately drew him inside and close the door.
Tranquilino Saravillo gives substantially the same account. Both policemen were at the time in uniform.
These facts are not seriously contested, and upon them the judge of First Instance found both defendants guilty of an
attempt against an agent of authority, and giving Vallejo the benefit of drunkenness as an exteriorating circumstance,
sentenced him to bilibid for three years and six months with P100 fine and sentenced Blas Ausina to four years two
months and one day together with a like fine. The prosecution was under the Penal Code.
The defense rests upon points of law: First. That within his own house a man's person in sacred and he may conduct
himself as he pleases. The inviolability of a dwelling has been well explained in United States vs. Arceo (3 Phil., Rep.,

381), but while it may be true in general that a man's house in his castle, it is equally true that he may not use that
castle as a citadel for aggression against his neighbors, nor can he within its walls creates such disorder as to affect
their peace. It is clear from the testimony that in this case the behavior of the defendant amounted to more than private
misconduct and constituted a public annoyance and a breach of the peace of the neighborhood.
Second. It is further urged that even in a breach of the peace the policemen had no right to arrest without a warrant
and that in doing so they acted without authority, so that resistance to them was lawful. Municipal police in the
Philippines hold office under the statutes of the Commission, and which may be construed in the light of American law.
It is axiomatic in the law of England and America that a police officer may arrest without warrant from a breach of the
peace committed in his presence, but it is contended that municipal policemen outside of Manila have not conferred
upon them by statute any such powers. The extent to which police officers may go in the city of Manila is considered in
the case of the United States vs. Alexander (8 Phil. Rep., 29) in which policeman was held empowered to arrest
without warrant for breach of municipal ordinances committed in his presence. And their powers in a other
municipalities may be implied from our decision in United States vs.Burqueta (10 Phil. Rep., 188).
The law for municipalities in general gives the municipal council power to establish, regulate, and maintain a police
department to promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the
township and inhabitants thereof, and to enforce obedience thereto with such lawful fines and penalties as the council
may prescribed. (Act No. 82 Sec. 39, subdivision t, dd, and jj.)
There is nowhere any expressed definition of the word "policeman", nor any specification of his powers, which
therefore, are left to be inferred fro the common law or to be taken from the expressed provisions of local ordinances.
In the municipality of Polangui, ordinances had been passed prohibiting disturbances of public order, drunkeness, and
indescent behavior "in a public place or in a place which is in view of the public", but the papers before us disclose no
ordinance or regulation directing the policemen to act or empowering a policeman in any instance to arrest without a
warrant. Thus, in the absence of any legislation by the Commission or by the municipal council we are thrown back on
the common law powers of the officer. Among the public officer who may arrest for a felony or a breach of the peace in
their presence are the sheriff, coroner and the constable (2 Blockstone's 292),who are included in the technical term
"peace officers", and the general trend of the American decisions appears to be that local officers such as policemen
who are neither sheriffs, coroners, nor constables shall not be presumed to have such power without a statutory grant
of it. There are, on the other hand, decisions indicating that what the law looks to is the character of the duty to be
discharged by the officer, rather than the name under which he acts, and that all officers having the general attributes
of constables may be inferred to be clothed with their ordinary powers of arrest. Whatever may be the historically
correct theory in anyone of the several States of the union, we think that under the circumstances existing in these
Islands, in the absence of the expressed legislative definition of the faculties of police officers, they must be assumed
to possess those powers necessary to the convenient exercise of the duties for which their offices were created. The
creation of the office of the policeman implies the ability of the incumbent to perform the functions usually inherent in it,
and wherever in any American jurisdiction we find such powers in terms conferred by a legislative grant, they appear
uniformly to include those proper to peace officers, and among these none is more important than the power to make
arrests. See for example the Constabulary Act No. 175 . We therefore hold that in the absence of any other disposition
in the statutes or in the local ordinances, a duly appointed police officer in these Islands has those powers which,
under the common law of England and America, belong to a peace officer and among them the power to arrest without
warrant for offenses of this nature committed in his presence.
Third. The accused Vallejo, set us a further defense double jeopardy, alleging a former conviction under the Penal
code. The merits of that contention are covered by our discussion in the case of the United States vs. Gavieres 910
Phil. Rep., 694), in which the majority of the court held that the double prosecution under a municipal ordinance and a
general law would lie, and although that decision is now on appeal to the Supreme Court of the United States, we
regard it as binding upon us in the present case, so that the defense must be overruled.

It has been suggested that it is unnecessary to rely upon. The Gavieres case, inasmuch as it will bear a distinction
from the one before us on the ground that while the conviction of Gavieres was for one act viewed in two different
aspects in the present case the act of resistance to the policeman, which characterizes the offense under the Penal
Code did not necessarily enter into the disorderly conduct of the defendants, which indeed preceded the appearance
of the policeman, and was not therefore to be considered as part of the same act. But a reference to the complaint
before the justice of the peace in the first prosecution shows that this resistance was their specified as a constituent
part of the disorder, and for this reason the suggested distinction between the two cases can not be accepted as
wholly satisfactory.
The offense of Vallejo falls under the second paragraph of article 249 of the Penal Code, as it amounted a resistance
to public officers while executing their duty. As he has been proved to be a public official, that is a sanitary officer duly
commissioned, he comes within subdivision second of article 250, entailing upon him an increased punishment, while
on the other hand, having been intoxicated without being an habitual drunkard, he is entitled to that as one extenuating
circumstance. he is sentenced to prision mayor for two years, four months and one day, with a fine of P100. In the
case of Blas Ausina no one of the circumstances specified in the four numbered paragraphs of article 250 exists, and
therefore he is sentenced to prision correccional for one year eight months and twenty one days, and the fine of P100;
each of the defendants to pay one half of the costs. The sentence of the court below is revoked in so far as it may be
in conflict with the foregoing, and in all other respects, as modified thereby, is affirmed. So ordered.

G.R. No. L-23693 April 27, 1982

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUDY REGALA and DELFIN FLORES, defendants, RUDY REGALA, defendant-appellant.

MAKASIAR, J.:
Defendants Rudy Regala and Delfin Flores were charged with the crime of murder with assault upon an agent of a
person in authority in an information filed on June 27, 1964 by the provincial fiscal of Masbate with the Court of First
Instance of Masbate which reads:
That on or about the 13th day of June, 1964, at the Magallanes Gate in the poblacion of the Municipality of Masbate,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together and
helping each other, with deliberate intent to kill, with evident premeditation and treachery and taking advantage of
nighttime, did then and there wilfully, unlawfully and feloniously attack and stab with. a knife (cuchillo) one Sgt. Juan
Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his official duty, thereby
inflicting upon the latter serious stab wounds at the mid-epigastric region penetrating abdominal cavity and perforating
cordial and cardiac regions which injury directly caused his instantaneous death.
to which defendants pleaded not guilty.
To establish its case against defendants, the prosecution initially presented five witnesses, namely, Erlinda Tidon,
Juanito Evangelista, Modesto Taleon, Dr. Orlando delos Santos and Municipal Judge Jose M. Angustia.

Erlinda Tidon and Juanito Evangelista both testified that they were at the scene of the crime and saw the accused
Rudy Regala stab the victim, Sgt. Juan Desilos Jr. In other words, they claimed to be eyewitnesses to the crime.
Erlinda Tidon who at the time she testified on August 7, 1964 was 22 years old, single, housekeeper and a resident of
barrio Luy-a, municipality of Aroroy province of Masbate, declared that she knew the victim, Juan Desilos Jr., who was
a sergeant of the Philippine Constabulary; that in the evening of June 12, 1964, she was at the Magallanes Gate,
Masbate, Masbate, because she wanted to get inside to dance; that at the Magallanes Gate which was well lighted,
she saw Sgt. Juan Desilos Jr. in uniform attending to the exit door; that while Sgt. Juan Desilos Jr. was guarding the
Magallanes Gate and trying to clear the exit gate of people, accused Rudy Regala, with co-accused Delfin Flores who
had his arm on the shoulder of the former (Rudy Regala), arrived; that thereafter, she tried her best to get inside the
Magallanes Gate and Delfin Flores and Rudy Regala "were there at the Magallanes Gate in my front. I was at their
back" ; that when accused Rudy Regala and Delfin Flores reached the exit gate where Sgt. Juan Desilos Jr. was
stationed, Sgt. Juan Desilos Jr. pushed accused Rudy Regala and told him "not to get thru this entrance because this
is for the exit" (p. 9, t.s.n., Vol. III, rec.); that the person pushed by Sgt. Desilos was accused Delfin Flores (id, at p.
10); that while Sgt. Juan Desilos Jr. was pushing accused Delfin Flores, accused Rudy Regala became angry, got his
knife from his waist and stabbed Sgt. Juan Desilos Jr.; that Exhibit "A", which is a long knife with a white sharp blade,
was the same knife used by accused Rudy Regala in stabbing Sgt. Juan Desilos Jr.; that accused Delfin Flores was at
the back of accused Rudy Regala when the latter stabbed Sgt. Juan Desilos Jr.; that accused Delfin Flores was onehalf meter, more or less, from Sgt. Juan Desilos but accused Rudy Regala was nearer to Sgt. Juan Desilos Jr.; that
Sgt. Juan Desilos Jr. was hit in the abdomen and he fell down and then accused Rudy Regala and Delfin Flores ran
away, with the latter following the former; that she was one-half meter, more or less, from Sgt. Juan Desilos Jr.,
accused Rudy Regala and Delfin Flores; that Sgt. Juan Desilos Jr. was stabbed on June 12, 1964 at twelve o'clock
midnight, more or less, at the Magallanes Gate, municipality of Masbate, province of Masbate; that Exhibit "B" is the
uniform of Sgt. Juan Desilos at the time he was stabbed by accused Rudy Regala; that she was investigated in
connection with the stabbing incident by Sgt. Balase; and that she knew Sgt. Taleon who also investigated her in
connection with the case (pp. 3-16, t.s.n., Vol. III, rec.).
On cross-examination, witness revealed that in Masbate, Masbate, she has been staying at the house of Sgt.
Dominador Balase since Tuesday, August 5, 1964, because he wanted her to stay thereat; that she attended the town
fiesta of Masbate, Masbate, on June 12, 1964 to dance and enjoy the evening; that her religion is Roman Catholic and
as such she follows its precepts; that she was on that occasion with her sister Nenita Tidon who is also single; that she
and her sister did not have any escorts; that she arrived at the Magallanes Gate on June 12, 1964 and she was not
able to enter the plaza immediately because it was then too crowded as there were many people inside the plaza, at
the gate, as well as outside the gate of Quezon Street; that she intended to get inside the plaza through the exit gate
because the entrance gate was already closed; that she saw Sgt. Juan Desilos Jr. guarding the exit gate which was so
marked as "EXIT" where people were then milling around; that the exit gate was lighted with three (3) electric bulbs
placed thereat separately; that before this case was filed she knew accused Rudy Regala only by appearance and she
came to know his name only after he was already accused of the crime in this case; that during the investigation, she
did not know the name of accused Rudy Regala but knew his appearance; that she executed on June 15, 1964 an
affidavit marked as Exhibit "l" for the defense, wherein she declared that she knew Rudy Regala only by face: that she
told the PC investigator all the truth she knew about the case, but was not able to name the accused as that was the
truth; that she came to know the name of Rudy Regala only when an information or a complaint was filed on June 15,
1961 against him by the PC authorities with the Justice of the Peace Court of Masbate, Masbate; that on the 12th,
13th and 14th of June, 1964, she did not yet know the name of the accused Rudy Regala: that she has known Sgt.
Juan Desilos Jr. even before June 12, 1964 or since 1963; that she saw accused Rudy Regala on June 12, 1964
approach the exit of Magallanes Gate which Sgt. Juan Desilos Jr. was regulating the flow of traffic; that she saw at the
instance Rudy Regala placing his hand on the shoulder of accused Delfin Flores, but she cannot remember which
hand: that in the evening of June 12, 1964, she did not also know the name of accused Delfin Flores although she
knew him by his appearance, because she had not seen accused Delfin Flores and accused Rudy Regala before; that
she came to know his name only on June 15, 1964 when he was already accused of the crime in this case; that the
name of Delfin Flores was told to her by PC Sgts. Balase and Taleon who investigated her; that Sgt. Balase and Sgt.
Taleon showed her the appearance of accused Rudy Regala; that at the Magallanes Gate, one could not move very
fast because of the heavy traffic; that even if she had wanted to run because of fright, she could not because of the
heavy traffic; that the distance between the exit gate and Quezon road is about two (2) meters; that there is a concrete
road embankment between the exit gate and Quezon road; that the space between the exit gate and Quezon road
was full of people; that she did not see any policeman outside the Magallanes Gate; that at the time Sgt. Juan Desilos
Jr. was stabbed by the accused Rudy Regala, she was facing Sgt. Desilos Jr. and the distance between them was 1/2
meter (demonstration made by witness in open court showed that she was oblique to, not directly facing, Sgt. Juan
Desilos Jr. that in that position Rudy Regala appeared from the right side going towards Sgt. Juan Desilos Jr. (witness

pointing to her right side which was directly in front of Sgt. Juan Desilos Jr. and approximately the same distance (see
p. 49, t.s.n., Vol. III); that when accused Rudy Regala was in that position which was in line with her, they were pushed
by Sgt. Juan Desilos Jr. who told them "Don't get inside this gate because this is for exit"; that it was accused Delfin
Flores who was pushed by Sgt. Juan Desilos Jr., who was then at the side of Rudy Regala, but she does not know
whether accused Delfin Flores was at the right side or at the left side of accused Rudy Regala; that accused Delfin
Flores was next to accused Rudy Regala and they were in the same line with her; and it was in that position that Sgt.
Juan Desilos Jr. pushed accused Delfin Flores; that both accused Delfin Flores and Rudy Regala were pushed by Sgt.
Juan Desilos Jr. but it was accused Delfin Flores who was directly hit by Sgt. Juan Desilos Jr.; that because of the
pushing, accused Rudy Regala got angry and still at the same distance, he drew his knife from the left side of his waist
which was covered by his shirt and then stabbed with it Sgt. Juan Desilos Jr. in the stomach; that at the time accused
Rudy Regala stabbed Sgt. Juan Desilos Jr., she was still at the same distance from him as before; that accused Rudy
Regala was able to pull off the knife from the body of Sgt. Juan Desilos Jr., but she was not able to see whether blood
immediately spurted from the wound because she had already left; that accused Rudy Regala was then wearing a
close-necked buttonless blue shirt with short sleeves; that all that accused Delfin Flores did during the incident was to
walk, together with accused Rudy Regala who placed his arm on accused Delfin Flores' shoulder, towards Sgt. Juan
Desilos Jr. that no other act or acts were made by accused Delfin Flores; that when she saw the horrible incident she
went towards the road, walking naturally and slowly because there were plenty of people; that there was no other
unusual occurrence that took place within the immediate vicinity of the place where Sgt. Juan Desilos Jr. was stabbed;
that she came to Masbate to testify of her own volition; and that she was served with a subpoena by a policeman of
Aroroy Masbate, in connection with this case (pp. 17-57, t.s.n., Vol. III, rec.).
Witness Juanito Evangelists, then 26 years old, married, driver by profession and a resident of Bagumbayan,
Masbate, declared that in the evening of June 12, 1964, he went to the plaza at the Magallanes Gate and there met
Sgt. Juan Desilos Jr. who was in PC uniform; that Sgt. Juan Desilos Jr. was stabbed in the abdomen by accused Rudy
Regala with a sharp pointed knife; that Exhibit "A" is the knife used by accused Rudy Regala in stabbing Sgt. Juan
Desilos Jr. at the exit of Magallanes Gate on the night of June 12, 1964; that Exhibit " B " is the uniform of Sgt. Juan
Desilos Jr. at the time he was stabbed; that he knows accused Delfin Flores who was then by the side of accused
Rudy Regala when he stabbed Sgt. Juan Desilos Jr.; that before accused Rudy Regala stabbed Sgt. Juan Desilos Jr.,
he (Regala) first pushed aside accused Delfin Flores; that Sgt. Juan Desilos Jr. fell on the ground; that he was very
near Sgt. Desilos when he was stabbed by accused Rudy Regala; that the place of the incident was well-lighted as
there was a dance going on; that after Sgt. Juan Desilos Jr. fell, accused Rudy Regala and Delfin Flores ran outside;
that he ran after them to know who they were but was not able to catch up with them because they ran fast; that he
saw accused Rudy Regala throw away the knife (Exh. "A") on the road; that he did not pick up the knife; that he did
not know the names of the accused but knew their appearances; that he had seen the face of accused Delfin Flores
before the incident; that he now knows the name of accused Delfin Flores; and that he did not know the reason why
Sgt. Juan Desilos Jr. was stabbed by accused Rudy Regala (pp. 70-82, t.s.n., Vol. III, rec.).
Upon cross examination, witness Evangelista stated that it was at around seven o'clock in the evening of June 12,
1964 when he went to the Magallanes Plaza at Masbate, Masbate; that the stabbing incident took place at around 1
o'clock in the morning (obviously referring to June 13, 1964); that he was at the gate when the incident took place and
there were many people; that Sgt. Juan Desilos was guarding the Magallanes Gate because people were rushing
towards it. When asked whether he also then wanted to enter the gate, he answered that he was there inside, about a
distance of one meter from the gate, and when asked once more, he affirmed his answer (pp. 82-87, t.s.n., Vol. III,
rec.).
Witness Dr. Orlando delos Santos, then 35 years old, married and a resident physician of Masbate Provincial Hospital
at Masbate, Masbate, told the court that on or about midnight of June 12, 1964, he was on duty in the hospital when
the dead body of Sgt. Juan Desilos Jr. of the Philippine Constabulary was brought in. According to him the probable
cause of death was cardiac hemorrhage; and that the stab wound at the mid-epigastric region, penetrating the
abdominal cavity and perforating the cardiac region was caused by a sharp blunt instrument and that the injury directly
caused the death of Sgt. Juan Desilos Jr. He opined that the knife Exhibit "A" could have caused the wound on the
body of Sgt. Juan Desilos Jr. and he Identified Exhibit "B" as the uniform of Sgt. Juan Desilos Jr. and Exhibit "B-1" as
the cut on the front right side of said uniform. He further Identified Exhibit "C", the death certificate he issued, and
Exhibit "C-1", his signature thereon (pp. 58-65, t.s.n., Vol. III, rec.).
When cross-examined, witness admitted that it was his first time to see the knife Exhibit "A" and that he did not
examine the same as it was not brought to the hospital for chemical examination. He opined that Exhibit "A" is stained
with blood but he cannot distinguish whether it is human blood or animal blood (pp. 65-67, t.s.n., Vol. III, rec.).

Questioned by the Court, he ventured the opinion that the stain in the uniform of Sgt. Juan Desilos Jr. could be the
blood that came from the wound inflicted on him. He further declared that he probed the wound of Sgt. Juan Desilos
Jr. with an instrument to find out the extent of the entrance and penetration of the wound and found that the wound
was midway umbilicus, the point of entrance of the stab wound was one-half inch to the right, which is at the epigastric
region; and that the wound was directed a little upward and in a lateral way, about 7 to 8 inches deep. He was certain
that the cause of death was the stab wound which was caused by a sharp pointed instrument (pp. 67-69, t.s.n., Vol. III,
rec.).
Technical Sergeant Modesto Taleon, assigned as investigator and platoon sergeant of the 60th PC Company,
Masbate, Masbate, testified that he has been connected with the Philippine Constabulary since May 27, 1941; that he
knew Sgt. Juan Desilos Jr. who was one of their platoon sergeants and who relieved him as security on June 12, 1964
at the Magallanes Gate, where there was then a coronation dance. Their designation as security in charge was in
writing; marked as Exhibit "D", signed by their Commanding Officer, Capt. Eugenio. In said Exhibit "D", the name of
Sgt. Juan Desilos Jr. appears, with seven enlisted men, whose time of duty started as therein specified at 1900 hours.
On the night of June 12, 1964, he was at the Magallanes Gate and Sgt. Juan Desilos Jr., who was in uniform and with
a sidearm, was also there as he was performing security duties at the coronation dance and maintaining peace and
order thereat. When he (witness) was near the stage and while looking at the crooner he saw Chief Salvacion take the
microphone from the singer and call for a doctor as the soldier assigned at the Magallanes Gate had been stabbed.
When he heard the announcement, he immediately rushed to the scene of the crime and found that there were
already many men in uniform at the scene, and Sgt. Juan Desilos Jr. was no longer there as he had already been
brought to the Masbate Provincial Hospital. So he, together with his commanding officer, investigated the incident and
they were able to recover the fatal weapon which was then dripping with blood; he Identified said weapon in open
court, which was marked as Exhibit "A" and the blood stains thereon as Exhibit "A-1 ". He found the knife, Exhibit "A ",
on the road facing the Magallanes Gate around five meters away from the scene of the crime, wrapped it and
presented it to the commanding officer for safekeeping. Then they proceeded to the Masbate Provincial Hospital
where they saw Sgt. Juan Desilos Jr. in the operating room already dead; Sgt. Desilos uniform which was already
removed, was stained with blood with a cut at the last button of the uniform (Exh. "B-1 ") which appeared to have been
pierced by a blunt instrument and coincided with the wound of the deceased, Sgt. Juan Desilos Jr. The uniform,
including the pants, Exhibit "B", was full of blood. He Identified the patch on the uniform as that of the P.C. (Exh. "B-2"
and the chevron of a staff sergeant (pp. 87105, t.s.n., Vol. III, rec.).
The cross-examination elicited from witness the fact that he studied criminal investigation and he specialized on the
subject as he was sent in 1958 by the Government to Camp Crame to take up criminal investigation and he likewise
trained in 1963 in a seminar held in Cebu. He applied what he had learned in his investigations at Masbate, including
the investigation of this stabbing incident. He affirmed that he, together with two companions, recovered the fatal knife.
Exhibit "A", on the road five meters away from the scene of the crime but outside of the area cordoned off by the PC
and admitted that he did not actually measure the distance but merely calculated it; although he advanced the opinion
that where an incident took place in a crowded place, a trained investigator gets the actual distance. According to him,
the place of the incident was cordoned off or surrounded by soldiers who did not tamper with anything thereat. As
other people and peace officers arrived ahead of him at the scene of the incident, he did not know the investigating
officer who arrived first. When they found the knife, he just grabbed it and presented it to his commanding officer,
because he already knew that it was the fatal knife as it was then dripping with blood and lying flat on the ground. But
when he picked it up, it was no longer dripping with blood but it was wet with blood. The route where the blood came
from and where the knife was found was marked with blood stains. He admitted that per investigation procedure,
important evidence like Exhibit "A" should not be touched with the (bare) hands; but he explained and demonstrated
that he handed Exhibit "A" with care, with his thumb in the inner blade, and his two fingers on the outer blade, near the
foot of the wooden handle, without touching its blade. He revealed that after the said Exhibit "A" was presented to his
commanding officer nothing more was done. Exhibit "A" was not sent to the PC laboratory to test its blood stains;
neither was the same examined for fingerprints. In fact, the suspects were never fingerprinted. He just concluded that
Exhibit "A" was the fatal weapon (pp. 106-118, t.s.n., Vol. III, rec.).
Judge Jose M. Angustia then 63 years old, married, municipal judge of Masbate, Masbate, resident of Masbate,
Masbate, declared that he knew Rodolfo Regala, alias Rudy Regala, as he was brought several times before his court
as accused in cases involving peace and order. Lately, he convicted him of the crime of malicious mischief. He could
not recall having convicted him of the crime of physical injuries; but he Identified Exhibit "E" as the original duplicate
copy of a decision in criminal case No. 2794 of the Municipal Court of Masbate, convicting accused Rodolfo Regala of
the crime of slight physical injuries and Exhibit "E-1" as his signature affixed thereon (pp. 123-127, t.s.n. Vol. III, rec.).

Immediately after aforesaid witness had testified, counsel for accused moved to strike out the testimony on the ground
that the same is impertinent and immaterial but said motion was denied as without merit by the court (pp. 128-131,
t.s.n., Vol. III, rec.).
Thereafter, counsel for accused asked the court for the recall of prosecution witness Juanito Evangelista for further
cross-examination on the ground that there were vital matters overlooked by said defense counsel who earlier, in
obedience to the order of the court, had to enter trial without having first consulted the accused. The prosecuting fiscal
objected on the ground that prosecution witness Juanito Evangelista who had earlier informed him of his fears of
reprisal, was not in the courtroom. Defense counsel, in insisting on the recall of said witness, informed the court that it
has come to his knowledge that "... the first suspect of the PC was Evangelists. His clothes were found with blood
stains as well as his hands ..." Nevertheless, the court denied the motion to recall but advised defense counsel to
establish that fact as a defense of the accused (pp. 131-135, t.s.n., Vol. III, rec.).
After the evidence for the prosecution was admitted by the court, defense counsel moved, by way of demurrer, for the
dismissal of the case on the grounds that the prosecution miserably failed to establish the guilt of accused Delfin
Flores and second, that there was variance between the date of the commission of the crime as alleged in the
information and that proved by the evidence (pp. 138-151, t.s.n., Vol. III, rec.).
The prosecuting fiscal interposed his objection on the main ground that the alleged variance was not substantial as the
events leading to the stabbing incident began in the late hour of June 12, 1964 culminating at around midnight or
immediately thereafter. Hence, the information alleged the time of the crime as "... on or about the 13th of June,
1964 ..." (pp. 151-162, t.s.n., Vol. III, rec.).
Defense counsel prayed for time to file his memorandum in support of his motion to dismiss and he was granted by
the court up to August 21, 1964 to file the same and the provincial fiscal was required to reply thereto up to August 29,
1964 (p. 166, t.s.n., Vol. III, rec.).
On August 14, 1964, defense counsel filed his memorandum in support of his motion to dismiss and prayed for the
dismissal of the case against both accused (pp. 34-44, Vol. II, rec.), and thereafter or on August 25, 1964, he filed a
supplementary Page memorandum (pp. 45-54, Vol. II, rec.).
On August 25, 1964, without waiting for the reply memorandum of the prosecuting fiscal, winch was filed only on
September 7, 1964 (pp. 59-60, Vol. II, rec.), the trial court denied the motion to dismiss (pp. 55-58, Vol. II, rec.).
Consequently, the case was set for the reception of the evidence of the defense. Eight witnesses were presented by
the defense, including accused Rudy Regala and Delfin Flores. Three of these witnesses Alberto Abayon, Eladio
Mendoza and Noemi Almirol claimed to have been at the scene of the crime and seen the stabbing of Sgt. Juan
Desilos Jr..
Alberto Abayon, then 19 years old, single, and a student of Osmea College, Masbate, testified that on June 12, 1964,
he was at the Magallanes Gate, arriving thereat at about 9:30 o'clock in the evening, together with Shirley Letada
Rogelio Ora-a and Violets Sorsogon. They could not immediately enter the auditorium because of so many people
crowding the place. They were able to enter at about 10:00 o'clock in the evening. He was not aware whether there
were movie actresses inside. He stayed in the plaza for a long time and went home at around 12:30 in the morning
(June 13, 1964), with Noemi Almirol. Upon reaching Magallanes Gate on his way home, he saw a person whom he did
not know, stab Sgt. Juan Desilos Jr.. He was then behind Sgt. Desilos Jr. and around one meter away from him. He
saw blood dripping from Sgt. Juan Desilos Jr.'s abdomen. His companion, Noemi Almirol who was then at his left side,
fainted upon seeing the blood flowing from Sgt. Juan Desilos Jr.. Then he heard Sgt. Desilos say "Noy please
accompany me but he does not know the person requested by Sgt. Desilos Jr.. Witness described the man who
stabbed Sgt. Juan Desilos Jr. as tall, with long hair, quite black in complexion and wearing a short-sleeved polo shirt
with red stripes (pp. 168-170, t.s.n., Vol. III, rec.).
He saw Rudy Regala at around 12:20 in the morning (June 13, 1964) drinking beer with companions inside the
canteen at the Magallanes Gate, a place beside the Liceo School. He does not know the companions of Rudy Regala.

Said accused was at that time wearing a white polo shirt. Shortly thereafter, he (witness) left for home at which time
Rudy Regala was standing inside the canteen (p. 171, t.s.n., Vol. III. rec.).
After Noemi Almirol had recovered, he brought her home alone and as they passed by the gate, Sgt. Juan Desilos Jr.
was no longer there (p. 172, t.s.n., Vol. III, rec.).
Claiming that he is familiar with Magallanes Gate, witness affirmed that it is enclosed with concrete walls on its sides
except at its back which is enclosed with wire. Its side facing Quezon street is walled with hollow blocks. According to
him, if one were inside the Plaza Magallanes and looked towards Quezon street, he would not be able to see the
persons outside who are facing the wall; and if one were outside at Quezon street and looked towards the plaza, he
would not be able to see the people inside (pp. 171-172, t.s.n., Vol. III, rec.).
On cross-examination, witness disclosed that he went to the plaza that evening of June 12, 1964 to dance; that before
he entered Osmea College, he studied in Masbate High School but Rudy Regala was not one of his classmates
there; that he did not report what he saw to and he was not interviewed by, the police, but the following morning, he
was interviewed by a PC man whom he did not know and they had an exchange of opinions and he was asked by the
PC man whether he knew the man who stabbed Sgt. Desilos and he answered that he did not. He affirmed and he
was sure that he saw Rudy Regala drinking in the canteen inside the Magallanes Gate and that said canteen is far
from the Magallanes Gate but he could not calculate the distance; and that Sgt. Desilos was stabbed right at the gate
marked as EXIT of Magallanes Gate at which precise moment he was a meter behind Sgt. Desilos He saw Rudy
Regala at about 12:20 in the morning and this was before the stabbing incident. He does not know whether the gate
was closed at the time of the stabbing incident but knew for a fact that there were many persons milling around the
gate marked EXIT. He did not see the fatal weapon used by the culprit (pp. 172-174, t.s.n., Vol. III, rec.).
In re-direct, he affirmed that he was a meter behind Sgt. Desilos when the latter was stabbed and Noemi Almirol was
beside him and there were many people outside (p. 174, t.s.n., Vol. III, rec.).
Questioned by the Court, he revealed that Noemi Almirol is a young girl; that he brought her alone to her home at
12:30 in the morning, that he does not know her age; that he had known her for a long time as they were once
neighbors;, that the residence of Noemi Almirol is at Quezon Street, far from Magallanes Gate, somewhere near the
Medinas, in front of the residence of Dr. Sta. Cruz; that he is 16 years old but does not know who is older between him
and Noemi Almirol; that Noemi Almirol is a third year high school student at Masbate High School; that he is a high
school graduate as of June 13, 1964; and that he did not use to go out with Noemi Almirol and he had not gone to her
house (pp. 174-175, t.s.n., Vol. III, rec.).
Noemi Almirol, then 18 years old, single, a resident of Masbate, Masbate and a student of Masbate High School,
testified that on June 12, 1964, she was at the Plaza Magallanes Gate, arriving there at 10:00 o'clock in the evening,
with Amparo de Paz, Luningning Bonan and Elena Esparaguerra They were able to enter the plaza immediately and
stayed thereat up to 12:00 o'clock midnight. At about 12:00 o'clock midnight, she met Alberto Abayon and they went
home together at around 2:00 o'clock the following morning of June 13, 1964; that at the gate of Plaza Magallanes,
she observed something unusual which was the killing of a PC soldier, and she fainted when she saw blood flowing
from the body of Sgt. Desilos who was about one meter from her. She has known accused Rudy Regala for a long
time and before she fainted she did not see Rudy Regala at the place where the PC man was bleeding (pp. 186-187,
t.s.n., Vol. III, rec.).
Cross-examined, she affirmed that in going home, she was with Alberto Abayon and it was then about 2:00 o'clock in
the morning of June 13, 1964, although she is not sure of the time; and that she was behind the victim who was about
a meter away from her. She did not know what happened after she fainted nor did she hear the announcement made
by Police Chief Salvacion about the stabbing incident. She further declared that Rudy Regala was not her classmate
at Masbate High School; nor did she ever see him there as she had just transferred to that school. She did not know
that Rudy Regala was also studying in the Masbate High School (pp. 188-189, t.s.n., Vol. III, rec.).
Upon redirect examination, she revealed that she had a time piece on that night of the incident but she did not check it
before leaving for home (p. 189, t.s.n., Vol. III, rec.)

Questioned by the Court, she insisted that she did not see Rudy Regala that evening. She stated however that she
was not alone in going home with Alberto Abayon as there were many girls with them and that it was not true that
Alberto Abayon brought her home alone (p. 189, t.s.n., Vol. III, rec.).
Witness Eladio Mendoza, then 21 years old, single, third year high school student of Masbate College, Masbate,
Masbate, told the Court that he resides at Domingo Street, Masbate, Masbate; that he knows the accused Rudy
Regala; that on the evening of June 12, 1964, he was at the Plaza Magallanes gate which is in the poblacion of
Masbate, Masbate; that he arrived there at 9:00 o'clock in the evening; that his companions that night were Rudy
Regala, Rudy Espinas and Pedro Verga and they were not able to enter the gate immediately because it was crowded
by many people but were able to enter at around 9:00 o'clock in the evening; that once inside he went around and
then together with his companions, Rudy Regala, Pedro Verga and Rudy Espinas, went to the canteen which was
managed by a priest, at the left side of the Magallanes Gate (as one enters the same) near the Liceo College; they
drank beer in the said canteen and stayed there for a long time; that he did not dance, but Rudy Regala did at around
11:30 P.M. with the queen, Carol Bataga and this lasted for about 2 minutes, and at the next piece, with one of the
princesses whose name he (witness) did not know and after this dance with the princess, Rudy Regala went back to
the canteen and drank beer; that at about midnight, he (witness) was still at the canteen and at that time, more or less,
something unusual happened, which was the stabbing of a PC man at the gate which he learned about through the
announcement made by Chief Salvacion on the stage at around 12:30 in the morning of June 13, 1964; that at that
time, accused Rudy Regala was at his side drinking beer; that he did not do anything after the said announcement;
neither did accused Rudy Regala do anything; that accused was at that time wearing a short-sleeved white polo shirt;
that he cannot remember how many bottles of beer he drank that evening but the whole gang finished one case of
beer; that he knows Sgt. Desilos although he did not see him that night; that he went home at around 2:00 o'clock of
the morning of June 13, 1964 at which time accused Rudy Regala was still seated inside the other canteen located at
the right side of Magallanes Gate, belonging to Mayor Ben Magallanes (pp. 175-178, t.s.n., Vol. III, rec.).
He testified during the cross-examination that he studied at Liceo de Masbate, not at the Masbate High School, before
he transferred to Masbate College; that on June 12, 1964 when he went inside the gate, there were many people; and
that he went inside the auditorium together with Rudy Regala, Espinas, and Verga and they drank beer in the canteen
owned by a priest (p. 179, t.s.n., Vol. III, rec.).
Questioning by the Court extracted from him the fact that he is a very good friend of Rudy Regala as they have been
friends since childhood; that they were 'not together too often as they are studying in different schools, Regala in
Masbate High School while he, at Liceo; and that they go out together and drink once in a while (p. 179, t.s.n., Vol. III,
rec.).
Thereafter, defense counsel manifested in open court that the testimonies of the other defense witnesses, Pedro
Verga and Rudy Espinas, will corroborate the testimony of defense witness Eladio Mendoza in all its material aspects
or that they will testify as Eladio Mendoza did. Prosecuting Fiscal did not interpose any objection; hence, such fact was
made of record.
Witness Eddie Zaragoza, then 34 years old, married, a municipal policeman of Masbate, Masbate (since July 1, 1961)
testified that in the evening of June 12, 1964, he was detailed as guard at the Magallanes Gate, at Quezon Street,
near the church of Masbate, Masbate and he stayed there until the dance which started at around 8:00 o'clock in the
evening, was over at past 1:00 o'clock of the following morning; that on that midnight of June 12, 1964, when he was
the guard, nothing unusual happened, but the next night, June 13, 1964, at around 11 o'clock an incident happened
near the Exit gate of the plaza around 75 meters from his post; that he went to the scene of the incident to investigate
and saw Sgt. Desilos being carried by Sgt. Hilario to the jeep of the vice-governor, Moises Espinosa, to be brought to
the hospital,; that while investigating the people around the scene of the incident, he heard Dick Avinas driver of the
vice-governor, shouting "Here is a knife that was dropped"; that Dick Avinas was then inside when he shouted; that he
(witness), together with chief of police Salvacion, went to the spot of the incident and saw a knife near the bumper of
the jeep; that he got a piece of paper and with it held the knife's blade and delivered it to chief of police Salvacion, who
told him that the blade should be held but not the handle; that thereafter, he continued with his investigation by
gathering information from the people present but the result of his investigation was negative (pp. 5-12, t.s.n., Vol. IV
rec.).
On cross-examination, he declared that it was coronation night when the incident, happened but it was not before
midnight of June 12, 1964; that there were two nights for coronation, June 12, 1964 for Baby Queen and June 13,

1964 for Lady Queen; that the incident took place during the coronation of the Lady Queen; that he could not
remember whether the coronation of the baby queen was held prior to June 12, 1964, but it was the night previous to
the coronation of the lady queen; that on June 12, 1964, he was on duty as guard at the Magallanes Gate from 8:00
o'clock in the evening up to after midnight (pp. 12-17, t.s.n., Vol. IV, rec.).

WITNESS

Clarificatory questions were propounded by the prosecuting fiscal and the trial judge with respect to the actual date
and time of the incident, thus:

Q In other words, from one minute after 12:00 o'clock of June 12, 1964 until 6:00 o'clock of that morning, which is
June 12, Desilos was still alive? No incident happened to Sgt. Desilos

Butalid

A Nothing happened.

Q And on the night of June 12, 1964, past midnight, the incident occurred?

Q According to you, Desilos was killed on June 14, 1964?

WITNESS

BLANCA

A No, sir.

If your Honor, please, we shall again, with due respect to the question of the Honorable Court, we are constrained
again to make our objection on the ground that it is misleading. The testimony of the witness said that the incident took
place about past 11:00 o'clock in the evening of June 13, 1964.

A No, your Honor

Q But it was after your duty on June 12, 1964 at about 8 o'clock that the incident occurred?
COURT
BLANCA
Past 11:00 o'clock. Let the witness answer because he does not clarify.
Misleading, your Honor. We object.
WITNESS
COURT
A Not yet.
Q You were a guard on June 12, 1964 from 8 o'clock to past midnight ?
COURT
A Yes, your Honor.
Q When was it? Tell us the definite date?
Q And when you said that on June 12, up to midnight there was no incident about Sgt. Desilos?
A More or less, at 11:00 o'clock in the evening of June 13, 1964 when the incident took place.
A Yes, your Honor.
Q So it was on June 13, 1964 at 11:00 o'clock?
Q After midnight of June 12, it is already June 13, 1964?
A More or less, your Honor.
A Yes, your Honor.
Q You are sure about that?
Q After midnight of June 12, which is June 13, 1964, that was the time when Sgt. Desilos according to you, met an
accident
BLANCA

A Yes, your Honor.

xxx xxx xxx

If your Honor, please, with due respect to the question of the Honorable Court, we would like to make it of record our
objection, on the ground that it is misleading.

(pp. 14-16, t.s.n., Vol. IV, rec.).

COURT

Defendants Rudy Regala and Delfin Flores testified in their defense and both claimed that they were not present at the
spot of the commission of the crime and that they are strangers to each other.

Put it on record.

Rudy Regala declared that he is 21 years old, single, a student at Masbate High School at Masbate, Masbate; that he
was at the Magallanes Gate, Masbate, Masbate in the evening of June 12, 1964, together with Rudy Espinas, Pedro
Verga and Eladio Mendoza, and they were not able to immediately enter the gate; that as soon as they had entered
the gate, they looked around the auditorium and afterwards at around 10:00 o'clock they proceeded to the canteen
near the Liceo College; that the canteen is at the right side of, if one is facing, the grandstand; that they drank beer in
the canteen which is owned by a priest; that at around 11: 30 in the evening, he danced with the queen, Carol Bataga
for about 2 minutes and then with the princess whose name he does not know, which dance also lasted for about two
minutes; that after his dance with the princess, he went back to the canteen; that thereafter, or at around 12:40 in the
evening, and while still in the canteen, he heard Chief Salvacion announce that a PC man was stabbed; that after the
announcement he did not do anything; that he went home around 2:30 to, 3:00 o'clock in the morning of June 13,
1964; and that except to dance, he did not leave the canteen (pp. 189-192, t.s.n., Vol. III, rec.).
He further informed the, Court that he knew Sgt. Desilos but did not see him that night when he (deceased) entered
the gate; neither did he see him in the morning or afternoon of that day; that he has no grudge against him nor any
motive to kill him; that his family has no grudge against Sgt. Desilos and that his family, however, has a quarrel with
the PC (p. 182, t.s.n., Vol. III, rec.).
Moreover, he testified that he does not know prosecution witness Erlinda Tidon and it was only on the witness stand
that he first saw her and he denied as true her declarations; that he knows prosecution witness Juanito Evangelista
but denied as true his declarations; that he did not know his co-accused Delfin Flores either before or on that night of
June 12, 1964; that he came to know him only at the PC headquarters on June 16, 1964 when they returned to the
municipal building and it was only on June 14, 1964 that he saw for the first time Delfin Flores at the PC compound;
that his attire at the Magallanes Gate that evening of June 12, 1964 was a short-sleeved shirt which appears yellow at
daytime but blue during nighttime; that said shirt which he Identified in court (Exh. "2") is now in the possession of his
lawyer (pp. 192-193, t.s.n., Vol. III, rec.).
Testifying further, he told the court that he was arrested with Roger Ampuan by Sgt. Gotis at around 10:3'0 to 11:00
o'clock in the morning of June 13, 1964 at the market and they were brought to the PC compound where they stayed
up to 5:00 o'clock in the afternoon; that St. Gotis investigated him that same day and pointed to him as the companion
of Roger Ampuan in stabbing Sgt. Desilos but he told Sgt. Gotis that this was not true; that after 5:00 o'clock in the
afternoon, he and Roger Ampuan were allowed by Capt. Eugenio to go home; that he was again arrested by Sgt.
Gotis and his companion on June 14, 1964 at about 12:30 to 1:00 in the afternoon in the market area; that this time,
he was arrested with Rudy Espinas and they were brought to the PC compound where they were immediately placed
in separate rooms; that inside the room, he was maltreated by a person whom he knows only by appearance; that he
was ordered to admit the crime because according to the investigators, Rudy Espinas had already told them that he
(accused) was the one stabbed Sgt. Desilos Jr., but he told them that that was not true, that he was boxed, then
kicked and made to squat; one pulled him by his buckle and he was made to look upward with the man's fingers
pointed towards his (accused) nose; that it was a PC soldier named Formalejo and two others, whose faces he could
recognize, who did the maltreatment and that Peroy Merillo kicked him at the side of his body while inside the toilet;
that he was given only ten minutes to rest and he was continuously maltreated that day of June 14, 1964, from 12:00
or 1:00 o'clock to 5:00 o'clock in the afternoon; that in the evening nothing was done to him at the PC compound
where he slept although he was investigated by Sgt. Taleon who did not reduce into writing his investigation; that on
June 15, 1964, nothing happened to him as he was not investigated that day; that he stayed in the PC compound from
the 14th to the 6th of June, 1964; that there were seven persons investigated at the PC compound, namely, Rudy
Espinas, Pedro Verga Eladio Mendoza, Miller Gaton, Roger Ampuan Delfin Flores and himself; that on June 16, 1964,
he and Delfin Flores were brought to the municipal building; then they were taken on June 23, 1964 to the provincial
jail and they passed by the PC barracks where he got his eyeglasses and hat; that he was at that time accompanied
by Patrolman Natural; that in the PC barracks, he was called by Sgt. Balase and, leaving behind Pat. Natural, he
approached Sgt. Balase who told him that now that he is being pointed to as the killer, it would be better for him to tell
the truth as to who was the real author of the crime so that he (accused) would be utilized as witness, but he told Sgt.
Balase that he was very innocent of and did not know anything about the crime; that before the body of Sgt. Desilos
was brought to the cemetery it was shown to him by Sgt. Balase and the coffin was placed in front of him; and that on
that occasion, PC Formalejo who was then with Sgt. Balase attempted to box him (accused) but Formalejo was
cautioned by Sgt. Balase (pp. 194-197, t.s.n., Vol. III, rec.).
Accused Rudy Regala further revealed that when he saw on June 3, 1964 witness Juanito Evangelista at the PC
barracks, the latter asked him why he and Roger Ampuan were at the PC compound and he replied that they were
taken by the PC because of the incident the night before and Evangelista told him "You were not present there that

evening"; that their conversation took place in the presence of a PC officer whom he can recognize by appearance
only; that he met Capt. Eugenio on June 13 to the 16th; that on June 14, Capt. Eugenio told him that there was
another suspect who wore a blue shirt with stripes; that another PC officer asked him who was the owner of that blue
shirt with stripes and he answered that he saw somebody wearing that; that during his maltreatment by the PC, a PC
soldier who was posted as guard went inside the room and hit and kicked him; that he had not seen Exhibit "A", the
knife used in the stabbing, before, as it was only in court that he first saw that knife; that he does not use that kind of
knife; and that when he went to the Magallanes Gate that evening of June 12, 1964, he had no weapon or knife with
him (pp. 197-198, t.s.n., Vol. III, rec.).
In the course of his cross-examination, accused Rudy Regala was caught smiling by the trial judge who warned him of
his act and behavior and not to take the trial lightly as the trial is not a joke, nor was there anything funny, and advised
him to be serious as he is fighting for his life (p. 198, t.s.n., Vol. III, rec.). He confirmed that he studied for two years at
Masbate High School, but denied breaking the crystal (glass) of the bulletin board of the school; that he was arrested
on June 13, 1964 by Sgt. Gotis at the market place between 10:30 and 11:00 o'clock in the morning; that at the time of
his arrest no knife was taken from him by Sgt. Gotis that he was maltreated but not investigated by Formalejo that he
does not remember any incident he had with Formalejo that he does not remember and it was not true that a knife was
confiscated from him by Laguerta when he (accused) was about to stab PC Formalejo that he stays at the market
place; that it is not true that during vacation time, he worked as part time butcher in the market; that he knows
Patrolman Perez; that he knows former policeman Cornal that he has a tattoo in his shoulder (which he showed to the
court) and the tattoo consists of the words "Black Jack No. 3"; that Black Jack is not a gang but a club to put up
recreational facilities in the market and the president of the club, of which he is a member, is Tony Aguilar; that Rudy
Espinas is also a member but not Pedro Verga Floresta and Alberto Abayon; that every member of the club must have
to be tattooed with Black Jack. According to him, his body was battered because of the maltreatment he suffered from
the PC that he was confined in the provincial jail for the first time on June 23, 1964 at around 9:30 to 10:00 o'clock and
that until now he is still confined there; that he was maltreated only on the 14th of June, 1964; that at the provincial jail,
he was not able to ask somebody to examine his battered body because he was not even allowed to communicate
with the persons he knows as he was isolated in the provincial jail; that in a room in the provincial jail, he was with one
named Julian Bartido who was the same person who was convicted in the shooting of Moises Espinas and the
wounding of Marcial Tamares; that he was not therefore examined by a physician; that the purpose of the PC in
maltreating him is to force him to admit his guilt but he did not admit; that there were seven other persons investigated
in the PC compound; that he, Delfin Flores, and the seven other persons were lined up in the PC compound and he
was the one called by Sgt. Balase and that at the time he was called by Sgt. Balase he did not see Juanito Evangelista
(pp. 198-204, t.s.n., Vol. III, rec.).
Defense witness Romeo Floresta, who was then 16 years old, single, a first year high school student of the Masbate
College and a resident of Masbate, Masbate, corroborated defendant's defense of denial and alibi and thus declared
that on the evening of June 12, 1964, he went to the Magallanes Gate and returned home at 2:30 in the morning of the
following day, June 13, 1964; that at around 12:00 midnight, he saw Rudy Regala drinking beer in the canteen inside
the plaza (Magallanes Gate); that from the time he met Rudy Regala at 10:00 up to the time he went home, he saw
Rudy Regala drinking in the canteen; that the plaza was crowded that evening of June 12, 1964; and that he went
home together with Rudy Regala (pp. 183-184, t.s.n. Vol. III, rec.).
He revealed on cross-examination that he saw Rudy Regala that evening dance twice; that the canteen where he
stayed the whole night was the one located at the left side, if entering the gate; that he never left that canteen from the
time he entered the same up to the time he left for home; that Rudy Regala likewise did not leave the canteen except
to dance after which he returned to the canteen; that from the time he entered the plaza at 8:00 o'clock of June 12,
1964 up to the time he and Rudy Regala went home together, he was always with Rudy Regala and that he saw Rudy
Regala at the canteen situated at the left side of Magallanes Gate (pp. 184-185, t.s.n., Vol. III, rec.).
Defendant Rudy Regala's father, Cleto Regala, then 52 years old, married, a merchant and residing since 1947 at the
market site, Masbate, Masbate, testified that as a merchant he sells vegetables and sari-sari; that he does not sell
coffee; that in the evening of June 12, 1964, he was at the pingpong game site and he was selling coffee because it
was the town fiesta; that he knows that his son Rudy Regala went to the dance at the Magallanes Gate that evening;
that at around 3:00 o'clock of the following morning of June 13, 1964, his son Rudy Regala arrived at the pingpong site
where he was selling coffee; that his son did not talk to him, neither did he talk to his son; that his son drank coffee and
thereafter he slept on the bench; that he had not seen Exhibit "A" (knife), as among those in his household; that his
son had not used that kind of weapon; that at around 10:30 to 11:00 o'clock in the morning of June 13, 1964, PC Sgt.
Gotis picked up his son at his residence and brought him to a car; that in the evening of June 14, 1964, Sgt. Gotis

arrived at his (witness) residence and asked for the blue banlon shirt of Rudy Regala as according to him (Sgt. Gotis
Rudy Regala needed it as he was feeling cold; that he gave Sgt. Gotis a newly ironed shirt but Sgt. Gotis told him that
that was not the one because he (Sgt. Gotis was looking for a blue banlon shirt with stripes; that the shirt of Rudy
Regala when he came home from the plaza was one which appeared to be yellow during daytime but white during
nighttime; that Exhibit "2" is the shirt he was referring to as worn by Rudy Regala that morning; that this was the very
shirt he showed Sgt. Gotis but Sgt. Gotis told him that that was not the one; and that Rudy Regala does not have a
blue shirt with red stripes (pp. 180-183, t.s.n., Vol. III, rec.).
The other accused Delfin Flores who was then 24 years old, single, a farmer and a resident of Cawayan Interior,
Masbate, Masbate, testified in his defense that in the evening of June 12, 1964, he arrived at around 9:00 o'clock
without any companion at the dance at Plaza Magallanes and he was able to enter immediately; that he stayed there
up to 1:00 o'clock of the following morning, June 13, 1964; that at 1:00 o'clock nothing happened to him; that before
1:00 o'clock in the morning of June 13, 1964, while he was dancing, Chief of Police Salvacion announced on the stage
that a PC man had been stabbed; that after that announcement, he was boxed by one Bacalano from the Island by
reason of which he fell and when he stood up he drew his double-bladed knife but policeman David Natural
approached and told him to surrender the knife, which he did, and then he was arrested and taken to the municipal
building of Masbate, Masbate, where he was lodged in jail until the next (whole) morning; that on or before June 12,
1964, he did not yet know his co-defendant Rudy Regala; that he came to know Rudy Regala for the first time in the
PC camp on June 16, 1964 when they were brought to the municipal building of Masbate, Masbate; that on June 13,
1964 at 2:00 o'clock in the afternoon he was taken by a PC man whom he did not know, from the municipal building to
the PC camp; that at the PC compound, he was investigated by persons whom he does not know; that in the
investigation he was told to admit the crime because according to them Rudy Regala had already admitted and
pointed to him (accused) as one of Rudy Regala's companions but he told them that he could not admit because Rudy
Regala was not his companion; that because of his denial, he was boxed by them in the abdomen and he fell down
with his buttocks on the ground; then he was boxed again on the left side of his buttocks by reason of which he rolled
on the ground; that he does not know the names of those who boxed him; that the maltreatment was done inside the
room without the presence of PC officers, as only the PC man who boxed him was present; that there were two PC
men who boxed him but he does not know their names; that he stayed up to 4:00 o'clock in the afternoon of June 13,
1964 in the PC compound; that on that day, June 13, 1964, there were six other suspects who were investigated but
he does not know their names; that he was returned to the municipal jail on June 13, 1964 and on June 14, 1964, at
around 8:00 o'clock in the morning, 2 PC soldiers, whose names he does not know, took him from the municipal jail
and brought him back to the PC compound and, again, he was told by a PC captain who investigated him, to admit the
crime because according to them, Rudy Regala had already admitted and pointed to him as his companion when he
(Rudy Regala) stabbed Sgt. Desilos but he told them that he could not admit as Rudy Regala was not his companion;
that while he was being investigated by the PC captain, another PC soldier got hold of his abdomen and boxed him;
that he does not know this PC soldier but he can recognize his face, Chat the investigation results were not reduced
into writing; that he did not sign anything nor was he ever subjected to fingerprinting; that he was brought to the PC
compound four times in all; that every time he was brought to the PC compound he was being told to admit the crime
as Rudy Regala had already admitted and pointed to him as his companion who stabbed Sgt. Desilos but in all such
occasions, he answered them that he could not admit because Rudy Regala was not his companion; that the second
time that he was brought back to the PC compound, there were six other suspects in the compound who were
investigated but he does not know them; Chat he was mixed with the other six suspects and lined up inside the PC
compound; that when they were lined up, the PC did not do anything but only left them there lined up; that they were
fined up only once.

vicinity going to the entrance; that he went inside the auditorium and saw the coronation of the queen; that he was not
at Magallanes Gate the night previous to June 12, 1964 as it was only that evening of June 12, 1964 that he went
there; that he was dancing when Chief Salvacion made the announcement; that he does not know the name of the
person with whom he was dancing; that the music being played previous to the announcement was sweet; that when
Chief Salvacion made the announcement, the music stopped and so everybody stopped dancing; that he was at a
distance of 15 meters from the gate when the dance was stopped; that he was no longer dancing with his unknown
partner when Chief Salvacion announced the stabbing of the PC soldier; that he does not know witnesses Erlinda
Tidon and Juanito Evangelista and does not know of any grievance or trouble with them; that he knows Balacano who
boxed him several times after the announcement made by Chief Salvacion; that he was arrested only after Chief
Salvacion had finished his announcement; that before his arrest, he was no longer dancing; that he was not dancing
when Balacano boxed him; that David Natural, a policeman, of Masbate, Masbate arrested him that night inside the
Magallanes Gate 15 meters from the gate; that after his arrest, he was brought to the municipal building of Masbate,
Masbate; that policeman Natural was with PC soldiers who escorted him to the municipal building where they arrived
at past 1:00 o'clock; and he stayed there until that time that the PC soldiers got him from the municipal jail at around
8:00 o'clock in the morning of June 13, 1964; and that from 1:00 o'clock to 8:00 o'clock of June 13, 1964, he was
detained in the municipal jail of Masbate, Masbate. Cross-examined by the Court, accused Delfin Flores affirmed that
the only time he attended the dance at the Magallanes Gate was on the evening of June 12, 1964; that he entered the
gate at about 8:00 o'clock in the evening that he did not have a watch at that time; that per his calculation, Chief
Salvacion made the announcement on the stage at about 11:00 o'clock in the evening of June 12, 1964; that because
he had no watch it was possible that the time when Chief Salvacion made the announcement was midnight of June
12, 1964 or one minute thereafter, which was already June 13, 1964; that he was no longer dancing at the time Chief
Salvacion made the announcement as he was then conversing with a lady at a place around 15 meters from the
Magallanes Gate; that on that night he had in his possession a double-bladed knife which he brought with him to the
dance hall because he was alone when he left his house; that he hid the knife in his body so that nobody could see it;
that at the time he was dancing with his unknown partner, the knife was in his body; that he knew that he was a
suspect not because he had a conversation with the PC but because he was placed in a line-up; that when he was
being placed in the line-up, he did not know that he was being scrutinized by certain individuals from somewhere, but
there were people in the PC barracks; that he did not know whether these Miss Ridon and Mr. Evangelists were
looking at him while he was placed in the line-up; that he was placed in the line-up only once; that he did not come to
know that on that evening after the line-up there were persons who have Identified him and Rudy Regala as the
persons seen at the Magallanes Gate near the exit gate; neither did he come to know that after the line-up that
evening, Miss Tidon and Mr. Evangelista had pinpointed him and Rudy Regala as the persons they saw in front of Sgt.
Desilos immediately before he fell down wounded by a knife; that the PC soldiers maltreated him; that he was not
made to sign anything; neither was he forced by the PC to sign anything; that Rudy Regala was not also forced to sign
anything nor obliged to declare anything; that he did not know that Sgt. Desilos was a PC soldier; that at the time he
was arrested that evening he already knew that a PC soldier had been stabbed but did not know yet that it was Sgt.
Desilos that he only came to know the victim as Sgt. Desilos in the morning of June 13, 1964; that he was charged
with concealment of a deadly weapon by the police force of Masbate; and that he pleaded guilty to the charge and was
consequently sentenced to two months' imprisonment which he had served out already (pp. 45-60, t.s.n., Vol. IV, rec.).
On re-direct he revealed that in the criminal case of People versus Delfin Flores for the murder of Cuyos, he pleaded
guilty to the crime charged, and affirmed that in the case of illegal possession of deadly weapon, he also pleaded
guilty (pp. 60-61, t.s.n., Vol. IV, rec.).
By way of rebuttal evidence, prosecution presented witnesses Felixberto Laguerta and Gerardo Gotis.

He further testified that he does not know either Sgt. Juan Desilos Jr. or Erlinda Tidon that the declarations of Erlinda
Tidon in the witness stand regarding his participation in the stabbing of Sgt. Juan Desilos Jr. are not true; that it was
only while Erlinda Tidon was on the witness stand that he first saw her; that he did not see Erlinda Tidon at the Plaza
Magallanes in the evening of June 12, 1964; that neither does he know witness Juanito Evangelists; that the
declarations of Juanito Evangelista with respect to his participation in the stabbing of Sgt. Desilos are not true; that he
saw Juanito Evangelista for the first time only when the case was being tried by the court; and that he did not see
witness Juanito Evangelista in the evening of June 12, 1964 at Plaza Magallanes (pp. 17-36, t.s.n., Vol. IV, rec.).
Cross-examined, he revealed that his educational attainment is Grade VI. Over the objection of his counsel the Court
allowed a question propounded to him about his previous criminal conviction and he declared that he was convicted of
the crime of murder in Masbate, Masbate by Judge Benedicto; that the victim in that crime of murder was Ricardo
Cuyos that by reason of his conviction he served sentence in Muntinglupa and thereafter he was paroled; that on the
night of June 12, 1964 at 9:00 o'clock in the evening, he went to the dance at Magallanes Gate; that at that time, there
were so many people trying to get in that there was no PC soldier at the gate but there were many people around the

Felixberto Laguerta who was then 43 years old, married, and a policeman of Masbate, Masbate, testified that the
testimony of Rudy Regala that the Black Jack organization is a club and not a gang, is not true because it is called the
Black Jack gang; that he knows that it is a gang and not a club because the members have tattoos on their shoulders;
that it is also not true that Pedro Verga Eladio Mendoza, Rudy Espinas, Romeo Floresta and Alberto Abayon are not
members of the Black Jack gang; that all of them were arrested for being members of the said gang; that it is also not
true as testified by Rudy Regala that he was not arrested by him at the cockpit when he (Rudy) was about to stab PC
Formalejo for the truth was that on December 22, 1963 he arrested him and confiscated from him a knife; that Exhibit
"F" is the same knife he confiscated from Rudy Regala, but no case was filed against Rudy Regala in connection
therewith because Formalejo refused to file a complaint against Regala (pp, 6367, t.s.n., Vol. IV, rec.).
Cross-examined, he testified that he has been a policeman for 19 years; that he was told by Fiscal Butalid to testify in
this case that he did not execute any affidavit in connection with his arrest of Rudy Regala and confiscation from him

of a knife, Exhibit "F"; that he reported the matter to the chief of police of Masbate, Masbate, Chief Salvacion; that he
does not know whether the arrest and confiscation were recorded in the police blotter as it was the police sergeant
who was in charge of recording the same; that the basis of his testimony that Rudy Espinas, Pedro Verga Romeo
Floresta are members of the Black Jack gang is the tattoo on their shoulders which is in the form of cards and that all
of them were arrested by reason of the fact that they are all members of said gang; that membership in the Black Jack
gang is a crime; that because they are members of a gang, he suspected them of doing something bad; and that they
were arrested because they were doing something wrong in the poblacion (pp. 68-72, t.s.n., Vol. IV, rec.).

authority so that peace may be maintained for those many who love peace and tranquility. He was there, distant from
his home, his wife and his children who would want him near them during those happy and festive moments in answer
to the call of duty, only to be treacherously killed by an assassin with the blackest soul. He died almost in the spot
where duty demanded of him. He died so that others may enjoy and live. His was a fruitful life with a duty well done
and his was a heroic death. He died in the altar of public service and his was a death of a hero. The Court would be
recreant of its duty if it should fail to notice this splendid performance of a lowly but loyal public servant (p. 44, Vol. I,
rec.).

Cross-examined by the trial judge, witness confirmed that Rudy Regala is a relative of a very high ranking municipal
official of the town of Masbate, Masbate, as the mother of Rudy Regala is the cousin of the town mayor-Mayor
Magallanes. However, he does not know whether it was by reason of this relationship that Rudy Regala's father and
mother are living inside the market site of Masbate, Masbate. He further revealed that he delivered the knife "Exhibit
"F" to Chief Salvacion but no action was taken by Chief Salvacion against Rudy Regala in connection therewith (pp.
72- 73, t.s.n., Vol. IV, rec.).

directly caused undue prejudice against the accused because of his previous criminal record as manifested by the
following portions of the decision of the trial Judge

The other rebuttal witness, Gerardo Gotis, then 47 years old, married, and sergeant of the PC at Masbate, Masbate,
testified that Rudy Regala's assertion on the witness stand that he was maltreated at the PC barracks was a he as
Rudy Regala was never maltreated; that when he arrested Rudy Regala on June 13, 1964 at the market place, he was
able to confiscate from Mm a knife (identified as Exh. "G") [pp. 74-76, t.s.n., Vol. IV, rec.].
Cross-examined by defense counsel, he affirmed that he got the knife, Exhibit "G" from Rudy Regala last June 13,
1964; that he did not file any case against Rudy Regala in connection with Exhibit "G" as he merely indorsed the same
to the 1st PC sergeant and because his commanding officer, Capt. Eugenio ordered him not to file any case as there
was already a case against Rudy Regala. However, he retracted his testimony that the non-filing of the case was the
order of Capt. Eugenio. The reason for the non-filing was because it was merely overlooked as they were then busy
investigating suspects in this murder case (pp. 76-78, t.s.n., Vol. IV, rec.).
The trial Judge gave more weight and credence to the testimonies of the witnesses of the People than that of the
accused, resulting thus, as aforestated, in the conviction of accused Rudy Regala for the complex crime of murder
with assault upon an agent of a person in authority, and the imposition on him of the supreme penalty of death.
However, with respect to the other accused, Delfin Flores, the trial Judge found him guilty only as an accessory after
the fact. Consequently, the trial Judge imposed upon accused Delfin Flores the penalty of eight months and 21 days
as minimum, to six years and 1 day of prision mayor as maximum with the recommendation that his parole be
immediately cancelled.

Who is Rudy Regala? He is a convict, although in the crime of slight physical injuries. According to Municipal Judge
Jose Angustia. of Masbate, he has been brought very often to his Court for several mischiefs he has committed. And
who is Delfin Flores? He is a convicted murderer and a parolee. Birds of the same feather, flock together (p. 32, Vol. I,
rec.).
Is there a possibility that Rudy Regala could perpetrate the crime in company of Delfin Flores, a parolee, moments
before midnight and/or moments after midnight? The distance of the canteen from the exit gate is not considerable.
Rudy Regala could have been at the canteen early that evening and could have gone out with Delfin Flores and then
returned at the exit door, committed the crime and then returned to the canteen to prepare for his alibi? This may be
conjectural, but the possibility would not be farfetched. To a man with criminal mind and criminal tendencies, anything
could be possible (p. 25, Vol. I, rec.).
... So that after the incident, he could have disappeared among the crowd and he and Rudy Regala could have
returned inside in order to establish an alibi. It should be remembered that Delfin Flores and Rudy Regala are convicts
and are dangerously mischievous. Although it may be argued that criminals would not at times return to the scene of
their adventures, nevertheless, there are those who, to prepare an alibi, would do so, accustomed as they have been
in committing acts of deviltry Is this possible and/or probable?
While witnesses of the defense, because of their ages, their being acquaintances close and tight, have every reason
to help their friend Rudy Regala in his terrible predicament, Rudy Regala, a member of an organization with tatoos on
their right arm, could have certain moral ascendancy over Abayon, Mendoza and Florista and even with Noemi Almirol,
that in the spirit of friendship they are coming to the rescue of criminal friend Rudy Regala (pp. 25-26, Vol. I, rec.).

Before Us therefore by way of review is only the death penalty imposed on accused Rudy Regala; because Delfin
Flores did not interpose any appeal from his conviction as an accessory after the fact, and was accordingly released
on June 11, 1973 after the expiration of his sentence as certified by the Director of the NBP (p. 198, Vol. I, rec.).

The defense of the accused is alibi. Rudy Regala claimed that he was inside the canteen, which was a few members
from the exit door of the Magallanes auditorium on the night Sgt. Desilos was stabbed. Rudy Regala is a convict and a
notorious young man and the Court will take the same into account (p. 29, Vol. I, rec.).

Counsel de officio contends that the trial court erred in failing to give the two accused a fair trial; in holding Rudy
Regala responsible for the killing of Juan Desilos Jr.; in convicting Rudy Regala, assuming arguendo that he was the
man who stabbed the victim, of the crime of murder with assault upon an agent of a person of authority; and in holding
Delfin Flores, under the alleged facts of the case, liable as accessory after the fact of the crime of murder with assault
against an agent of a person in authority.

In essence, therefore, counsel de officio's first assigned error boils down to the delicate question of whether appellant
Rudy Regala was denied due process of law. It must be emphasized that the jurisprudence under the 1935
Constitution treated the right of an accused to impartial trial as an aspect of the guarantee of due process. Under the
present Constitution, that right to impartial trial is now expressly declared as one of the cardinal rights of an accused.
Thus its Section 19, Article IV (Bill of Rights), provides that "(I)n all criminal prosecutions, the accused ... shall enjoy
the right ... to have a speedy, impartial and public trial ..." (emphasis supplied). WE have declared that "... It is a
fundamental right enshrined in the Constitution that no one is to be deprived of his liberty without due process of law.
Moreover, there is a specific reference to its indispensability in a criminal prosecution. Thus is emphasized its
importance for an accused. He can rely on the guarantee of fairness according to the fundamental law, which
moreover provides additional safeguards at the stage of trial. Our Constitution does indeed go far in throwing the
mantle of its protection on the one who is caught in the meshes of criminal law. The proceeding must neither be
arbitrary nor unjust. It is to underscore the importance of a trial judge being detached and objective, free from bias
either for or against the prosecution or for the person indicted. As was so aptly put by Justice Dizon: 'It has been said,
in fact, that due process of law requires a hearing before an impartial and disinterested tribunal and that every litigant
is entitled to nothing less than the cold neutrality of an impartial judge ...' Earlier in People vs. Castaeda, Justice
Laurel made clear the necessity for a 'trial before an impartial judge.' If it were otherwise, the pledge of due process
becomes a myth. The trial is reduced to nothing but a useless formality, and Idle ceremony. If a judge had made up his
mind to convict, even innocence would not suffice as a defense" (People vs. Angcap, 43 SCRA 437, 441-442 [1972]).

I
Counsel de officio claims in support of the first assigned error that the indignation and revulsion of the trial Judge at
the commission of the monstrous crime herein involved as can be gleaned from the decision under review, thus:
Murder as a crime is indeed heinous. But when the crime had to be committed in a public place, where people were
enjoying the spirit of the fiesta, and amidst the sound of the drums and the trumpets and the tantalizing sweetness of
the dance music, the deviltry of the perpetrator is compounded. The perversity of the perpetrator is even made more
ugly and ugliest indeed because the victim was in the uniform of an agent of the law and was performing his duty as
he saw fit. He was there foregoing the pleasure of the evening so that others may enjoy. He was there as a symbol of

The thrust of appellant's posture is that the trial Judge, considering "his fully justified indignation and revulsion at the
commission of such a monstrous crime" of murder, became prejudiced against appellant (as well as his co-defendant)
after his previous criminal conviction was brought forth during the trial, to the extent that the trial Judge no longer gave
due consideration to the evidence of the defense (pp. 73-78, Vol. I, rec.).

2. It is a recognized principle that on the matter of credibility of witnesses, the observation of the trial court must be
accorded respect and great weight in view of its special opportunity to observe closely the demeanor of the individual
witnesses. As a matter of fact, the trial court gave its observations on the witnesses' conduct and candor on the
witness stand, thus:

On the other hand, the Solicitor General submits that the above argument of counsel de oficio does not properly fit the
assigned error, because it assails the decision of the trial court and its appreciation of the evidence submitted therein
rather than the conduct of the trial itself (pp. 607, Appellant's Brief, p. 184, Vol. I, rec.).

Because of the seriousness of the offense not only because of the challenge that the perpetrator has poised upon the
community the people and all citizenry because of the brazen manner of its commission, which was made before
several people and in the midst of the festive mood of the occasion but because of the grave penalty which the crime
carries, the Court took special interest in the two witnesses for the prosecution. It was carefully observed by the Court
that both witnesses were curt on their declaration they were straightforward in their reply and their voice carry the ring
of sincerity and truth. Their manner of replying on (sic) the question of the prosecution were those (sic) of serene
honest and truthful individuals, who wanted to impart clearly what they saw. Their answer to the cross examination
were (sic) given with a clear and convincing manner. They were men who sat on the witness stand merely to convey
what they have seen and noticed then, without hesitation.

An impartial trial necessarily requires an impartial judge to conduct the same. In other words, absent an impartial
judge, there can be no fair and impartial trial. Appellant impugns the impartiality of the trial judge, who was allegedly
prejudiced against the appellant.
WE do not agree with counsel de officio that the trial court failed to accord appellant Rudy Regala a fair trial. Appellant
has not pointed, and We have found none, to any part or stage of the trial betraying the trial Judge's hostility, bias and
prejudice against the appellant after the prosecution had brought forth the fact of appellant's previous criminal
conviction. As a matter of fact, appellant's previous conviction of the crimes of malicious mischief and slight physical
injuries was testified to only by the witness last presented by the prosecution in its evidence in chief. And the trial
Judge, contrary to the claim of the appellant, gave due consideration to his evidence as shown by the fact that in the
decision of conviction, the trial Judge examined extensively the testimonies of all the eight witnesses for the defense.
Consequently, while the quoted portions of the judgment of conviction are interspersed with statements and phrases
which properly should not have been made as they may be wrongly interpreted as indicative of bias and prejudice,
such aforestated statements and phrases in the judgment of conviction do not per se constitute evidence of bias and
impartiality in the conduct of the trial by the trial Judge as to violate appellant's right to an impartial trial. WE view the
trial Judge's aforequoted statements and phrases as merely an expression, in the very words of appellant's
counsel de officio herself, of the Judge's " ... fully justified indignation and revulsion at the commission of such a
monstrous crime ..."
II
1. The trial court correctly rejected appellant Regala's defense of alibi and denial. Indeed such defenses cannot prevail
over the affirmative testimonies of Erlinda Tidon and Juanito Evangelista who positively Identified appellant Rudy
Regala as the one who inflicted the single but fatal wound on the deceased Sgt. Juan Desilos Jr. (People vs. Cabiling
74 SCRA 285 [1976]; People vs. Roxas, 73 SCRA 583, 591 [1976]. And the exit gate where the stabbing took place
was just in the vicinity of about 15 meters from the canteen where appellant was allegedly drinking beer during
the night of June 12 until the early morning of the 13th. Alibi, to be convincing must preclude any possibility that the
accused could have been physically present at the place of the crime nor its immediate vicinity at the time of its
commission (People vs. Roxas, supra).
While the crime took place at midnight or a little past thereafter, such circumstance does not vitiate witnesses'
Identification of appellant Rudy Regala as the person who stabbed to death Sgt. Juan Desilos Jr.; because the place
at that time was well lighted by reason of the affair being celebrated (pp. 16, 78, Vol. III, rec.). Furthermore, the two
witnesses were close to the exact spot of the incident as witness Tidon was barely one-half meter from the victim (p.
14, Vol. III, rec.), while witness Evangelista was about a meter from the exit gate where the victim was stabbed (p. 84,
Vol. III, rec.). Hence, the possibility of erroneous Identification is remote. Despite the fact that both witnesses before
the stabbing incident did not know appellant by name, they both declared that they knew him by face or appearance
(pp. 31, 81, Vol. III, rec.).
Furthermore, appellant has not shown by evidence of any evil motive on the part of prosecution witnesses Tidon and
Evangelista to testify in the manner they did. The absence of any such improper motive enhances the credibility of
said witnesses (People vs. Roxas, supra).

The Court cannot help but be convinced of the trustworthiness of their revelation. Under the searching barrage of
cross-examination, they were never ruffled but they withstood the fire with simple dignity, speaking with a voice full of
candor and truth. That is the impression these two witnesses have created in the mind of the Court. The clearness
and simplicity of their assertion and their direct and positive Identification of the accused Rodolfo Regala alias Rudy
Regala and Delfin Flores have convinced this Court (emphasis supplied).
Because the trial Judge had spoken on a matter, which he indisputedly is in a much better position to appreciate, this
Court can do no less than to place its imprimature thereon. Indeed, it has been aptly observed that
... the judge who tries a case in the court below has vastly superior advantages for the ascertainment of truth and the
decision of falsehood over an appellate court sitting as a court of review. The appellate court can merely follow with
the eye the cold words of the witness transcribed upon the record, knowing at the same time, from actual experience,
that more or less of what the witness actually did say is always lost in the process of transcribing. But the main
difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is
justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the Identity of
the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillfull crossexamination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his
testimony. Many of the real tests of truth by which the artful witness is exposed in the very nature of things cannot be
transcribed upon the record, and hence they can never be considered by the appellate court. For this reason the rule
is firmly established that where there is an irreconcilable conflict in the testimony, the appellate court will not reverse
the judgment of the trial court, where the evidence of the successful party, when considered by itself, is clearly
sufficient to sustain the verdict (several cases cited) or unless some conclusion established from the fact is
inconsistent with the court findings or there is some inherent weakness in the evidence upon which the conclusion is
based, or unless there appears in the record some fact or circumstance of weight and influence which has been
overlooked or the significance of which has been misinterpreted, as where the trial court in the valuation of testimony
misinterpreted a supposed inherent weakness thereof not arising from the behaviour of the witness on the stand ...
(People vs. Alto, 26 SCRA 342, 365 [1968]).
3. Consequently, the inconsistencies and incredibilities in the testimonies of the material witnesses of the prosecution
as pointed out by the appellant are better left to the appreciation of the trial court, which has not found the same
sufficient to destroy the probity of said witnesses.
Appellant contends that prosecution witness Erlinda Tidon's testimony to the effect that appellant Rudy Regala and
accused Delfin Flores ran away after appellant Rudy Regala had stabbed Sgt. Juan Desilos Jr., is improbable
considering that, according to Tidon herself, the scene of the crime was crowded or overflowing with people and
consequently one cannot move fast or run (pp. 15, 16, 43, Vol. III, rec.). Such inconsistency or improbability is more
apparent than real. It may be true that under normal condition, that is, absent any unusual incident such as the killing
of a peace officer, such assertion may be characterized as improbable. This is not so, however, in the instant case;
because the commotion created by the stabbing incident enabled the culprits to easily disappear among the milling
throng.

Again, the testimony of Erlinda Tidon to the effect that no other unusual incident occurred after the stabbing incident
may not be characterized as false; because witness Tidon may have treated the stabbing incident and the consequent
commotion engendered by the same as one continuing incident, instead of treating them as two separate incidents.
Hence, she answered that aside from the stabbing incident no other unusual incident took place.
Moreover, We have noted in People vs. Resayaga (54 SCRA 350 [1973]) that it is a common phenomenon to find
inconsistencies, even improbabilities, in the testimony of a witness, especially on minor details or collateral matters.
That the accounts of witnesses regarding the same occurrence are contradictory on certain details is not unusual.
There is no perfect or omniscient witness because there is no person with perfect faculties or senses or a perfect
control of his emotions. An adroit cross- examiner may trap a witness into making statements contradicting his
testimony on direct examination. By intensive cross- examination on points not anticipated by the witness and his
lawyer, a witness may be misled or trapped into making Statements that do not dovetail with the testimonies of other
witnesses on the same points. Yet, if it appears that the witness has not wilfully perverted the truth, as may be gleaned
from the tenor of his testimony and as appreciated by the trial Judge from his demeanor and behaviour on the witness
stand, his credibility on material points may be accepted.
III
The killing of Sgt. Juan Desilor Jr., according to the trial court, was qualified as murder by the circumstances of
treachery and evident premeditation and hence, appellant was convicted of the complex crime of murder with assault
upon an agent of a person in authority.
Neither treachery nor evident premeditation can be properly appreciated and considered in tills instance case so as to
characterize the killing as murder. So appellant contends and the Solicitor General agrees. WE find the aforesaid
common stand correct as the evidence supports the same.
Treachery is never presumed; it must be proven as conclusively as the act itself. It must be shown that the accused
employed "... means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution without risks to himself arising from the defense which the offended party might make. "
By prosecution's own evidence, appellant was enraged because the deceased (Sgt. Juan Desilos Jr.) pushed his
companion Delfin Flores and admonished him not to get in through the exit gate, then pulled out his knife and stabbed
the victim in the abdomen. Treachery cannot therefore be appreciated as the attack made by appellant Rudy Regala
was merely an immediate retaliation for the pushing made by the deceased, which act placed him on his guard.
Moreover, deceased Juan Desilos Jr. at the time had a sidearm (p. 97, Vol. III, rec.) and was free to defend himself
with it. If appellant's design was to be safe from a possible defense that the victim might make, he could have
disarmed the victim first before stabbing him. This he did not do. Certainly, these circumstances negate treachery.
With respect to the qualifying circumstance of evident premeditation, it is well-settled that the essence of premeditation
is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry
out the criminal intent during the space of time sufficient to arrive at a calm judgment. Consequently, it must be clearly
established by evidence the time when the offender determined to commit the crime, and a sufficient interval of time
between the determination and the execution of the crime to allow him to reflect upon the consequences of his act.
Neither the record nor the appealed decision intimates the existence of the foregoing circumstances which are
essential for a positive finding of evident premeditation. On the contrary, the circumstances of the case rule out
premeditation.

But the appellant cannot be convicted of the complex crime of homicide with assault upon an agent of a person in
authority because the information filed against appellant did not allege the essential elements of assault that the
accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority. (People
of the Philippines vs. Rodil, L-35156; Nov. 20, 1981; People vs. CFI of Quezon, Branch V, 68 SCRA 305, Nov. 28,
1975). The information in this case barely alleged that the accused "... with deliberate intent to kill, with evident
premeditation and treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously
attack and stab with a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was
then in the performance of his official duty thereby inflicting upon the latter serious stab wounds at the mid-epigastric
region penetrating abdominal cavity and perforating cardial and cardiac region which injury directly caused his
instantaneous death," which is similar to the information in the aforesaid Rodilcase "appellant 'attack and stab PC
Lt. Guillermo Masana while the latter was in the performance of his official duties, ..." in which We ruled that "[S]uch an
allegation cannot be an adequate substitute for the essential averment to justify a conviction of the complex crime,
which necessarily requires the imposition of the maximum period of the penalty prescribed for the graver offense ... "
Furthermore, as in the Rodil case, the subject information cannot be cured or validated by the doctrine enunciated
in People vs. Balbar (21 SCRA 1119, Nov. 29, 1967), because unlike in the latter case, there are no allegations of facts
from which it can be implied that the accused then knew that, before or at the time of the assault, the victim was an
agent of a person in authority.
Moreover, the fact that the crime of assault was established by the evidence of the prosecution without any objection
on the part of the accused cannot likewise cure the aforestated defect in the information so as to validly convict the
accused thereof; because to do so would be convicting the accused of a crime not properly alleged in the body of the
information in violation of his constitutional right to be informed of the nature and cause of the accusation against him.
As already stated, the crime of assault was definitely demonstrated by the evidence of the People because it showed
that the victim (Sgt. Juan Desilos Jr.) while maintaining peace and order at the exit gate of the Plaza Magallanes
where the crime took place, was in complete PC uniform at the time the accused attacked him by reason of the latter's
act of pushing the accused and his co-accused so as to prevent them from entering the plaza through its exit gate. In
the aforesaid Rodil case, it was stated that "[L]ike a qualifying circumstance, such knowledge must be expressly and
specifically averred in the information; otherwise, in the absence of such allegation, the required knowledge, like a
qualifying circumstance, although proven, would only be appreciated as aggravating circumstance. Applying this
principle, the attack on the victim, who was known to the appellant as a peace officer, could be considered only as
aggravated by being 'in contempt or with insult to the public authorities' (par. 2, Art. XIV, Revised Penal Code) or as an
insult or in disregard of the respect due the offended party on account of his rank ..." (par. 3, Art. XIV, Revised Penal
Code).
Appellant can therefore be convicted only of the crime of homicide, aggravated by the circumstance of "in contempt or
with insult to the public authorities" (par. 2, Art. XIV, Revised Penal Code), or as an "insult or in disregard of the respect
due to the offended party on account of his rank ..." (par. 3, Revised Penal Code).
WE stated in the Rodil case, thus:
The term "rank" should be given its plain, ordinary meaning, and as suck refers to a high social position or standing as
a grade in the armed forces (Webster's Third New International Dictionary of the English Language Unabridged, p.
1881); or to a graded official standing or social position or station (75 CJS 458);
xxx xxx xxx

The principle enunciated in the Manalinde (14 Phil. 77 [1909]), Butag (38 Phil. 746 [1918]), Binayon (35 Phil. 23
[1916]) and Zalzos (40 Phil. 96 [1919]) to the effect that premeditation may exist even if there was no predetermined
victim, does not apply in the instance case In all these cases it was sufficiently established that the accused
deliberately planned to kill although without a definite person as intended victim. In the present case, there is no
evidence pointing to the fact that appellant planned to kill any person who ma cross his path. His act of bringing with
him a knife in going to the plaza is not an indication that he did plan to kill anybody.
Consequently, the killing of Sgt. Juan Desilos Jr. by appellant cannot be qualified as murder. It was simple homicide.

or to a grade or official standing, relative position in civil or social life, or in any scale of comparison, status, grade,
including its grade, status or scale of comparison within a position (Vol. 36, Words and Phrases, Permanent Edition, p.
100).
xxx xxx xxx

As explained by Mr. Justice Mariano Albert, then of the Court of Appeals, those "generally considered of high station in
life, on account of their rank (as well as age or sex), deserve to be respected. Therefore, whenever there is a
difference in social condition between the offender and the offended party, this aggravating circumstance sometimes is
present" (Albert M.A. The Revised Penal Code Annotated, 1946 Ed., p. 109).

G.R. No. L-6749

JEAN L. ARNAULT, petitioner-appellee,
vs.
EUSTAQUIO BALAGTAS, as Director of Prisons, respondent-appellant.

xxx xxx xxx

Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Guillermo E. Torres and Solicitor Jaime De
Los Angeles for appellant.
Estanislao A. Fernandez and Roman B. Antonio for appellee.

The aggravating circumstance of contempt of, or insult to, public authority under paragraph 2 of Article 14 of the
Revised Penal Code can likewise be appreciated in the case at bar.

LABRADOR, J.:
xxx xxx xxx
While it is true that in the case of U.S. vs. Rodriguez, et al. (19 Phil. 150, 157-158), People vs. Siojo(61 Phil. 307, 317),
and People vs. Verzo (21 SCRA 1403), this Court ruled that the term public authority refers to a person in authority
and that a PC lieutenant or town chief of police is not a public authority but merely an agent of a person in authority;
there is need of re-examining such a ruling since it is not justified by the employment of the term public authority in
aforesaid paragraph 2 of Article 14 instead of the term person in authority which is specifically used in Articles 148 and
152 of the Revised Penal Code. There is no extended reasoning of the doctrine enunciated in the aforesaid three (3)
cases why the phrase public authority should comprehend only persons in authority. The lawmaker could have easily
utilized the term "persons in authority" in the aforesaid paragraph 2 of Article 14 in much the same way that it
employed the said phrase in Articles 148 and 152. The lawmaker must have intended a different meaning for the term
public authority, which may however include, but not limited to, persons in authority.
Under the decided cases, a municipal mayor barrio captain, barrio lieutenant or barangay captain is a person in
authority or a public authority. Even a public school teacher is now considered a person in authority under CA 578
amending Article 152 of the Revised Penal Code (Sarcepudes vs. People, 90 Phil. 228). So is the town municipal
health officer (People vs. Quebral, et al., 73 Phil. 640), as well as a nurse, a municipal councilor or an agent of the
Bureau of Internal Revenue (People vs. Yosoya, CA-G.R. No. 8522-R, May 26, 1955; People vs. Reyes, et al., O.G.S.
11 p. 24).
The chief of police should therefore be considered a public authority or a person in authority; for he is vested with
jurisdiction or authority to maintain peace and order and is specifically duty bound to prosecute and to apprehend
violators of the laws and municipal ordinances, more than the aforementioned officials who cannot prosecute and who
are not even enjoined to arrest malefactors although specifically mentioned as persons in authority by the decided
cases and by Article 152 of the Revised Penal Code as amended by R.A. 1978 of June 22, 1957, The town chief of
police heads and supervises the entire police force in the municipality as well as exercises his authority over the entire
territory of the municipality, which is patently greater than and includes the school premises or the town clinic or barrio,
to which small area the authority or jurisdiction of the teacher, nurse, or barrio lieutenant, respectively, is limited.
Likewise, the guilt of appellant is aggravated by recidivism as he was previously sentenced by final judgment for slight
physical injuries.
WHEREFORE, APPELLANT RODOLFO REGALA ALIAS RUDY REGALA IS HEREBY FOUND GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF HOMICIDE AGGRAVATED BY RECIDIVISM AND BY CONTEMPT FOR
OR INSULT TO A PUBLIC AUTHORITY OR DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON
ACCOUNT OF HIS RANK, WITHOUT ANY MITIGATING CIRCUMSTANCE, AND HE IS HEREBY SENTENCED TO
SUFFER AN INDETERMINATE TERM OF IMPRISONMENT RANGING FROM TWELVE (12) YEARS OF PRISON
MAYOR AS MINIMUM TO TWENTY (20) YEARS OF RECLUSION TEMPORAL AS MAXIMUM:
THUS MODIFIED, THE JUDGMENT APPEALED FROM HIS HEREBY AFFIRMED IN ALL OTHER RESPECTS.
July 30, 1955

This an appeal from judgment of the Court of First Instance of Rizal, Pasay City Branch, Honorable Jose F. Flores
presiding, in habeas corpus proceeding, declaring that the continued detention and confinement of Jean L. Arnault in
the new Bilibid Prison, in pursuance of Senate Resolution No. 114, dated November 8, 1952, is illegal, for the reason
that the Senate of the Philippines committed a clear abuse of discretion in considering his answer naming one Jess D.
Santos as the person to whom delivery of the sum of P440,000 was made in the sale of the Buenavista and
Tambobong Estate, as a refusal to answer the question directed by the Senate committee to him, and on the further
ground that said Jean L. Arnault, by his answer has purged himself of contempt and is consequently entitled to be
released and discharged.
Petitioner-appellee was an attorney in-fact or Ernest H. Burt in the negotiations for the purchase of the Buenavista and
Tambobong Estates by the Government of the Philippines. The purchase was effected on October 21, 1949 and the
price paid for both estates was P5,000,000. On February 27, 1950, the Senate of the Philippines adopted Resolution
No. 8, whereby it created a Special Committee to determine "whether the said purchase was honest, valid and proper,
and whether the price involved in the deal was fair and just, the parties responsible therefor, any other facts the
Committee may deem proper in the premises." In the investigation conducted by the Committee in pursuance of said
Resolution, petitioner-appellee was asked to whom a part of the purchase price, or P440,000, was delivered.
Petitioner-appellee refused to answer this question, whereupon the Committee resolved on May 15, 1950, to order his
commitment to the custody of the Sergeant at-arms of the Philippines Senate and imprisoned in the new Bilibid Prison
in Rizal until such time when he shall reveal to the Senate or to the Special Committee the name of the person who
received the P440,000 and to answer questions pertinent thereto. In G.R. No. L-3820, petitioner-appellee herein
questioned the validity of the confinement so ordered, by a petition for certiorari filed in this Court. He contended that
the Senate of the Philippines has no power to punish him for contempt for refusing to reveal the name of the person to
whom he delivered P440,000., that the Legislature lacks authority to punish him for contempt beyond the term of the
legislative session, and that the question of the Senate which he refused to answer is an incriminating question which
the appellee is not bound to answer. All the abovementioned contentions were adversely passed upon by the decision
of this Court, so his petition for release was denied.
In the month of December, 1951, while still in confinement in Bilibid, petitioner-appellee executed an affidavit, Exhibit
A, wherein he gives in detail the history of his life, the events surrounding acquisition of the Buenavista and
Tambobong Estates by Gen. Burt, the supposed circumstances under which he met one by the name of Jess D.
Santos. Upon the presentation of the said affidavit to the said Senate Special Committee, the latter subjected
petitioner to questioning regarding the identity of Jess D. Santos, and after said investigation and questioning the
Committee adopted Resolution No. 114 on November 8, 1952. This Resolution reads as follows:
RESOLUTION APPROVING THE REPORT OF THE SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA
AND TAMBOBONG ESTATES DEAL, AND ORDERING THE DIRECTOR OF PRISON TO CONTINUE HOLDING
JEAN L. ARNAULT IN HIS CUSTODY, AND IN CONFINEMENT AND DETENTION AT THE NEW BILIBID PRISON AT
MUNTINLUPA, RIZAL, UNTIL THE SAID ARNAULT SHALL HAVE PURGED HIMSELF OF CONTEMPT OF THE
SENATE.
WHEREAS, on the 15th May 1950 the Senate of the Philippines, transcending divisions of party and faction in the
national interest, adopted a Resolution ordering the detention and confinement of Jean L. Arnault at the New Bilibid
Prison in Muntinlupa, Rizal, until he should have purged himself of contempt of the Senate by revealing the person to
whom he gave the sum of P440,000 in connection with the Buenavista and Tambobong Estates deal, and by
answering other pertinent questions in connection therewith;

WHEREAS, after considering the lengthy testimony offered by the said Jean L. Arnault, and the report thereon
rendered by the Senate Special Committee on the said deal, the Senate holds and finds that, despite numerous and
generous opportunities offered to him at his own instance and solicitation, the said Jean L. Arnault has failed and
refused, and continues to fail and refuse, to reveal the person to whom he gave the said amount of P440,000, and to
answer other pertinent questions in connection with the Buenavista and Tambobong estates deal;
WHEREAS, the Senate holds and finds that the situation of the said Jean L. Arnault has not materially changed since
he was committed to prison for contempt of the Senate, and since the Supreme Court of the Philippines, in a judgment
long since become final, upheld the power and authority of the Senate to hold the said Jean L. Arnault in custody,
detention, and confinement, said power and authority having been held to be coercive rather than punitive, and fully
justified until the said Jean L. Arnault should have given the information which he had withheld and continues
contumaciously to withhold;
WHEREAS, the insolent and manifest untruthful statements made by the said Jean L. Arnault on the occasions above
referred to constitute a continuing contempt of the Senate, and an added affront to its dignity and authority, such that ,
were they to be condoned or overlooked, the power and authority of the Senate to conduct investigations would
become futile and ineffectual because they could be defied by any person of sufficient stubbornness and malice;
WHEREAS, the Senate holds and finds that the identity of the person to whom the said Jean L. Arnault gave the
amount of P440,000 in connection with the Buenavista and Tambobong estates deal, and the further information which
the Senate requires and which the said Jean L. Arnault arrogantly and contumaciously withholds, is required for the
discharge of its legislative functions, particularly so that adequate measures can be taken to prevent the repetition of
similar frauds upon the Government and the People of the Philippines and to recover said amount; and
WHEREAS, while not insensible to the appeal of understanding and mercy, the Senate holds and finds that the said
Jean L. Arnault, by his insolent and contumacious defiance of the legitimate authority of the Senate, is trifling with its
proceedings, renders himself unworthy of mercy, and, in the language of the Supreme Court, is his own jailer, because
he could open the doors of his prison at any time by revealing the truth; now therefore, be it
Resolved by the Senate of the Philippines, That the Senate hold and find, as it hereby holds and finds, that Juan L.
Arnault has not purged himself of contempt of the Senate, and has in no way altered his situation since he has
committed to coercive not punitive, imprisonment for such contempt on the 15th day of May, 1950; and that Senate
order, as it hereby orders, the Director of Prisons to hold the said Jean L. Arnault, in his custody, and in confinement
and detention at the New Bilibid Prison in Muntinlupa, Rizal, in coercive imprisonment, until he should have purged
himself of the aforesaid contempt to the satisfaction, and until order to that effect, of the Senate of the Philippines or of
its Special Committee to investigate the Buenavista and Tambobong Estates deal.

P440,000 is one by the name of Jess D. Santos and if it did not, may the court review said finding? And the second is:
If the Senate did not believe the statement, is the continued confinement and detention of the petitioner-appellee, as
ordered in Senate Resolution of November 8, 1952, valid?
On the first question, the Senate found as a fact that petitioner "has failed and refused, and continues to fail and
refuse, to reveal the person to whom he gave the amount of P440,000" and that the situation of petitioner "has not
materially charged since he was committed to prison." In the first resolution of the Senate Special Committee of May
15, 1950, it found that petitioner "refused to reveal the name of the persons to whom he gave the P440,000, as well as
to answer other pertinent questions related to said amount." It is clear and evident that the Senate Committee did not
believe petitioner's statement that the person to whom he delivered the abovementioned amount is one by the name
of Jess D. Santos. The court a quo, however, arrogating unto itself the power to review such finding, held that the
"petitioner has satisfactorily shown that the person of Jess D. Santos actually and physically existed in the human
flesh," that the opinion or conclusion of the Senate Committee is not borne to out by the evidence produced at the
investigation, that the Senate abused its discretion in making its conclusion and that under these circumstances the
only thing that could in justice be done to petitioner is to order his release and have his case endorsed to the
prosecution branch of the judicial department for investigation and prosecution as the circumstances warrant.
There is an inherent fundamental error in the course of action that the lower court followed. It assumed that courts
have the right to review the findings of legislative bodies in the exercise of the prerogative of legislation, or interfere
with their proceedings or their discretion in what is known as the legislative process.
The courts avoid encroachment upon the legislature in its exercise of departmental discretion in the means used to
accomplish legitimate legislative ends. Since the legislature is given a large discretion in reference to the means it may
employ to promote the general welfare, and alone may judge what means are necessary and appropriate to
accomplish an end which the Constitution makes legitimate, the courts cannot undertake to decide whether the means
adopted by the legislature are the only means or even the best means possible to attain the end sought, for such
course would best the exercise of the police power of the state in the judicial department. It has been said that the
methods, regulations, and restrictions to be imposed to attain results consistent with the public welfare are purely of
legislative cognizance, and the determination of the legislature is final, except when so arbitrary as to be violative of
the constitutional rights of the citizen. Furthermore, in the absence of a clear violation of a constitutional inhibition, the
courts should assume that legislative discretion has been properly exercised. (11 Am. Jur., pp. 901-902).
These the judicial department of the government has no right or power or authority to do, much in the same manner
that the legislative department may not invade the judicial realm in the ascertainment of truth and in the application
and interpretation of the law, in what is known as the judicial process, because that would be in direct conflict with the
fundamental principle of separation of powers established by the Constitution. The only instances when judicial
intervention may lawfully be invoke are when there has been a violation of a constitutional inhibition, or when there has
been an arbitrary exercise of the legislative discretion.

Adopted, November 8, 1952 . (Exhibit 0)

In his petition for the writ of habeas corpus in the Court of First Instance, petitioner-appellee alleges: (1) That the
acquisition by the Government, through the Rural Progress Administration, of the Buenavista and Tambobong Estates
was not illegal nor irregular nor scandalous nor malodorous, but was in fact beneficial to the Government; (2) that the
decision of this Court in G. R. No. L-3820 declared that the Senate did not imprison Arnault "beyond proper
limitations", i.e., beyond the period longer than arresto mayor, as this is the maximum penalty that can be imposed
under the provisions of Article 150 of the Revised Penal Code; (3) that petitioner-appellee purged himself of the
contempt charges when he disclosed the fact that the one to whom he gave the P440,000 was Jess D. Santos, and
submitted evidence in corroboration thereof; (4) that the Senate is not justified in finding that the petitioner-appellee did
tell the truth when he mentioned Jess D. Santos as the person to whom he gave the P440,000, specially on the basis
of the evidence submitted to it; (5) that the legislative purpose or intention, for which the Senate ordered the
confinement may be considered as having been accomplished, and, therefore, there is no reason for petitionerappellee's continued confinement.
The claim that the purchase of the Buenavista and Tambobong Estates is beneficial to the government and is neither
illegal nor irregular is beside the point. To our minds, two questions are decisive of this case. The first is: Did the
Senate Special Committee believe the statement of the petitioner-appellee that the person to whom he gave the

Under our constitutional system, the powers of government are distributed among three coordinate and substantially
independent organs: the legislative, the executive and the judicial. Each of these departments of the government
derives its authority from the Constitution which, in turn, is the highest expression of the popular will. Each has
exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. (People of the
Philippine Islands, et al. vs. Vera, et al 65 Phil., 56; See also Angara vs. Electoral Commission, 63 Phil., 139)
All that the courts may do, in relation to the proceedings taken against petitioner prior to his incarceration, is to
determine if the constitutional guarantee of due process has been accorded him before his incarceration by legislative
order, and this because of the mandate of the Supreme Law of the land that no man shall be deprived life, liberty or
property without due process of law. In the case at bar such right has fully been extended the petitioner, he having
been given the opportunity to be heard personally and by counsel in all the proceedings prior to the approval of the
Resolution ordering his continued confinement.
The second question involves in turn the following propositions: Does the Philippine Senate have the power and
authority to pass its resolution ordering the continued confinement of the petitioner? In the supposition that such power
and authority exist, was such power legitimately exercised after the petitioner had given the name Jess D. Santos? A
study of the text of the resolution readily shows that the Senate found that the petitioner-appellee did not disclose, by

the mere giving of the name Jess D. Santos, the identity of the person to whom the sum of P440, 000 was delivered,
and, in addition thereto that petitioner withheld said identity arrogantly and contumaciously in continued affront of the
Senate's authority and dignity. Although the resolution studiously avoids saying that the confinement is a punishment,
but merely seeks to coerce the petitioner into telling the truth, the intention is evident that the continuation of the
imprisonment ordered is in fact partly unitive. This may be inferred from the confining made in the resolution that
petitioner-appellee's acts were arrogant and contumacious and constituted an affront to the Senate's dignity and
authority. In a way, therefore, the petitioner's assumption that the imprisonment is punitive is justified by the language
of the resolution, wherefore the issue now before Us in whether the Senate has the power to punish the contempt
committed against it under the circumstances of the case. This question is thus squarely presented before Us for
determination.
In the previous case of this same petitioner decided by this Court, G. R. No. L-38201, Arnault vs. Nazareno, et al. (46
Off. Gaz., No. 7, 3100), it was admitted and we had ruled that the Senate has the authority to commit a witness if he
refuses to answer a question pertinent to a legislative inquiry, to compel him to give the information, i.e., by reason of
its coercive power, not its punitive power. It is now contended by petitioner that if he committed an offense of contempt
or perjury against the legislative body, because he refused to reveal the identity of the person in accordance with the
demands of the Senate Committee, the legislature may not punish him, for the punishment for his refusal should be
sought through the ordinary processes of the law, i. e., by the institution of a criminal action in a court of justice.
American legislative bodies, after which our own is patterned, have the power to punish for contempt if the contempt
has had the effect of obstructing the exercise by the legislature of, or deterring or preventing it from exercising, its
legitimate functions (Annotation to Jurney vs. MacCraken, 79 L. ed. 814). While the power of the United States Senate
to punish for contempt was not clearly recognized in its earlier decision (See Marshal vs. Gordon, 61 L. ed. 881), the
Supreme Court of the United States two decades ago held that such power and authority exist. In the case of Jurney
vs. MacCraken (294 U. S. 123, 79 L. ed. 802), the question before it was whether or not the Senate could order the
confinement of a private citizen because of the destruction and removal by him of certain papers required to be
produced. The court said:
First, The main contention of MacCracken is that the so-called power to punish for contempt may never be exerted, in
the case of a private citizen, solely quapunishment. The argument is that the power may be used by the legislative
body merely as a means of removing an existing obstruction to the performance of its duties; that the power to punish
ceases as soon as the obstruction has been removed, or its removal has become impossible; and hence that there is
no power to punish a witness who, having been requested to produce papers, destroys them after service of the
subpoena. The contention rests upon a misconception of the limitations upon the power of the Houses of Congress to
punish for contempt. It is true that the scope of the power is narrow. No act is so punishable unless it is of a nature to
obstruct the performance of the duties of the legislature. This may be lack of power, because, as in Kilbourn vs.
Thompson, 103 U. S. 168, 26 L. ed. 377, there was no legislative duty to be performed; or because, as in Marshall vs.
Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F, 279, Ann. Cas. 1918B, 371, the act complained of
is deemed not to be of a character to obstruct the legislative process. But, where the offending act was of a nature to
obstruct the legislative process, the fact that the obstruction has since been removed, or that its removal has become
impossible is without legal significance.
The power to punish a private citizen for a past and completed act was exerted by Congress as early as 1795; and
since then it has been exercised on several occasions. It was asserted, before the Revolution, by the colonial
assemblies, in intimation of the British House of Commons; and afterwards by the Continental Congress and by state
legislative bodies. In Anderson vs. Dunn, 6 Wheat, 204, 5 L. ed. 242, decided in 1821, it was held that the House had
power to punish a private citizen for an attempt to bribe a member. No case has been found in which an exertion of the
power to punish for contempt has been successfully challenged on the ground that, before punishment, the offending
act had been consummated or that the obstruction suffered was irremediable. The statement in the opinion in
Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F. 279 Ann. Cas. 1918B,
371, supra, upon which MacCracken relies, must be read in the light of the particular facts. It was there recognized
that the only jurisdictional test to be applied by the court is the character of the offense; and that the continuance of the
obstruction, or the likelihood of its repetition, are considerations for the discretion of the legislators in meting out the
punishment.
Here, we are concerned not with an extention of congressional privilege, but with vindication of the established and
essential privilege of requiring the production of evidence. For this purpose, the power to punish for a past contempt is

an appropriate means. Compare Ex parte Nugent (C. C.) 1 Brunner, Col. Cas. 296, Fed. Cas No. 10375; Steward vs.
Bleine, 1 MacArth. 453. The apprehensions expressed from time to time in congressional debates, in opposition to
particular exercise of the contempt power concerned, not the power to punish, as such, but the broad, undefined
privileges which it was believed might find sanction in that power. The ground for such fears has since been effectively
removed by the decisions of this Court which hold that assertions of congressional privilege are subject to judicial
review. Melbourn vs. Thompson, 103 U. S. 168, 26 L. ed. 377, supra; and that the power to punish for contempt may
not be extended to slanderous attacks which presents no immediate obstruction to legislative processes. Marshall vs.
Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L.R. A. 1917F, Ann. Cas. 1918B, 731 supra.
The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason
and policy. Said power must be considered implied or incidental to the exercise of legislative power, or necessary to
effectuate said power. How could a legislative body obtain the knowledge and information on which to base intended
legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a
defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of
powers, making each branch supreme within the realm of its respective authority, it must have intended each
department's authority to be full and complete, independently of the other's authority and power. And how could the
authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against
it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself
to punish or deal therewith, with the affronts committed against its authority or dignity. The process by which a
contumacious witness is dealt with by the legislature in order to enable it to exercise its legislative power or authority
must be distinguished from the judicial process by which offenders are brought to the courts of justice for the meting of
the punishment which the criminal law imposes upon them. The former falls exclusively within the legislative authority,
the latter within the domain of the courts; because the former is a necessary concommitant of the legislative power or
process, while the latter has to do with the enforcement and application of the criminal law.
We must also and that provided the contempt is related to the exercise of the legislative power and is committed in the
course of the legislative process, the legislature's authority to deal with the defiant and contumacious witness should
be supreme, and unless there is a manifest and absolute disregard of discretion and a mere exertion of arbitrary
power coming within the reach of constitutional limitations, the exercise of the authority is not subject to judicial
interference. (Marshall vs. Gordon, supra).
The next question concerns the claim that the petitioner has purged himself of contempt, because he says he has
already answered the original question which he had previously been required to answer. In order that the petitioner
may be considered as having purged himself of the contempt, it is necessary that he should have testified truthfully,
disclosing the real identity of the person subject of the inquiry. No person guilty of contempt may purge himself by
another lie or falsehood; this would be repetition of the offense. It is true that he gave a name, Jess D. Santos, as that
of the person to whom delivery of the sum of P440,000 was made. The Senate Committee refused to believe, and
justly, that is the real name of the person whose identity is being the subject of the inquiry. The Senate, therefore, held
that the act of the petitioner continued the original contempt, or reiterated it. Furthermore, the act further interpreted as
an affront to its dignity. It may well be taken as insult to the intelligence of the honorable members of the body that
conducted the investigation. The act of defiance and contempt could not have been clearer and more evident.
Certainly, the Senate resolution declaring the petitioner in contempt may not be claimed as an exertion of an arbitrary
power.
One last contention of petitioner remains to be considered. It is the claim that as the period of imprisonment has lasted
for a period which exceeded that provided by law punishment for contempt, i. e., 6 months of arresto mayor, the
petitioner is now entitled to be released. This claim is not justified by the record. Petitioner was originally confined by
Resolution No. 17 on May 15, 1950. On December 13, 1951, he executed his affidavit and thereafter he was called to
testify again before the Senate Committee. The latter passed its Resolution No. 114 on November 6, 1952, and he
presented the petition for habeas corpus in this case on March 3, 1953, i. e., five months after the last resolution when
the Senate found that the petitioner committed another contempt. It is not true, therefore, that the petitioner's
punishment is beyond the full period prescribed in the criminal law.
Besides, the last resolution of November 8, 1952 is also of a coersive nature, in the sense that the Senate Committee
still demands and requires the disclosure of the fact which the petitioner had obstinately refused to divulge. While the
Philippine Senate has not given up hope that the petitioner may ultimately disclose the record, it is improper for the

courts to declare that the continued confinement is an abuse of the legislative power and thereby interfere in the
exercise of the legislative discretion.
The judgment appealed from should be, as it hereby is, reversed, and the petition for the issuance of the writ
of habeas corpus denied. The order of the court allowing the petitioner to give bail is declared null and void and the
petitioner is hereby ordered to be recommitted to the custody of the respondent. With cost against the petitionerappellee.
G.R. No. 72492 November 5, 1987
NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., PATERIO TORRES and ARTURO UMBAC,petitioners,
vs.
SANGGUNIANG PANLUNGSOD OF DUMAGUETE, THE AD HOC COMMITTEE OF THE SANGGUNIANG
PANLUNGSOD OF DUMAGUETE and ANTONIO S. RAMAS UYPITCHING, respondents.

CORTES, J.:
An attempt by the respondent Ad Hoc Committee of the respondent Sangguniang Panlungsod of Dumaguete to
punish non-members for legislative contempt was halted by this special civil action of certiorari and Prohibitionwith
Preliminary Injunction and/or Restraining Order questioning the very existence of the power in that local legislative
body or in any of its committees. On November 7, 1985, this Court issued a Temporary Restraining Order:
. . . enjoining respondents, their agents, representatives, and police and other peace officers acting in their behalf, to
refrain from compelling the attendance and testimony of Petitioners Paterio Torres and Arturo Umbac at any and all
future investigations to be conducted by aforesaid respondents, and from issuing any contempt order if one has not
been issued yet or from executing any such contempt order if one has already been issued.
Assailed is the validity of a subpoena dated October 25, 1985 (Annex "A", Petition) sent by the respondent Committee
to the petitioners Paterio Torres and Arturo Umbac, Chairman of the Board of Directors and the General Manager,
respectively, of petitioner Negros Oriental II Electric Cooperative NORECO II), requiring their attendance and
testimony at the Committee's investigation on October 29, 1985. Similarly under fire is the Order issued by the same
Committee on the latter date, (Annex "D", Petition) directing said petitioners to show cause why they should not be
punished for legislative contempt due to their failure to appear at said investigation.
The investigation to be conducted by respondent Committee was "in connection with pending legislation related to the
operations of public utilities" (Id.) in the City of Dumaguete where petitioner NORECO II, an electric cooperative, had
its principal place of business. Specifically, the inquiry was to focus on the alleged installation and use by the petitioner
NORECO II of inefficient power lines in that city (Comment, Rollo, p. 50). Respondent Antonio S. Ramas Uypitching,
as Chairman of the Committee on Public Utilities and Franchises and Co-Chairman of the respondent Ad Hoc
Committee, signed both the subpoena and the Order complained of. Petitioners moved to quash the subpoena on the
following grounds:
a. The power to investigate, and to order the improvement of, alleged inefficient power lines to conform to standards is
lodged exclusively with the National Electrification Administration; and
b. Neither the Charter of the City of Dumaguete nor the Local Government Code grants (the Sangguniang
Panlungsod) any specific power to investigate alleged inefficient power lines of NORECO II. (Annex "C", Petition)
The motion to quash was denied in the assailed Order of October 29, 1985 directing the petitioners Torres and Umbac
to show cause why they should not be punished for contempt. Hence this Petition for certiorari andProhibition with
Preliminary Injunction and/or Restraining Order.

Petitioners contend that the respondent Sangguniang Panlungsod of Dumaguete is bereft of the power to compel the
attendance and testimony of witnesses, nor the power to order the arrest of witnesses who fail to obey itssubpoena. It
is further argued that assuming the power to compel the attendance and testimony of witnesses to be lodged in said
body, it cannot be exercised in the investigation of matters affecting the terms and conditions of the franchise granted
to NORECO II which are beyond the jurisdiction of the Sangguniang Panlungsod (Rollo pp. 7-8).
Respondents, for their part, claim that inherent in the legislative functions performed by the respondentSangguniang
Panlungsod is the power to conduct investigations in aid of legislation and with it, the power to punish for contempt in
inquiries on matters within its jurisdiction (Rollo, p. 46). It is also the position of the respondents that the contempt
power, if not expressly granted, is necessarily implied from the powers granted theSangguniang Panlungsod (Rollo,
pp. 48-49). Furthermore, the respondents assert that an inquiry into the installation or use of inefficient power lines and
its effect on the power consumption cost on the part of Dumaguete residents is well-within the jurisdiction of
the Sangguniang Panlungsod and its committees.
1. A line should be drawn between the powers of Congress as the repository of the legislative power under the
Constitution, and those that may be exercised by the legislative bodies of local government unit, e.g. theSangguniang
Panlungsod of Dumaguete which, as mere creatures of law, possess delegated legislative power.While the
Constitution does not expressly vest Congress with the power to punish non-members for legislative contempt, the
power has nevertheless been invoked by the legislative body as a means of preserving its authority and dignity
(Arnault v. Nazareno, 87 Phil. 29 [1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that courts wield
an inherent power to "enforce their authority, preserve their integrity, maintain their dignity, and ensure the
effectiveness of the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716, 723 [1967]; In re Kelly 35 Phil.
944 950 [1916], and other cases). The exercise by Congress of this awesome power was questioned for the first time
in the leading case of Arnault v. Nazareno, (87 Phil. 29 [1950]) where this Court held that the legislative body indeed
possessed the contempt power.
That case arose from the legislative inquiry into the acquisition by the Philippine Government of the Buenavista and
Tambobong estates sometime in 1949. Among the witnesses called and examined by the special committee created
by a Senate resolution was Jean L. Arnault, a lawyer who delivered a portion of the purchase price to a representative
of the vendor. During the Senate, investigation, Amault refused to reveal the Identity of said representative, at the
same time invoking his constitutional right against self-incrimination. The Senate adopted a resolution committing
Arnault to the custody of the Sergeant at Arms and imprisoned "until he shall have purged the contempt by revealing
to the Senate . . . the name of the person to whom he gave the P440,000, as wen as answer other pertinent questions
in connection therewith." (Arnault v. Nazareno, 87 Phil. 29, 43 [1950]). Arnault petitioned for a writ of Habeas Corpus.
In upholding the power of Congress to punish Arnault for contumacy the Court began with a discussion of the
distribution of the three powers of government under the 1935 Constitution. Cognizant of the fact that the Philippines
system of government under the 1935 Constitution was patterned after the American system, the Court proceeded to
resolve the issue presented, partly by drawing from American precedents, and partly by acknowledging the broader
legislative power of the Philippine Congress as compared to the U.S. Federal Congress which shares legislative power
with the legislatures of the different states of the American union (Id., pp. 44-45). The Court held:
xxx xxx xxx
... (T)he power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function.
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which
the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite
information which is not infrequently true recourse must be had to others who possess it. Experience has shown
that mere requests for such information are often unavailing, and also that information which is volunteered is not
always accurate or complete; so some means of compulsion is essential to obtain what is needed. (McGrain vs.
Daugherty 273 U.S., 135; 71 L. ed., 580; 50 ALR 1) The fact that the Constitution expressly gives to Congress the
power to punish its Members for disorderly behaviour, does not by necessary implication exclude the power to punish
for contempt by any person. (Anderson vs. Dunn, 6 Wheaton 204; 5 L. ed., 242)
But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a
matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26, L.ed., 377.)

The Court proceeded to delve deeper into the essence of the contempt power of the Philippine Congress in a
subsequent decision (Arnault v. Balagtas, 97 Phil. 358 [1955]) arising from the same factual antecedents:
The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason
and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a
legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and
compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and
authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch
supreme within the real of its respective authority, it must have intended each department's authority to be full and
complete, independently of the other's authority or power. And how could the authority and power become complete if
for every act of refusal every act of defiance, every act of contumacy against it, the legislative body must resort to the
judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the
affronts committed against its authority or dignity. . . (Arnault v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370
[1955]).
The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then an unexplored area
of jurisprudence, and succeeded in supplying the raison d' etre of this power of Congress even in the absence of
express constitutional grant. Whether or not the reasons for upholding the existence of said power in Congress may
be applied mutatis mutandis to a questioned exercise of the power of contempt by the respondent committee of a city
council is the threshold issue in the present controversy.
3. The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the
government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes
contempts thereof. The contempt power of the legislature is, therefore, sui generis, and local legislative bodies cannot
correctly claim to possess it for the same reasons that the national legislature does. The power attaches not to the
discharge of legislative functions per se but to the character of the legislature as one of the three independent and
coordinate branches of government. The same thing cannot be said of local legislative bodies which are creations of
law.

municipality of Misamis, Province of Misamis, within the jurisdiction of this court, that he deliver the said land to the
plaintiff, Sabino Vayson, the said defendant, Cayetano Ramayrat, voluntarily, unlawfully and criminally refused, and
still refuses, to deliver the said land to the aforementioned Sabino Vayson. The exhibits A, B, and C form an integral
part of this complaint. Said crime was committed in violation of the law and, particularly, of article 252 of the Penal
Code.
The exhibits mentioned in the complaint and which are made an integral part thereof, are, respectively, of the following
tenor:
EXHIBIT A.
Sabino Vayson, plaintiff, vs. Cayetano Ramayrat, defendant.
The plaintiff alleges, as a cause of action:
1. That both are natives and residents of the municipality of Misamis, Province of Misamis, P.I.
2. That in or about the year 1895 the defendant asked permission of the plaintiff to erect a house on the latter's land
(the plaintiff's property) situated in the barrio of Mindug of this district, under the condition that he, the defendant,
would plant the said land in accounts and divide in equal shares with the plaintiff the trees that should survive.
3. That the defendant did not fulfill his promise.
He prays the court render judgment in his favor by sentencing the defendant to return the said land to him and to pay
the costs of this suit.

4. To begin with, there is no express

MISAMIS, MISAMIS, February 1, 1910.

March 8, 1912

JOSE VAYSON,
Counsel for the plaintiff.

G.R. No. 6874

THE UNITED STATES, plaintiff-appellant,
vs.
CAYETANO RAMAYRAT, defendant-appellee.
Attorney-General Villamor for appellant.
No appearance for appellee.
MAPA, J.:
On the 8th of February, 1911, the provincial fiscal of Misamis, Agusan, and Surigao presented against the defendant a
complaint of the following purport:
The undersigned charged of Cayetano Ramayrat with the crime of gross disobedience to the authorities, committed as
follows:
That, on February 1, 1910, who Sabino Vayson filed suit against Cayetano Ramayrat, in the justice of the peace court
of Misamis (Exhibit A), for the recovery of possession of a parcel of land belonging to the said Sabino Vayson; that, on
March 9, 1910, the said justice of the peace court rendered judgment by sentencing the said Cayetano Ramayrat to
deliver the possession of the said land to the plaintiff, Sabino Vayson (Exhibit B); that, when Cosme Nonoy, the deputy
sheriff of the municipality of Misamis, demanded of the defendant, Cayetano Ramayrat, on April 29, 1910, in this

EXHIBIT B.
(Civil case No. 112.)
Sabino Vayson, plaintiff, vs. Cayetano Ramayrat,
defendant.
JUDGMENT.
Complaint filed. Judgment rendered in favor of the plaintiff by sentencing the defendant to make the return and to pay
the costs of the case.
MISAMIS, MISAMIS, March 9, 1910.
ANDRES PACIENTE,
Auxiliary Justice of the Peace.
EXHIBIT C1.

In the justice of the peace court of Misamis, Province of Misamis, P.I. Sabino Vayson, plaintiff, vs. Cayetano Ramayrat,
defendant. Case No. 112.

To the governor, sheriff, or to any other person authorized by law to serve writs.

disobedience to judicial orders only when these latter are legal, and that the order herein concerned of the justice of
the peace is manifestly illegal, the result follows as a necessary conclusion, according to the trial judge, that the
disobedience charged to the defendant in the complaint does not constitute a penally actionable matter, pursuant to
the law. And it is said in the same order appealed from that the aforementioned order of the justice of the peace is
illegal for the reason that it was issued in an action brought for the recovery of possession of land, which could not
validly be heard by a justice of the peace court, as such classes of actions come exclusively within the jurisdiction of
the Courts of First Instance.

Greeting:

Section 232 of Act No. 190, cited in the order appealed from, provides, in part, as follows:

Whereas, on March 9, 1910, judgment was rendered against Cayetano Ramayrat, the defendant in the present case,
in an action prosecuted before the justice of the peace court of this municipality of Misamis by Sabino Vayson, the
plaintiff in this case, by sentencing the said defendant to return to the latter a parcel of unirrigated land situated in the
sitio of Mindug, a district of this municipality.

SEC. 232. What other acts are contempts of court. A person guilty of any of the following acts may be punished as
for contempt:

WRIT OF EXECUTION.

Therefore, you are ordered to place the plaintiff, Sabino Vayson, in possession of the said land and to make return of
this writ to this court within a period of fifteen days from the date hereof.
Failure to comply with this order will subject you to the penalties of the law.

(a) Disobedience of, or resistance to, a lawful writ, process, order, judgment, or command of a court, or injunction
granted by a court or judge;
xxx

xxx

xxx

Section 236 penalizes such acts of contempt with a fine that shall not exceed one thousand pesos, or imprisonment of
not more that six months, or both, in the discretion of the court.

Given under my hand this twenty-fifth day of March, 1910.

TIBURCIO K. SORIANO,
Justice of the Peace.

Article 252 of the Penal Code, cited in the complaint and which the trial court held to be repealed by the said sections
of the Code of Civil Procedure, is as follows:

EXHIBIT C-2.

ART. 252. The persons who, without being included in article 249, should resist the authorities, or their agents, or
should grossly disobey them in the performance of the duties of their office, shall be punished with the penalties
of arresto mayor and a fine of from 325 to 3,250 pesetas.

I, Cayetano Ramayrat, the undersigned, certify that I am not willing to deliver to Sabino Vayson or to the deputy sheriff
of this municipality, Cosme Nonoy, the land in my possession, as I have been directed to do by the said sheriff, in
order that, in the latter case, he might deliver the same to the aforementioned Vayson, in conformity with the order
issued by the justice of the peace of this municipality.

The Attorney-General alleges as a ground for his appeal that the trial court erred in holding that disobedience of
judicial orders is not comprised within article 252 of the Penal Code and that this article was repealed by sections 232
and 236 of the Code of Civil Procedure, in so far as it was incompatible therewith.

By an order of February 9, 1911, the court sustained the demurrer interposed by the defense and therefore dismissed
the complaint, with the costs de oficio. From this order an appeal has been taken by the Attorney-General.

In view of the opinion we have formed of the facts alleged in the complaint, it becomes unnecessary for us to decide
the aforementioned questions set up in the Attorney-General's brief. We do not think that the defendant disobeyed any
judicial order whatever. The order issued by the justice of the peace (Exhibit C) and alleged to have to have been
disobeyed, is a writ of execution and addressed, as was natural and proper, to the competent sheriff, and not to the
defendant. In it the sheriff is commanded to place the plaintiff, Sabino Vayson, who had won in the suit against the
herein defendant for the recovery of the property, in possession of the said disputed land. Such command is made
solely and exclusively to the sheriff, and not to the defendant. Absolutely no order whatsoever is made to the latter;
nothing is demanded on him and he is not restrained from doing anything, neither is he required to do anything; he is
not told to perform, or not to perform, any act whatsoever; in a word, the writ or order in question in no wise refers to
him. Nor could this process, indeed, be addressed to the defendant, for the reason that it wholly concerns the
execution of a judgment, the serving of which is specially and exclusively incumbent upon the sheriff. And it is
superfluous to add that the defendant could hardly disobey an order that in no wise concerned him. The order itself
leaves to this be clearly understood by warning the sheriff, and no one else, that he shall be liable to the penalties of
the law in case of noncompliance. "Failure to comply with this order," it says literally, "will subject you," the sheriff, "to
the penalties of the law." The warning is solely for the sheriff, because the writ must be served by him, and he alone it
was who could fail to comply with or disobey it.

Virtually, it is stated in the order appealed from that the defendant grossly disobeyed the order of the justice of the
peace court (Exhibits B and C) to deliver the land in question to Sabino Vayson; that such disobedience, were it
punishable, would fall within the sanction of the sections 232 and 236 of Act No. 190 (Code of Procedure in Civil
Actions), and not article 252 of the Penal Code, which latter in the opinion of the court, was repealed by the two
former, in so far as it be incompatible therewith; and that, inasmuch as the said sections of Act No. 190 punish the

But, while the defendant did not disobey the said writ of execution, may it be said that he disobeyed the sentence of
the justice of the peace who ordered that he restore the disputed land to the plaintiff, Vayson? It is contended by the
Attorney-General in his brief that he did. He says that the act performed by the defendant in setting forth in Exhibit C-2
that he was not willing to deliver the land to Vayson was one of the disobedience to the said sentence. This may be
true, and undoubtedly is, in a certain sense, in the same sense that it may be said that he who infringes or violates

MISAMIS, April 29, 1910.

CAYETANO RAMAYRAT.
The defendant demurred to the complaint, upon the following grounds:
1. That the facts charge do not constitute a crime.
2. That, in the complaint, allegations are made which, if true, would be a justification and legal exemption for the
defendant.

any law passed by the legislative power disobeys its authority; or that the defendant who refuses to surrender himself
voluntarily and of his own free accord to the prison authorities for the purpose of serving his sentence disobeys the
sentence that imposes imprisonment upon him. But this is not the disobedience that is punished as a crime by article
252 of the Penal Code. The juridical conception of this crime consists in a failure to comply with orders directly issued
by the authorities in the exercise of their official duties, and not with legal provisions of a general character, nor with
judicial decisions merely declaratory of rights or obligations, such as those proper to be rendered in a civil suit relative
to property or possession of land, like that which gave rise to the present controversy. Nor even do the violations of
prohibitory decisions, although undoubtedly of a more serious character, constitute the crime of disobedience to the
authorities provided for and punished by the aforecited article of the Penal Code, for they give rise only to a civil
action. (Decisions of the supreme court of Spain of September 25 and October 4, 1889, and June 30, 1893.)
The judgment of the justice of the peace which is supposed to have been disobeyed, orders, it is true, the herein
defendant to return the land, the subject of the suit, to the plaintiff, Vayson, but it does not order him, nor could it
legally order him, to effect the return himself. As hereinbefore stated, this is the duty of the sheriff, to whom the law
entrusts the execution of judgments.

do by the said sheriff. In accordance with article 252 of the Penal Code, disobedience to the agents of the authorities
is punishable only when they are in the exercise of the duties that particularly pertain to their office. As aforesaid, the
duty of the sheriff in the present case was to place Vayson in possession of the land. Instead of so doing, he limited his
action to telling or ordering the defendant to deliver the land to the said Vayson. In acting in this wise, not only did he
fail duly to discharge his official duty, but he openly neglected to perform the same. He had no right whatever to
require that the defendant should perform a duty which he himself ought to have performed: to do so, would be
tantamount to imposing one's own duties upon another, which, evidently, would be illegal and unjust. Under such
circumstances, the defendant's disobedience, if any there were, does not constitute the crime aforementioned.
Upon the foregoing grounds we hold that the facts alleged in the complaint do not constitute a crime; we, therefore,
affirm the order appealed from, with the costs de oficio.
Arellano, C.J., Torres, Johnson, Moreland and Trent, JJ., concur.
Separate Opinion

The Code of Civil Procedures contains the following provisions with respect to writs of execution:
CARSON, J., concurring:
SEC. 443. When execution may issue. The party in whose favor judgment is given, may, at any time within five
years after the entry thereof have a writ of execution issued for its enforcement, as hereinafter provided.
SEC. 444. Issuance, form, and requisites of execution. The execution must be issued in the name of the United
States of America, Philippine Islands, sealed with the seal of the court, and subscribed by the judge, or clerk thereof,
and be directed to the governor of the province, or any of his deputies, and must intelligibly refer to the judgment,
stating the court, and the province where the record of the judgment is . . . , and must direct the governor or his
deputy, substantially as follows:
xxx

xxx

xxx

(e) If it be for the delivery of the possession of real or personal property, it must require the governor, or his deputy, to
deliver the possession of the same, describing it, to the party entitled thereto. . . .
According to these sections, it is exclusively incumbent upon the sheriff to execute, to carry out the mandates of the
judgment in question, and, in fact, it was he himself, and he alone, who was ordered by the justice of the peace who
rendered that judgment, to place the plaintiff, Vayson, in possession of the land. The defendant in this case had
nothing to do with that delivery of possession, and, consequently, his statements expressing his refusal or
unwillingness to effect the same, are entirely officious and impertinent and therefore could not hinder, and much less
prevent, the delivery being made, had the sheriff known how to comply with his duty. It was solely due to the latter's
fault, and not to the alleged disobedience of the defendant, that the judgment was not duly executed. For that purpose
the sheriff could even have availed himself of the public force, had it been necessary to resort thereto.
The Attorney-General brings up still another aspect of the case. He states in his brief that the defendant grossly
disobeyed an agent of the authorities, such as is the sheriff, by not delivering the land to Vayson, as he was ordered to

I concur. I think it proper, however, to indicate that as I understand it, the majority opinion is not to be construed as
holding that defendant would not have been guilty of the offense defined and penalized in article 252 of the Penal
Code he refused to surrender possession of the property to the sheriff himself, upon demand therefor, in order that the
sheriff might give possession to the person entitled thereto as indicated in the writ.