G.R. No.

189158, January 11, 2017

JAMES IENT AND MAHARLIKA SCHULZE, Petitioners, v. TULLETT PREBON (PHILIPPINES), INC.,
Respondent.

G.R. No. 189530

JAMES IENT AND MAHARLIKA SCHULZE, Petitioners, v. TULLETT PREBON (PHILIPPINES), INC.,
Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

In these consolidated Petitions for Review under Rule 45 of the Rules of Court, petitioners James A. Ient
(Ient) and Maharlika C. Schulze (Schulze) assail the Court of Appeals Decision1 dated August 12, 2009 in
CA-G.R. SP No. 109094, which affirmed the Resolutions dated April 23, 20092 and May 15, 20093 of the
Secretary of Justice in I.S. No. 08-J-8651. The Secretary of Justice, through the Resolutions dated April
23, 2009 and May 15, 2009, essentially ruled that there was probable cause to hold petitioners, in
conspiracy with certain former directors and officers of respondent Tullet Prebon (Philippines), Inc.
(Tullett), criminally liable for violation of Sections 31 and 34 in relation to Section 144 of the Corporation
Code.

From an assiduous review of the records, we find that the relevant factual and procedural antecedents
for these petitions can be summarized as follows:

Petitioner Ient is a British national and the Chief Financial Officer of Tradition Asia Pacific Pte. Ltd.
(Tradition Asia) in Singapore.4 Petitioner Schulze is a Filipino/German who does Application Support for
Tradition Financial Services Ltd. in London (Tradition London).5 Tradition Asia and Tradition London are
subsidiaries of Compagnie Financiere Tradition and are part of the "Tradition Group." The Tradition
Group is allegedly the third largest group of Inter-dealer Brokers (IDB) in the world while the corporate
organization, of which respondent Tullett is a part, is supposedly the second largest. In other words, the
Tradition Group and Tullett are competitors in the inter-dealer broking business. IDBs purportedly
"utilize the secondary fixed income and foreign exchange markets to execute their banks and their bank
customers' orders, trade for a profit and manage their exposure to risk, including credit, interest rate
and exchange rate risks." In the Philippines, the clientele for IDBs is mainly comprised of banks and
financial institutions.6

Tullett was the first to establish a business presence in the Philippines and had been engaged in the
inter-dealer broking business or voice brokerage here since 1995.7 Meanwhile, on the part of the
Tradition Group, the needs of its Philippine clients were previously being serviced by Tradition Asia in
Singapore. The other IDBs in the Philippines are Amstel and Icap.8

Sometime in August 2008, in line with Tradition Group's motive of expansion and diversification in Asia,
petitioners Ient and Schulze were tasked with the establishment of a Philippine subsidiary of Tradition
Asia to be known as Tradition Financial Services Philippines, Inc. (Tradition Philippines).9 Tradition
Philippines was registered with the Securities and Exchange Commission (SEC) on September 19, 200810
with petitioners Ient and Schulze, among others, named as incorporators and directors in its Articles of
Incorporation.11

On October 15, 2008, Tullett, through one of its directors, Gordon Buchan, filed a Complaint-Affidavit12
with the City Prosecution Office of Makati City against the officers/employees of the Tradition Group for
violation of the Corporation Code. Impleaded as respondents in the Complaint-Affidavit were petitioners
Ient and Schulze, Jaime Villalon (Villalon), who was formerly President and Managing Director of Tullett,
Mercedes Chuidian (Chuidian), who was formerly a member of Tullett's Board of Directors, and other
John and Jane Does. Villalon and Chuidian were charged with using their former positions in Tullett to
sabotage said company by orchestrating the mass resignation of its entire brokering staff in order for
them to join Tradition Philippines. With respect to Villalon, Tullett claimed that the former held several
meetings between August 22 to 25, 2008 with members of Tullett's Spot Desk and brokering staff in
order to convince them to leave the company. Villalon likewise supposedly intentionally failed to renew
the contracts of some of the brokers. On August 25, 2008, a meeting was also allegedly held in Howzat
Bar in Makati City where petitioners and a lawyer of Tradition Philippines were present. At said meeting,
the brokers of complainant Tullett were purportedly induced, en masse, to sign employment contracts
with Tradition Philippines and were allegedly instructed by Tradition Philippines' lawyer as to how they
should file their resignation letters.

Complainant also claimed that Villalon asked the brokers present at the meeting to call up Tullett's
clients to inform them that they had already resigned from the company and were moving to Tradition
Philippines. On August 26, 2008, Villalon allegedly informed Mr. Barry Dennahy, Chief Operating Officer
of Tullett Prebon in the Asia-Pacific, through electronic mail that all of Tullett's brokers had resigned.
Subsequently, on September 1, 2008, in another meeting with Ient and Tradition Philippines' counsel,
indemnity contracts in favor of the resigning employees were purportedly distributed by Tradition
Philippines. According to Tullett, respondents Villalon and Chuidian (who were still its directors or
officers at the times material to the Complaint-Affidavit) violated Sections 31 and 34 of the Corporation
Code which made them criminally liable under Section 144. As for petitioners Ient and Schulze, Tullett
asserted that they conspired with Villalon and Chuidian in the latter's acts of disloyalty against the
company.13

Villalon and Chuidian filed their respective Counter-Affivadits.14

Villalon alleged that frustration with management changes in Tullett Prebon motivated his personal
decision to move from Tullett and accept the invitation of a Leonard Harvey (also formerly an executive
of Tullett) to enlist with the Tradition Group. As a courtesy to the brokers and staff, he informed them of
his move contemporaneously with the tender of his resignation letter and claimed that his meetings
with the brokers was not done in bad faith as it was but natural, in light of their long working
relationship, that he share with them his plans. The affidavit of Engelbert Wee should allegedly be
viewed with great caution since Wee was one of those who accepted employment with Tradition
Philippines but changed his mind and was subsequently appointed Managing Director (Villalon's former
position) as a prize for his return. Villalon further argued that his resignation from Tullett was done in
the exercise of his fundamental rights to the pursuit of life and the exercise of his profession; he can
freely choose to avail of a better life by seeking greener pastures; and his actions did not fall under any
of the prohibited acts under Sections 31 and 34 of the Corporation Code. It is likewise his contention
that Section 144 of the Corporation Code applies only to violations of the Corporation Code which do
not provide for a penalty while Sections 31 and 34 already provide for the applicable penalties for
violations of said provisions - damages, accounting and restitution. Citing the Department of Justice
(DOJ) Resolution dated July 30, 2008 in UCPB v. Antiporda, Villalon claimed that the DOJ had previously
proclaimed that Section 31 is not a penal provision of law but only the basis of a cause of action for civil
liability. Thus, he concluded that there was no probable cause that he violated the Corporation Code nor
was the charge of conspiracy properly substantiated.15

Chuidian claimed that she left Tullett simply to seek greener pastures. She also insisted the complaint
did not allege any act on her part that is illegal or shows her participation in any conspiracy. She merely
exercised her right to exercise her chosen profession and pursue a better life. Like Villalon, she stressed
that her resignation from Tullett and subsequent transfer to Tradition Philippines did not fall under any
of the prohibited acts under Sections 31 and 34. Section 144 of the Corporation Code purportedly only
applies to provisions of said Code that do not provide for any penalty while Sections 31 and 34 already
provide for the penalties for their violation - damages, accounting and restitution. In her view, that
Section 34 provided for the ratification of the acts of the erring corporate director, trustee or office
evinced legislative intent to exclude violation of Section 34 from criminal prosecution. She argued that
Section 144 as a penal provision should be strictly construed against the State and liberally in favor of
the accused and Tullett has failed to substantiate its charge of bad faith on her part.16

In her Counter-Affidavit,17 petitioner Schulze denied the charges leveled against her. She pointed out
that the Corporation Code is not a "special law" within the contemplation of Article 1018 of the Revised
Penal Code on the supplementary application of the Revised Penal Code to special laws since said
provision purportedly applies only to "special penal laws." She further argued that "[s]ince the
Corporation Code does not expressly provide that the provisions of the Revised Penal Code shall be
made to apply suppletorily, nor does it adopt the nomenclature of penalties of the Revised Penal Code,
the provisions of the latter cannot be made to apply suppletorily to the former as provided for in the
first sentence of Article 10 of the Revised Penal Code."19 Thus, she concluded that a charge of
conspiracy which has for its basis Article 8 of the Revised Penal Code cannot be made applicable to the
provisions of the Corporation Code.

Schulze also claimed that the resignations of Tullett's employees were done out of their own free will
without force, intimidation or pressure on her and Ient's part and were well within said employees' right
to "free choice of employment."20

For his part, petitioner Ient alleged in his Counter-Affidavit that the charges against him were merely
filed to harass Tradition Philippines and prevent it from penetrating the Philippine market. He further
asserted that due to the highly specialized nature of the industry, there has always been a regular flow
of brokers between the major players. He claimed that Tradition came to the Philippines in good faith
and with a sincere desire to foster healthy competition with the other brokers. He averred that he never
forced anyone to join Tradition Philippines and the Tullett employees' signing on with Tradition
Philippines was their voluntary act since they were discontented with the working environment in
Tullett. Adopting a similar line of reasoning as Schulze, Ient believed that the Revised Penal Code could
not be made suppletorily applicable to the Corporation Code so as to charge him as a conspirator.
According to Ient, he merely acted within his rights when he offered job opportunities to any interested
person as it was within the employees' rights to change their employment, especially since Article 23 of
the Universal Declaration of Human Rights (of which the Philippines is a signatory) provides that
"everyone has the right to work, to free choice of employment, to just and favorable conditions of work
and to protection against unemployment."21 He also denounced the Complaint-Affidavit and the
affidavits of Tullett employees attached thereto as self--serving or as an exaggeration/twisting of the
true events.22
In a Consolidated Reply-Affidavit23 notarized on January 22, 2009, Tullett argued that Villalon, Chuidian,
Schulze, and Ient have mostly admitted the acts attributed to them in the Complaint-Affidavit and only
attempted to characterize said acts as "normal," "innocent" or "customary." It was allegedly evident
from the Counter-Affidavits that the resignation of Tullett's employees was an orchestrated plan and not
simply motivated by their seeking "greener pastures." Purported employee movements in the industry
between the major companies are irrevelant since such movements are subject to contractual
obligations. Tullett likewise denied that its working environment was stringent and "weird." Even
assuming that Villalon and Chuidian were dissatisfied with their employment in Tullett, this would
supposedly not justify nor exempt them from violating their duties as Tullett's officers/directors. There
was purportedly no violation of their constitutional rights to liberty or to exercise their profession as
such rights are not unbridled and subject to the laws of the State. In the case of Villalon and Chuidian,
they had to comply with their duties found in Sections 31 and 34 of the Corporation Code. Tullett asserts
that Section 144 applies to the case at bar since the DOJ Resolution in UCPB is not binding as it applies
only to the parties therein and it likewise involved facts different from the present case. Relying on
Home Insurance Company v. Eastern Shipping Lines,24 Tullett argued that Section 144 applies to all
other violations of the Corporation Code without exception. Article 8 of the Revised Penal Code on
conspiracy was allegedly applicable to the Corporation Code as a special law with a penal
provision.25cralawred

In a Supplemental Complaint-Affidavit26 likewise notarized on January 22, 2009, Tullett included

Leonard James Harvey (Harvey) in the case and alleged that it learned of Harvey's complicity through the
Counter- Affidavit of Villalon. Tullett claimed that Harvey, who was Chairman of its Board of Directors at
the time material to the Complaint, also conspired to instigate the resignations of its employees and was
an indispensable part of the sabotage committed against it.

In his Rejoiner-Affidavit,27 Ient vehemently denied that there was a pre-arranged plan to sabotage
Tullett. According to Ient, Gordon Buchan of Tullett thought too highly of his employer to believe that
the Tradition Group's purpose in setting up Tradition Philippines was specifically to sabotage Tullett. He
stressed that Tradition Philippines was set up for legitimate business purposes and Tullett employees
who signed with Tradition did so out of their own free will and without any force, intimidation, pressure
or inducement on his and Schulze's part. All he allegedly did was confirm the rumors that the Tradition
Group was planning to set up a Philippine office. Echoing the arguments of Villalon and Chuidian, Ient
claimed that (a) there could be no violation of Sections 31 and 34 of the Corporation as these sections
refer to corporate acts or corporate opportunity; (b) Section 144 of the same Code cannot be applied to
Sections 31 and 34 which already contains the penalties or remedies for their violation; and (c)
conspiracy under the Revised Penal Code cannot be applied to the Sections 31 and 34 of the Corporation
Code.

In a Resolution28 dated February 17, 2009, State Prosecutor Cresencio F. Delos Trinos, Jr. (Prosecutor
Delos Trinos), Acting City Prosecutor of Makati City, dismissed the criminal complaints. He reasoned
that:
chanRoblesvirtualLawlibrary

It is our considered view that the acts ascribed [to] respondents Villalon and Chuidian did not constitute
any of the prohibited acts of directors or trustees enunciated under Section 31. Their cited actuations
certainly did not involve voting for or assenting to patently unlawful acts of [Tullett] nor could the same
be construed as gross negligence or bad faith in directing the affairs of [Tullett]. There is also no showing
that they acquired any personal or pecuniary interest in conflict with their duty as directors of [Tullett].
Neither was there a showing that they attempted to acquire or acquired, in violation of their duty as
directors, any interest adverse to [Tullett] in respect [to] any matter which has been reposed in them in
confidence.

xxxx

The issue that respondent Villalon informed the brokers of his plan to resign from [Tullett] and to
subsequently transfer to Tradition is not in dispute. However, we are unable to agree that the brokers
were induced or coerced into resigning from [Tullett] and transferring to Tradition themselves. x x x As
the record shows, Mr. Englebert Wee and the six (6) members of the broking staff who stand as
[Tullett]'s witnesses, also initially resigned from [Tullett] and transferred to Tradition but backed out
from their contract of employment with Tradition and opted to remain with [Tullett].

Even assuming ex gratia argumenti that the brokers were induced by the respondents or anyone of
them to leave their employment with [Tullett], such inducement may only give rise to civil liability for
damages against the respondents but no criminal liability would attach on them. x x x.

On the alleged inducements of clients of [Tullett] to transfer to Tradition, there is no showing that
clients of [Tullett] actually transferred to Tradition. Also, the allegation that respondents orchestrated
the mass resignation of employees of [Tullett] to destroy or shut down its business and to eliminate it
from the market in order that Tradition could take its place is baseless and speculative. Significantly, it is
noted that despite the resignations of respondents Villalon and Chuidian and the majority of the broking
staff and their subsequent transfer to Tradition, the business of [Tullet] was not destroyed or shut down.
[Tullett] was neither eliminated from the market nor its place in the market taken by Tradition. x x x

In the same vein, the "corporate opportunity doctrine" enunciated under Section 34 does not apply
herein and cannot be rightfully raised against respondents Villalon and Chuidian. Under Section 34, a
director of a corporation is prohibited from competing with the business in which his corporation is
engaged in as otherwise he would be guilty of disloyalty where profits that he may realize will have to go
to the corporate funds except if the disloyal act is ratified. Suffice it to say that their cited acts did not
involve any competition with the business of [Tullett].29ChanRoblesVirtualawlibrary
On the issue of conspiracy, Prosecutor Delos Trinos found that since Villalon and Chuidian did not
commit any acts in violation of Sections 31 and 34 of the Corporation Code, the charge of conspiracy
against Schulze and Ient had no basis. As for Harvey, said Resolution noted that he was similarly situated
as Villalon and Chuidian; thus, the considerations in the latter's favor were applicable to the former.30
Lastly, on the applicability of Section 144 to Sections 31 and 34, Prosecutor Delos Trinos relied on the
reasoning in the DOJ Resolution dated July 30, 2008 in UCPB v. Antiporda issued by then Secretary of
Justice Raul M. Gonzalez, to wit:
chanRoblesvirtualLawlibrary
We maintain and reiterate the ratiocination of the Secretary of Justice in United Coconut Planters Bank
vs. Tirso Antiporda, et al., I.S. No. 2007-633 promulgated on July 30, 2008, thus - "It must be noted that
Section 144 covers only those provisions 'not otherwise specifically penalized therein.' In plain language,
this means that the penalties under Section 144 apply only when the other provisions of the Corporation
Code do not yet provide penalties for non-compliance therewith."

A reading of Sections 31 and 34 shows that penalties for violations thereof are already provided therein.
Under Section 31, directors or trustees are made liable for damages that may result from their
fraudulent or illegal acts. Also, directors, trustees or officers who attempt to acquire or acquire any
interest adverse to the corporation will have to account for the profits which otherwise would have
accrued to the corporation. Section 34, on the other hand, penalizes directors who would be guilty of
disloyalty to the corporation by accounting to the corporation all profits that they may realize by
refunding the same.31ChanRoblesVirtualawlibrary
Consequently, Tullett filed a petition for review with the Secretary of Justice to assail the foregoing
resolution of the Acting City Prosecutor of Makati City. In a Resolution32 dated April 23, 2009, then
Secretary of Justice Raul M. Gonzalez reversed and set aside Prosecutor Delos Trinos's resolution and
directed the latter to file the information for violation of Sections 31 and 34 in relation to Section 144 of
the Corporation Code against Villalon, Chuidian, Harvey, Schulze, and Ient before the proper court. As
can be gleaned from the April 23, 2009 Resolution, the Secretary of Justice ruled that:
chanRoblesvirtualLawlibrary
It is evident from the case at bar that there is probable cause to indict respondents Villalon, Chuidian
and Harvey for violating Section 31 of the Corporation Code. Indeed, there is prima facie evidence to
show that the said respondents acted in bad faith in directing the affairs of complainant. Undeniably,
respondents Villalon, Chuidian and Harvey occupied positions of high responsibility and great trust as
they were members of the board of directors and corporate officers of complainant. x x x As such, they
are required to administer the corporate affairs of complainant for the welfare and benefit of the
stockholders and to exercise the best care, skill and judgment in the management of the corporate
business and act solely for the interest of the corporation.

xxxx

Respondents Villalon and Chuidian acted with dishonesty and in fraud. They went to the extent of
having their several meetings away from complainant's office so as to secretly entice and induce all its
brokers to transfer to Tradition. Respondents Villalon and Chuidian did not entice merely one or two
employees of complainant but admittedly, the entire broking staff of the latter. This act would lead to
the sure collapse of complainant. x x x.

Further, respondents Villalon and Chuidian acquired personal and pecuniary interest in conflict with
their duties as directors of complainant. Respondents Villalon and Chuidian committed the acts
complained of in order to transfer to Tradition, to have a higher salary and position and bring the clients
and business of complainant with them. The fact that Tradition is not yet incorporated at that time is of
no consequence.

Moreover, respondents Villalon and Chuidian violated Section 34 of the Corporation Code when they
acquired business opportunity adverse to that of complainant. When respondents Villalon and Chuidian
told the brokers of complainant to convince their clients to transfer their business to Tradition, the
profits of complainant which rightly belonging to it will be transferred to a competitor company to be
headed by respondents.

The provision of Section 144 of the Corporation Code is also applicable in the case at bar as the penal
provision provided therein is made applicable to all violations of the Corporation Code, not otherwise
specifically penalized. Moreover, the factual milieu of the case entitled "Antiporda, et al., IS No. 2007-
633" is inapplicable as the facts of the above-entitled case is different.

xxxx
As for respondent Harvey's probable indictment, aside from not submitting his counter-affidavit, the
counter-affidavit of respondent Villalon showed that he is also liable as such since the idea to transfer
the employment of complainant's brokers was broached by him.

Anent respondents Ient and Schulze, record revealed that they conspired with respondents Villalon and
Chuidian when they actively participated in the acts complained of. They presented the employment
contracts and indemnity agreements with the brokers of complainant in a series of meetings held with
respondents Villalon and Chuidian. Respondent Ient signed the contracts as CFO of Tradition Asia and
even confirmed the transfer of respondent Villalon to Tradition. Respondent Schulze admitted that the
purpose of her sojourn in the Philippines was to assist in the formation of Tradition. Thus, it is clear that
their role in the acts complained of were instrumental for respondents Villalon and Chuidian to violate
their duties and responsibilities as directors and officers of complainant.33ChanRoblesVirtualawlibrary
Ient and Schulze moved for reconsideration of the foregoing Resolution by the Secretary of Justice.
Meanwhile, on May 14, 2009, two Informations, one for violation of Section 31 and another for violation
of Section 34, were filed by Prosecutor Delos Trinos with the Metropolitan Trial Court of Makati City. In a
Resolution dated May 15, 2009, the Secretary of Justice denied the motion for reconsideration filed by
petitioners. Unsatisfied with this tum of events, petitioners Ient and Schulze brought the matter to the
Court of Appeals via a petition for certiorari under Rule 65 which was docketed as CA-G.R. SP No.
109094.

In a Decision dated August 12, 2009, the Court of Appeals affirmed the Secretary of Justice's Resolutions
dated April 23, 2009 and May 15, 2009, after holding that:
chanRoblesvirtualLawlibrary
Respondent Secretary correctly stressed that Sections 31 and 34 must be read in the light of the nature
of the position of a director and officer of the corporation as highly imbued with trust and confidence.
Petitioners' rigid interpretation of clear-cut instances of liability serves only to undermine the values of
loyalty, honesty and fairness in managing the affairs of the corporation, which the law vested on their
position. Besides, this Court can hardly deduce abuse of discretion on the part of respondent Secretary
in considering a conflict of interest scenario from petitioners' act of advancing the interest of an
emerging competitor in the field rather than fiercely protecting the business of their own company. As
aptly pointed out by the private respondent, the issue is not the right of the employee brokers to seek
greener pastures or better employment opportunities but the breach of fiduciary duty owed by its
directors and officers.

In the commentary on the subject of duties of directors and controlling stockholders under the
Corporation Code, Campos explained:
chanRoblesvirtualLawlibrary
"Fiduciary Duties; Conflict of Interest

"A director, holding as he does a position of trust, is a fiduciary of the corporation. As such, in case of
conflict of his interest with those of the corporation, he cannot sacrifice the latter without incurring
liability for his disloyal act. The fiduciary duty has many ramifications, and the possible conflict-of-
interest situations are almost limitless, each possibility posing different problems. There will be cases
where a breach of trust is clear. Thus, where a director converts for his own use funds or property
belonging to the corporation, or accepts material benefits for exercising his powers in favor of someone
seeking to do business with the corporation, no court will allow him to keep the profit he derives from
his wrongdoing. In many other cases, however, the line of demarcation between the fiduciary
relationship and a director's personal right is not easy to define. The Code has attempted at least to lay
down general rules of conduct and although these serve as guidelines for directors to follow, the
determination as to whether in a given case the duty of loyalty has been violated has ultimately to be
decided by the court on the case's own merits." x x x.ChanRoblesVirtualawlibrary
Prescinding from the above, We agree with the Secretary of Justice that the acts complained of in this
case establish a prima facie case for violation of Sec. 31 such that the accused directors and officers of
private respondent corporation are probably guilty of breach of bad faith in directing the affairs of the
corporation. The breach of fiduciary duty as such director and corporate office (sic) are evident from
their participation in recruiting the brokers employed in the corporation, inducing them to accept
employment contracts with the newly formed firm engaged in competing business, and securing these
new hires against possible breach of contract complaint by the corporation through indemnity contracts
provided by Tradition Philippines. Clearly, no grave abuse of discretion was committed by the
respondent Secretary in reversing the city prosecutor's dismissal of the criminal complaint and ordering
the filing of the corresponding information against the accused, including herein petitioners.

As to petitioners' contention that conspiracy had not been established by the evidence, suffice it to state
that such stance is belied by their own admission of the very acts complained of in the Complaint--
Affidavit, the defense put up by them consists merely in their common argument that no crime was
committed because private respondent's brokers had the right to resign and transfer employment if
they so decide.

It bears to reiterate that probable cause is such set of facts and circumstances which would lead a
reasonably discreet and prudent man to believe that the offense charged in the Information or any
offense included therein has been committed by the person sought to be arrested. In determining
probable cause, the average man weighs the facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no technical knowledge. He relies on common
sense. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charge.

Finally, the Court finds no merit in the argument of petitioners that Sec. 144 is not applicable since Sec.
31 already provides for liability for damages against the guilty director or corporate officer.
"SEC. 144. Violations of the Code. - Violations of any of the provisions of this Code or its amendments
not otherwise specifically penalized therein shall be punished by a fine of not less than one thousand
(P1,000.00) pesos but not more than ten thousand (P10,000.00) pesos or by imprisonment for not less
than thirty (30) days but not more than five (5) years, or both, in the discretion of the court. If the
violation is committed by a corporation, the same may, after notice and hearing, be dissolved in
appropriate proceedings before the Securities and Exchange Commission; Provided, That such
dissolution shall not preclude the institution of appropriate action against the director, trustee or officer
of the corporation responsible for the said violation; Provided, further, That nothing in this section shall
be construed to repeal the other causes for dissolution of a corporation provided in this Code." x x
x.ChanRoblesVirtualawlibrary
"Damages" as the term is used in Sec. 31 cannot be deemed as punishment or penalty as this appears in
the above-cited criminal provision of the Corporation Code. Such "damage" implies civil, rather than,
criminal liability and hence does not fall under those provisions of the Code which are not "specifically
penalized" with fine or imprisonment.34ChanRoblesVirtualawlibrary
In light of the adverse ruling of the Court of Appeals, petitioners Ient and Schulze filed separate petitions
for review with this Court. After requiring further pleadings from the parties, the Court directed the
parties to submit their memoranda to consolidate their positions on the issues.

At the outset, it should be noted that respondent Tullett interposed several procedural objections which
we shall dispose of first.

Anent respondent's contentions that the present petitions (assailing the issuances of the Secretary of
Justice on the question of probable cause) had become moot and academic with the filing of the
Informations in the trial court and that under our ruling in Advincula v. Court of Appeals35 the filing of a
petition for certiorari with the appellate court was the improper remedy as findings of the Secretary of
Justice on probable cause must be respected, we hold that these cited rules are not inflexible.

In Yambot v. Tuquero,36 we observed that under exceptional circumstances, a petition for certiorari
assailing the resolution of the Secretary of Justice (involving an appeal of the prosecutor's ruling on
probable cause) may be allowed, notwithstanding the filing of an information with the trial court. We
reiterated the doctrine in Ching v. Secretary of Justice37 that the acts of a quasi-judicial officer may be
assailed by the aggrieved party through a petition for certiorari and enjoined (a) when necessary to
afford adequate protection to the constitutional rights of the accused; (b) when necessary for the
orderly administration of justice; (c) when the acts of the officer are without or in excess of authority;
(d) where the charges are manifestly false and motivated by the lust for vengeance; and (e) when there
is clearly no prima facie case against the accused.

In the case at bar, it is unsettling to perceive a seeming lack of uniformity in the rulings of the Secretary
of Justice on the issue of whether a violation of Section 31 entails criminal or only civil liability and such
divergent actions are explained with a terse declaration of an alleged difference in factual milieu and
nothing further. Such a state of affairs is not only offensive to principles of fair play but also anathema to
the orderly administration of justice. Indeed, we have held that where the action of the Secretary of
Justice is tainted with arbitrariness, an aggrieved party may seek judicial review via certiorari on the
ground of grave abuse of discretion.38

We likewise cannot give credit to respondent's claim of mootness. The "moot and academic" principle is
not a magical formula that can automatically dissuade the courts in resolving a case.39 The Court will
not hesitate to resolve the legal and constitutional issues raised to formulate controlling principles to
guide the bench, the bar, and the public, particularly on a question capable of repetition, yet evading
review.40

As for the assertion that the present petitions are dismissible due to forum shopping since they were
filed during the pendency of petitioners' motion to quash and their co-accused's motion for judicial
determination of probable cause with the trial court, we hold that there is no cause to dismiss these
petitions on such ground.

Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in
one forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal
or special civil action for certiorari. It may also involve the institution of two or more actions or
proceedings grounded on the same cause on the supposition that one or the other court would make a
favorable disposition.41 There is no forum shopping where the suits involve different causes of action or
different reliefs.42
Jurisprudence explains that:
chanRoblesvirtualLawlibrary
A motion to quash is the mode by which an accused assails, before entering his plea, the validity of the
criminal complaint or the criminal information filed against him for insufficiency on its face in point of
law, or for defect apparent on the face of the Information. The motion, as a rule, hypothetically admits
the truth of the facts spelled out in the complaint or information. The rules governing a motion to quash
are found under Rule 117 of the Revised Rules of Court. Section 3 of this Rule enumerates the grounds
for the quashal of a complaint or information. x x x.43 (Citation omitted.)ChanRoblesVirtualawlibrary
On the other hand, the action at bar is a review on certiorari of the assailed Court of Appeals decision
wherein the main issue is whether or not the Secretary of Justice committed grave abuse of discretion in
reversing the City Prosecutor's dismissal of the criminal complaint. These consolidated petitions may
proceed regardless of whether or not there are grounds to quash the criminal information pending in
the court a quo.

Neither do we find relevant the pendency of petitioners' co-accused's motion for judicial determination
of probable cause before the trial court. The several accused in these consolidated cases had a number
of remedies available to them and they are each free to pursue the remedy which they deem is their
best option. Certainly, there is no requirement that the different parties in a case must all choose the
same remedy. We have held that even assuming separate actions have been filed by different parties
involving essentially the same subject matter, no forum shopping is committed where the parties did
not resort to multiple judicial remedies.44 In any event, we have stated in the past that the rules on
forum shopping are not always applied with inflexibility.45

As a final point on the technical aspects of this case, we reiterate here the principle that in the exercise
of the Courts equity jurisdiction, procedural lapses may be disregarded so that a case may be resolved
on its merits.46 Indeed where strong considerations of substantive justice are manifest in a petition, the
strict application of the rules of procedure may be relaxed.47 This is particularly true in these
consolidated cases where legal issues of first impression have been raised.

We now proceed to rule upon the parties' substantive arguments.

The main bone of disagreement among the parties in this case is the applicability of Section 144 of the
Corporation Code to Sections 31 and 34 of the same statute such that criminal liability attaches to
violations of Sections 31 and 34. For convenient reference, we quote the contentious provisions here:
chanRoblesvirtualLawlibrary
SECTION 31. Liability of Directors, Trustees or Officers. - Directors or trustees who willfully and
knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of gross
negligence or bad faith in directing the affairs of the corporation or acquire any personal or pecuniary
interest in conflict with their duty as such directors or trustees shall be liable jointly and severally for all
damages resulting therefrom suffered by the corporation, its stockholders or members and other
persons.

When a director, trustee or officer attempts to acquire or acquires, in violation of his duty, any interest
adverse to the corporation in respect of any matter which has been reposed in him in confidence, as to
which equity imposes a disability upon him to deal in his own behalf, he shall be liable as a trustee for
the corporation and must account for the profits which otherwise would have accrued to the
corporation.
SECTION 34. Disloyalty of a Director. - Where a director, by virtue of his office, acquires for himself a
business opportunity which should belong to the corporation, thereby obtaining profits to the prejudice
of such corporation, he must account to the latter for all such profits by refunding the same, unless his
act has been ratified by a vote of the stockholders owning or representing at least two-thirds (2/3) of
the outstanding capital stock. This provision shall be applicable, notwithstanding the fact that the
director risked his own funds in the venture.

SECTION 144. Violations of the Code. - Violations of any of the provisions of this Code or its amendments
not otherwise specifically penalized therein shall be punished by a fine of not less than one thousand
(P1,000.00) pesos but not more than ten thousand (P10,000.00) pesos or by imprisonment for not less
than thirty (30) days but not more than five (5) years, or both, in the discretion of the court. If the
violation is committed by a corporation, the same may, after notice and hearing, be dissolved in
appropriate proceedings before the Securities and Exchange Commission: Provided, That such
dissolution shall not preclude the institution of appropriate action against the director, trustee or officer
of the corporation responsible for said violation: Provided, further, That nothing in this section shall be
construed to repeal the other causes for dissolution of a corporation provided in this
Code.ChanRoblesVirtualawlibrary
Petitioners posit that Section 144 only applies to the provisions of the Corporation Code or its
amendments "not otherwise specifically penalized" by said statute and should not cover Sections 31 and
34 which both prescribe the "penalties" for their violation; namely, damages, accounting and restitution
of profits. On the other hand, respondent and the appellate court have taken the position that the term
"penalized" under Section 144 should be interpreted as referring to criminal penalty, such as fine or
imprisonment, and that it could not possibly contemplate "civil" penalties such as damages, accounting
or restitution.

As Section 144 speaks, among others, of the imposition of criminal penalties, the Court is guided by the
elementary rules of statutory construction of penal provisions. First, in all criminal prosecutions, the
existence of criminal liability for which the accused is made answerable must be clear and certain. We
have consistently held that "penal statutes are construed strictly against the State and liberally in favor
of the accused. When there is doubt on the interpretation of criminal laws, all must be resolved in favor
of the accused. Since penal laws should not be applied mechanically, the Court must determine whether
their application is consistent with the purpose and reason of the law."48

Intimately related to the in dubio pro reo49 principle is the rule of lenity. The rule applies when the
court is faced with two possible interpretations of a penal statute, one that is prejudicial to the accused
and another that is favorable to him. The rule calls for the adoption of an interpretation which is more
lenient to the accused.50

In American jurisprudence, there are two schools of thought regarding the application of the rule of
lenity. Justice David Souter, writing for the majority in United States v. R.L.C.,51 refused to resort to the
rule and held that lenity is reserved "for those situations in which a reasonable doubt persists about a
statute's intended scope even after resort to 'the language and structure, legislative history, and
motivating policies' of the statute." Justice Antonin Scalia, although concurring in part and concurring in
the judgment, argued that "it is not consistent with the rule of lenity to construe a textually ambiguous
penal statute against a criminal defendant on the basis of legislative history... The rule of lenity, in my
view, prescribes the result when a criminal statute is ambiguous: The more lenient interpretation must
prevail."52 In other words, for Justice Scalia, textual ambiguity in a penal statute suffices for the rule of
lenity to be applied. Although foreign case law is merely persuasive authority and this Court is not
bound by either legal perspective expounded in United States v. R.L.C., said case provides a useful
framework in our own examination of the scope and application of Section 144.

After a meticulous consideration of the arguments presented by both sides, the Court comes to the
conclusion that there is textual ambiguity in Section 144; moreover, such ambiguity remains even after
an examination of its legislative history and the use of other aids to statutory construction, necessitating
the application of the rule of lenity in the case at bar.

Respondent urges this Court to strictly construe Section 144 as contemplating only penal penalties.
However, a perusal of Section 144 shows that it is not a purely penal provision. When it is a corporation
that commits a violation of the Corporation Code, it may be dissolved in appropriate proceedings before
the Securities and Exchange Commission. The involuntary dissolution of an erring corporation is not
imposed as a criminal sanction,53 but rather it is an administrative penalty.

The ambivalence in the language of Section 144 becomes more readily apparent in comparison to the
penal provision54 in Republic Act No. 8189 (The Voter's Registration Act of 1996), which was the subject
of our decision in Romualdez v. Commission on Elections.55 In that case, we upheld the constitutionality
of Section 45(j) of Republic Act No. 8189 which made any violation of said statute a criminal offense. It is
respondent's opinion that the penal clause in Section 144 should receive similar treatment and be
deemed applicable to any violation of the Corporation Code. The Court cannot accept this proposition
for there are weighty reasons to distinguish this case from Romualdez.

We find it apropos to quote Sections 45 and 46 of Republic Act No. 8189 here:
chanRoblesvirtualLawlibrary
SECTION 45. Election Offense. - The following shall be considered election offenses under this Act:

a) to deliver, hand over, entrust or give, directly or indirectly, his voter's identification card to another in
consideration of money or other benefit or promise; or take or accept such voter's identification card,
directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the
making of a promise therefor;chanrobleslaw

b) to fail, without cause, to post or give any of the notices or to make any of the reports required under
this Act;chanrobleslaw

c) to issue or cause the issuance of a voter's identification number to cancel or cause the cancellation
thereof in violation of the provisions of this Act; or to refuse the issuance of registered voters their
voter's identification card;chanrobleslaw

d) to accept an appointment, to assume office and to actually serve as a member of the Election
Registration Board although ineligible thereto; to appoint such ineligible person knowing him to be
ineligible;chanrobleslaw

e) to interfere with, impede, abscond for purposes of gain or to prevent the installation or use of
computers and devices and the processing, storage, generation and transmission of registration data or
information;chanrobleslaw
f) to gain, cause access to, use, alter, destroy, or disclose any computer data, program, system software,
network, or any computer- related devices, facilities, hardware or equipment, whether classified or
declassified;chanrobleslaw

g) failure to provide certified voters and deactivated voters list to candidates and heads or
representatives of political parties upon written request as provided in Section 30 hereof;chanrobleslaw

h) failure to include the approved application form for registration of a qualified voter in the book of
voters of a particular precinct or the omission of the name of a duly registered voter in the certified list
of voters of the precinct where he is duly registered resulting in his failure to cast his vote during an
election, plebiscite, referendum, initiative and/or recall. The presence of the form or name in the book
of voters or certified list of voters in precincts other than where he is duly registered shall not be an
excuse hereof;chanrobleslaw

i) The posting of a list of voters outside or at the door of a precinct on the day of an election, plebiscite,
referendum, initiative and/or recall and which list is different in contents from the certified list of voters
being used by the Board of Election Inspectors; and

j) Violation of any of the provisions of this Act.

SECTION 46. Penalties. - Any person found guilty of any Election offense under this A.ct shall be
punished with imprisonment of not less than one (1) year but nor more than six (6) years and shall not
be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold
public office and deprivation of the right of suffrage. If he is a foreigner, he shall be deported after the
prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not less
than One hundred thousand pesos (P100,000) but not more than Five hundred thousand pesos
(P500,000).ChanRoblesVirtualawlibrary
The crux of the Court's ruling in Romualdez is that, from the wording of Section 450), there is a clear
legislative intent to treat as an election offense any violation of the provisions of Republic Act No. 8189.
For this reason, we do not doubt that Section 46 contemplates the term "penalty" primarily in the
criminal law or punitive concept of the term.

There is no provision in the Corporation Code using similarly emphatic language that evinces a
categorical legislative intent to treat as a criminal offense each and every violation of that law.
Consequently, there is no compelling reason for the Court to construe Section 144 as similarly
employing the term "penalized" or "penalty" solely in terms of criminal liability.

In People v. Temporada,56 we held that in interpreting penal laws, "words are given their ordinary
meaning and that any reasonable doubt about the meaning is decided in favor of anyone subjected to a
criminal statute." Black's Law Dictionary recognizes the numerous conceptions of the term penalty and
discusses in part that it is "[a]n elastic term with many different shades of meaning; it involves idea of
punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally confined to
pecuniary punishment."57 Persuasively, in Smith v. Doe,58 the U.S. Supreme Court, interpreting a
statutory provision that covers both punitive and non-punitive provisions, held that:
chanRoblesvirtualLawlibrary
The location and labels of a statutory provision do not by themselves transform a civil remedy into a
criminal one. In 89 Firearms, the Court held a forfeiture provision to be a civil sanction even though the
authorizing statute was in the criminal code. The Court rejected the argument that the placement
demonstrated Congress' "intention to create an additional criminal sanction," observing that "both
criminal and civil sanctions may be labeled 'penalties.'" (Emphasis supplied.)ChanRoblesVirtualawlibrary
Giving a broad and flexible interpretation to the term "penalized" in Section 144 only has utility if there
are provisions in the Corporation Code that specify consequences other than "penal" or "criminal" for
violation of, or non-compliance with, the tenets of the Code. Petitioners point to the civil liability
prescribed in Sections 31 and 34. Aside from Sections 31 and 34, we consider these provisions of
interest:
chanRoblesvirtualLawlibrary
SECTION 21. Corporation by Estoppel. - All persons who assume to act as a corporation knowing it to be
without authority to do so shall be liable as general partners for all debts, liabilities and damages
incurred or arising as a result thereof: Provided, however, That when any such ostensible corporation is
sued on any transaction entered by it as a corporation or on any tort committed by it as such, it shall not
be allowed to use as a defense its lack of corporate personality.

One who assumes an obligation to an ostensible corporation as such, cannot resist performance thereof
on the ground that there was in fact no corporation.

SECTION 22. Effects of non-use of corporate charter and continuous in operation of a corporation. - If a
corporation does not formally organize and commence the transaction of its business or the
construction of its works within two (2) years from the date of its incorporation, its corporate powers
cease and the corporation shall be deemed dissolved. However, if a corporation has commenced the
transaction of its business but subsequently becomes continuously inoperative for a period of at least
five (5) years, the same shall be a ground for the suspension or revocation of its corporate franchise or
certificate of incorporation.

This provision shall not apply if the failure to organize, commence the transaction of its business or the
construction of its works, or to continuously operate is due to causes beyond the control of the
corporation as may be determined by the Securities and Exchange Commission.

SECTION 65. Liability of directors for watered stocks. - Any director or officer of a corporation consenting
to the issuance of stocks for a consideration less than its par or issued value or for a consideration in any
form other than cash, valued in excess of its fair value, or who, having knowledge thereof, does not
forthwith express his objection in writing and file the same with the corporate secretary, shall be
solidarily liable with the stockholder concerned to the corporation and its creditors for the difference
between the fair value received at the time of issuance of the stock and the par or issued value of the
same.

SECTION 66. Interest on unpaid subscriptions. - Subscribers for stock shall pay to the corporation
interest on all unpaid subscriptions from the date of subscription, if so required by, and at the rate of
interest fixed in, the by-laws. If no rate of interest is fixed in the by-laws, such rate shall be deemed to
be the legal rate.

SECTION 67. Payment of balance of subscription. - Subject to the provisions of the contract of
subscription, the board of directors of any stock corporation may at any time declare due and payable to
the corporation unpaid subscriptions to the capital stock and may collect the same or such percentage
of said unpaid subscriptions, in either case with interest accrued, if any, as it may deem necessary.
Payment of any unpaid subscription or any percentage thereof, together with the interest accrued, if
any, shall be made on the date specified in the contract of subscription or on the date stated in the call
made by the board. Failure to pay on such date shall render the entire balance due and payable and
shall make the stockholder liable for interest at the legal rate on such balance, unless a different rate of
interest is provided in the by-laws, computed from such date until full payment. If within thirty (30) days
from the said date no payment is made, all stocks covered by said subscription shall thereupon become
delinquent and shall be subject to sale as hereinafter provided, unless the board of directors orders
otherwise.

SECTION 74. Books to be kept; stock transfer agent. - Every corporation shall, at its principal office, keep
and carefully preserve a record of all business transactions, and minutes of all meetings of stockholders
or members, or of the board of directors or trustees, in which shall be set forth in detail the time and
place of holding the meeting, how authorized, the notice given, whether the meeting was regular or
special, if special its object, those present and absent, and every act done or ordered done at the
meeting. Upon the demand of any director, trustee, stockholder or member, the time when any
director, trustee, stockholder or member entered or left the meeting must be noted in the minutes; and
on a similar demand, the yeas and nays must be taken on any motion or proposition, and a record
thereof carefully made. The protest of any director, trustee, stockholder or member on any action or
proposed action must be recorded in full on his demand.

The records of all business transactions of the corporation and the minutes of any meeting shall be open
to the inspection of any director, trustee, stockholder or member of the corporation at reasonable hours
on business days and he may demand, in writing, for a copy of excerpts from said records or minutes, at
his expense.

Any officer or agent of the corporation who shall refuse to allow any director, trustee, stockholder or
member of the corporation to examine and copy excerpts from its records or minutes, in accordance
with the provisions of this Code, shall be liable to such director, trustee, stockholder or member for
damages, and in addition, shall be guilty of an offense which shall be punishable under Section 144 of
this Code: Provided, That if such refusal is pursuant to a resolution or order of the board of directors or
trustees, the liability under this section for such action shall be imposed upon the directors or trustees
who voted for such refusal: and Provided, further, That it shall be a defense to any action under this
section that the person demanding to examine and copy excerpts from the corporation's records and
minutes has improperly used any information secured through any prior examination of the records or
minutes of such corporation or of any other corporation, or was not acting in good faith or for a
legitimate purpose in making his demand.

Stock corporations must also keep a book to be known as the "stock and transfer book", in which must
be kept a record of all stocks in the names of the stockholders alphabetically arranged; the installments
paid and unpaid on all stock for which subscription has been made, and the date of payment of any
installment; a statement of every alienation, sale or transfer of stock made, the date thereof, and by and
to whom made; and such other entries as the by laws may prescribe. The stock and transfer book shall
be kept in the principal office of the corporation or in the office of its stock transfer agent and shall be
open for inspection of any director or stockholder of the corporation at reasonable hours on business
days.

No stock transfer agent or one engaged principally in the business of registering transfer of stocks in
behalf of a stock corporation shall be allowed to operate in the Philippines unless he secures a license
from the Securities and Exchange Commission and pays a fee as may be fixed by the Commission, which
shall be renewed annually: Provided, That a stock corporation is not precluded from performing or
making transfer of its own stocks, in which case all the rules and regulations imposed on stock transfer
agents, except the payment of a license fee herein provided, shall be
applicable.ChanRoblesVirtualawlibrary
Section 22 imposes the penalty of involuntary dissolution for non-use of corporate charter. The rest of
the above-quoted provisions, like Sections 31 and 34, provide for civil or pecuniary liabilities for the acts
covered therein but what is significant is the fact that, of all these provisions that provide for
consequences other than penal, only Section 74 expressly states that a violation thereof is likewise
considered an offense under Section 144. If respondent and the Court of Appeals are correct, that
Section 144 automatically imposes penal sanctions on violations of provisions for which no criminal
penalty was imposed, then such language in Section 74 defining a violation thereof as an offense would
have been superfluous. There would be no need for legislators to clarify that, aside from civil liability,
violators of Section 74 are exposed to criminal liability as well. We agree with petitioners that the lack of
specific language imposing criminal liability in Sections 31 and 34 shows legislative intent to limit the
consequences of their violation to the civil liabilities mentioned therein. Had it been the intention of the
drafters of the law to define Sections 31 and 34 as offenses, they could have easily included similar
language as that found in Section 74.

If we were to employ the same line of reasoning as the majority in United States v. R.L.C., would the
apparent ambiguities in the text of the Corporation Code disappear with an analysis of said statute's
legislative history as to warrant a strict interpretation of its provisions? The answer is a negative.

In his sponsorship speech of Cabinet Bill (C.B.) No. 3 (the bill that was enacted into the Corporation
Code), then Minister Estelito Mendoza highlighted Sections 31 to 34 as among the significant
innovations made to the previous statute (Act 1459 or the Corporation Law), thusly:
chanRoblesvirtualLawlibrary
There is a lot of jurisprudence on the liability of directors, trustees or officers for breach of trust or acts
of disloyalty to the corporation. Such jurisprudence is not, of course, without any ambiguity of dissent.
Sections 31, 32, 33 and 34 of the code indicate in detail prohibited acts in this area as well as
consequences of the performance of such acts or failure to perform or discharge the responsibility to
direct the affairs of the corporation with utmost fidelity.59ChanRoblesVirtualawlibrary
Alternatively stated, Sections 31 to 34 were introduced into the Corporation Code to define what acts
are covered, as well as the consequences of such acts or omissions amounting to a failure to fulfil a
director's or corporate officer's fiduciary duties to the corporation. A closer look at the subsequent
deliberations on C.B. No. 3, particularly in relation to Sections 31 and 34, would show that the
discussions focused on the civil liabilities or consequences prescribed in said provisions themselves. We
quote the pertinent portions of the legislative records:

On Section 31
(Period of Sponsorship, December 4, 1979 Session)

MR. LEGASPI. x x x.

In Section 31 page 22, it seems that the proviso is to make the directors or the trustees who willfully and
knowingly vote for or assent to patently unlawful act or guilty of gross negligence or bad faith in
directing the affairs of the corporation would be solidarity liable with the officers concerned.
Now, would this, Your Honor, not discourage the serving of competent people as members of the Board
of Directors, considering that they might feel that in the event things would do badly against the
corporation, they might be held liable personally for acts which should be attributed only to the
corporation?

MR. MENDOZA. Your Honor will note that the directors or trustees who are held liable must be proven
to have acted willfully and knowingly, or if not willfully and knowingly, it must be proven that they acted
with gross negligence or bad faith. It must also be demonstrated that the acts done were patently
unlawful. So, the requirement for liability is somewhat serious to the point of, in my opinion, being
extreme. It will be noted that this provision does not merely require assenting to patently unlawful acts.
It does not merely require being negligent. The provision requires that they assent to patently unlawful
acts willfully and with knowledge of the illegality of the act.

Now, it might be true, as Your Honor suggested, that some persons will be discouraged or disinclined to
agree to serve the Board of Directors because of this liability. But at the same time this provision -
Section 31 - is really no more than a consequence of the requirement that the position of membership in
the Board of Directors is a position of high responsibility and great trust. Unless a provision such as this
is included, then that requirement of responsibility and trust will not be as meaningful as it should be.
For after all, directors may take the attitude that unless they themselves commit the act, they would not
be liable. But the responsibility of a director is not merely to act properly. The responsibility of a director
is to assure that the Board of Directors, which means his colleagues acting together, docs not act in a
manner that is unlawful or to the prejudice of the corporation because of personal or pecuniary interest
of the directors.60 (Emphases supplied.)

(Period of Amendments, March 11, 1980 Session)

MR. MILLORA. On line 16, Section 31, referring to the phrase "patently unlawful acts." Before I introduce
my proposed amendment to delete the word "patently'' is there a reason for placing this adjective
before the word "unlawful", Your Honor?

MR. ABELLO. Probably the one who prepared this original draft of Cabinet Bill No. 3 wanted to make
sure that a director or trustee is not [made] liable for an act that is not clearly unlawful, so he used a
better word than "clearly," he used the word "patently."

MR. MILLORA. So, in that case, Your Honor, a director may not be liable for certain unlawful acts. Is that
right, Your Honor?

MR. ABELLO. Yes, if it is not patently unlawful. Precisely, the use of the word "patently" is also to give
some kind of protection to the directors or trustees. Because if you will hold the directors or trustees
responsible for everything, then no one will serve as director or trustee of any corporation. But, he is
made liable so long as he willfully and knowingly votes for or assent to patently unlawful acts of the
corporation. So it is also to protect the director [or] trustees from liability for acts that was not patently
unlawful.

MR. MILLORA. With that explanation, Your Honor, I will not proceed with my proposed
amendment.61ChanRoblesVirtualawlibrary
On Section 34
(Period of Sponsorship, November 5, 1979 Session)
MR. NUÑEZ. x x x

May I go now to page 24, Section 34.

"Disloyalty of a Director - Where a director by virtue of his office acquires for himself a business
opportunity which should belong to the corporation thereby obtaining profits to the prejudice of the
corporation, he must account to the latter for all such profits, unless his act has been ratified by a vote
of the stockholders owning or representing at least two- thirds (2/3) of the outstanding capital stock.
This provision shall be applicable notwithstanding the fact that the director risked his own funds in the
venture."

My question, Your Honor, is: is this not the so-called corporate opportunity doctrine found in the
American jurisprudence?

MR. MENDOZA. Yes, Mr. Speaker, as I stated many of the changes that have been incorporated in the
Code were drawn from jurisprudence on the matter, but even jurisprudence on several matters or
several issues relating to the Corporation Code are sometimes ambiguous, sometimes controversial. In
order, therefore, to clarify those issues, what was done was to spell out in statutory language the rule
that should be applied on those matters and one of such examples is Section 34.

MR. NUÑEZ. Does not His Honor believe that to codify this particular document into law may lead to
absurdity or confusion as the cited doctrine is subject to many qualifications depending on the peculiar
nature of the case?

Let us suppose that there is a business opportunity that the corporation did not take advantage of or
was not interested in. Would you hold the director responsible for acquiring the interest despite the fact
that the corporation did not take advantage of or was not interested in that particular business venture?
Does not His Honor believe that this should be subject to qualifications and should be dealt with on a
case-to-case basis depending on the circumstances of the case?

MR. MENDOZA. If a director is prudent or wise enough, then he can protect himself in such contingency.
If he is aware of a business opportunity, he can make it known to the corporation, propose it to the
corporation, and allow the corporation to reject it, after which he, certainly, may avail of it without risk
of the consequences provided for in Section 34.

MR. NUÑEZ. I see. So that the position of Your Honor is that the matter should be communicated to the
corporation, the matter of the director acquiring the business opportunity should be communicated to
the corporation and that if it is not communicated to the corporation, the director will be responsible. Is
that the position of His Honor?

MR. MENDOZA. In my opinion it must not only be made known to the corporation; the corporation must
be formally advised and if he really would like to be assured that he is protected against the
consequences provided for in Section 34, he should take such steps whereby the opportunity is clearly
presented to the corporation and the corporation has the opportunity to decide on whether to avail of it
or not and then let the corporation reject it, after which then he may avail of it. Under such
circumstances I do not believe he would expose himself to the consequences provided for under Section
34.
Precisely, the reason we have laid down this ruling in statutory language is that for as long as the rule is
not clarified there will be ambiguity in the matter. And directors of corporations who may acquire
knowledge of such opportunities would always be risking consequences not knowing how the courts will
later on decide such issues. But now with the statutory rule, any director who comes to know of an
opportunity that may be available to the corporation would be aware of the consequences in case he
avails of that opportunity without giving the corporation the privilege of deciding beforehand on
whether to take advantage of it or not.

MR. NUÑEZ. Let us take the case of a corporation where, from all indications, the corporation was aware
of this business opportunity and despite this fact, Your Honor, and the failure of the director to
communicate the venture to the corporation, the director entered into the business venture. Is the
director liable, Your Honor, despite the fact that the corporation has knowledge, Your Honor, from all
indications, from all facts, from all circumstances of the case, the corporation is aware?

MR. MENDOZA. First of all, to say that a corporation has knowledge is itself a point that can be subject
of an argument. When does a corporation have knowledge - when its president comes to know of the
fact, when its general manager knows of the fact, when one or two of the directors know of that fact,
when a majority of the directors come to know of that fact? So that in itself is a matter of great
ambiguity, when one says it has knowledge.

That is why when I said that a prudent director, who would assure that he does not become liable under
Section 34, should not only be sure that the corporation has official knowledge, that is, the Board of
Directors, but must take steps, positive steps, which will demonstrate that the matter or opportunity
was brought before the corporation for its decision whether to avail of it or not, and the corporation
rejected it.

So, under those circumstances narrated by Your Honor, it is my view that the director will be liable,
unless his acts are ratified later by the vote of stockholders holding at least 2/3 of the outstanding
capital stock.

MR. NUÑEZ. Your Honor has already raised the possible complications that may arise out of this
particular provision. My question is: how can we remedy the situation? Is there a necessity, Your Honor,
of a formal notice to the corporation that it should be placed in the agenda, in a meeting or a special or
regular meeting of the corporation that such a business venture exists, that the corporation should take
advantage of this business venture before a director can be held not responsible for acquiring this
business venture?

MR. MENDOZA. Well, I believe, as I have stated, Mr. Speaker, that is what a prudent director should do.
If he does not wish to be in any way handicapped in availing of business opportunities, he should, to the
same degree, be circumspect in accepting directorships in corporations. If he wants to be completely
free to avail of any opportunity which may come his way, he should not accept the position of director
in any corporation which he may anticipate may be dealing in a business in connection with which he
may acquire a certain interest.

The purpose of all these provisions is to assure that directors or corporations constantly - not only
constantly remember but actually are imposed with certain positive obligations that at least would
assure that they will discharge their responsibilities with utmost fidelity.62
(December 5, 1979 Session)

MR. CAMARA. Thank you, Your Honor. May we go to page 24, lines 1 to 20, Section 34 - Disloyalty of a
director.

Your Honor, it is provided that a director, who by virtue of his office acquires for himself a business
opportunity which should belong to the corporation thereby obtaining profits to the prejudice of such
corporation, must account to the corporation for all such profits unless his act has been ratified by a
vote of the stockholders owning or representing at least two-thirds (2/3) of the outstanding capital
stock.

However, Your Honor, the right to ratification would serve to defeat the intention of this pro-vision. This
is possible if the director or officer is the controlling stockholder.

It is, therefore, suggested, Your Honor, that the twenty per cent (20%) stockholding limit be applied here
in which case, over twenty per cent limit, said director or officer is disallowed to participate in the
ratification. And this is precisely the point I was driving at in the previous section, Your Honor.

MR. ABELLO. Your Honor, I see the point that Your Honor has raised and that wi11 be considered by the
committee at an appropriate time.

MR. CAMARA. Thank you, Your Honor.

Further, under the same provision, it is not clear as to what "account to the corporation" means or what
it includes. Is the offender liable for the profits in favor of the corporation?

MR. ABELLO. Yes, that is what it means.

MR. CAMARA. Or he be merely made to accow1t?

MR. ABELLO. Well, Your Honor, when the law says "He must account to the latter for all such profits,"
that means that he is liable to the corporation for such profits.

MR. CAMARA. Who gets the profits then, Your Honor? MR. ABELLO. The corporation itself.

MR. CAMARA. The corporation? MR. ABELLO. Correct.

MR. CAMARA. Thank you, Your Honor.

Supposing under the same section, Your Honor, the director took the opportunity after resigning as
director or officer? It is suggested, Your Honor, that this should be clarified because the resigning
director can take the opportunity of this transaction before he resigns.

MR. ABELLO. If Your Honor refers to the fact that he took that opportunity while he was a director,
Section 34, would apply. But if the action was made after his resignation as a director of the corporation,
then Section 34 would not apply.63
(Period of Amendments, March 11, 1980 Session)

MR. CAMARA. This is on Section 34, page 24, line 15, I propose to insert between the word "profits" and
the comma (,) the words BY REFUNDING THE SAME. So that the first sentence, lines 11 to 18 of said
section, as modified, shall read as follows:
chanRoblesvirtualLawlibrary
"SEC. 34. Disloyalty of a director. - Where a director by virtue of his office acquires for himself a business
opportunity which should belong to the corporation thereby obtaining profits to the prejudice of such
corporation, he must account to the latter for all such profits BY REFUNDING THE SAME, unless his act
has been ratified by a vote of the stockholders owning or representing at least two-thirds (2/3) of the
outstanding capital stock."ChanRoblesVirtualawlibrary
The purpose of this amendment, Mr. Speaker, is to clarify as to what to account to the corporation.

MR. ABELLO. Mr. Speaker, the committee accepts the amendment.64 (Emphases and underscoring
supplied.)ChanRoblesVirtualawlibrary
Verily, in the instances that Sections 31 and 34 were taken up on the floor, legislators did not veer away
from the civil consequences as stated within the four corners of these provisions. Contrasted with the
interpellations on Section 74 (regarding the right to inspect the corporate records), the discussions on
said provision leave no doubt that legislators intended both civil and penal liabilities to attach to
corporate officers who violate the same, as was repeatedly stressed in the excerpts from the legislative
record quoted below:

On Section 74:
(Period of Sponsorship, December 10, 1979 Session)

MR. TUPAZ. x x x I guess, Mr. Speaker, that the distinguished sponsor has in mind a particular situation
where a minority shareholder is one of the thousands of shareholders. But I present a situation, Your
Honor, where the minority is 49% owner of a corporation and here comes this minority shareholder
wanting, but a substantial minority, and yet he cannot even have access to the records of this
corporation over which he owns almost one-half because, precisely, of this particular provision of law.65

MR. MENDOZA. He will not have access if the grounds expressed in the proviso are present. It must also
be noted, Mr. Speaker, that the provision before us would, let us say, make it very difficult for corporate
officers to act unreasonably because they are not only subject to a suit which would compel them to
allow the access to corporate records, they are also liable for damages and are in fact guilty of a penal
act under Section 143.66

MR. TUPAZ. That is correct, Your Honor.

MR. MENDOZA. So that when corporate officers deny access to a shareholder, they do so under very
serious consequences. If they should err in making that decision and it is demonstrated that they have
erred deliberately, they expose themselves to damages and even to certain penal sanctions.

xxxx

As I said, Your Honor, I think it is fair enough to assume that persons do not act deliberately in bad faith,
that they do not act deliberately to expose themselves to damages, or to penal sanctions. In the
ultimate, I would agree that certain decisions may be unnecessarily harsh and prejudicial. But by and
large, I think, the probabilities are in favor of a decision being reasonable and in accord with the interest
of the corporation.67 (Emphases and underscoring supplied.)ChanRoblesVirtualawlibrary
Quite apart that no legislative intent to criminalize Sections 31 and 34 was manifested in the
deliberations on the Corporation Code, it is noteworthy from the same deliberations that legislators
intended to codify the common law concepts of corporate opportunity and fiduciary obligations of
corporate officers as found in American jurisprudence into said provisions. In common law, the
remedies available in the event of a breach of director's fiduciary duties to the corporation are civil
remedies. If a director or officer is found to have breached his duty of loyalty, an injunction may be
issued or damages may be awarded.68 A corporate officer guilty of fraud or mismanagement may be
held liable for lost profits.69 A disloyal agent may also suffer forfeiture of his compensation.70 There is
nothing in the deliberations to indicate that drafters of the Corporation Code intended to deviate from
common law practice and enforce the fiduciary obligations of directors and corporate officers through
penal sanction aside from civil liability. On the contrary, there appears to be a concern among the
drafters of the Corporation Code that even the imposition of the civil sanctions under Section 31 and 34
might discourage competent persons from serving as directors in corporations.

In Crandon v. United States,71 the U.S. Supreme Court had the occasion to state that:
chanRoblesvirtualLawlibrary
In determining the meaning of the statute, we look not only to the particular statutory language, but to
the design of the statute as a whole and to its object and policy. Moreover, because the governing
standard is set forth in a criminal statute, it is appropriate to apply the rule of lenity in resolving any
ambiguity in the ambit of the statute's coverage. To the extent that the language or history of [the
statute] is uncertain, this "time-honored interpretive guideline" serves to ensure both that there is fair
warning of the boundaries of criminal conduct and that legislatures, not courts, define criminal liability.
(Citations omitted; emphases supplied.)ChanRoblesVirtualawlibrary
Under the circumstances of this case, we are convinced to adopt a similar view. For this reason, we take
into account the avowed legislative policy in the enactment of the Corporation Code as outlined in the
Sponsorship Speech of Minister Mendoza:
chanRoblesvirtualLawlibrary
Cabinet Bill No. 3 is entitled "The Corporation Code of the Philippines." Its consideration at this time in
the history of our nation provides a fitting occasion to remind that under our Constitution the economic
system known as "free enterprise" is recognized and protected. We acknowledge as a democratic
republic that the individual must be free and that as a free man - "free to choose his work and to retain
the fruits of his labor" he may best develop his capabilities and will produce and supply the economic
needs of the nation.

xxxx

The formation and organization of private corporations, and I underscore private corporations as
distinguished from corporations owned or controlled by the government or any subdivision or
instrumentality thereof, gives wider dimensions to free enterprise or free trade. For not only is the right
of individuals to organize collectively recognized; the collective organization is vested with a juridical
personality distinct from their own. Thus "the skill, dexterity, and judgment" of a nation's labor force
need not be constricted in their application to those of an individual or that which he alone may
assemble but to those of a collective organization.

While a code, such as the proposed code now before us, may appear essentially regulatory in nature, it
does not, and is not intended, to curb or stifle the use of the corporate entity as a business organization.
Rather, the proposed code recognizes the value, and seeks to inspire confidence in the value of the
corporate vehicle in the economic life of society.72 (Emphases supplied.)ChanRoblesVirtualawlibrary

The Corporation Code was intended as a regulatory measure, not primarily as a penal statute. Sections
31 to 34 in particular were intended to impose exacting standards of fidelity on corporate officers and
directors but without unduly impeding them in the discharge of their work with concerns of litigation.
Considering the object and policy of the Corporation Code to encourage the use of the corporate entity
as a vehicle for economic growth, we cannot espouse a strict construction of Sections 31 and 34 as penal
offenses in relation to Section 144 in the absence of unambiguous statutory language and legislative
intent to that effect.

When Congress intends to criminalize certain acts it does so in plain, categorical language, otherwise
such a statute would be susceptible to constitutional attack. As earlier discussed, this can be readily
seen from the text of Section 45G) of Republic Act No. 8189 and Section 74 of the Corporation Code.

We stress that had the Legislature intended to attach penal sanctions to Sections 31 and 34 of the
Corporation Code it could have expressly stated such intent in the same manner that it did for Section
74 of the same Code.

At this point, we dispose of some related arguments raised in the pleadings.

We do not agree with respondent Tullett that previous decisions of this Court have already settled the
matter in controversy in the consolidated cases at bar. The declaration of the Court in Home Insurance
Company v. Eastern Shipping Lines73 that "[t]he prohibition against doing business without first
securing a license [under Section 133] is now given penal sanction which is also applicable to other
violations of the Corporation Code under the general provisions of Section 144 of the Code" is
unmistakably obiter dictum. We explained in another case:

chanRoblesvirtualLawlibrary

An obiter dictum has been defined as an opinion expressed by a court upon some question of law that is
not necessary in the determination of the case before the court. It is a remark made, or opinion
expressed, by a judge, in his decision upon a cause by the way, that is, incidentally or collaterally, and
not directly upon the question before him, or upon a point not necessarily involved in the determination
of the cause, or introduced by way of illustration, or analogy or argument. It does not embody the
resolution or determination of the court, and is made without argument, or full consideration of the
point. It lacks the force of an adjudication, being a mere expression of an opinion with no binding force
for purposes of res judicata.74 (Emphasis supplied.)ChanRoblesVirtualawlibrary

The issue in the Home Insurance Company case was whether or not a foreign corporation previously
doing business here without a license has the capacity to sue in our courts when it had already acquired
the necessary license at the time of the filing of the complaints. The Court ruled in the affirmative. The
statement regarding the supposed penal sanction for violation of Section 133 of the Corporation Code
was not essential to the resolution of the case as none of the parties was being made criminally liable
under Section 133.

As for respondent's allusion to Genuino v. National Labor Relations Commission,75 we find the same
unavailing. Genuino involved the appeal of an illegal dismissal case wherein it was merely mentioned in
the narration of facts that the employer-bank also filed criminal complaints against its dismissed
corporate officers for alleged violation of Section 31 in relation to Section 144 of the Corporation Code.
The interpretation of said provisions of the Corporation Code in the context of a criminal proceeding
was not at issue in that case.

As additional support for its contentions, respondent cites several opinions of the SEC, applying Section
144 to various violations of the Corporation Code in the imposition of graduated fines. In respondent's
view, these opinions show a consistent administrative interpretation on the applicability of Section 144
to the other provisions of the Corporation Code and allegedly render absurd petitioners' concern
regarding the "over- criminalization" of the Corporation Code. We find respondent's reliance on these
SEC opinions to be misplaced. As petitioners correctly point out, the fines imposed by the SEC in these
instances of violations of the Corporation Code are in the nature of administrative fines and are not
penal in nature. Without ruling upon the soundness of the legal reasoning of the SEC in these opinions,
we note that these opinions in fact support the view that even the SEC construes "penalty" as used in
Section 144 as encompassing administrative penalties, not only criminal sanctions. In all, these SEC
issuances weaken rather than strengthen respondent's case.

With respect to the minutiae of other arguments cited in the parties' pleadings, it is no longer necessary
for the Court to pass upon the same in light of our determination that there is no clear, categorical
legislative intent to define Sections 31 and 34 as offenses under Section 144 of the Corporation Code.
We likewise refrain from resolving the question on the constitutionality of Section 144 of the
Corporation Code. It is a long standing principle in jurisprudence that "courts will not resolve the
constitutionality of a law, if the controversy can be settled on other grounds. The policy of the courts is
to avoid ruling on constitutional questions and to presume that the acts of the poljtica1 departments are
valid, absent a clear and unmistakable showing to the contrary."76

WHEREFORE, the consolidated petitions are GRANTED. The Decision dated August 12, 2009 of the Court
of Appeals in CA-G.R. SP No. 109094 and the Resolutions dated April 23, 2009 and May 15, 2009 of the
Secretary of Justice in I.S. No. 08-J-8651 are REVERSED and SET ASIDE.

SO ORDERED.cralawlawlibrary
[G.R. No. 142396. February 11, 2003.]

KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

Vicente D. Millora for petitioner.

Abello Concepcion Regala and Cruz for private respondent.

SYNOPSIS

Petitioner Khosrow Minucher, an Iranian national, was charged for violation of Section 4 of Republic Act
No. 6425, otherwise known as the "Dangerous Drugs Act of 1972." The narcotic agents who raided the
house of Minucher were accompanied by private respondent Arthur Scalzo. Minucher was acquitted by
the trial court of the charges. Minucher filed a civil case before the Regional Trial Court of Manila for
damages on account of what he claimed to have been trumped-up charges of drug trafficking made by
Arthur Scalzo. Scalzo filed a motion to dismiss the complaint on the ground that, being a special agent of
the United States Drug Enforcement Administration, he was entitled to diplomatic immunity. The trial
court denied the motion to dismiss. Scalzo filed a petition for certiorari with injunction with the Court,
asking that the complaint be ordered dismissed. The case was referred to the Court of Appeals. The
appellate court promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him. Minucher filed a petition for review with the Court, appealing
the judgment of the Court of Appeals. The Supreme Court reversed the decision of the appellate court
and remanded the case to the lower court. The Manila RTC continued with its hearings on the case.
After trial, the court rendered a decision in favor of petitioner Khosrow Minucher and adjudged private
respondent Arthur Scalzo liable in actual and compensatory damages of P520,000.00; moral damages in
the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the sum of
P200,000.00 plus costs. On appeal, the Court of Appeals reversed the decision of the trial court and
sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his
term of duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State"
pursuant to the terms of the Vienna Convention. Hence, the present petition for review. AScHCD

The Supreme Court denied the petition. According to the Court, a foreign agent, operating within a
territory, can be cloaked with immunity from suit but only as long as it can be established that he is
acting within the directives of the sending state. The consent of the host state is an indispensable
requirement of basic courtesy between the two sovereigns. The official exchanges of communication
between agencies of the government of the two countries, certifications from officials of both the
Philippine Department of Foreign Affairs and the United States Embassy, as well as the participation of
members of the Philippine Narcotics Command in the "buy-bust operation" conducted at the residence
of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter,
but they give enough indication that the Philippine government has given its imprimatur, if not consent,
to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement
Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law enforcers who would then be
expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the
poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case
against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or
duties. HTIEaS

SYLLABUS

1. POLITICAL LAW; INTERNATIONAL LAW; DOCTRINE OF STATE IMMUNITY FROM SUIT;

DIPLOMATIC IMMUNITY; A PREROGATIVE OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. — Vesting
a person with diplomatic immunity is a prerogative of the executive branch of the government. In World
Health Organization vs. Aquino, the Court has recognized that, in such matters, the hands of the courts
are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of immunity, designed to
gain exemption from the jurisdiction of courts, it should behoove the Philippine government, specifically
its Department of Foreign Affairs, to be most circumspect, that should particularly be no less than
compelling, in its post litem motam issuances. It might be recalled that the privilege is not an immunity
from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an
immunity from the exercise of territorial jurisdiction. The government of the United States itself, which
Scalzo claims to be acting for, has formulated its standards for recognition of a diplomatic agent. The
State Department policy is to only concede diplomatic status to a person who possesses an
acknowledged diplomatic title and "performs duties of diplomatic nature." Supplementary criteria for
accreditation are the possession of a valid diplomatic passport or, from States which do not issue such
passports, a diplomatic note formally representing the intention to assign the person to diplomatic
duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing
diplomatic functions on an essentially full-time basis. Diplomatic missions are requested to provide the
most accurate and descriptive job title to that which currently applies to the duties performed. The
Office of the Protocol would then assign each individual to the appropriate functional category. IaDSEA

2. ID.; ID.; ID.; ID.; IF THE ACTS GIVING RISE TO A SUIT ARE THOSE OF A FOREIGN GOVERNMENT
DONE BY ITS FOREIGN AGENT, ALTHOUGH NOT NECESSARILY A DIPLOMATIC PERSONAGE, BUT ACTING
IN HIS OFFICIAL CAPACITY, THE COMPLAINT COULD BE BARRED BY THE IMMUNITY OF THE FOREIGN
SOVEREIGN FROM SUIT WITHOUT ITS CONSENT. — But while the diplomatic immunity of Scalzo might
thus remain contentious, it was sufficiently established that, indeed, he worked for the United States
Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the
country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well
within his assigned functions when he committed the acts alleged in the complaint, the present
controversy could then be resolved under the related doctrine of State Immunity from Suit. The precept
that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit
and, with the emergence of democratic states, made to attach not just to the person of the head of
state, or his representative, but also distinctly to the state itself in its sovereign capacity. If the acts
giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily
a diplomatic personage, but acting in his official capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is
believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim — par in parem, non habet
imperium — that all states are sovereign equals and cannot assert jurisdiction over one another. The
implication, in broad terms, is that if the judgment against an official would require the state itself to
perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay
the damages decreed against him, the suit must be regarded as being against the state itself, although it
has not been formally impleaded.

3. ID.; ID.; ID.; ID.; A FOREIGN AGENT, OPERATING WITHIN A TERRITORY, CAN BE CLOAKED WITH
IMMUNITY FROM SUIT AS LONG AS IT CAN BE ESTABLISHED THAT HE IS ACTING WITHIN THE DIRECTIVES
OF THE SENDING STATE. — A foreign agent, operating within a territory, can be cloaked with immunity
from suit but only as long as it can be established that he is acting within the directives of the sending
state. The consent of the host state is an indispensable requirement of basic courtesy between the two
sovereigns. The official exchanges of communication between agencies of the government of the two
countries, certifications from officials of both the Philippine Department of Foreign Affairs and the
United States Embassy, as well as the participation of members of the Philippine Narcotics Command in
the "buy-bust operation" conducted at the residence of Minucher at the behest of Scalzo, may be
inadequate to support the "diplomatic status" of the latter but they give enough indication that the
Philippine government has given its imprimatur, if not consent, to the activities within Philippine
territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo
has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the
target, to inform local law enforcers who would then be expected to make the arrest. In conducting
surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and
then becoming a principal witness in the criminal case against Minucher, Scalzo hardly can be said to
have acted beyond the scope of his official function or duties. All told, this Court is constrained to rule
that respondent Arthur Scalzo, an agent of the United States Drug Enforcement Agency allowed by the
Philippine government to conduct activities in the country to help contain the problem on the drug
traffic, is entitled to the defense of state immunity from suit. SHAcID

DECISION

VITUG, J p:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise
also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and
one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal charge
followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the house of
Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to have been
seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who would, in due
time, become one of the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge
Eutropio Migrino rendered a decision acquitting the two accused. ScHADI
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch
19, of Manila for damages on account of what he claimed to have been trumped-up charges of drug
trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and
circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was
appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the
Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Nations and
continued to stay in the Philippines. He headed the Iranian National Resistance Movement in the
Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose Iñigo,
on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several
Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.

"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from
plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and
other Iranian products was his business after the Khomeini government cut his pension of over
$3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff his
calling card, which showed that he is working at the US Embassy in the Philippines, as a special agent of
the Drug Enforcement Administration, Department of Justice, of the United States, and gave his address
as US Embassy, Manila. At the back of the card appears a telephone number in defendant's own
handwriting, the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife
and the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on politics,
carpets and caviar. Thereafter, the defendant promised to see plaintiff again.

"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandise but for
the reason that the defendant was not yet there, he requested the restaurant people to . . . place the
same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he was
paid. Then their conversation was again focused on politics and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the money, they
agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back
with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair of carpets.
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and
directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were
playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the
defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he
would be leaving the Philippines very soon and requested him to come out of the house for a while so
that he can introduce him to his cousin waiting in a cab. Without much ado, and without putting on his
shirt as he was only in his pajama pants, he followed the defendant where he saw a parked cab opposite
the street. To his complete surprise, an American jumped out of the cab with a drawn high-powered
gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was
handcuffed and after about 20 minutes in the street, he was brought inside the house by the defendant.
He was made to sit down while in handcuffs while the defendant was inside his bedroom. The
defendant came out of the bedroom and out from defendant's attaché case, he took something and
placed it on the table in front of the plaintiff. They also took plaintiff's wife who was at that time at the
boutique near his house and likewise arrested Torabian, who was playing chess with him in the bedroom
and both were handcuffed together. Plaintiff was not told why he was being handcuffed and why the
privacy of his house, especially his bedroom was invaded by defendant. He was not allowed to use the
telephone. In fact, his telephone was unplugged. He asked for any warrant, but the defendant told him
to 'shut up.' He was nevertheless told that he would be able to call for his lawyer who can defend him.
CTDAaE

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin,
his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and another
$8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a pair of
earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-made Persian
carpets, valued at $65,000.00, a painting he bought P30,000.00 together with his TV and betamax sets.
He claimed that when he was handcuffed, the defendant took his keys from his wallet. There was,
therefore, nothing left in his house.

"That his arrest as a heroin trafficker . . . had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified in
the papers as an international drug trafficker . . . .

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but
also in America and in Germany. His friends in said places informed him that they saw him on TV with
said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water." 1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved
for extension of time to file an answer pending a supposed advice from the United States Department of
State and Department of Justice on the defenses to be raised. The trial court granted the motion. On 27
October 1988, Scalzo filed another special appearance to quash the summons on the ground that he,
not being a resident of the Philippines and the action being one in personam, was beyond the processes
of the court. The motion was denied by the court, in its order of 13 December 1988, holding that the
filing by Scalzo of a motion for extension of time to file an answer to the complaint was a voluntary
appearance equivalent to service of summons which could likewise be construed a waiver of the
requirement of formal notice. Scalzo filed a motion for reconsideration of the court order, contending
that a motion for an extension of time to file an answer was not a voluntary appearance equivalent to
service of summons since it did not seek an affirmative relief. Scalzo argued that in cases involving the
United States government, as well as its agencies and officials, a motion for extension was peculiarly
unavoidable due to the need (1) for both the Department of State and the Department of Justice to
agree on the defenses to be raised and (2) to refer the case to a Philippine lawyer who would be
expected to first review the case. The court a quo denied the motion for reconsideration in its order of
15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing
the denial. In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed
the ruling of the trial court. Scalzo then elevated the incident in a petition for review on certiorari,
docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to comply with
SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the appellate court
was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception of
evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit his
answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his answer,
Scalzo denied the material allegations of the complaint and raised the affirmative defenses (a) of
Minucher's failure to state a cause of action in his complaint and (b) that Scalzo had acted in the
discharge of his official duties as being merely an agent of the Drug Enforcement Administration of the
United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for
attorneys' fees and expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion
to dismiss the complaint on the ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice Consul
Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order of 25
June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No.
94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in
Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of Appeals, there
docketed CA-G.R. SP No. 22505, per this Court's resolution of 07 August 1990. On 31 October 1990, the
Court of Appeals promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him. Minucher filed a petition for review with this Court, docketed
G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et al." (cited in 214
SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24 September 1992,
penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of the appellate
court and remanded the case to the lower court for trial. The remand was ordered on the theses (a) that
the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his
person without even considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that
the complaint contained sufficient allegations to the effect that Scalzo committed the imputed acts in
his personal capacity and outside the scope of his official duties and, absent any evidence to the
contrary, the issue on Scalzo's diplomatic immunity could not be taken up. SCaTAc

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:

"'Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the
sum of P200,000.00 plus costs.

'The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant."' 2

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he
was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or
not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R. No.
97765, should have precluded the Court of Appeals from resolving the appeal to it in an entirely
different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part
of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter
and causes of action. 3 Even while one of the issues submitted in G.R. No. 97765 — "whether or not
public respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat immune
from civil suit conformably with the Vienna Convention on Diplomatic Relations" — is also a pivotal
question raised in the instant petition, the ruling in G.R. No. 97765, however, has not resolved that point
with finality. Indeed, the Court there has made this observation —

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June
1990, unequivocally states that he would present documentary evidence consisting of DEA records on
his investigation and surveillance of plaintiff and on his position and duties as DEA special agent in
Manila. Having thus reserved his right to present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving claim in the belated motion to dismiss
cannot be relied upon for a reasonable, intelligent and fair resolution of the diplomatic immunity." 4 —

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug dealers in
the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and) having
ascertained the target, (he then) would inform the Philippine narcotic agents (to) make the actual
arrest." Scalzo has submitted to the trial court a number of documents —

1. Exh. '2' — Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' — Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' — Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' — Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' — Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' — 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign
Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila,
Branch 19 (the trial court);

7. Exh. '4' — Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' — Letter dated 18 November 1992 from the Office of the Protocol, Department of
Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court. 5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14 October
1985 until his departure on 10 August 1988; (2) that the United States Government was firm from the
very beginning in asserting the diplomatic immunity of Scalzo with respect to the case pursuant to the
provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United States Embassy
repeatedly urged the Department of Foreign Affairs to take appropriate action to inform the trial court
of Scalzo's diplomatic immunity. The other documentary exhibits were presented to indicate that: (1)
the Philippine government itself, through its Executive Department, recognizing and respecting the
diplomatic status of Scalzo, formally advised the "Judicial Department" of his diplomatic status and his
entitlement to all diplomatic privileges and immunities under the Vienna Convention; and (2) the
Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo additionally
presented Exhibits "9" to "13" consisting of his reports of investigation on the surveillance and
subsequent arrest of Minucher, the certification of the Drug Enforcement Administration of the United
States Department of Justice that Scalzo was a special agent assigned to the Philippines at all times
relevant to the complaint, and the special power of attorney executed by him in favor of his previous
counsel 6 to show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo
to be a member of the diplomatic staff of the United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986, with the
cooperation of the Philippine law enforcement officials and in the exercise of his functions as member of
the mission, he investigated Minucher for alleged trafficking in a prohibited drug, and (c) that the
Philippine Department of Foreign Affairs itself recognized that Scalzo during his tour of duty in the
Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant Attaché of the
United States diplomatic mission and accredited with diplomatic status by the Government of the
Philippines. In his Exhibit 12, Scalzo described the functions of the overseas office of the United States
Drugs Enforcement Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign
law enforcement agencies on narcotic and drug control programs upon the request of the host country,
2) to establish and maintain liaison with the host country and counterpart foreign law enforcement
officials, and 3) to conduct complex criminal investigations involving international criminal conspiracies
which affect the interests of the United States. DIEACH

The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and,
by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among the city
states of ancient Greece, among the peoples of the Mediterranean before the establishment of the
Roman Empire, and among the states of India, the person of the herald in time of war and the person of
the diplomatic envoy in time of peace were universally held sacrosanct. 7 By the end of the 16th
century, when the earliest treatises on diplomatic law were published, the inviolability of ambassadors
was firmly established as a rule of customary international law. 8 Traditionally, the exercise of
diplomatic intercourse among states was undertaken by the head of state himself, as being the
preeminent embodiment of the state he represented, and the foreign secretary, the official usually
entrusted with the external affairs of the state. Where a state would wish to have a more prominent
diplomatic presence in the receiving state, it would then send to the latter a diplomatic mission.
Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by and large,
the representation of the interests of the sending state and promoting friendly relations with the
receiving state. 9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios
accredited to the heads of state, 10 (b) envoys, 11 ministers or internuncios accredited to the heads of
states; and (c) charges d' affairs 12 accredited to the ministers of foreign affairs. 13 Comprising the "staff
of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and
service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the
members of the administrative, technical and service staff of the mission, are accorded diplomatic rank.
Even while the Vienna Convention on Diplomatic Relations provides for immunity to the members of
diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively
applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket
diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the
heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges
from all others. It might bear stressing that even consuls, who represent their respective states in
concerns of commerce and navigation and perform certain administrative and notarial duties, such as
the issuance of passports and visas, authentication of documents, and administration of oaths, do not
ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the
reason that they are not charged with the duty of representing their states in political matters. Indeed,
the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the
determination of whether or not he performs duties of diplomatic nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the United
States diplomatic mission and was accredited as such by the Philippine Government. An attaché belongs
to a category of officers in the diplomatic establishment who may be in charge of its cultural, press,
administrative or financial affairs. There could also be a class of attaches belonging to certain ministries
or departments of the government, other than the foreign ministry or department, who are detailed by
their respective ministries or departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of
mission in his duties and are administratively under him, but their main function is to observe, analyze
and interpret trends and developments in their respective fields in the host country and submit reports
to their own ministries or departments in the home government. 14 These officials are not generally
regarded as members of the diplomatic mission, nor are they normally designated as having diplomatic
rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791,
all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992.
The presentation did nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion
in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of
the diplomatic note, the private respondent is clothed with diplomatic immunity, thereby divesting the
trial court of jurisdiction over his person.

"xxx xxx xxx

"And now, to the core issue — the alleged diplomatic immunity of the private respondent. Setting aside
for the moment the issue of authenticity raised by the petitioner and the doubts that surround such
claim, in view of the fact that it took private respondent one (1) year, eight (8) months and seventeen
(17) days from the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking
for a first extension of time to file the Answer because the Departments of State and Justice of the
United States of America were studying the case for the purpose of determining his defenses, before he
could secure the Diplomatic Note from the US Embassy in Manila, and even granting for the sake of
argument that such note is authentic, the complaint for damages filed by petitioner cannot be
peremptorily dismissed.

"xxx xxx xxx

"There is of course the claim of private respondent that the acts imputed to him were done in his official
capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note . . . . The
public respondent then should have sustained the trial court's denial of the motion to dismiss. Verily, it
should have been the most proper and appropriate recourse. It should not have been overwhelmed by
the self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not
yet been proved. The undue haste with which respondent Court yielded to the private respondent's
claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant
Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr.,
during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an
Assistant Attaché of the United States diplomatic mission and was, therefore, accredited diplomatic
status by the Government of the Philippines." No certified true copy of such "records," the supposed
bases for the belated issuance, was presented in evidence. SEIDAC

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino, 15 the Court has recognized that, in such matters,
the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of
immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine
government, specifically its Department of Foreign Affairs, to be most circumspect, that should
particularly be no less than compelling, in its post litem motam issuances. It might be recalled that the
privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing
legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction. 16 The government of
the United States itself, which Scalzo claims to be acting for, has formulated its standards for recognition
of a diplomatic agent. The State Department policy is to only concede diplomatic status to a person who
possesses an acknowledged diplomatic title and "performs duties of diplomatic nature." 17
Supplementary criteria for accreditation are the possession of a valid diplomatic passport or, from States
which do not issue such passports, a diplomatic note formally representing the intention to assign the
person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age,
and performing diplomatic functions on an essentially full-time basis. 18 Diplomatic missions are
requested to provide the most accurate and descriptive job title to that which currently applies to the
duties performed. The Office of the Protocol would then assign each individual to the appropriate
functional category. 19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked to
conduct surveillance of suspected drug activities within the country on the dates pertinent to this case.
If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he
committed the acts alleged in the complaint, the present controversy could then be resolved under the
related doctrine of State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign
from suit 20 and, with the emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its sovereign capacity. 21 If
the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by
the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is
believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim — par in parem, non habet
imperium — that all states are sovereign equals and cannot assert jurisdiction over one another. 22 The
implication, in broad terms, is that if the judgment against an official would require the state itself to
perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay
the damages decreed against him, the suit must be regarded as being against the state itself, although it
has not been formally impleaded. 23

In United States of America vs. Guinto, 24 involving officers of the United States Air Force and special
officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled —

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. . . . It cannot for a moment be imagined that they were acting in
their private or unofficial capacity when they apprehended and later testified against the complainant. It
follows that for discharging their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be sued. . . . As they
have acted on behalf of the government, and within the scope of their authority, it is that government,
and not the petitioners personally, [who were] responsible for their acts." 25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals 26 elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in
Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): 'Inasmuch as the
State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the
rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in
equity against a State officer or the director of a State department on the ground that, while claiming to
act for the State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit against
the State within the constitutional provision that the State may not be sued without its consent. The
rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice.

"xxx xxx xxx

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded
the officers and agents of the government is removed the moment they are sued in their individual
capacity. This situation usually arises where the public official acts without authority or in excess of the
powers vested in him. It is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice and in
bad faith or beyond the scope of his authority and jurisdiction." 27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as
it can be established that he is acting within the directives of the sending state. The consent of the host
state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf
both involve officers and personnel of the United States, stationed within Philippine territory, under the
RP-US Military Bases Agreement. While evidence is wanting to show any similar agreement between the
governments of the Philippines and of the United States (for the latter to send its agents and to conduct
surveillance and related activities of suspected drug dealers in the Philippines), the consent or
imprimatur of the Philippine government to the activities of the United States Drug Enforcement
Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The official
exchanges of communication between agencies of the government of the two countries, certifications
from officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as
well as the participation of members of the Philippine Narcotics Command in the "buy-bust operation"
conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the
"diplomatic status" of the latter but they give enough indication that the Philippine government has
given its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the
United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law
enforcers who would then be expected to make the arrest. In conducting surveillance activities on
Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a
principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond
the scope of his official function or duties. cATDIH

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States
Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country to
help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

[G.R. No. 125865. January 28, 2000.]

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

Romulo Mabanta Buenaventura Sayoc & De los Angeles for petitioner.

The Solicitor General for respondent.

SYNOPSIS

For allegedly uttering defamatory words against a fellow Asian Development Bank (ADB) worker,
petitioner, an economist at ADB, was charged before the Metropolitan Trial Court (MeTC) with two
counts of grave oral defamation. The MeTC judge received an "office protocol" from the Department of
Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section 45
of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the
ADB in the country. Based on the said communication, the MeTC judge, without notice to the
prosecution, dismissed the two criminal cases. The motion for reconsideration filed by the respondent
was denied by the MeTC, hence, a petition for certiorari was filed before the Regional Trial Court (RTC).
The RTC set aside the MeTC ruling and ordered the enforcement of the warrant of arrest earlier issued.
Thus, petitioner elevated the case to the Supreme Court after his motion for reconsideration was
denied. He argued that he is covered by immunity and that no preliminary investigation was held.
acAIES

The Supreme Court denied the petition. According to the Supreme Court, slandering a person could not
possibly be covered by the immunity agreement because our laws do not allow the commission of a
crime, such as defamation; the mere invocation of the immunity clause does not ipso facto result in the
dropping of the charges; and that preliminary investigation is not a matter of right in cases cognizable by
the MeTC such as the one at bar.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; MOTU PROPRIO DISMISSAL OF

CRIMINAL CASES, WHEN DEEMED VIOLATION OF PROSECUTION'S RIGHT TO DUE PROCESS; CASE AT
BAR. — Courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In receiving ex parte the DFA's advice
and in motu proprio dismissing the two criminal cases without notice to the prosecution, the latter's
right to due process was violated. It should be noted that due process is a right of the accused as much
as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the
alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper
time. At any rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto
result in the dropping of the charges. The immunity mentioned under Section 45 of the Agreement
between the ADB and the Philippine Government regarding the Headquarters of the ADB is not
absolute, but subject to the exception that the act was done in "official capacity." It is therefore
necessary to determine if petitioner's case falls within the ambit of Section 45(a). Thus, the prosecution
should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity
to present its controverting evidence, should it so desire.

2. POLITICAL LAW; IMMUNITY FROM SUIT; NOT APPLICABLE WHEN DAMAGE WAS CAUSED BY
PUBLIC OFFICIAL FOR HIS ACT DONE WITH MALICE OR IN BAD FAITH OR BEYOND THE SCOPE OF HIS
AUTHORITY OR JURISDICTION; CASE AT BAR. — Slandering a person could not possibly be covered by
the immunity agreement because our laws do not allow the commission of a crime, such as defamation,
in the name of official duty. The imputation of theft is ultra vires and cannot be part of official functions.
It is well-settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice or in bad faith or beyond the scope
of his authority or jurisdiction. It appears that even the government's chief legal counsel, the Solicitor
General, does not support the stand taken by petitioner and that of the DFA. Under the Vienna
Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity
from criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state outside his
official functions. As already mentioned above, the commission of a crime is not part of official duty.

DECISION

YNARES-SANTIAGO, J p:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the
Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued
by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to
the custody of the Security Officer of ADB. The next day, the MeTC judge received an "office of protocol"
from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal
process under Section 45 of the Agreement between the ADB and the Philippine Government regarding
the Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said protocol
communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution
dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by
the DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with
the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court
to enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied,
petitioner elevated the case to this Court via a petition for review arguing that he is covered by
immunity under the Agreement and that no preliminary investigation was held before the criminal cases
were filed in court. cda
The petition is not impressed with merit.First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any immunity. The DFA's determination that
a certain person is covered by immunity is only preliminary which has no binding effect in courts. In
receiving ex-parte the DFA's advice and in motu proprio dismissing the two criminal cases without notice
to the prosecution, the latter's right to due process was violated. It should be noted that due process is a
right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner
was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet
to be presented at the proper time. 1 At any rate, it has been ruled that the mere invocation of the
immunity clause does not ipso facto result in the dropping of the charges. 2

Second, under Section 45 of the Agreement which provides:

"Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their official capacity
except when the Bank waives the immunity."

the immunity mentioned therein is not absolute, but subject to the exception that the act was done in
"official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol and it
must be accorded the opportunity to present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because our laws
do not allow the commission of a crime, such as defamation, in the name of official duty. 3 The
imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law
that a public official may be liable in his personal private capacity for whatever damage he may have
caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction. 4
It appears that even the government's chief legal counsel, the Solicitor General, does not support the
stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is
such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the diplomatic agent in the receiving
state outside his official functions. 5 As already mentioned above, the commission of a crime is not part
of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar.
6 Being purely a statutory right, preliminary investigation may be invoked only when specifically granted
by law. 7 The rule on criminal procedure is clear that no preliminary investigation is required in cases
falling within the jurisdiction of the MeTC. 8 Besides, the absence of preliminary investigation does not
affect the court's jurisdiction nor does it impair the validity of the information or otherwise render it
defective. 9
WHEREFORE, the petition is DENIED. SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan, and Pardo, JJ., concur.

G.R. No. 111709. August 30, 2001.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O.
CHANGCO, ANDRES C. INFANTE, CHEONG SAN HIONG, and JOHN DOES, accused-appellants.

The Solicitor General for plaintiff-appellee.

Britanico Consunji & Sarmiento Law Offices for Cheong San Hiong.

Rodrigo Berenguer & Guno for R. Tulin, V.I. Loyola, C.O. Changco and A.C. Infante.

SYNOPSIS

Appellants were charged with qualified piracy in connection with the seizure of M/T Tabangao in
Batangas where the officers and crew were forced to sail to Singapore and transfer its loaded petroleum
products to another Vessel Navi Pride off the coast of Singapore. Appellants pleaded not guilty with
appellant Hiong claiming that he merely followed the orders of his superiors to buy bunker fuel.
However, it was disclosed that he connived, through falsification of documents, to prevent the
Singapore ports authority to detect the sale, the amount of the sale was less than one-half of the
amount of the cargo transferred, that there was no evidence of the sale, with receipts not issued and
the sale was made 66 nautical miles away in the dead of the night. The officers and crew of M/T
Tabangao with whom the appellants were with for more than a month, positively identified appellants
as the seajackers. Appellants, except Hiong, were represented by Tomas Posadas who was later found to
be a non-lawyer. They were, however, assisted by Atty. Abdul Basar who manifested that they were
adopting the evidence adduced by Posadas. Their extrajudicial statements obtained without assistance
of counsel were introduced as evidence for the prosecution. The trial court found all appellants except
Hiong to have acted in conspiracy. According to the trial court, Hiong's act was not indispensable in the
attack and seizure of the vessel. He was found guilty as a mere accomplice. Hence, this appeal.

An accused is entitled to be present and to defend himself in person and by counsel at every stage of
the proceedings since an ordinary layman is not versed on the technicalities of trial. In this case,
appellants' representative, Mr. Posadas, knew the technical rules of procedure, coupled with their
manifestation that they adopted the evidence adduced by him constitute waiver, and with the full
assistance of a bonafide lawyer, Atty. Basar and cannot serve as a basis for a claim of denial of due
process. aIcTCS

The extrajudicial confessions made without assistance of counsel are inadmissible in evidence.

Piracy is an exception to the rule on territoriality in criminal law.

If there is lack of complete evidence of conspiracy, the liability is that of an accomplice and not as
principal.
An individual is justified in performing an act in obedience to an order issued by a superior, if such order
is for some lawful purpose and that the means used by the subordinate to carry out said order is lawful.

SYLLABUS

1. CONSTITUTIONAL LAW; RIGHT TO COUNSEL AT EVERY STAGE OF PROCEEDING; RIGHT WAIVED

IN CASE AT BAR. — On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was
executed by accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating
that they were adopting the evidence adduced when they were represented by a non-lawyer. Such
waiver of the right to sufficient representation during the trial as covered by the due process clause shall
only be valid if made with the full assistance of a bona fide lawyer. During the trial, accused-appellants,
as represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants
were apprised of the nature and legal consequences of the subject manifestation, and that they
voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents when
asked in open court. It is true that an accused person shall be entitled to be present and to defend
himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation
of judgment (Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a
layman is not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may
be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or
prejudicial to a third person with right recognized by law. (Article 6, Civil Code of the Philippines). Thus,
the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself
in person when it sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel." By analogy, but without prejudice to the sanctions imposed by law for the illegal
practice of law, it is amply shown that the rights of accused-appellants were sufficiently and properly
protected by the appearance of Mr. Tomas Posadas. An examination of the record will show that he
knew the technical rules of procedure. Hence, we rule that there was a valid waiver of the right to
sufficient representation during the trial, considering that it was unequivocally, and intelligently made
and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process
cannot be successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274
SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).

2. ID.; RIGHT TO COUNSEL DURING CUSTODIAL INVESTIGATION; MIRANDA DOCTRINE;

CONSTRUED. — [T]he right to counsel during custodial investigation may not be waived except in writing
and in the presence of counsel. Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966])
which gave birth to the so-called Miranda doctrine which is to the effect that prior to any questioning
during custodial investigation, the person must be warned that he has a right to remain silent, that any
statement he gives may be used as evidence against him, and that he has the right to the presence of an
attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly, and intelligently. The Constitution even adds the more
stringent requirement that the waiver must be in writing and made in the presence of counsel. HAICcD

3. REMEDIAL LAW; EVIDENCE; UNCOUNSELLED EXTRAJUDICIAL CONFESSION WITHOUT VALID

WAIVER OF RIGHT TO COUNSEL, INADMISSIBLE; CASE AT BAR. — [T]he absence of counsel during the
execution of the so-called confessions of the accused-appellants make them invalid. In fact, the very
basic reading of the Miranda rights was not even shown in the case at bar. Paragraph [3] of the
aforestated Section 12 sets forth the so-called "fruit from the poisonous tree doctrine," a phrase minted
by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States (308 U.S. 388
[1939]). According to this rule, once the primary source (the "tree") is shown to have been unlawfully
obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. The rule
is based on the principle that evidence illegally obtained by the State should not be used to gain other
evidence because the originally illegally obtained evidence taints all evidence subsequently obtained
(People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this case, the uncounselled extrajudicial confessions
of accused-appellants, without a valid waiver of the right to counsel, are inadmissible and whatever
information is derived therefrom shall be regarded as likewise inadmissible in evidence against them.

4. ID.; ID.; DENIAL; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF ACCUSED. — We also
agree with the trial court's finding that accused-appellants' defense of denial is not supported by any
hard evidence but their bare testimony. Greater weight is given to the categorical identification of the
accused by the prosecution witnesses than to the accused's plain denial of participation in the
commission of the crime (People v. Baccay, 284 SCRA 296 [1998]).

5. ID.; ID.; ALIBI; REQUISITE FOR DEFENSE TO PROSPER; CASE AT BAR. — Anent accused-appellant
Changco's defense of denial with the alibi that on May 14 and 17, he was at his place of work and that
on April 10, he was in his house in Bacoor, Cavite, sleeping, suffice it to state that alibi is fundamentally
and inherently a weak defense, much more so when uncorroborated by other witnesses (People v.
Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and concoct, and difficult to
disprove. Accused-appellant must adduce clear and convincing evidence that, at about midnight on April
10, 1991, it was physically impossible for him to have been in Calatagan, Batangas. Changco not only
failed to do this, he was likewise unable to prove that he was in his place of work on the dates
aforestated.

6. ID.; ID.; CREDIBILITY OF WITNESSES; TRIAL COURT'S EVALUATION OF CREDIBILITY OF

TESTIMONY, ACCORDED HIGHEST RESPECT. — It is doctrinal that the trial court's evaluation of the
credibility of a testimony is accorded the highest respect, for trial courts have an untrammeled
opportunity to observe directly the demeanor of witnesses and, thus, to determine whether a certain
witness is telling the truth (People v. Obello, 284 SCRA 79 [1998]).

7. CRIMINAL LAW; CONSPIRACY; WHEN PRESENT. — We likewise uphold the trial court's finding of
conspiracy. A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it (Article 8, Revised Penal Code). To be a conspirator, one
need not participate in every detail of execution; he need not even take part in every act or need not
even know the exact part to be performed by the others in the execution of the conspiracy. As noted by
the trial court, there are times when conspirators are assigned separate and different tasks which may
appear unrelated to one another, but in fact, constitute a whole and collective effort to achieve a
common criminal design.
8. ID.; ID.; CASE AT BAR. — We affirm the trial court's finding that Emilio Changco, accused-
appellants Tulin, Loyola, and Infante, Jr. and others, were the ones assigned to attack and seize the "M/T
Tabangao" off Lubang, Mindoro, while accused-appellant Cecilio Changco was to fetch the master and
the members of the crew from the shoreline of Calatagan, Batangas after the transfer, and bring them
to Imus, Cavite, and to provide the crew and the officers of the vessel with money for their fare and
food provisions on their way home. These acts had to be well-coordinated. Accused-appellant Cecilio
Changco need not be present at the time of the attack and seizure of "M/T Tabangao" since he
performed his task in view of an objective common to all other accused-appellants. EDSAac

9. ID.; PIRACY; COVERAGE WIDENED BY R.A. NO. 7659. — Article 122 of the Revised Penal Code,
before its amendment, provided that piracy must be committed on the high seas by any person not a
member of its complement nor a passenger thereof. Upon its amendment by Republic Act No. 7659, the
coverage of the pertinent provision was widened to include offenses committed "in Philippine waters."
On the other hand, under Presidential Decree No. 532 (issued in 1974), the coverage of the law on
piracy embraces any person including "a passenger or member of the complement of said vessel in
Philippine waters." Hence, passenger or not, a member of the complement or not, any person is covered
by the law. Republic Act No. 7659 neither superseded nor amended the provisions on piracy under
Presidential Decree No. 532. There is no contradiction between the two laws. There is likewise no
ambiguity and hence, there is no need to construe or interpret the law. All the presidential decree did
was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as
neighboring states from crimes against the law of nations. As expressed in one of the "whereas" clauses
of Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the
penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy
under Presidential Decree No. 532 exist harmoniously as separate laws.

10. ID.; ID.; AN EXCEPTION TO THE RULE ON TERRITORIALITY IN CRIMINAL LAW. — Moreover, piracy
falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception to the rule on
territoriality in criminal law. The same principle applies even if Hiong, in the instant case, were charged,
not with a violation of qualified piracy under the penal code but under a special law, Presidential Decree
No. 532 which penalizes piracy in Philippine waters. Verily, Presidential Decree No. 532 should be
applied with more force here since its purpose is precisely to discourage and prevent piracy in Philippine
waters (People v. Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled that regardless of the law
penalizing the same, piracy is a reprehensible crime against the whole world (People v. Lollo, 43 Phil. 19
[1922]).

11. ID.; CRIMINAL LIABILITY; WHEN THERE IS LACK OF COMPLETE EVIDENCE OF CONSPIRACY,
LIABILITY IS THAT OF AN ACCOMPLICE. — Nevertheless, the trial court found that accused-appellant
Hiong's participation was indisputably one which aided or abetted Emilio Changco and his band of
pirates in the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532. The ruling
of the trial court is within well-settled jurisprudence that if there is lack of complete evidence of
conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA 514
[1971]). Any doubt as to the participation of an individual in the commission of the crime is always
resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano, Jr.,
125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]).

12. ID.; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO AN ORDER ISSUED BY SUPERIOR; ORDER AND
MEANS TO CARRY OUT ORDER MUST BE LAWFUL; CASE AT BAR. — [I]t cannot be correctly said that
accused-appellant was "merely following the orders of his superiors." An individual is justified in
performing an act in obedience to an order issued by a superior if such order, is for some lawful purpose
and that the means used by the subordinate to carry out said order is lawful (Reyes, Revised Penal Code,
Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior Chua Kim Leng Timothy, is a
patent violation not only of Philippine, but of international law. Such violation was committed on board
a Philippine-operated vessel. Moreover, the means used by Hiong in carrying out said order was equally
unlawful. He misled port and immigration authorities, falsified records, using a mere clerk, Frankie Loh,
to consummate said acts. During the trial, Hiong presented himself, and the trial court was convinced,
that he was an intelligent and articulate Port Captain. These circumstances show that he must have
realized the nature and the implications of the order of Chua Kim Leng Timothy. Thereafter, he could
have refused to follow orders to conclude the deal and to effect the transfer of the cargo to the "Navi
Pride." He did not do so, for which reason, he must now suffer the consequences of his actions. ESTDIA

DECISION

MELO, J p:

This is one of the older cases which unfortunately has remained in docket of the Court for sometime. It
was reassigned, together with other similar cases, to undersigned ponente in pursuance of A.M. No. 00-
9-03-SC dated February 27, 2001. AEDHST

In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the PNOC Shipping and
Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and
40,000 barrels of diesel oil, with a total value of P40,426,793,87, was sailing off the coast of Mindoro
near Silonay Island.

The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate Christian
Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum ladder, by
seven fully armed pirates led by Emilio Changco, older brother of accused-appellant Cecilio Changco.
The pirates, including accused-appellants Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .45
and .38 caliber handguns, and bolos. They detained the crew and took complete control of the vessel.
Thereafter, accused-appellant Loyola ordered three crew members to paint over, using black paint, the
name "M/T Tabangao" on the front and rear portions of the vessel, as well as the PNOC logo on the
chimney of the vessel. The vessel was then painted with the name "Galilee," with registry at San
Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending misleading radio
messages to PNOC that the ship was undergoing repairs.

PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the
Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine Navy.
However, search and rescue operations yielded negative results. On March 9, 1991, the ship arrived in
the vicinity of Singapore and cruised around the area presumably to await another vessel which,
however, failed to arrive. The pirates were thus forced to return to the Philippines on March 14, 1991,
arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.

On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles
from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio Changco
ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi Pride". Accused-
appellant Cheong San Hiong supervised the crew of "Navi Pride" in receiving the cargo. The transfer,
after an interruption, with both vessels leaving the area, was completed on March 30, 1991. TEDHaA

On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo to
"Navi Pride."

On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea. On
April 10, 1991, the members of the crew were released in three batches with the stern warning not to
report the incident to government authorities for a period of two days or until April 12, 1991, otherwise
they would be killed. The first batch was fetched from the shoreline by a newly painted passenger jeep
driven by accused-appellant Cecilio Changco, brother of Emilio Changco, who brought them to Imus,
Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in proceeding to their respective
homes. The second batch was fetched by accused-appellant Changco at midnight of April 10, 1991 and
were brought to different places in Metro Manila. SCcHIE

On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC
Shipping and Transport Corporation office to report the incident. The crew members were brought to
the Coast Guard Office for investigation. The incident was also reported to the National Bureau of
Investigation where the officers and members of the crew executed sworn statements regarding the
incident.

A series of arrests was thereafter effected as follows:

a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K.
Beach, Balibago, Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin was
arrested and brought to the NBI headquarters in Manila.

b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI
agents as the latter were pursuing the mastermind, who managed to evade arrest.

c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha
Hotel in Batangas City. DCaSHI

On October 24, 1991, an Information charging qualified piracy or violation of Presidential Decree No.
532 (Piracy in Philippine Waters) was filed against accused-appellants, as follows:
The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO,
ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9) other JOHN DOES of qualified piracy
(Violation of P.D. No. 532), committed as follows:

That on or about and during the period from March 2 to April 10, 1991, both dates inclusive, and for
sometime prior and subsequent thereto, and within the jurisdiction of this Honorable Court, the said
accused, then manning a motor launch and armed with high powered guns, conspiring and
confederating together and mutually helping one another, did then and there, wilfully, unlawfully and
feloniously fire upon, board and seize while in the Philippine waters M/T PNOC TABANGCO loaded with
petroleum products, together with the complement and crew members, employing violence against or
intimidation of persons or force upon things, then direct the vessel to proceed to Singapore where the
cargoes were unloaded and thereafter returned to the Philippines on April 10, 1991, in violation of the
aforesaid law. ScaHDT

CONTRARY TO LAW.

(pp. 119-20, Rollo.)

This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of the
National Capital Judicial Region stationed in Manila. Upon arraignment, accused-appellants pleaded not
guilty to the charge. Trial thereupon ensued.

Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their
testimony as to where they were on March 1, 1991, maintained the defense of denial, and disputed the
charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them
claimed having their own respective sources of livelihood. Their story is to the effect that on March 2,
1991, while they were conversing by the beach, a red speedboat with Captain Edilberto Liboon and
Second Mate Christian Torralba on board, approached the seashore. Captain Liboon inquired from the
three if they wanted to work in a vessel. They were told that the work was light and that each worker
was to be paid P3,000.00 a month with additional compensation if they worked beyond that period.
They agreed even though they had no sea-going experience. On board, they cooked, cleaned the vessel,
prepared coffee, and ran errands for the officers. They denied having gone to Singapore, claiming that
the vessel only went to Batangas. Upon arrival thereat in the morning of March 21, 1991, they were paid
P1,000.00 each as salary for nineteen days of work, and were told that the balance would be remitted to
their addresses. There was neither receipt nor contracts of employment signed by the parties. SCIAaT

Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping on
April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr.

Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he studied in
Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed the course as a
"Master" of a vessel, working as such for two years on board a vessel. He was employed at Navi Marine
Services, Pte., Ltd. as Port Captain. The company was engaged in the business of trading petroleum,
including shipoil, bunker lube oil, and petroleum to domestic and international markets. It owned four
vessels, one of which was "Navi Pride."

On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts,
Hiong's name was listed in the company's letter to the Mercantile Section of the Maritime Department
of the Singapore government as the radio telephone operator on board the vessel "Ching Ma."

The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered to
sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After the company paid
over one-half of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng, Operations
Superintendent of the firm, proceeded to the high seas on board "Navi Pride" but failed to locate the
contact vessel. SIDTCa

The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on
board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the port
of Singapore, the contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain the
quantity and quality of the oil and was given the amount of 300,000.00 Singapore Dollars for the
purchase. Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride" sailed
toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee" would be making the transfer.
Although no inspection of "Navi Pride" was made by the port authorities before departure, Navi Marine
Services, Pte., Ltd. was able to procure a port clearance upon submission of General Declaration and
crew list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and did not pass through
the immigration. The General Declaration falsely reflected that the vessel carried 11,900 tons. DCASIT

On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the
Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong and
the surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who later turned
out to be Emilio Changco). Hiong claimed that he did not ask for the full name of Changco nor did he ask
for the latter's personal card.

Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took
samples of the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under the
name "Roberto Castillo." Hiong then handed the payment to Paul Gan and William Yao. Upon arrival at
Singapore in the morning of March 29, 1991, Hiong reported the quantity and quality of the cargo to the
company.

Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from
"M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed. This time, Hiong
was told that that there were food and drinks, including beer, purchased by the company for the crew of
"M/T Galilee. The transfer took ten hours and was completed on March 30, 1991. Paul Gan was paid in
full for the transfer. IaHCAD

On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to offer
its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of the cargo in
Singapore. Hiong went to the Philippines to discuss the matter with Emilio Changco, who laid out the
details of the new transfer, this time with "M/T Polaris" as contact vessel. Hiong was told that the vessel
was scheduled to arrive at the port of Batangas that weekend. After being billeted at Alpha Hotel in
Batangas City, where Hiong checked in under the name "SONNY CSH." A person by the name of "KEVIN
OCAMPO," who later turned out to be Emilio Changco himself, also checked in at Alpha Hotel. From
accused-appellant Cecilio Changco, Hiong found out that the vessel was not arriving. Hiong was
thereafter arrested by NBI agents.

After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged. The
dispositive portion of said decision reads:

WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by this Court
finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond
reasonable doubt, as principals, of the crime of piracy in Philippine Waters defined in Section 2(d) of
Presidential Decree No. 532 and the accused Cheong San Hiong, as accomplice, to said crime. Under
Section 3(a) of the said law, the penalty for the principals of said crime is mandatory death. However,
considering that, under the 1987 Constitution, the Court cannot impose the death penalty, the accused
Roger Tulin, Virgilio Loyola, Andres Infante, Jr., and Cecilio Changco are hereby each meted the penalty
of RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong San Hiong is
hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal Code in
relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio
Changco are hereby ordered to return to the PNOC Shipping and Transport Corporation the "M/T
Tabangao" or if the accused can no longer return the same, the said accused are hereby ordered to
remit, jointly and severally, to said corporation the value thereof in the amount of P11,240,000.00,
Philippine Currency, with interests thereon, at the rate of 6% per annum from March 2, 1991 until the
said amount is paid in full. All the accused including Cheong San Hiong are hereby ordered to return to
the Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer return the
said cargo to said corporation, all the accused are hereby condemned to pay, jointly and severally, to the
Caltex Refinery, Inc., the value of said cargo in the amount of P40,426,793.87, Philippine Currency plus
interests until said amount is paid in full. After the accused Cheong San Hiong has served his sentence,
he shall be deported to Singapore. DHTECc

All the accused shall be credited for the full period of their detention at the National Bureau of
Investigation and the City Jail of Manila during the pendency of this case provided that they agreed in
writing to abide by and comply strictly with the rules and regulations of the City Jail of Manila and the
National Bureau of Investigation. With costs against all the accused.

SO ORDERED.

(pp. 149-150, Rollo.)

The matter was then elevated to this Court. The arguments of accused-appellants may be summarized
as follows:
Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco

Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in
allowing them to adopt the proceedings taken during the time they were being represented by Mr.
Tomas Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due
process. cDTACE

In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel for
all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court
discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas had
presented and examined seven witnesses for the accused.

Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during the
custodial investigation, they were subjected to physical violence; were forced to sign statements
without being given the opportunity to read the contents of the same; were denied assistance of
counsel, and were not informed of their rights, in violation of their constitutional rights.

Said accused-appellants also argue that the trial court erred in finding that the prosecution proved
beyond reasonable doubt that they committed the crime of qualified piracy. They allege that the pirates
were outnumbered by the crew who totaled 22 and who were not guarded at all times. The crew, so
these accused-appellants conclude, could have overpowered the alleged pirates. EAHcCT

Cheong San Hiong

In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed by
him; (2) the trial court erred in declaring that the burden is lodged on him to prove by clear and
convincing evidence that he had no knowledge that Emilio Changco and his cohorts attacked and seized
the "M/T Tabangao" and/or that the cargo of the vessel was stolen or the subject of theft or robbery or
piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of qualified piracy
under Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974); (4) the trial
court erred in convicting and punishing him as an accomplice when the acts allegedly committed by him
were done or executed outside of Philippine waters and territory, stripping the Philippine courts of
jurisdiction to hold him for trial, to convict, and sentence; (5) the trial court erred in making factual
conclusions without evidence on record to prove the same and which in fact are contrary to the
evidence adduced during trial; (6) the trial court erred in convicting him as an accomplice under Section
4 of Presidential Decree No. 532 when he was charged as a principal by direct participation under said
decree, thus violating his constitutional right to be informed of the nature and cause of the accusation
against him.

Cheong also posits that the evidence against the other accused-appellants do not prove any
participation on his part in the commission of the crime of qualified piracy. He further argues that he
had not in any way participated in the seajacking of "M/T Tabangao" and in committing the crime of
qualified piracy, and that he was not aware that the vessel and its cargo were pirated.
As legal basis for his appeal, he explains that he was charged under the information with qualified piracy
as principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters. In the case
at bar, he argues that he was convicted for acts done outside Philippine waters or territory. For the State
to have criminal jurisdiction, the act must have been committed within its territory.

We affirm the conviction of all the accused-appellants.

The issues of the instant case may be summarized as follows: (1) what are the legal effects and
implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2) what are
the legal effects and implications of the absence of counsel during the custodial investigation?; (3) did
the trial court err in finding that the prosecution was able to prove beyond reasonable doubt that
accused-appellants committed the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate
the crime committed by accused-appellant Cheong?; and (5) can accused-appellant Cheong be convicted
as accomplice when he was not charged as such and when the acts allegedly committed by him were
done or executed outside Philippine waters and territory? IDSaAH

On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by
accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they were
adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of the right
to sufficient representation during the trial as covered by the due process clause shall only be valid if
made with the full assistance of a bona fide lawyer. During the trial, accused-appellants, as represented
by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants were apprised of
the nature and legal consequences of the subject manifestation, and that they voluntarily and
intelligently executed the same. They also affirmed the truthfulness of its contents when asked in open
court (tsn, February 11, 1992, pp. 7-59). cHCIEA

It is true that an accused person shall be entitled to be present and to defend himself in person and by
counsel at every stage of the proceedings, from arraignment to promulgation of judgment (Section 1,
Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not versed on
the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the
waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third
person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the same section of
Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect his rights without the assistance of
counsel." By analogy, but without prejudice to the sanctions imposed by law for the illegal practice of
law, it is amply shown that the rights of accused-appellants were sufficiently and properly protected by
the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the
technical rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient
representation during the trial, considering that it was unequivocally, knowingly, and intelligently made
and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process
cannot be successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274
SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial investigation may not be
waived except in writing and in the presence of counsel.

Section 12, Article III of the Constitution reads:

SECTION 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.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.
HTCAED

Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth to the so-called
Miranda doctrine which is to the effect that prior to any questioning during custodial investigation, the
person must be warned that he has a right to remain silent, that any statement he gives may be used as
evidence against him, and that he has the right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly, and intelligently. The Constitution even adds the more stringent requirement
that the waiver must be in writing and made in the presence of counsel.

Saliently, the absence of counsel during the execution of the so-called confessions of the accused-
appellants make them invalid. In fact, the very basic reading of the Miranda rights was not even shown
in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from the
poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of
Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary source (the
"tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit")
derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by
the State should not be used to gain other evidence because the originally illegally obtained evidence
taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this case,
the uncounselled extrajudicial confessions of accused-appellants, without a valid waiver of the right to
counsel, are inadmissible and whatever information is derived therefrom shall be regarded as likewise
inadmissible in evidence against them.

However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to
convict accused-appellants with moral certainty. We agree with the sound deduction of the trial court
that indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, and Infante,
Jr. did conspire and confederate to commit the crime charged. In the words of then trial judge, now
Justice Romeo J. Callejo of the Court of Appeals —

. . . The Prosecution presented to the Court an array of witnesses, officers and members of the crew of
the "M/T Tabangao" no less, who identified and pointed to the said Accused as among those who
attacked and seized, the "M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon, off
Lubang Island, Mindoro, with its cargo, and brought the said vessel, with its cargo, and the officers and
crew of the vessel, in the vicinity of Horsebough Lighthouse, about sixty-six nautical miles off the
shoreline of Singapore and sold its cargo to the Accused Cheong San Hiong upon which the cargo was
discharged from the "M/T Tabangao" to the "Navi Pride" for the price of about $500,000.00 (American
Dollars) on March 29, and 30, 1991. . .

xxx xxx xxx

The Master, the officers and members of the crew of the "M/T Tabangao" were on board the vessel with
the Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for more than one (1) month.
There can be no scintilla of doubt in the mind of the Court that the officers and crew of the vessel could
and did see and identify the seajackers and their leader. In fact, immediately after the Accused were
taken into custody by the operatives of the National Bureau of Investigation, Benjamin Suyo, Norberto
Senosa, Christian Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed to
and identified the said Accused as some of the pirates.

xxx xxx xxx

Indeed, when they testified before this Court on their defense, the three (3) Accused admitted to the
Court that they, in fact, boarded the said vessel in the evening of March 2, 1991 and remained on board
when the vessel sailed to its destination, which turned out to be off the port of Singapore. aCcADT

(pp. 106-112, Rollo.)

We also agree with the trial court's finding that accused-appellants' defense of denial is not supported
by any hard evidence but their bare testimony. Greater weight is given to the categorical identification
of the accused by the prosecution witnesses than to the accused's plain denial of participation in the
commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants Tulin,
Loyola, and Infante, Jr. narrated a patently desperate tale that they were hired by three complete
strangers (allegedly Captain Edilberto Liboon, Second Mate Christian Torralba, and their companion)
while said accused-appellants were conversing with one another along the seashore at Aplaya, Balibago,
Calatagan, Batangas, to work on board the "M/T Tabangao" which was then anchored off-shore. And
readily, said accused-appellants agreed to work as cooks and handymen for an indefinite period of time
without even saying goodbye to their families, without even knowing their destination or the details of
their voyage, without the personal effects needed for a long voyage at sea. Such evidence is incredible
and clearly not in accord with human experience. As pointed out by the trial court, it is incredible that
Captain Liboon, Second Mate Torralba, and their companion "had to leave the vessel at 9:30 o'clock in
the evening and venture in a completely unfamiliar place merely to recruit five (5) cooks or handymen
(p. 113, Rollo)." aSATHE

Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was at his
place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite, sleeping, suffice it to
state that alibi is fundamentally and inherently a weak defense, much more so when uncorroborated by
other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and
concoct, and difficult to disprove. Accused-appellant must adduce clear and convincing evidence that, at
about midnight on April 10, 1991, it was physically impossible for him to have been in Calatagan,
Batangas. Changco not only failed to do this, he was likewise unable to prove that he was in his place of
work on the dates aforestated.

It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest
respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of
witnesses and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284
SCRA 79 [1998]).

We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it (Article 8,
Revised Penal Code). To be a conspirator, one need not participate in every detail of execution; he need
not even take part in every act or need not even know the exact part to be performed by the others in
the execution of the conspiracy. As noted by the trial court, there are times when conspirators are
assigned separate and different tasks which may appear unrelated to one another, but in fact, constitute
a whole and collective effort to achieve a common criminal design. THaDAE

We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin, Loyola, and Infante, Jr.
and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while
accused-appellant Cecilio Changco was to fetch the master and the members of the crew from the
shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to provide the
crew and the officers of the vessel with money for their fare and food provisions on their way home.
These acts had to be well-coordinated. Accused-appellant Cecilio Changco need not be present at the
time of the attack and seizure of "M/T Tabangao" since he performed his task in view of an objective
common to all other accused-appellants.

Of notable importance is the connection of accused-appellants to one another. Accused-appellant

Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto
Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said
corporation. Their residences are approximately six or seven kilometers away from each other. Their
families are close. Accused-appellant Tulin, on the other hand, has known Cecilio since their parents
were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a relative of
the Changco brothers by affinity. Besides, Loyola and Emilio Changco had both been accused in a
seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off Cebu and Bohol in
1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while Loyola at that time
remained at large.

As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in Philippine
waters as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential Decree No. 532
because Republic Act No. 7659 (effective January 1, 1994), which amended Article 122 of the Revised
Penal Code, has impliedly superseded Presidential Decree No. 532. He reasons out that Presidential
Decree No. 532 has been rendered "superfluous or duplicitous" because both Article 122 of the Revised
Penal Code, as amended, and Presidential Decree No. 532 punish piracy committed in Philippine waters.
He maintains that in order to reconcile the two laws, the word "any person" mentioned in Section 1 [d]
of Presidential Decree No. 532 must be omitted such that Presidential Decree No. 532 shall only apply to
offenders who are members of the complement or to passengers of the vessel, whereas Republic Act
No. 7659 shall apply to offenders who are neither members of the complement or passengers of the
vessel, hence, excluding him from the coverage of the law. CaASIc

Article 122 of the Revised Penal Code, used to provide:

ARTICLE 122. Piracy in general and mutiny on the high seas. — The penalty of reclusion temporal shall
be inflicted upon any person who, on the high seas, shall attack or seize a vessel or, not being a member
of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its
equipment, or personal belongings of its complement or passengers.

(Italics supplied.)

Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:

ARTICLE 122. Piracy in general and mutiny on the high seas or in Philippine waters. — The penalty of
reclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters,
shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the
whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or
passengers. EacHCD

(Italics ours)

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SECTION 2. Definition of Terms. — The following shall mean and be understood, as follows:

d. Piracy. — Any attack upon or seizure of any vessel or the taking away of the whole or part
thereof or its cargo, equipment, or the personal belongings of its complement or passengers,
irrespective of the value thereof, by means of violence against or intimidation of persons or force upon
things, committed by any person, including a passenger or member of the complement of said vessel in
Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and
punished as hereinafter provided (italics supplied).
To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy must
be committed on the high seas by any person not a member of its complement nor a passenger thereof.
Upon its amendment by Republic Act No. 7659, the coverage of the pertinent provision was widened to
include offenses committed "in Philippine waters." On the other hand, under Presidential Decree No.
532 (issued in 1974), the coverage of the law on piracy embraces any person including "a passenger or
member of the complement of said vessel in Philippine waters." Hence, passenger or not, a member of
the complement or not, any person is covered by the law.

Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential
Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and
hence, there is no need to construe or interpret the law. All the presidential decree did was to widen the
coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states from
crimes against the law of nations. As expressed in one of the "whereas" clauses of Presidential Decree
No. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes of all
countries." For this reason, piracy under the Article 122, as amended, and piracy under Presidential
Decree No. 532 exist harmoniously as separate laws. cEHITA

As regards the contention that the trial court did not acquire jurisdiction over the person of accused-
appellant Hiong since the crime was committed outside Philippine waters, suffice it to state that
unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates)
and its cargo were committed in Philippine waters, although the captive vessel was later brought by the
pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was done
under accused-appellant Hiong's direct supervision. Although Presidential Decree No. 532 requires that
the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by
the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not
be committed in Philippine waters.

Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception
to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the instant case,
were charged, not with a violation of qualified piracy under the penal code but under a special law,
Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily, Presidential Decree No.
532 should be applied with more force here since its purpose is precisely to discourage and prevent
piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled that
regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world
(People v. Lol-lo, 43 Phil. 19 [1922]). IETCAS

However, does this constitute a violation of accused-appellant's constitutional right to be informed of

the nature and cause of the accusation against him on the ground that he was convicted as an
accomplice under Section 4 of Presidential Decree No. 532 even though he was charged as a principal by
direct participation under Section 2 of said law?

The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao" and
its cargo; (b) that he induced Emilio Changco and his group in the attack and seizure of "M/T Tabangao"
and its cargo; (c) and that his act was indispensable in the attack on and seizure of "M/T Tabangao" and
its cargo. Nevertheless, the trial court found that accused-appellant Hiong's participation was
indisputably one which aided or abetted Emilio Changco and his band of pirates in the disposition of the
stolen cargo under Section 4 of Presidential Decree No. 532 which provides:

SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery

brigandage. — Any person who knowingly and in any manner aids or protects pirates or highway
robbers/brigands, such as giving them information about the movement of police or other peace
officers of the government, or acquires or receives property taken by such pirates or brigands or in any
manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of
piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal officers
and be punished in accordance with Rules prescribed by the Revised Penal Code. ITDSAE

It shall be presumed that any person who does any of the acts provided in this Section has performed
them knowingly, unless the contrary is proven.

The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete evidence
of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA 514
[1971]). Any doubt as to the participation of an individual in the commission of the crime is always
resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano, Jr.,
125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]). cEAaIS

Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No. 532 which
presumes that any person who does any of the acts provided in said section has performed them
knowingly, unless the contrary is proven. In the case at bar, accused-appellant Hiong had failed to
overcome the legal presumption that he knowingly abetted or aided in the commission of piracy,
received property taken by such pirates and derived benefit therefrom.

The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo by
personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by buying
the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even tested the
quality and verified the quantity of the petroleum products, connived with Navi Marine Services
personnel in falsifying the General Declarations and Crew List to ensure that the illegal transfer went
through, undetected by Singapore Port Authorities, and supplied the pirates with food, beer, and other
provisions for their maintenance while in port (tsn, June 3, 1992, pp. 133-134).

We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List was
accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in the
execution of their scheme to avert detection by Singapore Port Authorities. Hence, had accused-
appellant Hiong not falsified said entries, the Singapore Port Authorities could have easily discovered
the illegal activities that took place and this would have resulted in his arrest and prosecution in
Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi Pride" could not have
been effected. IcCDAS

We completely uphold the factual findings of the trial court showing in detail accused-appellant Hiong's
role in the disposition of the pirated goods summarized as follows: that on March 27, 1991, Hiong with
Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to rendezvous
with the "M/T Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-CSH", Record) to
the port authorities, excluding the name of Hiong; that the "General Declaration" (for departure) of the
"Navi Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH", Record) falsely stated that
the vessel was scheduled to depart at 2200 (10 o'clock in the evening), that there were no passengers
on board, and the purpose of the voyage was for "cargo operation" and that the vessel was to unload
and transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee" with Emilio
Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor prepared the "Quantity
Certificate" (Exhibit "11-C CSH, Record) stating that the cargo transferred to the "Navi Pride" was 2,406
gross cubic meters; that although Hiong was not the Master of the vessel, he affixed his signature on the
"Certificate" above the word "Master" (Exhibit "11-C-2 CSH", Record); that he then paid $150,000.00 but
did not require any receipt for the amount; that Emilio Changco also did not issue one; and that in the
requisite "General Declaration" upon its arrival at Singapore on March 29, 1991, at 7 o'clock in the
evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear that the "Navi Pride"
unloaded 1,700 tons of cargo on the high seas during said voyage when in fact it acquired from the "M/T
Galilee" 2,000 metric tons of diesel oil. The second transfer transpired with the same irregularities as
discussed above. It was likewise supervised by accused-appellant Cheong from his end while Emilio
Changco supervised the transfer from his end. EcHIAC

Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that he
has no knowledge of the illegality of the source of the cargo.

First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the
cargo since he himself received the same from "M/T Tabangao". Second, considering that he is a highly
educated mariner, he should have avoided any participation in the cargo transfer given the very
suspicious circumstances under which it was acquired. He failed to show a single piece of deed or bill of
sale or even a purchase order or any contract of sale for the purchase by the firm; he never bothered to
ask for and scrutinize the papers and documentation relative to the "M/T Galilee"; he did not even verify
the identity of Captain Robert Castillo whom he met for the first time nor did he check the source of the
cargo; he knew that the transfer took place 66 nautical miles off Singapore in the dead of the night
which a marine vessel of his firm did not ordinarily do; it was also the first time Navi Marine transacted
with Paul Gan involving a large sum of money without any receipt issued therefor; he was not even
aware if Paul Gan was a Singaporean national and thus safe to deal with. It should also be noted that the
value of the cargo was P40,426,793.87 or roughly more than US$1,000,000.00 (computed at P30.00 to
$1, the exchange rate at that time). Manifestly, the cargo was sold for less than one-half of its value.
Accused-appellant Hiong should have been aware of this irregularity. Nobody in his right mind would go
to far away Singapore, spend much time and money for transportation — only to sell at the aforestated
price if it were legitimate sale involved. This, in addition to the act of falsifying records, clearly shows
that accused-appellant Hiong was well aware that the cargo that his firm was acquiring was purloined.
TSEAaD

Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his
superiors." An individual is justified in performing an act in obedience to an order issued by a superior if
such order, is for some lawful purpose and that the means used by the subordinate to carry out said
order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of
Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of international
law. Such violation was committed on board a Philippine-operated vessel. Moreover, the means used by
Hiong in carrying out said order was equally unlawful. He misled port and immigration authorities,
falsified records, using a mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong
presented himself, and the trial court was convinced, that he was an intelligent and articulate Port
Captain. These circumstances show that he must have realized the nature and the implications of the
order of Chua Kim Leng Timothy. Thereafter, he could have refused to follow orders to conclude the
deal and to effect the transfer of the cargo to the "Navi Pride." He did not do so, for which reason, he
must now suffer the consequences of his actions.

WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court
hereby AFFIRMS the judgment of the trial court in toto. cDAITS

SO ORDERED.

Vitug, Panganiban, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.

[G.R. No. 122846. January 20, 2009.]

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT
CORPORATION, petitioners, vs. CITY OF MANILA, represented by MAYOR ALFREDO S. LIM, respondent.

DECISION

TINGA, J p:

With another city ordinance of Manila also principally involving the tourist district as subject, the Court
is confronted anew with the incessant clash between government power and individual liberty in
tandem with the archetypal tension between law and morality. CcaASE

In City of Manila v. Laguio, Jr., 1 the Court affirmed the nullification of a city ordinance barring the
operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition
at bar assails a similarly-motivated city ordinance that prohibits those same establishments from
offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated stays. Our
earlier decision tested the city ordinance against our sacred constitutional rights to liberty, due process
and equal protection of law. The same parameters apply to the present petition.

This Petition 2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the
Decision 3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City
Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission
Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar
Establishments in the City of Manila" (the Ordinance). HCaDET

I.

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. 4 The
Ordinance is reproduced in full, hereunder:

SEC. 1. Declaration of Policy. — It is hereby the declared policy of the City Government to protect the
best interest, health and welfare, and the morality of its constituents in general and the youth in
particular.

SEC. 2. Title. — This ordinance shall be known as "An Ordinance" prohibiting short time admission in
hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila.

SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly
concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and
similar establishments in the City of Manila. aDECHI

SEC. 4. Definition of Term[s]. — Short-time admission shall mean admittance and charging of room rate
for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or
any other term that may be concocted by owners or managers of said establishments but would mean
the same or would bear the same meaning.

SEC. 5. Penalty Clause. — Any person or corporation who shall violate any provision of this ordinance
shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment
for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the
court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge
of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the
same offense, the business license of the guilty party shall automatically be cancelled.

SEC. 6. Repealing Clause. — Any or all provisions of City ordinances not consistent with or contrary to
this measure or any portion hereof are hereby deemed repealed. CIHAED

SEC. 7. Effectivity. — This ordinance shall take effect immediately upon approval.

Enacted by the city Council of Manila at its regular session today, November 10, 1992.

Approved by His Honor, the Mayor on December 3, 1992.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for
declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order
(TRO) 5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein
respondent City of Manila (the City) represented by Mayor Lim. 6 MTDC prayed that the Ordinance,
insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and
unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it
was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as
to charge customers wash up rates for stays of only three hours. DACTSa

On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta.
Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached
complaint-in-intervention 7 on the ground that the Ordinance directly affects their business interests as
operators of drive-in hotels and motels in Manila. 8 The three companies are components of the Anito
Group of Companies which owns and operates several hotels and motels in Metro Manila. 9

On December 23, 1992, the RTC granted the motion to intervene. 10 The RTC also notified the Solicitor
General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date,
MTDC moved to withdraw as plaintiff. 11 ADTCaI

On December 28, 1992, the RTC granted MTDC's motion to withdraw. 12 The RTC issued a TRO on
January 14, 1993, directing the City to cease and desist from enforcing the Ordinance. 13 The City filed
an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police power.
14
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the
enforcement of the Ordinance. 15 A month later, on March 8, 1993, the Solicitor General filed his
Comment arguing that the Ordinance is constitutional. acIASE

During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without
trial as the case involved a purely legal question. 16 On October 20, 1993, the RTC rendered a decision
declaring the Ordinance null and void. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared
null and void.

Accordingly, the preliminary injunction heretofor issued is hereby made permanent.

SO ORDERED. 17

The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and
jealously guarded by the Constitution." 18 Reference was made to the provisions of the Constitution
encouraging private enterprises and the incentive to needed investment, as well as the right to operate
economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought to
dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the RTC likened the
law to the ordinance annulled in Ynot v. Intermediate Appellate Court, 19 where the legitimate purpose
of preventing indiscriminate slaughter of carabaos was sought to be effected through an inter-province
ban on the transport of carabaos and carabeef. ITSCED

The City later filed a petition for review on certiorari with the Supreme Court. 20 The petition was
docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated the
petition as a petition for certiorari and referred the petition to the Court of Appeals. 21

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power
pursuant to Section 458 (4) (iv) of the Local Government Code which confers on cities, among other local
government units, the power:

[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides
and transports. 22 HCSDca

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18
(kk) of the Revised Manila Charter, thus:

"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance
of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and
general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and
discharge the powers and duties conferred by this Chapter; and to fix penalties for the violation of
ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such
fine and imprisonment for a single offense. 23
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy
and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and
oppressive interference in their business. acIHDA

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance. 24 First, it held that the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of establishments that admit individuals for
short time stays. Second, the virtually limitless reach of police power is only constrained by having a
lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied since
it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to
operate. Third, the adverse effect on the establishments is justified by the well-being of its constituents
in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty
is regulated by law.

TC, WLC and STDC come to this Court via petition for review on certiorari. 25 In their petition and
Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an invalid exercise of police power.

II.

We must address the threshold issue of petitioners' standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal protection rights of their clients are also
being interfered with. Thus, the crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights. aTcSID

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and
harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers, 26 sparing as it
does unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-
equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the
Constitution. 27 The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. 28 In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing. 29 In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning
of the three constitutional standing requirements of injury, causation, and redressability in Allen v.
Wright. 30

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance. 31 cTAaDC
For this particular set of facts, the concept of third party standing as an exception and the overbreadth
doctrine are appropriate. In Powers v. Ohio, 32 the United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on behalf of third parties, provided three important
criteria are satisfied: the litigant must have suffered an 'injury-in-fact', thus giving him or her a
"sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close
relation to the third party; and there must exist some hindrance to the third party's ability to protect his
or her own interests". 33 Herein, it is clear that the business interests of the petitioners are likewise
injured by the Ordinance. They rely on the patronage of their customers for their continued viability
which appears to be threatened by the enforcement of the Ordinance. The relative silence in
constitutional litigation of such special interest groups in our nation such as the American Civil Liberties
Union in the United States may also be construed as a hindrance for customers to bring suit. 34 AEcTCD

American jurisprudence is replete with examples where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or classes
of persons injured by state action. In Griswold v. Connecticut, 35 the United States Supreme Court held
that physicians had standing to challenge a reproductive health statute that would penalize them as
accessories as well as to plead the constitutional protections available to their patients. The Court held
that:

"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those
rights are considered in a suit involving those who have this kind of confidential relation to them." 36

An even more analogous example may be found in Craig v. Boren, 37 wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal protection claim of
a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age of
21 and to females under the age of 18. The United States High Court explained that the vendors had
standing "by acting as advocates of the rights of third parties who seek access to their market or
function". 38 HacADE

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. 39 In this case, the petitioners claim
that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that
based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame. aCSHDI

III.

To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila
ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc. v. Hon. City
Mayor of Manila. 40 Ermita-Malate concerned the City ordinance requiring patrons to fill up a
prescribed form stating personal information such as name, gender, nationality, age, address and
occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was
precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to
the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-
Malate was sustained by the Court.

The common thread that runs through those decisions and the case at bar goes beyond the singularity
of the localities covered under the respective ordinances. All three ordinances were enacted with a view
of regulating public morals including particular illicit activity in transient lodging establishments. This
could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the
services offered by these establishments have been severely restricted. At its core, this is another case
about the extent to which the State can intrude into and regulate the lives of its citizens. ESDHCa

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held
that for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure prescribed by law, it must also conform
to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2)
must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but
may regulate trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable. 41

The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and
renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power
as conferred on local government units by the Local Government Code through such implements as the
general welfare clause. HIACac

A.

Police power, while incapable of an exact definition, has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and
flexible response as the conditions warrant. 42 Police power is based upon the concept of necessity of
the State and its corresponding right to protect itself and its people. 43 Police power has been used as
justification for numerous and varied actions by the State. These range from the regulation of dance
halls, 44 movie theaters, 45 gas stations 46 and cockpits. 47 The awesome scope of police power is best
demonstrated by the fact that in its hundred or so years of presence in our nation's legal system, its use
has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments
for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and
certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not
sanctify any and all means for their achievement. Those means must align with the Constitution, and our
emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to
the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his
cynicism. ETDHaC

Even as we design the precedents that establish the framework for analysis of due process or equal
protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of
government as they exercise their political functions. But when we are compelled to nullify executive or
legislative actions, yet another form of caution emerges. If the Court were animated by the same
passing fancies or turbulent emotions that motivate many political decisions, judicial integrity is
compromised by any perception that the judiciary is merely the third political branch of government.
We derive our respect and good standing in the annals of history by acting as judicious and neutral
arbiters of the rule of law, and there is no surer way to that end than through the development of
rigorous and sophisticated legal standards through which the courts analyze the most fundamental and
far-reaching constitutional questions of the day. 2009jur

B.

The primary constitutional question that confronts us is one of due process, as guaranteed under
Section 1, Article III of the Constitution. Due process evades a precise definition. 48 The purpose of the
guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of
individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even
corporations and partnerships are protected by the guaranty insofar as their property is concerned.
cAaTED

The due process guaranty has traditionally been interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and "substantive due process". Procedural due
process refers to the procedures that the government must follow before it deprives a person of life,
liberty, or property. 49 Procedural due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private sphere. Examples range from the form
of notice given to the level of formality of a hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation of
arbitrary government action, provided the proper formalities are followed. Substantive due process
completes the protection envisioned by the due process clause. It inquires whether the government has
sufficient justification for depriving a person of life, liberty, or property. 50 TAIaHE

The question of substantive due process, moreso than most other fields of law, has reflected dynamism
in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it
can be upheld. The vitality though of constitutional due process has not been predicated on the
frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends
should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired
potency because of the sophisticated methodology that has emerged to determine the proper metes
and bounds for its application.
C.

The general test of the validity of an ordinance on substantive due process grounds is best tested when
assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene
Products. 51 Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to
the legislature unless there is a discrimination against a "discrete and insular" minority or infringement
of a "fundamental right". 52 Consequently, two standards of judicial review were established: strict
scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational
basis standard of review for economic legislation. aITECA

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on gender 53 and legitimacy. 54 Immediate scrutiny
was adopted by the U.S. Supreme Court in Craig, 55 after the Court declined to do so in Reed v. Reed. 56
While the test may have first been articulated in equal protection analysis, it has in the United States
since been applied in all substantive due process cases as well. 2009jur

We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges.
57 Using the rational basis examination, laws or ordinances are upheld if they rationally further a
legitimate governmental interest. 58 Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is considered. 59 Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial, governmental interest and on the
absence of less restrictive means for achieving that interest. IDAaCc

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation of
fundamental freedoms. 60 Strict scrutiny is used today to test the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier
applications to equal protection. 61 The United States Supreme Court has expanded the scope of strict
scrutiny to protect fundamental rights such as suffrage, 62 judicial access 63 and interstate travel. 64

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on
the petitioners at bar, then it would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the petitioners, an injury that would
warrant the application of the most deferential standard — the rational basis test. Yet as earlier stated,
we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons —
those persons who would be deprived of availing short time access or wash-up rates to the lodging
establishments in question. HEaCcD

Viewed cynically, one might say that the infringed rights of these customers are trivial since they seem
shorn of political consequence. Concededly, these are not the sort of cherished rights that, when
proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter
gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms — which the people reflexively
exercise any day without the impairing awareness of their constitutional consequence — that accurately
reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a fundamental
right in the Constitution, is not a Ten Commandments-style enumeration of what may or what may not
be done; but rather an atmosphere of freedom where the people do not feel labored under a Big
Brother presence as they interact with each other, their society and nature, in a manner innately
understood by them as inherent, without doing harm or injury to others. 2009jur

D.

The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of
Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus: CIScaA

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist
and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man
to enjoy the faculties with which he has been endowed by his Creator, subject only to such restraint as
are necessary for the common welfare." [ 65 ] In accordance with this case, the rights of the citizen to be
free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty. [ 66 ]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of
"liberty". It said:

While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right
of the individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates
of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the
orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that
the meaning of "liberty" must be broad indeed. 67 [Citations omitted] DHSaCA

It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior.
The City asserts before this Court that the subject establishments "have gained notoriety as venue of
'prostitution, adultery and fornications' in Manila since they provide the necessary atmosphere for
clandestine entry, presence and exit and thus became the 'ideal haven for prostitutes and thrill-
seekers'". 68 Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied
that legitimate sexual behavior among consenting married or consenting single adults which is
constitutionally protected 69 will be curtailed as well, as it was in the City of Manila case. Our holding
therein retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:
TcIHDa

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his
experience is private, and the will built out of that experience personal to himself. If he surrenders his
will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen. 70
SDIaHE

We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are
very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families
are known to choose to pass the time in a motel or hotel whilst the power is momentarily out in their
homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for
abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable
private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can
legitimately look to staying in a motel or hotel as a convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights and the means
must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of
private rights. 71 It must also be evident that no other alternative for the accomplishment of the
purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist
between the purposes of the measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those pertaining to private property will
not be permitted to be arbitrarily invaded. 72 ITCHSa

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial
review when life, liberty or property is affected. 73 However, this is not in any way meant to take it
away from the vastness of State police power whose exercise enjoys the presumption of validity. 74

Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this
Ordinance is a blunt and heavy instrument. 75 The Ordinance makes no distinction between places
frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it
prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of
section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all
susceptible to illicit patronage and subjects them without exception to the unjustified prohibition.
EICSDT
The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime
home, 76 and it is skeptical of those who wish to depict our capital city — the Pearl of the Orient — as a
modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams of
the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its
problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted
by the modern metropolis wherever in the world. The solution to such perceived decay is not to prevent
legitimate businesses from offering a legitimate product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting the dynamism of individuals that would bring
a new grandeur to Manila. IDCcEa

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of
prostitutes and drug dealers through active police work would be more effective in easing the situation.
So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use.
These measures would have minimal intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the
whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and
prostitutes can in fact collect "wash rates" from their clientele by charging their customers a portion of
the rent for motel rooms and even apartments. 2009jur

IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly be
required by the legitimate demands of public interest or public welfare. The State is a leviathan that
must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned the
Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day
with immorality without accommodating innocuous intentions. EaSCAH

The promotion of public welfare and a sense of morality among citizens deserves the full endorsement
of the judiciary provided that such measures do not trample rights this Court is sworn to protect. 77 The
notion that the promotion of public morality is a function of the State is as old as Aristotle. 78 The
advancement of moral relativism as a school of philosophy does not de-legitimize the role of morality in
law, even if it may foster wider debate on which particular behavior to penalize. It is conceivable that a
society with relatively little shared morality among its citizens could be functional so long as the pursuit
of sharply variant moral perspectives yields an adequate accommodation of different interests. 79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately
illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately
interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public
attitudes about right and wrong. 80 Our penal laws, for one, are founded on age-old moral traditions,
and as long as there are widely accepted distinctions between right and wrong, they will remain so
oriented. EcHIDT

Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong
distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest.
Our democracy is distinguished from non-free societies not with any more extensive elaboration on our
part of what is moral and immoral, but from our recognition that the individual liberty to make the
choices in our lives is innate, and protected by the State. Independent and fair-minded judges
themselves are under a moral duty to uphold the Constitution as the embodiment of the rule of law, by
reason of their expression of consent to do so when they take the oath of office, and because they are
entrusted by the people to uphold the law. 81

Even as the implementation of moral norms remains an indispensable complement to governance, that
prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And while
the tension may often be left to the courts to relieve, it is possible for the government to avoid the
constitutional conflict by employing more judicious, less drastic means to promote morality. ICESTA

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the
Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby
declared UNCONSTITUTIONAL. No pronouncement as to costs.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio Morales, Azcuna, Chico-
Nazario, Velasco, Jr., Nachura and Leonardo-de Castro, JJ., concur.

Carpio and Peralta, JJ., are on official leave.

Brion, J., is on sick leave. 2009jur

[G.R. No. 179267. June 25, 2013.]

JESUS C. GARCIA, petitioner, vs. THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial
Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, respondents.

DECISION

PERLAS-BERNABE, J p:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos — or 93
percent of a total population of 93.3 million — adhering to the teachings of Jesus Christ. 1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and gave
himself up for her 2 failed to prevent, or even to curb, the pervasiveness of violence against Filipino
women. The National Commission on the Role of Filipino Women (NCRFW) reported that, for the years
2000-2003, "female violence comprised more than 90% of all forms of abuse and violence and more
than 90% of these reported cases were committed by the women's intimate partners such as their
husbands and live-in partners." 3 cTDECH

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted
Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their Children,
Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes." It
took effect on March 27, 2004. 4 aHDTAI

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's intimate partners, i.e., husband; former husband; or any
person who has or had a sexual or dating relationship, or with whom the woman has a common child. 5
The law provides for protection orders from the barangay and the courts to prevent the commission of
further acts of VAWC; and outlines the duties and responsibilities of barangay officials, law enforcers,
prosecutors and court personnel, social workers, health care providers, and other local government
officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the
equal protection and due process clauses, and an undue delegation of judicial power to barangay
officials. ESCTIA

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition 6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C.
Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support. 7
Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven
years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural
child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years old; and
Joseph Eduard J. Garcia, 3 years old. 8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and
demands absolute obedience from his wife and children. He forbade private respondent to pray, and
deliberately isolated her from her friends. When she took up law, and even when she was already
working part time at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay
at home. He was often jealous of the fact that his attractive wife still catches the eye of some men, at
one point threatening that he would have any man eyeing her killed. 9 TDcCIS

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank,
Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when private
respondent confronted him about it in 2004. He even boasted to the household help about his sexual
relations with said bank manager. Petitioner told private respondent, though, that he was just using the
woman because of their accounts with the bank. 10 EHTIcD

Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally
wounded. In one of their quarrels, petitioner grabbed private respondent on both arms and shook her
with such force that caused bruises and hematoma. At another time, petitioner hit private respondent
forcefully on the lips that caused some bleeding. Petitioner sometimes turned his ire on their daughter,
Jo-Ann, who had seen the text messages he sent to his paramour and whom he blamed for squealing on
him. He beat Jo-Ann on the chest and slapped her many times. When private respondent decided to
leave petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves, petitioner would
beat her up. Even the small boys are aware of private respondent's sufferings. Their 6-year-old son said
that when he grows up, he would beat up his father because of his cruelty to private respondent. 11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by her
son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days in which time petitioner never bothered to visit,
nor apologized or showed pity on her. Since then, private respondent has been undergoing therapy
almost every week and is taking anti-depressant medications. 12 IHTaCE

When private respondent informed the management of Robinson's Bank that she intends to file charges
against the bank manager, petitioner got angry with her for jeopardizing the manager's job. He then
packed his things and told private respondent that he was leaving her for good. He even told private
respondent's mother, who lives with them in the family home, that private respondent should just
accept his extramarital affair since he is not cohabiting with his paramour and has not sired a child with
her. 13
Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if she
goes on a legal battle with him, she would not get a single centavo. 14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations — 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation — of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly salary
of P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household expenses
amounting to not less than P200,000.00 a month are paid for by private respondent through the use of
credit cards, which, in turn, are paid by the same corporation together with the bills for utilities. 15
cDCIHT

On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of pesos
from the corporations. 16 After private respondent confronted him about the affair, petitioner forbade
her to hold office at JBTC Building, Mandalagan, where all the businesses of the corporations are
conducted, thereby depriving her of access to full information about said businesses. Until the filing of
the petition a quo, petitioner has not given private respondent an accounting of the businesses the
value of which she had helped raise to millions of pesos. 17 aIAEcD

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO 18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within
24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering that he be
removed by police officers from the conjugal dwelling; this order is enforceable notwithstanding that
the house is under the name of 236 Realty Holdings, Inc. (Republic Act No. 9262 states "regardless of
ownership"), this is to allow the Petitioner (private respondent herein) to enter the conjugal dwelling
without any danger from the Respondent. IcADSE

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner decides
to return to the conjugal dwelling to remove things, the Petitioner shall be assisted by police officers
when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006 because of
the danger that the Respondent will attempt to take her children from her when he arrives from Manila
and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her household help and driver
from a distance of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioner
may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly
or indirectly, or through other persons, or contact directly or indirectly her children, mother and
household help, nor send gifts, cards, flowers, letters and the like. Visitation rights to the children may
be subject of a modified TPO in the future. TAaCED

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering
the Philippine National Police Firearms and Explosives Unit and the Provincial Director of the PNP to
cancel all the Respondent's firearm licenses. He should also be ordered to surrender any unlicensed
firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house for
them, and educational and medical expenses.

f) Not to dissipate the conjugal business. aCTHEA

g) To render an accounting of all advances, benefits, bonuses and other cash he received from all
the corporations from 1 January 2006 up to 31 March 2006, which himself and as President of the
corporations and his Comptroller, must submit to the Court not later than 2 April 2006. Thereafter, an
accounting of all these funds shall be reported to the court by the Comptroller, copy furnished to the
Petitioner, every 15 days of the month, under pain of Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and considering
the financial resources of the Respondent and his threat that if the Petitioner sues she will not get a
single centavo, the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the amount of FIVE
MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion 19 of private respondent, the trial court issued an amended TPO, 20
effective for thirty (30) days, which included the following additional provisions: cTAaDC

i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol
and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Parañaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty
Thousand Pesos (Php150,000.00) per month plus rental expenses of Fifty Thousand Pesos
(Php50,000.00) per month until the matter of support could be finally resolved. cAaDCE
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO 21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the TPO
be modified by (1) removing one vehicle used by private respondent and returning the same to its
rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the bond
from P5,000,000.00 to a more manageable level at P100,000.00.

Subsequently, on May 23, 2006, petitioner moved 22 for the modification of the TPO to allow him
visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie
and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of the
Temporary Protection Order by his counsel, otherwise be declared in Indirect Contempt of Court;
cDEHIC

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in
Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the Temporary
Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight (8) hours from receipt of the Temporary Protection
Order by his counsel, and that he cannot return until 48 hours after the petitioners have left, so that the
petitioner Rosalie and her representatives can remove things from the conjugal home and make an
inventory of the household furniture, equipment and other things in the conjugal home, which shall be
submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00
for clothes of the three petitioners (sic) children within 24 hours from receipt of the Temporary
Protection Order by his counsel, otherwise be declared in indirect contempt of Court; DaHSIT

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court
within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon presentation of
proof of payment of such expenses. 23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent filed
another application 24 for the issuance of a TPO ex parte. She alleged inter alia that petitioner contrived
a replevin suit against himself by J-Bros Trading, Inc., of which the latter was purportedly no longer
president, with the end in view of recovering the Nissan Patrol and Starex Van used by private
respondent and the children. A writ of replevin was served upon private respondent by a group of six or
seven policemen with long firearms that scared the two small boys, Jessie Anthone and Joseph Eduard.
25 DaScHC

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap
him, which incident traumatized the boy resulting in his refusal to go back to school. On another
occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened her. 26 The
incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint against her
father for violation of R.A. 7610, also known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This came
about after private respondent, armed with a TPO, went to said home to get her and her children's
belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the maids' room,
private respondent filed a case for qualified theft against Jamola. 27 CDTHSI

On August 23, 2006, the RTC issued a TPO, 28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts of

violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in

any form with the offended party, either directly or indirectly; aHSTID

3) Required to stay away, personally or through his friends, relatives, employees or agents, from all
the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her mother Primitiva
Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita Bornales, security
guard Darwin Gayona and the petitioner's other household helpers from a distance of 1,000 meters, and
shall not enter the gate of the subdivision where the Petitioners are temporarily residing, as well as from
the schools of the three children; Furthermore, that respondent shall not contact the schools of the
children directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children through the schools and the TPO will be rendered
nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the
Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for
rental for the period from August 6 to September 6, 2006; and support in arrears from March 2006 to
August 2006 the total amount of Php1,312,000.00; CIaDTE

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van
with Plate No. FFD 991 and should the respondent fail to deliver said vehicles, respondent is ordered to
provide the petitioner another vehicle which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal
assets, or those real properties in the name of Jesus Chua Garcia only and those in which the conjugal
partnership of gains of the Petitioner Rosalie J. Garcia and respondent have an interest in, especially the
conjugal home located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and other properties
which are conjugal assets or those in which the conjugal partnership of gains of Petitioner Rosalie J.
Garcia and the respondent have an interest in and listed in Annexes "I," "I-1," and "I-2," including
properties covered by TCT Nos. T-186325 and T-168814; EaCSHI

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of
this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer, sale, encumbrance or
disposition of these above-cited properties to any person, entity or corporation without the personal
presence of petitioner Rosalie J. Garcia, who shall affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal partnership of gains.

In its Order 29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten
(10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO should
not be renewed, extended, or modified. Upon petitioner's manifestation, 30 however, that he has not
received a copy of private respondent's motion to modify/renew the TPO, the trial court directed in its
Order 31 dated October 6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an
Order 32 dated a day earlier, October 5, had already been issued renewing the TPO dated August 23,
2006. The pertinent portion is quoted hereunder: AacDHE

xxx xxx xxx

. . . it appearing further that the hearing could not yet be finally terminated, the Temporary Protection
Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after each expiration, until further orders, and subject to
such modifications as may be ordered by the court. STHAaD

After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility." 33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a petition
34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary restraining
order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due process and the
equal protection clauses, and (2) the validity of the modified TPO issued in the civil case for being "an
unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order 35 (TRO) against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto. HEISca

Subsequently, however, on January 24, 2007, the appellate court dismissed 36 the petition for failure of
petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case, which is
clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity of R.A. 9262
through a petition for prohibition seeking to annul the protection orders issued by the trial court
constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the Resolution 37 dated
August 14, 2007, petitioner is now before us alleging that —

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW. EcHIAC

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS COUNTER
TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION. cDCIHT

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF THE
STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS. 38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262,
we shall first tackle the propriety of the dismissal by the appellate court of the petition for prohibition
(CA-G.R. CEB-SP. No. 01698) filed by petitioner. EDIHSC

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial court,
it will not be considered on appeal. 39 Courts will not anticipate a question of constitutional law in
advance of the necessity of deciding it. 40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality." 41

We disagree. SECcIH

Family Courts have authority

and jurisdiction to consider the

constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional
Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family courts have
exclusive original jurisdiction to hear and decide cases of domestic violence against women and children.
42 In accordance with said law, the Supreme Court designated from among the branches of the Regional
Trial Courts at least one Family Court in each of several key cities identified. 43 To achieve harmony with
the first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts designated as
Family Courts shall have original and exclusive jurisdiction over cases of VAWC defined under the latter
law, viz.:

SEC. 7. Venue. — The Regional Trial Court designated as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and their children under this law. In the absence of
such court in the place where the offense was committed, the case shall be filed in the Regional Trial
Court where the crime or any of its elements was committed at the option of the complainant.
(Emphasis supplied) HIAESC

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a
court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship, naturalization, admiralty or insolvency. 44 It is settled that
RTCs have jurisdiction to resolve the constitutionality of a statute, 45 "this authority being embraced in
the general definition of the judicial power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law." 46 The Constitution vests the power of judicial
review or the power to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs. 47 We said in J.M. Tuason and Co., Inc. v. CA 48 that, "[p]lainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any
treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in part as
follows: aTADCE

SEC. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question. aADSIc

xxx xxx xxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been
raised at the earliest opportunity in his Opposition to the petition for protection order before the RTC of
Bacolod City, which had jurisdiction to determine the same, subject to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down
a new kind of procedure requiring the respondent to file an opposition to the petition and not an
answer. 49 Thus:

SEC. 20. Opposition to petition. — (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued. ETHCDS

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate civil
action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and
third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party. 50 A cross-claim, on the other hand, is any claim
by one party against a co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein. 51 Finally, a third-party complaint is a claim
that a defending party may, with leave of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. 52 As
pointed out by Justice Teresita J. Leonardo-de Castro, the unconstitutionality of a statute is not a cause
of action that could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore,
it is not prohibited from being raised in the opposition in view of the familiar maxim expressio unius est
exclusio alterius. IHcSCA

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right
of private respondent to a protection order is founded solely on the very statute the validity of which is
being attacked 53 by petitioner who has sustained, or will sustain, direct injury as a result of its
enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause
for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence. 54 Be that as it may, Section 25
of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues, among
others, viz.: CDHcaS

SEC. 25. Order for further hearing. — In case the court determines the need for further hearing, it may
issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the
extent possible, within the 30-day period of the effectivity of the temporary protection order issued.
(Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary,
Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due to
expire, the trial court may extend or renew the said order for a period of thirty (30) days each time until
final judgment is rendered. It may likewise modify the extended or renewed temporary protection order
as may be necessary to meet the needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional issues, without necessarily running
afoul of the very purpose for the adoption of the rules on summary procedure. DcAaSI

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB-SP. No. 01698). Petitioner may have
proceeded upon an honest belief that if he finds succor in a superior court, he could be granted an
injunctive relief. However, Section 22 (j) of A.M. No. 04-10-11-SC expressly disallows the filing of a
petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial court.
Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of the TPO,
the amended TPOs and other orders pursuant thereto was improper, and it effectively hindered the
case from taking its normal course in an expeditious and summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover,
if the appeal of a judgment granting permanent protection shall not stay its enforcement, 55 with more
reason that a TPO, which is valid only for thirty (30) days at a time, 56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined. 57 In Younger v. Harris, Jr., 58 the Supreme Court of the United
States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are
unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized
and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only
to prevent irreparable injury to the plaintiff who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits
of the case. It bears stressing, however, that protection orders are granted ex parte so as to protect
women and their children from acts of violence. To issue an injunction against such orders will defeat
the very purpose of the law against VAWC. EAcIST

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again, discharged
our solemn duty as final arbiter of constitutional issues, and with more reason now, in view of private
respondent's plea in her Comment 59 to the instant Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in

enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse,
which could very well be committed by either the husband or the wife, gender alone is not enough basis
to deprive the husband/father of the remedies under the law. 60 IHTaCE

A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became R.A. 9262, reveals
that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had
originally proposed what she called a "synthesized measure" 62 — an amalgamation of two measures,
namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate Relationships Act"
63 — providing protection to "all family members, leaving no one in isolation" but at the same time
giving special attention to women as the "usual victims" of violence and abuse, 64 nonetheless, it was
eventually agreed that men be denied protection under the same measure. We quote pertinent
portions of the deliberations:
Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence apart
from against women as well as other members of the household, including children or the husband,
they fear that this would weaken the efforts to address domestic violence of which the main victims or
the bulk of the victims really are the wives, the spouses or the female partners in a relationship. We
would like to place that on record. How does the good Senator respond to this kind of observation?
CDcHSa

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR" Women in
Intimate Relationship. They do not want to include men in this domestic violence. But plenty of men are
also being abused by women. I am playing safe so I placed here members of the family, prescribing
penalties therefor and providing protective measures for victims. This includes the men, children, live-in,
common-law wives, and those related with the family. 65

xxx xxx xxx

Wednesday, January 14, 2004

xxx xxx xxx

The President Pro Tempore. . . . SDITAC

Also, may the Chair remind the group that there was the discussion whether to limit this to women and
not to families which was the issue of the AWIR group. The understanding that I have is that we would
be having a broader scope rather than just women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to
file a case against their spouses, their live-in partners after years, if not decade, of battery and abuse. If
we broaden the scope to include even the men, assuming they can at all be abused by the women or
their spouses, then it would not equalize the already difficult situation for women, Mr. President.
aIcDCA

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to the
Filipino woman.

xxx xxx xxx

The President Pro Tempore. What does the sponsor say? AHDcCT

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the
family members have been included in this proposed measure since the other members of the family
other than women are also possible victims of violence. While women are most likely the intended
victims, one reason incidentally why the measure focuses on women, the fact remains that in some
relatively few cases, men also stand to be victimized and that children are almost always the helpless
victims of violence. I am worried that there may not be enough protection extended to other family
members particularly children who are excluded. Although Republic Act No. 7610, for instance, more or
less, addresses the special needs of abused children. The same law is inadequate. Protection orders for
one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing that
they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints. cSCADE

Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in our
society, I believe we have an obligation to uphold inherent rights and dignity of both husband and wife
and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a critical
input arrived at after a series of consultations/meetings with various NGOs, experts, sports groups and
other affected sectors, Mr. President.

Senator Sotto. Mr. President. DTAIaH

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That will
be the net effect of that proposed amendment. Hearing the rationale mentioned by the distinguished
sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined to accept the
proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.
EcATDH

xxx xxx xxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxx xxx xxx

Senator Sotto. . . . May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent
of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas malamang iyong
babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I
cannot agree that we remove the children from this particular measure. EcICDT

So, if I may propose an amendment —

The President Pro Tempore. To the amendment.

Senator Sotto. — more than the women, the children are very much abused. As a matter of fact, it is not
limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-year-old
children being abused by their fathers, even by their mothers. And it breaks my heart to find out about
these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that. It
will enhance and hopefully prevent the abuse of children and not only women. DEScaT

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but not
the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved. 66 aDcHIS

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a statute. 67
Hence, we dare not venture into the real motivations and wisdom of the members of Congress in
limiting the protection against violence and abuse under R.A. 9262 to women and children only. No
proper challenge on said grounds may be entertained in this proceeding. Congress has made its choice
and it is not our prerogative to supplant this judgment. The choice may be perceived as erroneous but
even then, the remedy against it is to seek its amendment or repeal by the legislative. By the principle of
separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and
expediency of any law. 68 We only step in when there is a violation of the Constitution. However, none
was sufficiently shown in this case.

R.A. 9262 does not violate

the guaranty of equal protection

of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early case
of Victoriano v. Elizalde Rope Workers' Union 69 is instructive: cSICHD

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but
on persons according to the circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is limited either in the object to which it is directed or
by the territory within which it is to operate. cASIED

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the classification should be based on
substantial distinctions which make for real differences; that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection clause
by favoring women over men as victims of violence and abuse to whom the State extends its protection.
IDAaCc

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all make
for real differences justifying the classification under the law. As Justice McIntyre succinctly states, "the
accommodation of differences . . . is the essence of true equality." 70

A. Unequal power relationship

between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and take
on dominant roles in society while women are nurturers, men's companions and supporters, and take
on subordinate roles in society. This perception leads to men gaining more power over women. With
power comes the need to control to retain that power. And VAW is a form of men's expression of
controlling women to retain power. 71 HSaIET

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men." 72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and
developments in advocacies to eradicate VAW, in his remarks delivered during the Joint Launching of
R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent portions of which are quoted
hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the early
studies: cHAaEC
Traditions subordinating women have a long history rooted in patriarchy — the institutional rule of men.
Women were seen in virtually all societies to be naturally inferior both physically and intellectually. In
ancient Western societies, women whether slave, concubine or wife, were under the authority of men.
In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus, common law developed the rule of thumb, which
allowed husbands to beat their wives with a rod or stick no thicker than their thumb. TcDAHS

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in
her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by
our law. . . In person, the wife is entitled to the same protection of the law that the husband can invoke
for himself.

As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as the root
cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their husbands' other
watering holes. Soon, however, their crusade was joined by suffragette movements, expanding the
liberation movement's agenda. They fought for women's right to vote, to own property, and more. Since
then, the feminist movement was on the roll. cCHETI

The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They
succeeded in transforming the issue into an important public concern. No less than the United States
Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight
husbands had assaulted their wives during the past year. The [American Medical Association] views
these figures as "marked underestimates," because the nature of these incidents discourages women
from reporting them, and because surveys typically exclude the very poor, those who do not speak
English well, and women who are homeless or in institutions or hospitals when the survey is conducted.
According to the AMA, "researchers on family violence agree that the true incidence of partner violence
is probably double the above estimates; or four million severely assaulted women per year." cIDHSC

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted
by a partner or ex-partner during their lifetime. . . Thus on an average day in the United States, nearly
11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual
assault. . . In families where wife beating takes place, moreover, child abuse is often present as well.

Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative . . . Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income. . . Returning to one's abuser can
be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide
victims in the United States are killed by their spouses . . . Thirty percent of female homicide victims are
killed by their male partners. CHTcSE

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United States
Charter and the Universal Declaration of Human Rights affirmed the equality of all human beings. In
1979, the UN General Assembly adopted the landmark Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also adopted the
Declaration on the Elimination of Violence Against Women. World conferences on the role and rights of
women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself
established a Commission on the Status of Women. TEaADS

The Philippines has been in cadence with the half — and full — steps of all these women's movements.
No less than Section 14, Article II of our 1987 Constitution mandates the State to recognize the role of
women in nation building and to ensure the fundamental equality before the law of women and men.
Our Senate has ratified the CEDAW as well as the Convention on the Rights of the Child and its two
protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act
Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and
children show that — cCSTHA
. . . physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total cases
reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of 4,354 cases
which represent 54.31%. . . . (T)he total number of women in especially difficult circumstances served by
the Department of Social Welfare and Development (DSWD) for the year 2002, there are 1,417
physically abused/maltreated cases out of the total of 5,608 cases. . . . (T)here are 1,091 DSWD cases out
of a total number of 3,471 cases for the first semester of 2003. Female violence comprised more than
90% of all forms of abuse and violence and more than 90% of these reported cases were committed by
the women's intimate partners such as their husbands and live-in partners. 73

Recently, the Philippine Commission on Women presented comparative statistics on violence against
women across an eight-year period from 2004 to August of 2011 with violations under R.A. 9262 ranking
first among the different VAW categories since its implementation in 2004, 74 thus: ADECcI

Table 1. Annual Comparative Statistics on Violence Against Women, 2004-2011*

Reported 2004 2005 2006 2007 2008 2009 2010 2011

Cases

Rape 997 927 659 837 811 770 1,042 832

Incestuous Rape 38 46 26 22 28 27 19 23

Attempted Rape 194 148 185 147 204 167 268 201

Acts of 580 536 382 358 445 485 745 625

Lasciviousness

Physical3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588

Injuries

Sexual 53 37 38 46 18 54 83 63

Harassment

RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinage 121 102 93 109 109 99 158 128

RA 9208 17 11 16 24 34 152 190 62

Abduction/ 29 16 34 23 28 18 25 22
Kidnapping

Unjust Vexation 90 50 59 59 83 703 183 155

––––– –––––– –––––– –––––– –––––– –––––– –––––– ––––––

Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948

===== ====== ====== ====== ====== ====== ====== ======

*2011 report covers only from January to August

Source: Philippine National Police — Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men
in the Philippines because incidents thereof are relatively low and, perhaps, because many men will not
even attempt to report the situation. In the United Kingdom, 32% of women who had ever experienced
domestic violence did so four or five (or more) times, compared with 11% of the smaller number of men
who had ever experienced domestic violence; and women constituted 89% of all those who had
experienced 4 or more incidents of domestic violence. 75 Statistics in Canada show that spousal violence
by a woman against a man is less likely to cause injury than the other way around (18 percent versus 44
percent). Men, who experience violence from their spouses are much less likely to live in fear of violence
at the hands of their spouses, and much less likely to experience sexual assault. In fact, many cases of
physical violence by a woman against a spouse are in self-defense or the result of many years of physical
or emotional abuse. 76 CADSHI

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to
pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-drawing
animals in any public highways, streets, plazas, parks or alleys, said ordinance was challenged as
violative of the guaranty of equal protection of laws as its application is limited to owners and drivers of
vehicle-drawing animals and not to those animals, although not utilized, but similarly pass through the
same streets. AHacIS

The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-
drawing animals that also traverse the city roads, "but their number must be negligible and their
appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a menace
to the health of the community." 77 The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every classification of persons or things for
regulation by law produces inequality in some degree, but the law is not thereby rendered invalid. 78
TcSHaD

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women
are often treated differently and less seriously than other crimes. This was argued by then United States
Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against Women Act
(VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress' authority under the
Commerce and Equal Protection Clauses. He stressed that the widespread gender bias in the U.S. has
institutionalized historic prejudices against victims of rape or domestic violence, subjecting them to
"double victimization" — first at the hands of the offender and then of the legal system. 79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the parties to
settle the conflict themselves. Once the complainant brings the case to the prosecutor, the latter is
hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence." 80 cIETHa

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the complainant in
a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner" and presenting her as
an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila even called her a
"prostitute," and accused her of being motivated by "insatiable greed" and of absconding with the
contested property. 81 Such remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices
against women. As emphasized by the CEDAW Committee on the Elimination of Discrimination against
Women, addressing or correcting discrimination through specific measures focused on women does not
discriminate against men. 82 Petitioner's contention, 83 therefore, that R.A. 9262 is discriminatory and
that it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant consideration. As a
State Party to the CEDAW, the Philippines bound itself to take all appropriate measures "to modify the
social and cultural patterns of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women." 84 Justice Puno correctly
pointed out that "(t)he paradigm shift changing the character of domestic violence from a private affair
to a public offense will require the development of a distinct mindset on the part of the police, the
prosecution and the judges." 85 DTIaCS

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to address
violence committed against women and children, spelled out in its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy. — It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect the
family and its members particularly women and children, from violence and threats to their personal
safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms
of Discrimination Against Women, Convention on the Rights of the Child and other international human
rights instruments of which the Philippines is a party. DHECac

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5,
1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on October
6, 2003. 86 This Convention mandates that State parties shall accord to women equality with men
before the law 87 and shall take all appropriate measures to eliminate discrimination against women in
all matters relating to marriage and family relations on the basis of equality of men and women. 88 The
Philippines likewise ratified the Convention on the Rights of the Child and its two protocols. 89 It is, thus,
bound by said Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and their
children are threatened by violence and abuse. TDEASC

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof
defines VAWC as:

. . . any act or a series of acts committed by any person against a woman who is his wife, former wife, or
against a woman with whom the person has or had a sexual or dating relationship, or with whom he has
a common child, or against her child whether legitimate or illegitimate, within or without the family
abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the following acts: SACHcD

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object,
making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's
body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her
child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or

emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage
to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes
causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the
family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to
pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common
children. CDEaAI

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
which includes, but is not limited to the following:

1. withdrawal of financial support or preventing the victim from engaging in any legitimate
profession, occupation, business or activity, except in cases wherein the other spouse/partner objects
on valid, serious and moral grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use and
enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal money or
properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to research
that has exposed the dimensions and dynamics of battery. The acts described here are also found in the
U.N. Declaration on the Elimination of Violence Against Women. 90 Hence, the argument advanced by
petitioner that the definition of what constitutes abuse removes the difference between violent action
and simple marital tiffs is tenuous. cSTHaE

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily understood and provide adequate contrast between
the innocent and the prohibited acts. They are worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is prohibited, and need not guess at its meaning nor
differ in its application. 91 Yet, petitioner insists 92 that phrases like "depriving or threatening to deprive
the woman or her child of a legal right," "solely controlling the conjugal or common money or
properties," "marital infidelity," and "causing mental or emotional anguish" are so vague that they make
every quarrel a case of spousal abuse. However, we have stressed that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the statute to be upheld — not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held
invalid merely because it might have been more explicit in its wordings or detailed in its provisions. 93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the person
has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word "person" who
has or had a sexual or dating relationship with the woman encompasses even lesbian relationships.
Moreover, while the law provides that the offender be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship, it does not preclude the application of the principle
of conspiracy under the Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan, 94 the
parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be proper respondents in the case
filed by the latter upon the allegation that they and their son (Go-Tan's husband) had community of
design and purpose in tormenting her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally,
mentally and physically. TCIEcH

R.A. 9262 is not violative of the

due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property, guns,
money, children, job, future employment and reputation, all in a matter of seconds, without an inkling
of what happened." 95

A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life. 96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing acts
that jeopardize the employment and support of the victim. It also enables the court to award temporary
custody of minor children to protect the children from violence, to prevent their abduction by the
perpetrator and to ensure their financial support." 97

The rules require that petitions for protection order be in writing, signed and verified by the petitioner
98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since "time is of
the essence in cases of VAWC if further violence is to be prevented," 99 the court is authorized to issue
ex parte a TPO after raffle but before notice and hearing when the life, limb or property of the victim is
in jeopardy and there is reasonable ground to believe that the order is necessary to protect the victim
from the immediate and imminent danger of VAWC or to prevent such violence, which is about to recur.
100 CacEID

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition. 101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just
like a writ of preliminary attachment which is issued without notice and hearing because the time in
which the hearing will take could be enough to enable the defendant to abscond or dispose of his
property, 102 in the same way, the victim of VAWC may already have suffered harrowing experiences in
the hands of her tormentor, and possibly even death, if notice and hearing were required before such
acts could be prevented. It is a constitutional commonplace that the ordinary requirements of
procedural due process must yield to the necessities of protecting vital public interests, 103 among
which is protection of women and children from violence and threats to their personal safety and
security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice
be immediately given to the respondent directing him to file an opposition within five (5) days from
service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30) days
from service on the respondent. 104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of
the notice upon the respondent requiring him to file an opposition to the petition within five (5) days
from service. The date of the preliminary conference and hearing on the merits shall likewise be
indicated on the notice. 105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should not
be issued. 106 HSCcTD

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the fear
of petitioner of being "stripped of family, property, guns, money, children, job, future employment and
reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of an
overactive imagination. The essence of due process is to be found in the reasonable opportunity to be
heard and submit any evidence one may have in support of one's defense. "To be heard" does not only
mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be
heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due
process. 107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion
for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise, on May 23,
2006, petitioner filed a motion for the modification of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order dated September 26, 2006, gave him five days (5) within which
to show cause why the TPO should not be renewed or extended. Yet, he chose not to file the required
comment arguing that it would just be an "exercise in futility," conveniently forgetting that the renewal
of the questioned TPO was only for a limited period (30 days) each time, and that he could prevent the
continued renewal of said order if he can show sufficient cause therefor. Having failed to do so,
petitioner may not now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued to
the wife to claim any property as her conjugal home. 108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this
is so. It states: aIETCA

SEC. 11. Reliefs available to the offended party. — The protection order shall include any, some or all of
the following reliefs:

xxx xxx xxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to the
residence, remain there until the respondent has gathered his things and escort him from the residence;

xxx xxx xxx

Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless
of ownership, only temporarily for the purpose of protecting the latter. Such removal and exclusion may
be permanent only where no property rights are violated. How then can the private respondent just
claim any property and appropriate it for herself, as petitioner seems to suggest? ATICcS

The non-referral of a VAWC case

to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation and
counseling, the law has done violence to the avowed policy of the State to "protect and strengthen the
family as a basic autonomous social institution." 109

Under Section 23 (c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a
mediator. The reason behind this provision is well-explained by the Commentary on Section 311 of the
Model Code on Domestic and Family Violence as follows: 110
This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject for
compromise. A process which involves parties mediating the issue of violence implies that the victim is
somehow at fault. In addition, mediation of issues in a proceeding for an order of protection is
problematic because the petitioner is frequently unable to participate equally with the person against
whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of

judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established by
law" and, thus, protests the delegation of power to barangay officials to issue protection orders. 111
The pertinent provision reads, as follows: HCDAac

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. — Barangay Protection Orders
(BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives
applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte
determination of the basis of the application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO
is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO. BPOs shall
be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct
any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.

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. 112 On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance." 113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child
physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance
of his duty under the Local Government Code to "enforce all laws and ordinances," and to "maintain
public order in the barangay." 114 cdtai

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers." 115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused is
probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that an
imminent danger of violence against the woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.
DHEcCT

We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would be
very unlikely that they would remain objective and impartial, and that the chances of acquittal are nil. As
already stated, assistance by barangay officials and other law enforcement agencies is consistent with
their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear conflict
with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a
manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity must be
beyond reasonable doubt. 116 In the instant case, however, no concrete evidence and convincing
arguments were presented by petitioner to warrant a declaration of the unconstitutionality of R.A.
9262, which is an act of Congress and signed into law by the highest officer of the co-equal executive
department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the legislature is ever
conscious of the borders and edges of its plenary powers, and passed laws with full knowledge of the
facts and for the purpose of promoting what is right and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of law
itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for equality
but will be its fulfillment." 118 Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit. HaDEIc

SO ORDERED.

Sereno, C.J., Carpio, Velasco, Jr., Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza and Reyes, JJ.,
concur.
Leonardo-de Castro, Abad and Leonen, JJ., see separate concurring opinion.

Brion, J., see concurring opinion.

Peralta, J., is on official leave.

Separate Opinions

LEONARDO-DE CASTRO, J., concurring:

I concur with the conclusion reached in the ponencia ably written by the Honorable Estela Perlas-
Bernabe. With due respect, however, I submit that the test to determine an equal protection challenge
against the law, denying statutory remedies to men who are similarly situated as the women who are
given differential treatment in the law, on the basis of sex or gender, should be at the level of
intermediate scrutiny or middle-tier judicial scrutiny rather than the rational basis test used in the
ponencia of Justice Bernabe.

This Petition for Review on Certiorari assails: (1) the Decision dated January 24, 2007 of the Court of
Appeals in CA-G.R. CEB-SP No. 01698 dismissing the Petition for Prohibition with Injunction and
Temporary Restraining Order (Petition for Prohibition) which questioned the constitutionality of
Republic Act No. 9262, otherwise known as the "Anti-Violence Against Women and Their Children Act of
2004," and sought a temporary restraining order and/or injunction to prevent the implementation of
the Temporary Protection Order (TPO) and criminal prosecution of herein petitioner Jesus A. Garcia
under the law; and (2) the Resolution dated August 14, 2007, denying petitioner's Motion for
Reconsideration of the said Decision. aITDAE

At the outset, it should be stressed that the Court of Appeals, in its assailed Decision and Resolution, did
not pass upon the issue of constitutionality of Republic Act No. 9262 and instead dismissed the Petition
for Prohibition on technical grounds, as follows:

1. The constitutional issue was raised for the first time on appeal before the Court of Appeals by
petitioner and not at the earliest opportunity, which should be before the Regional Trial Court (RTC),
Branch 41, Bacolod City, acting as a Family Court, where private respondent Rosalie Garcia, wife of
petitioner, instituted a Petition for Temporary and Permanent Protection Order[s] 1 under Republic Act
No. 9262, against her husband, petitioner Jesus C. Garcia; and

2. The constitutionality of Republic Act No. 9262 can only be questioned in a direct action and it
cannot be the subject of a collateral attack in a petition for prohibition, as the inferior court having
jurisdiction on the action may itself determine the constitutionality of the statute, and the latter's
decision on the matter may be reviewed on appeal and not by a writ of prohibition, as it was held in
People v. Vera. 2

Hence, the Court of Appeals Decision and Resolution denied due course to the Petition for Prohibition
"for being fraught with fatal technical infirmities" and for not being ripe for judicial review.
Nevertheless, four out of the five issues raised by the petitioner here dealt with the alleged
unconstitutionality of Republic Act No. 9262. More accurately put, however, the Court of Appeals
refrained from touching at all those four substantive issues of constitutionality. The Court of Appeals
cannot therefore be faulted for any erroneous ruling on the aforesaid substantive constitutional issues.
IAEcCa

In this instant Petition for Review, the only issue directly in point that can be raised against the Court of
Appeals Decision and Resolution is the first one cited as a ground for the appeal, which I quote:

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE FIRST OPPORTUNITY AND THAT, THE PETITION WAS A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW. 3

Under the circumstances, whether this Court should consider this Petition for Review as a proper
occasion to pass upon the constitutionality of Republic Act No. 9262 shall be a separate subject matter
that is tackled below after the above-quoted first issue is disposed of.

On the Propriety of Raising the Issue

of Constitutionality in a Summary

Proceeding Before the RTC

Designated as a Family Court

Petitioner assails the Court of Appeals ruling that he should have raised the issue of constitutionality in
his Opposition 4 to private respondent's petition for protective orders pending before the RTC for the
following reasons: IDEHCa

1. The Rules on Violence Against Women and Children (A.M. No. 04-10-11-SC), particularly Section
20 thereof, expressly prohibit him from alleging any counterclaim, cross-claim or third party claim, all of
which are personal to him and therefore with more reason, he cannot impugn the constitutionality of
the law by way of affirmative defense. 5

2. Since the proceedings before the Family Court are summary in nature, its limited jurisdiction is
inadequate to tackle the complex issue of constitutionality. 6

I agree with Justice Bernabe that the RTC, designated as a Family Court, is vested with jurisdiction to
decide issues of constitutionality of a law, and that the constitutionality of Republic Act No. 9262 can be
resolved in a summary proceeding, in accordance with the rule that the question of constitutionality
must be raised at the earliest opportunity, otherwise it may not be considered on appeal. CIDcHA

Section 20 of A.M. No. 04-10-11-SC, the Rule on Republic Act No. 9262 provides:

Sec. 20. Opposition to Petition. — (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate civil
action. (Emphasis supplied.) HEacAS

Petitioner cites the above provision, particularly paragraph (b) thereof, as one of his grounds for not
challenging the constitutionality of Republic Act No. 9262 in his Opposition. The error of such reasoning
is that it treats "any cause of action" mentioned in Section 20 (b) as distinct from the "counterclaim,
cross-claim or third-party complaint" referred to in the said Section 20 (b). On the contrary, the
language of said section clearly refers to a cause of action that is the "subject" of the counterclaim,
cross-claim, or third-party complaint, which is barred and which may be litigated in a separate civil
action. The issue of constitutionality is not a "cause of action" that is a subject of the aforementioned
prohibited pleadings. In fact, petitioner admitted that such prohibited pleadings would allege "claims
which are personal to him." 7 Hence, Section 20 (b) cannot even be invoked as a basis for filing the
separate special civil action of Petition for Prohibition before the Court of Appeals to question the
constitutionality of Republic Act No. 9262. cTACIa

What obviously escapes petitioner's understanding is that the contents of the Opposition are not limited
to mere refutations of the allegations in the petition for temporary and permanent protection order.
While it is true that A.M. No. 04-10-11-SC requires the respondent to file an Opposition and not an
Answer, 8 it does not prevent petitioner from challenging the constitutionality of Republic Act No. 9262
in such Opposition. In fact, Section 20 (a) directs petitioner to state in his Opposition why a temporary or
permanent protection order should not be issued against him. This means that petitioner should have
raised in his Opposition all defenses available to him, which may be either negative or affirmative.
Section 5 (b), Rule 6 of the Rules of Court define negative and affirmative defenses as follows:

(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of
the claimant essential to his cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting
the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by
him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession
and avoidance. IaSAHC

In Bayog v. Hon. Natino, 9 the respondent, in a complaint for ejectment before the Municipal Circuit
Trial Court (MCTC), raised as one of his defenses, the MCTC's lack of jurisdiction over the case in light of
the agricultural tenancy relationship between him and the petitioner. The MCTC applied the Rule on
Summary Procedure and issued an Order stating that it could not take cognizance of the Answer, for
being filed belatedly. This Court ruled that while the MCTC was correct in applying the Rule on Summary
Procedure as the complaint was one for ejectment, it should have met and ruled squarely on the issue
of jurisdiction, as there was nothing in the rules that barred it from admitting the Answer. Hence, the
MCTC should have heard and received evidence for the precise purpose of determining whether or not
it possessed jurisdiction over the case. 10 DEaCSA
Similarly, the alleged unconstitutionality of Republic Act No. 9262 is a matter that would have prevented
the trial court from granting the petition for protection order against the petitioner. Thus, petitioner
should have raised it in his Opposition as a defense against the issuance of a protection order against
him.

For all intents and purposes, the Petition for Prohibition filed before the Court of Appeals was
precipitated by and was ultimately directed against the issuance of the TPO, an interlocutory order,
which under Section 22 (j) of A.M. No. 04-10-11-SC is a prohibited pleading. An action questioning the
constitutionality of the law also cannot be filed separately even with another branch of the RTC. This is
not technically feasible because there will be no justiciable controversy or an independent cause of
action that can be the subject of such separate action if it were not for the issuance of the TPO against
the petitioner. Thus, the controversy, subject of a separate action, whether before the Court of Appeals
or the RTC, would still have to be the issuance of the TPO, which is the subject of another case in the
RTC.

Moreover, the challenge to the constitutionality of the law must be raised at the earliest opportunity. In
Dasmariñas Water District v. Monterey Foods Corporation, 11 we said:

A law is deemed valid unless declared null and void by a competent court; more so when the issue has
not been duly pleaded in the trial court. The question of constitutionality must be raised at the earliest
opportunity. . . . . The settled rule is that courts will not anticipate a question of constitutional law in
advance of the necessity of deciding it. (Citation omitted.) IEcaHS

This Court held that such opportunity is in the pleadings before a competent court that can resolve it,
such that "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at
the trial, it cannot be considered on appeal." 12 The decision upon the constitutional question is
necessary to determine whether the TPO should be issued against petitioner. Such question should have
been raised at the earliest opportunity as an affirmative defense in the Opposition filed with the RTC
handling the protection order proceedings, which was the competent court to pass upon the
constitutional issue. This Court, in Drilon v. Lim, 13 held:

We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section
187, this authority being embraced in the general definition of the judicial power to determine what are
the valid and binding laws by the criterion of their conformity to the fundamental law. Specifically, BP
129 vests in the regional trial courts jurisdiction over all civil cases in which the subject of the litigation is
incapable of pecuniary estimation, even as the accused in a criminal action has the right to question in
his defense the constitutionality of a law he is charged with violating and of the proceedings taken
against him, particularly as they contravene the Bill of Rights. Moreover, Article X, Section 5(2), of the
Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower
courts in all cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question. (Citation omitted, emphases ours.) CDcaSA
Furthermore, the filing of a separate action before the Court of Appeals or the RTC for the declaration of
unconstitutionality of Republic Act No. 9262 would result to multiplicity of suits. It is clear that the issues
of constitutionality and propriety of issuing a protection order raised by petitioner are inextricably
intertwined. Another court, whether it is an appellate court or a trial court, cannot resolve the
constitutionality question in the separate action without affecting the petition for the issuance of a TPO.
Bringing a separate action for the resolution of the issue of constitutionality will result in an unresolved
prejudicial question to the validity of issuing a protection order. If the proceedings for the protection
order is not suspended, it does create the danger of having inconsistent and conflicting judgments
between the two separate courts, whether of the same or different levels in the judicial hierarchy. These
two judgments would eventually be the subject of separate motions for reconsideration, separate
appeals, and separate petitions for review before this Court — the exact scenario the policy against
multiplicity of suits is avoiding. As we previously held, "the law and the courts frown upon split
jurisdiction and the resultant multiplicity of actions." 14 HIaSDc

It must be remembered that aside from the "earliest opportunity" requirement, the court's power of
judicial review is subject to other limitations. Two of which are the existence of an actual case or
controversy and standing. An aspect of the actual case or controversy requirement is the requisite of
"ripeness." This is generally treated in terms of actual injury to the plaintiff. Thus, a question is ripe for
adjudication when the act being challenged had a direct adverse effect on the individual challenging it.
This direct adverse effect on the individual will also be the basis of his standing as it is necessary that the
person challenging the law must have a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result of its enforcement. 15 EDcICT

In this case, the petitioner's challenge on the constitutionality of Republic Act No. 9262 was on the basis
of the protection order issued against him. Verily, the controversy became ripe only when he was in
danger of or was directly adversely affected by the statute mandating the issuance of a protection order
against him. He derives his standing to challenge the statute from the direct injury he would sustain if
and when the law is enforced against him. Therefore, it is clear that the proper forum to challenge the
constitutionality of the law was before the RTC handling the protection order proceedings. The filing of a
separate action to question the constitutionality of the law amounts to splitting a cause of action that
runs counter to the policy against multiplicity of suits.

Moreover, the filing of the Petition for Prohibition with the Court of Appeals countenanced the evil that
the law and the rules sought to avoid. It caused the delay in the proceedings and inconvenience,
hardship and expense on the part of the parties due to the multiplicity of suits between them at
different court levels. The RTC where the petition for protection orders is filed should be trusted,
instead of being doubted, to be able to exercise its jurisdiction to pass upon the issue of constitutionality
within the mandatory period set by the rules. aSITDC

In gist, there is no statutory, reglementary, or practical basis to disallow the constitutional challenge to a
law, which is sought to be enforced, in a summary proceeding. This is particularly true considering that
the issue of a statute's constitutionality is a question of law which may be resolved without the
reception of evidence or a full-blown trial. Hence, said issue should have been raised at the earliest
opportunity in the proceedings before the RTC, Bacolod City and for failure of the petitioner to do so, it
cannot be raised in the separate Petition for Prohibition before the Court of Appeals, as correctly ruled
by the latter, nor in a separate action before the RTC. DSacAE

On the Court Resolving the

Issue of Constitutionality of

Republic Act No. 9262

Notwithstanding my position that the Court of Appeals properly dismissed the Petition for Prohibition
because of petitioner's failure to raise the issue of constitutionality of Republic Act No. 9262 at the
earliest opportunity, I concur that the Court, in the exercise of its sound discretion, 16 should still pass
upon the said issue in the present Petition. Notable is the fact that not only the petitioner, but the
private respondent as well, 17 pray that the Court resolve the constitutional issue considering its novelty
and paramount importance. Indeed, when public interest requires the resolution of the constitutional
issue raised, and in keeping with this Court's duty of determining whether other agencies or even co-
equal branches of government have remained within the limits of the Constitution and have not abused
the discretion given them, the Court may brush aside technicalities of procedure and resolve the
constitutional issue. 18

Aside from the technical ground raised by petitioner in his first assignment of error, petitioner questions
the constitutionality of Republic Act No. 9262 on the following grounds: EcIDaA

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. NO. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. NO. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF THE
STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. NO. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS. 19

On the Constitutional Right to Equal

Protection of the Laws

Petitioner challenges the constitutionality of Republic Act No. 9262 for making a gender-based
classification, thus, providing remedies only to wives/women and not to husbands/men. He claims that
even the title of the law, "An Act Defining Violence Against Women and Their Children" is already
pejorative and sex-discriminatory because it means violence by men against women. 20 The law also
does not include violence committed by women against children and other women. He adds that gender
alone is not enough basis to deprive the husband/father of the remedies under it because its avowed
purpose is to curb and punish spousal violence. The said remedies are discriminatory against the
husband/male gender. There being no reasonable difference between an abused husband and an
abused wife, the equal protection guarantee is violated. SDEHCc

Pertinently, Section 1, Article III of the 1987 Constitution states:

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. (Emphasis supplied.)

The above provision was lifted verbatim from the 1935 and 1973 Constitutions, which in turn was a
slightly modified version of the equal protection clause in Section 1, Amendment 14 21 of the United
States Constitution. TSEAaD

In 1937, the Court established in People v. Vera 22 the four-fold test to measure the reasonableness of a
classification under the equal protection clause, to wit:

This basic individual right sheltered by the Constitution is a restraint on all the three grand departments
of our government and on the subordinate instrumentalities and subdivisions thereof, and on many
constitutional powers, like the police power, taxation and eminent domain. The equal protection of the
laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of
equal laws." Of course, what may be regarded as a denial of the equal protection of the laws is a
question not always easily determined. No rule that will cover every case can be formulated. Class
legislation discriminating against some and favoring others is prohibited. But classification on a
reasonable basis, and not made arbitrarily or capriciously, is permitted. The classification, however, to
be reasonable must be based on substantial distinctions which make real differences; it must be
germane to the purposes of the law; it must not be limited to existing conditions only, and must apply
equally to each member of the class. (Citations omitted, emphasis supplied.) IECcAT

In our jurisdiction, the standard and analysis of equal protection challenges in the main have followed
the foregoing "rational basis" test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution. 23

However, over time, three levels of tests were developed, which are to be applied in equal protection
cases, depending on the subject matter 24 involved:

1. Rational Basis Scrutiny — the traditional test, which requires "only that government must not
impose differences in treatment except upon some reasonable differentiation fairly related to the object
of regulation." Simply put, it merely demands that the classification in the statute reasonably relates to
the legislative purpose. 25

2. Intermediate Scrutiny — requires that the classification (means) must serve an important
governmental objective (ends) and is substantially related to the achievement of such objective. A
classification based on sex is the best-established example of an intermediate level of review. 26
3. Strict Scrutiny — requires that the classification serve a compelling state interest and is
necessary to achieve such interest. This level is used when suspect classifications or fundamental rights
are involved. 27 AcSEHT

Recent Philippine jurisprudence has recognized the need to apply different standards of scrutiny in
testing the constitutionality of classifications. In British American Tobacco v. Camacho, 28 this Court held
that since the case therein neither involved a suspect classification nor impinged on a fundamental right,
then "the rational basis test was properly applied to gauge the constitutionality of the assailed law in the
face of an equal protection challenge." 29 We added:

It has been held that "in the areas of social and economic policy, a statutory classification that neither
proceeds along suspect lines nor infringes constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the
classification." Under the rational basis test, it is sufficient that the legislative classification is rationally
related to achieving some legitimate State interest. . . . . 30 (Citations omitted.)

Echoing the same principle, this Court, speaking through then Chief Justice Puno in Central Bank (now
Bangko Sentral ng Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 31 stated:
IcESDA

Congress retains its wide discretion in providing for a valid classification, and its policies should be
accorded recognition and respect by the courts of justice except when they run afoul of the
Constitution. The deference stops where the classification violates a fundamental right, or prejudices
persons accorded special protection by the Constitution. When these violations arise, this Court must
discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more
exacting adherence to constitutional limitations. Rational basis should not suffice.

xxx xxx xxx

Under most circumstances, the Court will exercise judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power.
Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be
given deferential treatment. DEcTIS

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation
of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought
to be more strict. A weak and watered down view would call for the abdication of this Court's solemn
duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true
whether the actor committing the unconstitutional act is a private person or the government itself or
one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of
the actor. (Citations omitted.)

This was reiterated in League of Cities of the Philippines v. Commission on Elections, 32 and Ang Ladlad
LGBT Party v. Commission on Elections, 33 wherein the Court, although applying the rational basis test,
noted that there are tests, which are more appropriate in other cases, especially those involving suspect
classes and fundamental rights. In fact, Chief Justice Puno expounded on this in his Separate Concurring
Opinion in the Ang Ladlad case. He said that although the assailed resolutions therein were correctly
struck down, since the classification was based on gender or sexual orientation, a quasi-suspect
classification, a heightened level of review should have been applied and not just the rational basis test,
which is the most liberal basis of judicial scrutiny. Citing American authority, Chief Justice Puno
continued to elucidate on the three levels of scrutiny and the classes falling within each level, to wit:
cCESaH

If a legislative classification disadvantages a "suspect class" or impinges upon the exercise of a

"fundamental right," then the courts will employ strict scrutiny and the statute must fall unless the
government can demonstrate that the classification has been precisely tailored to serve a compelling
governmental interest. Over the years, the United States Supreme Court has determined that suspect
classes for equal protection purposes include classifications based on race, religion, alienage, national
origin, and ancestry. The underlying rationale of this theory is that where legislation affects discrete and
insular minorities, the presumption of constitutionality fades because traditional political processes may
have broken down. In such a case, the State bears a heavy burden of justification, and the government
action will be closely scrutinized in light of its asserted purpose. cSCTEH

On the other hand, if the classification, while not facially invidious, nonetheless gives rise to recurring
constitutional difficulties, or if a classification disadvantages a "quasi-suspect class," it will be treated
under intermediate or heightened review. To survive intermediate scrutiny, the law must not only
further an important governmental interest and be substantially related to that interest, but the
justification for the classification must be genuine and must not depend on broad generalizations.
Noteworthy, and of special interest to us in this case, quasi-suspect classes include classifications based
on gender or illegitimacy.

If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere
rationality. This is a relatively relaxed standard reflecting the Court's awareness that the drawing of lines
which creates distinctions is peculiarly a legislative task and an unavoidable one. The presumption is in
favor of the classification, of the reasonableness and fairness of state action, and of legitimate grounds
of distinction, if any such grounds exist, on which the State acted. 34 (Citations omitted, emphases
supplied.) AHcaDC

This case presents us with the most opportune time to adopt the appropriate scrutiny in deciding cases
where the issue of discrimination based on sex or gender is raised. The assailed Section 3, among other
provisions, of Republic Act No. 9262 provides:

SEC. 3. Definition of Terms. — As used in this Act:

(a) "Violence against women and their children" refers to any act or a series of acts committed by
any person against a woman who is his wife, former wife, or against a woman with whom the person
has or had a sexual or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in or is likely to
result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such
acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. . . . . (Emphases supplied.)
ADEacC

The aforesaid law also institutionalized remedies such as the issuance of protection orders in favor of
women and children who are victims of violence and prescribed public penalties for violation of the said
law.

Petitioner questions the constitutionality of Republic Act No. 9262 which denies the same protection
orders to husbands who are victims of wife-abuse. It should be stressed that under aforecited section of
said law violence may not only be physical or sexual but also psychological and economic in nature.

The Honorable Justice Marvic Mario Victor F. Leonen in his concurring opinion notes that "Husband
abuse may be an under reported form of family violence." While concurring with the majority opinion,
he opines as follows: HIEASa

Nevertheless, in a future case more deserving of our attention, we should be open to realities which
may challenge the dominant conception that violence in intimate relationships only happens to women
and children. This may be predominantly true, but even those in marginal cases deserve fundamental
constitutional and statutory protection. We should be careful that in correcting historical and cultural
injustices, we may typecast all women as victims, stereotype all men as tormentors or make invisible the
possibility that in some intimate relationships, men may also want to seek succor against acts defined in
Section 5 of Republic Act No. 9262 in an expeditious manner.

Since statutory remedies accorded to women are not made available to men, when the reality is that
there are men, regardless of their number, who are also suffering from domestic violence, the rational
basis test may be too wide and liberal to justify the statutory classification which in effect allows
different treatment of men who are similarly situated. In the context of the constitutional policy to
"ensure the fundamental equality before the law of women and men" 35 the level of scrutiny applicable,
to test whether or not the classification in Republic Act No. 9262 violates the equal protection clause, is
the middle-tier scrutiny or the intermediate standard of judicial review.

To survive intermediate review, the classification in the challenged law must (1) serve important
governmental objectives, and (2) be substantially related to the achievement of those objectives. 36

Important and Essential

Governmental Objectives: Safeguard

Human Rights, Ensure Gender

Equality and Empower Women

Republic Act No. 9262 is a legislation that furthers important, in fact essential, governmental objectives
as enunciated in the law's Declaration of Policy, as quoted below: IaSCTE
SEC. 2. Declaration of Policy. — It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect the
family and its members particularly women and children, from violence and threats to their personal
safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
Provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of all forms
of discrimination Against Women, Convention on the Rights of the Child and other international human
rights instruments of which the Philippines is a party.

This policy is in consonance with the constitutional provisions, 37 which state: DcICEa

SEC. 11. The State values the dignity of every human person and guarantees full respect for human
rights.

SEC. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. . . . .

By constitutional mandate, the Philippines is committed to ensure that human rights and fundamental
freedoms are fully enjoyed by everyone. It was one of the countries that voted in favor of the Universal
Declaration of Human Rights (UDHR), which was a mere two years after it gained independence from
the United States of America. In addition, the Philippines is a signatory to many United Nations human
rights treaties such as the Convention on the Elimination of All Forms of Racial Discrimination, the
International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and
Political Rights, the Convention Against Torture, and the Convention on the Rights of the Child, among
others. DCaEAS

As a signatory to the UDHR, the Philippines pledged itself to achieve the promotion of universal respect
for and observance of human rights and fundamental freedoms, 38 keeping in mind the standards under
the Declaration. Among the standards under the UDHR are the following:

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood.

xxx xxx xxx

Article 7. All are equal before the law and are entitled without any discrimination to equal
protection of the law. — All are entitled to equal protection against any discrimination in violation of
this Declaration and against any incitement to such discrimination.

Article 8. Everyone has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the constitution or by law. (Emphasis ours.)
The Declaration of Policy in Republic Act No. 9262 enunciates the purpose of the said law, which is to
fulfill the government's obligation to safeguard the dignity and human rights of women and children by
providing effective remedies against domestic violence or physical, psychological, and other forms of
abuse perpetuated by the husband, partner, or father of the victim. The said law is also viewed within
the context of the constitutional mandate to ensure gender equality, which is quoted as follows:

Section 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men. 39 aCcHEI

It has been acknowledged that "gender-based violence is a form of discrimination that seriously inhibits
women's ability to enjoy rights and freedoms on a basis of equality with men." 40 Republic Act No. 9262
can be viewed therefore as the Philippines' compliance with the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), which is committed to condemn discrimination
against women and directs its members to undertake, without delay, all appropriate means to eliminate
discrimination against women in all forms both in law and in practice. 41 Known as the International Bill
of Rights of Women, 42 the CEDAW is the central and most comprehensive document for the
advancement of the welfare of women. 43 It brings the women into the focus of human rights concerns,
and its spirit is rooted in the goals of the UN: to reaffirm faith in fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women. 44 The CEDAW, in its
preamble, explicitly acknowledges the existence of extensive discrimination against women, and
emphasized that such is a violation of the principles of equality of rights and respect for human dignity.
aDIHTE

In addition, as a state party to the CEDAW, the Philippines is under legal obligation to ensure their
development and advancement for the improvement of their position from one of de jure as well as de
facto equality with men. 45 The CEDAW, going beyond the concept of discrimination used in many legal
standards and norms, focuses on discrimination against women, with the emphasis that women have
suffered and are continuing to suffer from various forms of discrimination on account of their biological
sex. 46

The Philippines' accession to various international instruments requires it to promote and ensure the
observance of human rights and "continually affirm its commitment to ensure that it pursues gender
equality in all aspects of the development process to eventually make real, a gender-responsive society."
47 Thus, the governmental objectives of protecting human rights and fundamental freedoms, which
includes promoting gender equality and empowering women, as mandated not only by our Constitution,
but also by commitments we have made in the international sphere, are undeniably important and
essential. DACTSH

The Gender-Based Classification in

Republic Act No. 9262 is

Substantially Related to the

Achievement of Governmental

Objectives

As one of the country's pervasive social problems, violence against women is deemed to be closely
linked with the unequal power relationship between women and men and is otherwise known as
"gender-based violence." 48 Violent acts towards women has been the subject of an examination on a
historic world-wide perspective. 49 The exhaustive study of a foreign history professor noted that
"[f]rom the earliest civilizations on, the subjugation of women, in the form of violence, were facts of
life," 50 as three great bodies of thought, namely: Judeo-Christian religious ideas; Greek philosophy; and
the Common Law Legal Code, which have influenced western society's views and treatment of women,
all "assumed patriarchy as natural; that is, male domination stemming from the view of male
superiority." 51 It cited 18th century legal expert William Blackstone, who explained that the common
law doctrine of coverture reflected the theological assumption that husband and wife were 'one body'
before God; thus "they were 'one person' under the law, and that one person was the husband," 52 a
concept that evidently found its way in some of our Civil Code provisions prior to the enactment of the
Family Code.

Society and tradition dictate that the culture of patriarchy continue. Men are expected to take on the
dominant roles both in the community and in the family. This perception naturally leads to men gaining
more power over women — power, which must necessarily be controlled and maintained. Violence
against women is one of the ways men control women to retain such power. 53 EDSAac

The enactment of Republic Act No. 9262 was in response to the undeniable numerous cases involving
violence committed against women in the Philippines. In 2012, the Philippine National Police (PNP)
reported 54 that 65% or 11,531 out of 15,969 cases involving violence against women were filed under
Republic Act No. 9262. From 2004 to 2012, violations of Republic Act No. 9262 ranked first among the
different categories of violence committed against women. The number of reported cases showed an
increasing trend from 2004 to 2012, although the numbers might not exactly represent the real
incidence of violence against women in the country, as the data is based only on what was reported to
the PNP. Moreover, the increasing trend may have been caused by the continuous information
campaign on the law and its strict implementation. 55 Nonetheless, statistics show that cases involving
violence against women are prevalent, while there is a dearth of reported cases involving violence
committed by women against men, that will require legislature intervention or solicitous treatment of
men. HaSEcA

Preventing violence against women and children through their availment of special legal remedies,
serves the governmental objectives of protecting the dignity and human rights of every person,
preserving the sanctity of family life, and promoting gender equality and empowering women. Although
there exists other laws on violence against women 56 in the Philippines, Republic Act No. 9262 deals
with the problem of violence within the family and intimate relationships, which deserves special
attention because it occurs in situations or places where women and children should feel most safe and
secure but are actually not. The law provides the widest range of reliefs for women and children who
are victims of violence, which are often reported to have been committed not by strangers, but by a
father or a husband or a person with whom the victim has or had a sexual or dating relationship. Aside
from filing a criminal case in court, the law provides potent legal remedies to the victims that
theretofore were not available. The law recognizes, with valid factual support based on statistics that
women and children are the most vulnerable victims of violence, and therefore need legal intervention.
On the other hand, there is a dearth of empirical basis to anchor a conclusion that men need legal
protection from violence perpetuated by women. aTEHIC

The law takes into account the pervasive vulnerability of women and children, and the seriousness and
urgency of the situation, which, in the language of the law result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of liberty. 57 Hence, the law permits the issuance
of protection orders and the granting of certain reliefs to women victims, even without a hearing. The
law has granted authority for barangay officials to issue a protection order against the offender, based
on the victim's application. The RTC may likewise grant an application for a temporary protection order
(TPO) and provide other reliefs, also on the mere basis of the application. Despite the ex parte issuance
of these protection orders, the temporary nature of these remedies allow them to be availed of by the
victim without violating the offender's right to due process as it is only when a full-blown hearing has
been done that a permanent protection order may be issued. Thus, these remedies are suitable,
reasonable, and justified. More importantly, they serve the objectives of the law by providing the
victims necessary immediate protection from the violence they perceive as threats to their personal
safety and security. This translates to the fulfillment of other governmental objectives as well. By
assuring the victims instant relief from their situation, they are consequently empowered and restored
to a place of dignity and equality. Such is embodied in the purpose to be served by a protection order, to
wit: CIaHDc

SEC. 8. Protection Orders. — A protection order is an order issued under this act for the purpose of
preventing further acts of violence against a woman or her child specified in Section 5 of this Act and
granting other necessary relief. The relief granted under a protection order serve the purpose of
safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and
facilitating the opportunity and ability of the victim to independently regain control over her life. . . . .
(Emphasis supplied.)

In furtherance of the governmental objectives, especially that of protecting human rights, violence
against women and children under this Act has been classified as a public offense, 58 making its
prosecution independent of the victim's initial participation. aEIcHA

Verily, the classification made in Republic Act No. 9262 is substantially related to the important
governmental objectives of valuing every person's dignity, respecting human rights, safeguarding family
life, protecting children, promoting gender equality, and empowering women.

The persistent and existing biological, social, and cultural differences between women and men
prescribe that they be treated differently under particular conditions in order to achieve substantive
equality for women. Thus, the disadvantaged position of a woman as compared to a man requires the
special protection of the law, as gleaned from the following recommendations of the CEDAW
Committee:

8. [T]he Convention requires that women be given an equal start and that they be empowered by
an enabling environment to achieve equality of results. It is not enough to guarantee women treatment
that is identical to that of men. Rather, biological as well as socially and culturally constructed
differences between women and men must be taken into account. Under certain circumstances, non-
identical treatment of women and men will be required in order to address such differences. Pursuit of
the goal of substantive equality also calls for an effective strategy aimed at overcoming
underrepresentation of women and a redistribution of resources and power between men and women.
TSHEIc

9. Equality of results is the logical corollary of de facto or substantive equality. These results may
be quantitative and/or qualitative in nature; that is, women enjoying their rights in various fields in fairly
equal numbers with men, enjoying the same income levels, equality in decision-making and political
influence, and women enjoying freedom from violence. 59 (Emphases supplied.)

The government's commitment to ensure that the status of a woman in all spheres of her life are
parallel to that of a man, requires the adoption and implementation of ameliorative measures, such as
Republic Act No. 9262. Unless the woman is guaranteed that the violence that she endures in her
private affairs will not be ignored by the government, which is committed to uplift her to her rightful
place as a human being, then she can neither achieve substantive equality nor be empowered. SEcTHA

The equal protection clause in our Constitution does not guarantee an absolute prohibition against
classification. The non-identical treatment of women and men under Republic Act No. 9262 is justified
to put them on equal footing and to give substance to the policy and aim of the state to ensure the
equality of women and men in light of the biological, historical, social, and culturally endowed
differences between men and women.

Republic Act No. 9262, by affording special and exclusive protection to women and children, who are
vulnerable victims of domestic violence, undoubtedly serves the important governmental objectives of
protecting human rights, insuring gender equality, and empowering women. The gender-based
classification and the special remedies prescribed by said law in favor of women and children are
substantially related, in fact essentially necessary, to achieve such objectives. Hence, said Act survives
the intermediate review or middle-tier judicial scrutiny. The gender-based classification therein is
therefore not violative of the equal protection clause embodied in the 1987 Constitution. AcSEHT

The Issuance of the TPO did not

Violate Petitioner's Right to Due

Process
A protection order is issued under Republic Act No. 9262 for the purpose of preventing further acts of
violence against a woman or her child. 60 The circumstances surrounding the availment thereof are
often attended by urgency; thus, women and child victims must have immediate and uncomplicated
access to the same. Hence, Republic Act No. 9262 provides for the issuance of a TPO: TSIDEa

SEC. 15. Temporary Protection Orders. — Temporary Protection Orders (TPOs) refers to the protection
order issued by the court on the date of filing of the application after ex parte determination that such
order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act
and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a PPO
prior to or on the date of the expiration of the TPO. The court shall order the immediate personal
service of the TPO on the respondent by the court sheriff who may obtain the assistance of law
enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits
of the issuance of a PPO.

The ex parte issuance of the TPO does not make it unconstitutional. Procedural due process refers to the
method or manner by which the law is enforced. It consists of the two basic rights of notice and hearing,
as well as the guarantee of being heard by an impartial and competent tribunal. 61 However, it is a
constitutional commonplace that the ordinary requirements of procedural due process yield to the
necessities of protecting vital public interests like those involved herein. Republic Act No. 9262 and its
implementing regulations were enacted and promulgated in the exercise of that pervasive, sovereign
power of the State to protect the safety, health, and general welfare and comfort of the public (in this
case, a particular sector thereof), as well as the protection of human life, commonly designated as the
police power. 62 ISADET

In Secretary of Justice v. Lantion, 63 the Court enumerated three instances when notice and/or hearing
may be dispensed with in administrative proceedings:

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceedings where there is an urgent need for immediate action, like the summary
abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant
facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments which are immediate threats to
public health and decency, and the cancellation of a passport of a person sought for criminal
prosecution; TaDAHE

2. Where there is tentativeness of administrative action, that is, where the respondent is not
precluded from enjoying the right to notice and hearing at a later time without prejudice to the person
affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the
replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not been
claimed. SICaDA
The principles behind the aforementioned exceptions may also apply in the case of the ex parte issuance
of the TPO, although it is a judicial proceeding. As mentioned previously, the urgent need for a TPO is
inherent in its nature and purpose, which is to immediately provide protection to the woman and/or
child victim/s against further violent acts. Any delay in the issuance of a protective order may possibly
result in loss of life and limb of the victim. The issuing judge does not arbitrarily issue the TPO as he can
only do so if there is reasonable ground to believe that an imminent danger of violence against women
and their children exists or is about to recur based on the verified allegations in the petition of the
victim/s. 64 Since the TPO is effective for only thirty (30) days, 65 any inconvenience, deprivation, or
prejudice the person enjoined — such as the petitioner herein — may suffer, is generally limited and
temporary. Petitioner is also not completely precluded from enjoying the right to notice and hearing at a
later time. Following the issuance of the TPO, the law and rules require that petitioner be personally
served with notice of the preliminary conference and hearing on private respondent's petition for a
Permanent Protection Order (PPO) 66 and that petitioner submit his opposition to private respondent's
petition for protections orders. 67 In fact, it was petitioner's choice not to file an opposition, averring
that it would only be an "exercise in futility." Thus, the twin rights of notice and hearing were
subsequently afforded to petitioner but he chose not to take advantage of them. Petitioner cannot now
claim that the ex parte issuance of the TPO was in violation of his right to due process. aICHEc

There is No Undue Delegation of

Judicial Power to Barangay Officials

A Barangay Protection Order (BPO) refers to the protection order issued by the Punong Barangay, or in
his absence the Barangay Kagawad, ordering the perpetrator to desist from committing acts of violence
against the family or household members particularly women and their children. 68 The authority of
barangay officials to issue a BPO is conferred under Section 14 of Republic Act No. 9262: EScAHT

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. — Barangay Protection Orders
(BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives
applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte
determination of the basis of the application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO
is issued by a Barangay Kagawad the order must be accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. BPOs shall
be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct
any barangay official to effect is personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay. DcTaEH

Once more, the urgency of the purpose for which protection orders under Republic Act No. 9262 are
issued justifies the grant of authority to barangay officials to issue BPOs. Barangay officials live and
interact closely with their constituents and are presumably easier to approach and more readily
available than any other government official. Their issuance of the BPO is but part of their official
executive function of enforcing all laws and ordinances within their barangay 69 and maintaining public
order in the barangay. 70 It is true that the barangay officials' issuance of a BPO under Republic Act No.
9262 necessarily involves the determination of some questions of fact, but this function, whether
judicial or quasi-judicial, are merely incidental to the exercise of the power granted by law. 71 The Court
has clarified that:

"The mere fact that an officer is required by law to inquire the existence of certain facts and to apply the
law thereto in order to determine what his official conduct shall be and the fact that these acts may
affect private rights do not constitute an exercise of judicial powers. Accordingly, a statute may give to
non-judicial officers the power to declare the existence of facts which call into operation its provisions,
and similarly may grant to commissioners and other subordinate officers power to ascertain and
determine appropriate facts as a basis for procedure in the enforcement of particular laws." (11 Am.
Jur., Const. Law, p. 950, Sec. 235) 72 cHITCS

Furthermore, while judicial power rests exclusively in the judiciary, it may be conceded that the
legislature may confer on administrative boards or bodies, or even particular government officials,
quasi-judicial power involving the exercise of judgment and discretion, as incident to the performance of
administrative functions. But in so doing, the legislature must state its intention in express terms that
would leave no doubt, as even such quasi-judicial prerogatives must be limited, if they are to be valid,
only to those incidental to or in connection with the performance of administrative duties, which do not
amount to conferment of jurisdiction over a matter exclusively vested in the courts. 73 In the case of a
BPO, it is a mere provisional remedy under Republic Act No. 9262, meant to address the pressing need
of the victims for instant protection. However, it does not take the place of appropriate judicial
proceedings and remedies that provide a more effective and comprehensive protection to the victim. In
fact, under the Implementing Rules of Republic Act No. 9262, the issuance of a BPO or the pendency of
an application for a BPO shall not preclude the victim from applying for, or the court from granting, a
TPO or PPO. Where a TPO has already been granted by any court, the barangay official may no longer
issue a BPO. 74 The same Implementing Rules also require that within twenty-four (24) hours after the
issuance of a BPO, the barangay official shall assist the victim in filing an application for a TPO or PPO
with the nearest court in the victim's place of residence. If there is no Family Court or RTC, the
application may be filed in the Municipal Trial Court, the Municipal Circuit Trial Court or the
Metropolitan Trial Court. 75

All things considered, there is no ground to declare Republic Act No. 9262 constitutionally infirm.
ICASEH

BRION, J., concurring:

I concur with the ponencia's conclusion that Republic Act (R.A.) No. 9262 (An Act Defining Violence
Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties
Therefore and for Other Purposes) is constitutional and does not violate the equal protection clause. As
traditionally viewed, the constitutional provision of equal protection simply requires that similarly
situated persons be treated in the same way. It does not connote identity of rights among individuals,
nor does it require that every person is treated identically in all circumstances. It acts as a safeguard to
ensure that State-drawn distinctions among persons are based on reasonable classifications and made
pursuant to a proper governmental purpose. In short, statutory classifications are not unconstitutional
when shown to be reasonable and made pursuant to a legitimate government objective. HScaCT

In my view, Congress has presented a reasonable classification that focuses on women and children
based on protective provisions that the Constitution itself provides. Section 11, Article II of the
Constitution declares it a state policy to value the dignity of every human person and guarantees full
respect for human rights. Further, under Section 14, Article II of the Constitution, the State recognizes
the role of women in nation-building and ensures fundamental equality before the law of women and
men. These policies are given purposeful meaning under Article XV of the Constitution on family, which
states:

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Section 3. The State shall defend — STcAIa

(1) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;

(2) The right of children to assistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their
development[.]

From the terms of the law, I find it plain that Congress enacted R.A. No. 9262 as a measure intended to
strengthen the family. Congress found that domestic and other forms of violence against women and
children contribute to the failure to unify and strengthen family ties, thereby impeding the State's
mandate to actively promote the family's total development. Congress also found, as a reality, that
women and children are more susceptible to domestic and other forms of violence due to, among
others, the pervasive bias and prejudice against women and the stereotyping of roles within the family
environment that traditionally exist in Philippine society. On this basis, Congress found it necessary to
recognize the substantial distinction within the family between men, on the one hand, and women and
children, on the other hand. This recognition, incidentally, is not the first to be made in the laws as our
law on persons and family under the Civil Code also recognize, in various ways, the distinctions between
men and women in the context of the family. 1 DTIaHE

To be sure, Congress has not been alone in addressing violence committed against women and children
as this move is "in keeping with the fundamental freedoms guaranteed under the Constitution and the
Provisions of the Universal Declaration of Human Rights, the convention on the Elimination of all forms
of discrimination Against Women, Convention on the Rights of the Child and other international human
rights instruments of which the Philippines is a party." 2 The only question perhaps is whether the
considerations made in these international instruments have reason or basis for recognition and active
application in the Philippines. AaCTcI

I believe that the policy consideration Congress made in this regard is not without basis in history and in
contemporary Philippine society so that Congress was acting well within its prerogative when it enacted
R.A. No. 9262 "to protect the family and its members particularly women and children, from violence
and threats to their personal safety and security." 3

I consider, too, the statutory classification under R.A. No. 9262 to be valid, and that the lowest level of
scrutiny of review should be applied in determining if the law has established a valid classification
germane to the Constitution's objective to protect the family by protecting its women and children
members. In my view, no need exists to further test the law's validity from the perspective of an
expanded equal protection based on social justice. The Constitution itself has made special mention of
women and their role in society (Article II) and the assistance and protection that must be given to
children irrespective of sex. It appears highly inconsistent to me under this situation if the Court would
impose a strict level of scrutiny on government — the primary implementor of constitutional policies —
and lay on it the burden of establishing the validity of an Act directly addressing violence against women
and children. TaCDIc

My serious reservation on the use of an expanded equal protection clause and in applying a strict
scrutiny standard is, among others, based on lack of necessity; we do not need these measures when we
can fully examine R.A. No. 9262's constitutionality using the reasonableness test. The family is a unit, in
fact a very basic one, and it cannot operate on an uneven standard where measures beyond what is
necessary are extended to women and children as against the man — the head of the family and the
family provider. The use of an expanded equal protection clause only stresses the concept of an uneven
equality that cannot long stand in a unit living at close quarters in a situation of mutual dependency on
one another. The reasonableness test, on the other hand, has been consistently applied to allow the
courts to uphold State action as long as the action is found to be germane to the purpose of the law, in
this case to support the unity and development of the family. If we are to deviate from or to modify this
established standard of scrutiny, we must do so carefully and for strong justifiable reasons.

If we are to use a strict level of scrutiny of government action, we must be aware of the risks that this
system of review may open. A very real risk is to open the possibility that our social legislations will
always be subject to heightened scrutiny. Are we sure of what this approach entails for the government
and for our society in the long run? How will this approach affect the social legislation that our society,
particularly the most vulnerable members, need? What other effects will a system of review — that
regards governmental action as illegal unless the government can actively justify the classifications it has
made in the course of pursuing its actions — have? These are the questions that, in the long run, we
have to contend with, and I hate to provide an answer through a case that is not, on its face and even in
deeper reality, representative of the questions we are asking or need to ask. EScIAa
The cases of Central Bank Employees Assoc., Inc. v. Bangko Sentral ng Pilipinas 4 and Serrano v. Gallant
Maritime Services, Inc. 5 demonstrate the Court's application of a heightened sense of scrutiny on social
legislations. In Central Bank and Serrano, we held that classifications in the law that result in prejudice to
persons accorded special protection by the Constitution require a stricter judicial scrutiny. 6 In both
cases, the question may well be asked: was there an absolute necessity for a strict scrutiny approach
when, as in Serrano, the same result emerges when using the lowest level of scrutiny? In short, I ask if a
strict scrutiny is needed under the circumstances of the present case as the Concurring Opinion of J.
Roberto Abad suggests.

Not to be forgotten or glossed over in answering this question is the need to consider what a strict
scrutiny requires, as well as the consequences of an expanded concept of equal protection clause and
the accompanying use of a strict scrutiny standard. Among others, this approach affects the application
of constitutional principles that we vigilantly adhere to in this jurisdiction. cDEHIC

I outline below what a strict scrutiny approach entails.

First, the use of strict scrutiny only applies when the challenged law or clause results in a "suspect
classification";

Second, the use of a strict scrutiny standard of review creates a reverse onus: the ordinary presumption
of constitutionality is reversed and the government carries the burden of proving that the challenged
law or clause is constitutional;

And third, the reverse onus in a strict scrutiny standard of review directly strikes, in the most glaring
manner, at the regularity of the performance of functions of a co-equal branch of government. ESHcTD

When the court uses a strict standard for review to evaluate the constitutionality of a law, it proceeds
from the premise that the law established a "suspect classification." A suspect classification is one where
distinctions are made based on the most invidious bases for classification that violate the most basic
human rights, i.e., on the basis of race, national origin, alien status, religious affiliation and, to a certain
extent, sex and sexual orientation. 7 With a suspect classification, the most stringent scrutiny of the
classification is applied: the ordinary presumption of constitutionality is reversed and the government
carries the burden of proving the statute's constitutionality. This approach is unlike the lowest level of
scrutiny (reasonableness test) that the Court has applied in the past where the classification is
scrutinized and constitutionally upheld if found to be germane to the purpose of the law. Under a
reasonableness test, there is a presumption of constitutionality and that the laws enacted by Congress
are presumed to fall within its constitutional powers.

To pass strict scrutiny, the government must actively show that the classification established in the law
is justified by a compelling governmental interest and the means chosen by the State to effectuate its
purpose must be narrowly tailored to the achievement of that goal. 8 In the context of the present case,
is the resulting classification in the present law so outstandingly harmful to men in general so that a
strict scrutiny is called for? AcHSEa
I do not really see any indication that Congress actually intended to classify women and children as a
group against men, under the terms of R.A. No. 9262. Rather than a clear intent at classification, the
overriding intent of the law is indisputably to harmonize family relations and protect the family as a
basic social institution. 9 After sifting through the comprehensive information gathered, Congress found
that domestic and other forms of violence against women and children impedes the harmony of the
family and the personal growth and development of family members. In the process, Congress found
that these types of violence must pointedly be addressed as they are more commonly experienced by
women and children due to the unequal power relations of men and women in our society; Congress
had removed these types of violence as they are impediments that block the harmonious development
that it envisions for the family, of which men are important component members. SHIETa

Even granting that a classification resulted in the law, I do not consider the classification of women and
children to be within the "suspect classification" that jurisprudence has established. As I mentioned
earlier, suspect classifications are distinctions based on the most invidious bases for classification that
violate the most basic human rights. Some criteria used in determining suspect classifications are: (1)
the group possesses an immutable and/or highly visible trait; 10 and (2) they are powerless to protect
themselves via the political process. 11 The group is a "discrete" and "insular" minority. 12 Women and
children, to my mind, simply do not fall within these criteria.

In my view, a suspect classification and the accompanying strict scrutiny should depend on the
circumstances of the case, on the impact of the illegal differential treatment on the group involved, on
the needed protection and the impact of recognizing a suspect classification on future classification. 13
A suspect classification label cannot solely and automatically be triggered by the circumstance that
women and children are accorded special protection by the Constitution. In fact, there is no place for a
strict level of scrutiny when the Constitution itself has recognized the need for special protection; where
such recognition has been made, congressional action should carry the presumption of validity. cTCEIS

Similarly, a suspect classification and the accompanying strict scrutiny standard cannot be solely based
on the circumstance that the law has the effect of being "gender-specific." I believe that the
classification in the law was not immediately brought on by considerations of gender or sex; it was
simply a reality as unavoidable as the reality that in Philippine society, a marriage is composed of a man,
a woman and their children. An obvious reason, of course, why the classification did not solely depend
on gender is because the law also covers children, without regard to their sex or their sexual orientation.
HICcSA

Congress was sensitive to these realities and had to address the problem as it existed in order to
pinpoint and remove the obstacles that lay along the way. With this appreciation of reality, Congress
had no recourse but to identify domestic and other forms of violence committed on women and their
children as among the obstacles that intrude on the development, peace and harmony of the family.
From this perspective, the objective of the law — the productive development of the family as a whole
and the Congress' view of what may be done in the area of violence — stand out.
Thus, with the objective of promoting solidarity and the development of the family, R.A. No. 9262
provides the legal redress for domestic violence that particularly affects women and their children.
Significantly, the law does not deny, restrict or curtail civil and human rights of other persons falling
outside the classification, particularly of the men members of the family who can avail of remedies
provided by other laws to ensure the protection of their own rights and interests. Consequently, the
resulting classification under R.A. No. 9262 is not wholly intended and does not work an injustice by
removing remedies that are available to men in violence committed against them. The law furthermore
does not target men against women and children and is there simply to achieve a legitimate
constitutional objective, and it does not achieve this by a particularly harmful classification that can be
labeled "suspect" in the sense already established by jurisprudence. Under the circumstances, the use
and application of strict scrutiny review, or even the use of an expanded equal protection perspective,
strike me as both unnecessary and disproportionate. TCcDaE

As my final point, the level of review that the Court chooses to apply is crucial as it determines both the
process and the outcome of a given case. The reverse onus that a strict scrutiny brings ignores the most
basic presumption of constitutionality that the courts consistently adhere to when resolving issues of
constitutionality. It also infringes on the regularity of performance of functions of co-equal branches of
government. As the Court pronounced in Drilon v. Lim: 14 THAECc

In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection,
bearing in mind the consequences of a declaration of unconstitutionality upon the stability of laws, no
less than on the doctrine of separation of powers. As the questioned act is usually the handiwork of the
legislative or the executive departments, or both, it will be prudent for such courts, if only out of a
becoming modesty, to defer to the higher judgment of this Court in the consideration of its validity,
which is better determined after a thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion.

It is also emphasized that every court, including this Court, is charged with the duty of a purposeful
hesitation before declaring a law unconstitutional, on the theory that the measure was first carefully
studied by the executive and the legislative departments and determined by them to be in accordance
with the fundamental law before it was finally approved. To doubt is to sustain. The presumption of
constitutionality can be overcome only by the clearest showing that there was indeed an infraction of
the Constitution, and only when such a conclusion is reached by the required majority may the Court
pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.
ISHaCD

Inter-government harmony and courtesy demand that we reserve the strict scrutiny standard of review
to the worst possible cases of unacceptable classification, abject forms of discrimination, and the worst
violations of the Constitution. 15 R.A. No. 9262 does not present such a case.

In these lights, I conclude that a valid classification exists to justify whatever differential treatment may
exist in the law. I vote to deny the petition and uphold the constitutionality of R.A. No. 9262 using the
lowest level of scrutiny under the reasonableness test.
ABAD, J., concurring:

Republic Act 9262 (R.A. 9262) or the Anti-Violence against Women and their Children Act is a historic
step in the Filipino women's long struggle to be freed from a long-held belief that men are entitled,
when displeased or minded, to hit their wives or partners and their children. This law institutionalizes
prompt community response to this violent behavior through barangay officials who can command the
man to immediately desist from harming his home partner and their children. It also establishes
domestic violence as a crime, not only against its victims but against society as well. No longer is
domestic violence lightly dismissed as a case of marital dispute that law enforcers ought not to get into.
1 SDATEc

Almost eight years after the passage of this landmark legislation, petitioner Jesus C. Garcia, a husband
charged with the offense, claims before the Court that R.A. 9262 violates his constitutional rights to due
process and equal protection and that it constitutes an undue delegation of judicial power to barangay
officials with respect to the Temporary Protection Order (TPO) that the latter could issue against him for
his alleged maltreatment of his wife and children.

This separate concurring opinion will address the issue of equal protection since it presents the more
serious challenge to the constitutionality of the law. Men and women are supposed to be equal yet this
particular law provides immediate relief to complaining women and harsh consequences to their men
even before the matter reaches the courtroom, a relief not available to the latter. The law, Garcia says,
violates his right to equal protection because it is gender-specific, favoring only women when men could
also be victims of domestic violence.

Justice Estela Perlas-Bernabe ran the issue of equal protection in her ponencia through the litmus test
for holding a law valid even when it affects only a particular class, a test that the Court laid down in
People v. Vera. 2 A legislative classification, according to Vera, is reasonable as long as: 1) it rests on
substantial distinctions which make real differences; 2) it is germane to the purpose of the law; 3) it is
not limited to existing conditions but applies as well to future identical conditions; and 4) it applies
equally to all members of the same class. 3 I dare not improve on Justice Bernabe's persuasive reasoning
and conclusions. aDcETC

I agree with her but would like to hinge my separate concurring opinion on the concept of an Expanded
Equal Protection Clause that former Chief Justice Reynato S. Puno espouses in his book: Equal Dignity
and Respect: The Substance of Equal Protection and Social Justice.

Chief Justice Puno's thesis is that the right to equal protection casts another shadow when the issue
raised under it involves persons protected by the social justice provision of the Constitution, specifically,
Section 1, Article XIII. The equal protection clause can no longer be interpreted as only a guarantee of
formal equality 4 but of substantive equality. "It ought to be construed," said the Chief Justice, "in
consonance with social justice as 'the heart' particularly of the 1987 Constitution — a transformative
covenant in which the Filipino people agreed to enshrine asymmetrical equality to uplift disadvantaged
groups and build a genuinely egalitarian democracy." 5
This means that the weak, including women in relation to men, can be treated with a measure of bias
that they may cease to be weak. aSIAHC

Chief Justice Puno goes on: "The Expanded Equal Protection Clause, anchored on the human rights
rationale, is designed as a weapon against the indignity of discrimination so that in the patently unequal
Philippine society, each person may be restored to his or her rightful position as a person with equal
moral status." 6 Specifically, the expanded equal protection clause should be understood as meant to
"reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good." 7 Borrowing the language of Law v. Canada 8 case
and adding his own thoughts, the Chief Justice said:

The purpose of the Expanded Equal Protection Clause is to protect and enhance the right to dignity by:
1) preventing the imposition, perpetuation and aggravation "of disadvantage, stereotyping, or political
[,economic, cultural,] or social prejudice;" and 2) promo[ting a Philippine] society in which all persons
enjoy equal recognition at law as human beings. 9 EIDATc

Chief Justice Puno points out that the equal protection clause must be interpreted in connection with
the social justice provisions of the Constitution "so as not to frustrate or water down the constitutional
commitment to promote substantive equality and build the genuinely "just and humane society" that
Filipinos aspire for, as stated in the Preamble of the 1987 Constitution."

But the expanded concept of equal protection, said Chief Justice Puno, only applies to the government's
ameliorative action or discriminatory actions intended to improve the lot of the disadvantaged. Laws
challenged for invalid classification because of being unreasonable or arbitrary, but not discriminatory,
are outside the scope of the expanded equal protection clause. Such cases fall under the traditional
equal protection clause which protects the right to formal equality and determines the validity of
classifications through the well established reasonableness test. 10 CIAHDT

Here, petitioner Garcia argues that R.A. 9262 violates the guarantee of equal protection because the
remedies against personal violence that it provides may be invoked only by the wives or women
partners but not by the husbands or male partners even if the latter could possibly be victims of violence
by their women partners. Women, he claims, are also capable of committing physical, psychological,
emotional, and even sexual abuse against their husbands and children.

Garcia further assails the title of the law — "An Act Defining Violence against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other
Purposes" — as pejorative and sex-discriminatory. R.A. 9262 is an "anti-male," "husband-bashing," and
"hate-men" law. It establishes a special category of domestic violence offenses which is akin to
legislating hate crimes and imposes penalties based solely on gender; it singles out the husband or
father as the culprit, a clear form of "class legislation." AEDCHc

But the Constitution requires the State to "ensure the fundamental equality before the law of men and
women." Further, it commands Congress to "give highest priority to the enactment of measures that
protect and enhance the rights of all the people to human dignity . . . ." and this includes women. In his
speech during the joint launching on October 27, 2004 of R.A. 9262 and its Implementing Rules, Chief
Justice Puno recalled the historical and social context of gender-based violence that underpin its
enactment. Thus:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the early
studies:

Traditions subordinating women have a long history rooted in patriarchy — the institutional rule of men.
Women were seen in virtually all societies to be naturally inferior both physically and intellectually. In
ancient western societies, women whether slave, concubine or wife, were under the authority of men.
In law, they were treated as property. DSAEIT

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus, common law developed the rule of thumb, which
allowed husbands to beat their wives with a rod or stick no thicker than their thumb. AECacT

Article II, Section 14 of the 1987 Constitution states:

The State recognizes the role of women in nation-building, and shall ensure the fundamental equality
before the law of women and men.

Also, Article XIII, Section 1 of the 1987 Constitution further states:

The Congress shall give highest priority to the enactment of measures that protect and enhance the
rights of all the people to human dignity, reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the common good. cDAITS

xxx xxx xxx

The above provisions of the Constitution abundantly authorize Congress or the government to actively
undertake ameliorative action that would remedy existing inequalities and inequities experienced by
women and children brought about by years of discrimination. The equal protection clause when
juxtaposed to this provision provides a stronger mandate for the government to combat such
discrimination. Indeed, these provisions order Congress to "give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities and remove cultural inequities."
No doubt, historically, the Philippine tribal and family model hews close to patriarchy, a pattern that is
deeply embedded in the society's subconscious. Consequently, it can be said that in enacting R.A. 9262,
Congress has taken an ameliorative action that would address the evil effects of such social model on
Filipino women and children and elevate their status as human beings on the same level as the father or
the husband. DSAacC

What remedies does R.A. 9262 especially provide women and children? The law is gender-specific as
only they may file the prescribed actions against offenders, whether men or women, with whom the
victims are or were in lesbian relationships. 11 The definition includes past or present marital, live-in,
sexual or dating relationships.

This law also provides for the remedy of a protection order in a civil action or in a criminal action, aside
from the criminal action for its violation. It makes the process of securing a restraining order against
perpetrators easier and more immediate by providing for the legal remedy of protection orders from
both the courts and barangay officials.

R.A. 9262 aims to put a stop to the cycle of male abuses borne of discrimination against women. It is an
ameliorative measure, not a form of "reverse discrimination" against men as Garcia would have it.
Ameliorative action "is not, as Hogg remarked, an exception to equality, but an expression and
attainment of de facto equality, the genuine and substantive equality which the Filipino people
themselves enshrined as a goal of the 1987 Constitution." 12 Ameliorative measures are necessary as a
redistributive mechanism in an unequal society to achieve substantive equality. 13 IcHTAa

In the context of women's rights, substantive equality has been defined by the Convention on the
Elimination of all forms of Discrimination Against Women (CEDAW) as equality which requires that
women be given an equal start and that they be empowered by an enabling environment to achieve
equality of results. It is not enough to guarantee women treatment that is identical to that of men.
Rather, biological as well as socially and culturally constructed differences between women and men
must be taken into account. Under certain circumstances, non-identical treatment of women and men
will be required in order to address such differences.

Women's struggle for equality with men has evolved under three models: AETcSa

1. Formal equality — women and men are to be regarded and treated as the same. But this model
does not take into account biological and socially constructed differences between women and men. 14
It uses male standards and assumes that women have equal access to such standards. 15 By failing to
take into account these differences, a formal equality approach may in fact perpetuate discrimination
and disadvantage. 16

2. Protectionist model — this recognizes differences between women and men but considers
women's weakness as the rationale for different treatment. 17 This approach reinforces the inferior
status of women and does not address the issue of discrimination of women on account of their gender.
18
3. Substantive equality model — this assumes that women are "not vulnerable by nature, but
suffer from imposed disadvantage" and that "if these imposed disadvantages were eliminated, there
was no further need for protection." 19 Thus, the substantive equality model gives prime importance to
women's contexts, realities, and experiences, and the outcomes or results of acts and measures
directed, at or affecting them, with a view to eliminating the disadvantages they experience as women.
20 AHcCDI

Clearly, the substantive equality model inspired R.A. 9262. For one thing, Congress enacted it because of
compelling interest in preventing and addressing the serious problem of violence against women in the
context of intimate relationships — recognized all over the world as one of the most insidious forms of
gender discrimination. 21 For another, R.A. 9262 is based on the experiences of women who have been
victims of domestic violence. The list of acts regarded as forms of violence 22 come from true-to-life
stories of women who have suffered abuses from their male partners. Finally, R.A. 9262 seeks women's
full participation in society. Hence, the law grants them needed relief to ensure equality, protection, and
personal safety, enabling them to enjoy their civil, political, social, and economic rights. The provision on
protection orders, for instance, precisely aims to safeguard "the victim from further harm, minimizing
any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to
independently regain control over her life." 23 ETHCDS

For the above reasons, I vote to dismiss the petition for lack of merit.

LEONEN, J., concurring:

I join the ponencia in denying the challenge to the constitutionality of Republic Act No. 9262 otherwise
known as the "Anti-Violence against Women and their Children Act of 2004" at least for this case. I write
separately to clarify the basis of my agreement.

The petitioner is not the victim in this case. He does not have legal standing to raise the constitutional
issue. DcHaET

He appears to have inflicted violence against private respondents. Petitioner admitted having an affair
with a bank manager. He callously boasted about their sexual relations to the household help. His
infidelity emotionally wounded private respondent. Their quarrels left her with bruises and hematoma.
Petitioner also unconscionably beat up their daughter, Jo-ann, whom he blamed for squealing on him.

All these drove respondent to despair causing her to attempt suicide on December 17, 2005 by slitting
her wrist. Instead of taking her to the hospital, petitioner left the house. He never visited her when she
was confined for seven (7) days. He even told his mother-in-law that respondent should just accept his
extramarital affair since he is not cohabiting with his paramour and has not sired a child with her.

The private respondent was determined to separate from petitioner. But she was afraid he would take
away their children and deprive her of financial support. He warned her that if she pursued legal battle,
she would not get a single centavo from him. After she confronted him of his affair, he forbade her to
hold office at JBTC Building. This deprived her of access to full information about their businesses.
ESAHca

Thus, the Regional Trial Court found reasonable ground to believe there was imminent danger of
violence against respondent and her children and issued a series of Temporary Protection Orders (TPO)
ordering petitioner, among other things, to surrender all his firearms including a .9MM caliber firearm
and a Walther PPK.

This is the quintessential case where the full effects of Republic Act No. 9262 or the "VAWC" should take
effect.

Seen in this light, petitioner's belated challenge to the law is nothing but a cheap attempt to raise
cherished fundamental constitutional principles to escape legal responsibility for causing indignities in
another human being. There is enough in our legal order to prevent the abuse of legal principles to
condone immoral acts. TCDHaE

For us to proceed to rule on Constitutional issues, we have required that: (1) there must be an actual
case or controversy calling for the exercise of judicial power; (2) the person challenging the act must
have "standing" to challenge; he must have a personal and substantial interest in the case, such that he
has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality
must be the very lis mota of the case. 1

Legal standing in cases that raise constitutional issues is essential. Locus standi is defined as "a right of
appearance in a court of justice on a given question." 2 The fundamental question is "whether a party
alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions. 3 EADSIa

In private suits, standing is governed by the "real-parties-in-interest" rule under Section 2, Rule 3 of the
1997 Rules of Civil Procedure in that "every action must be prosecuted or defended in the name of the
real party-in-interest." 4 "Interest" means material interest or an interest in issue to be affected by the
judgment of the case, as distinguished from mere curiosity about the question involved. 5

Thus, there must be a present substantial interest as distinguished from a mere inchoate expectancy or
a future, contingent, subordinate, or consequential interest. 6 Standing is based on one's own right to
the relief sought.

The doctrine of locus standi in cases raising constitutional issues frames the power of judicial review that
we wield. This is the power "to settle actual controversies involving rights which are legally demandable
and enforceable" as well as "to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess jurisdiction on the part of any branch or instrumentality of the
Government." 7 HIaTDS
The presence of an "actual case" prevents this Court from providing advisory opinions or using its
immense power of judicial review absent the presence of a party with real and substantial interests to
clarify the issues based upon his/her experience and standpoint. It prevents this Court from speculating
and rendering rulings on the basis of pure theory. Our doctrines on justiciability are self-imposed
applications of a fundamental view that we accord a presumption of constitutionality to acts done by
the other constitutional organs and departments of government. Generally, we do not strike down acts
done by co-equal departments until their repugnancy to the Constitution can be shown clearly and
materially.

I am aware of our precedents where this Court has waived questions relating to the justiciability of the
constitutional issues raised when they have "transcendental importance" to the public. 8 In my view,
this accommodates our power to promulgate guidance "concerning the protection and enforcement of
constitutional rights". 9 We choose to rule squarely on the constitutional issues in a petition wanting all
or some of the technical requisites to meet our general doctrines on justiciability but raising clear
conditions showing imminent threat to fundamental rights. The imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence. In a sense, our exceptional
doctrine relating to constitutional issues of "transcendental importance" prevents courts from the
paralysis of procedural niceties when clearly faced with the need for substantial protection. HDTISa

That necessity is wanting in this case.

The extraordinary discretion to move beyond the well established doctrines on justiciability must be
carefully exercised in cases involving social legislation that seeks to rectify historical and cultural
injustices present in our communities and societies. As carefully pointed out in the erudite ponencia of
Justice Perlas-Bernabe, Republic Act No. 9262 was borne out of the struggles of countless women who
suffered indignities. It cannot be undone by a petition filed by someone who cannot, by any stretch of
the most fertile imagination, be considered the victim. HDITCS

Nevertheless, in a future case more deserving of our attention, we should be open to realities which
may challenge the dominant conception that violence in intimate relationships only happens to women
and children. This may be predominantly true, but even those in marginal cases deserve fundamental
constitutional and statutory protection. We should be careful that in correcting historical and cultural
injustices, we may typecast all women as victims, stereotype all men as tormentors or make invisible the
possibility that in some intimate relationships, men may also want to seek succor against acts defined in
Section 5 of Republic Act No. 9262 10 in an expeditious manner.

Husband abuse may be an underreported form of family violence. 11 According to a Quezon City Police
District Crime Laboratory chief, in his 10 years as medico-legal officer, he had only received three cases
of men complaining of spousal abuse. 12

Another recent study found the same underreporting but explored the experiences of abuse in intimate
relationships of six Filipino husbands. 13 Their experiences were described as follows:
All the participants acknowledged that they experienced abuse, but the forms differed from one
husband to another. Four out of the six participants admitted that their spouses' abusive behavior
would initially start with verbal attacks and put-downs then would shift to physical abuse as their verbal
tussle intensified. Most of the abuses cited by the participants happened in the confines of their home,
but could also happen in public places. SCaITA

The constant threats, in the long term, affected the emotional and psychological well being of the
participants. Four of the husbands felt that their spouses were capable of carrying out their threats. The
frequent and long fights could be emotionally draining. Throughout the duration of marriage, EC
suffered emotionally from the "weird" marital set-up. For TG, emotional abuse was associated with
shattered trust.

The physical abuse for some participants became life-threatening to the extent that the injury incurred
needed medical attention. Their spouses could use weapons against them. Four participants described
the incidents that led to their injuries. Coming home one night, RE saw "this mono block chair flying . . .
hit me . . . right on the nose." DL narrated ". . . pumunta ako ng doctor on my own para ipalinis yung
sugat ko." According to HM, his wound from a knife attack was wide and deep and needed ". . . some
stiches." JL had to contend with the long scratches in his chest and back. RE almost lost an eye when he
was hit with a straight punch of the spouse. JL, RE, and DL would lie to colleagues to avoid being laughed
at. DL had to be absent from his work after being hit by a flying de lata (canned good) thrown at him
during a fight. HCaIDS

Emotional abuse co-existed with verbal and/or physical abuse. The participants who were recipients of
physical abuse were also emotionally abused when they became susceptible to stress and threats of the
abuser. JL felt guilty when the spouse carried out her threat of killing herself by intentionally taking an
overdose of pills in the middle of an intense disagreement.

Emotional abuse could occur without physical abuse and yet its effects were still devastating. For
instance, EC and TG were devastated by the lies and deceit of their spouses. The spouse's threats of
suicide (JL), abandonment (RE), or taking their children away after a fight (DL) were as distressing as the
other forms of abuse experienced by the participants. 14

Social and cultural expectations on masculinity and male dominance urge men to keep quiet about
being a victim, adding to the unique experience of male victims of domestic abuse. 15 This leads to
latent depression among boys and men. 16 In a sense, patriarchy while privileging men also victimizes
them.

It is true that numerous literature relate violence against women with the historically unequal power
relations between men and women, leading to domination over and discrimination against the latter. 17
Sociologists cite the 18th-century English legal tradition on the "rule of thumb" giving husbands the right
to beat their wives with a stick no thicker than a thumb. 18 In America, women were regarded as
property until the latter half of the 19th century with marital violence considered a husband's privilege
and men, as of right, exercised physical domination over women. 19
The perspective portraying women as victims with a heritage of victimization 20 results in the
unintended consequence of permanently perceiving all women as weak. This has not always been
accepted by many other strands in the Feminist Movement. TcEAIH

As early as the 70s, the nationalist movement raised questions on the wisdom of a women's movement
and its possible divisive effects, as "class problems deserve unified and concentrated attention [while]
the women question is vague, abstract, and does not have material base." 21

In the early 80s, self-identifying feminist groups were formed. 22 The "emancipation theory" posits that
female crime has increased and has become more masculine in character as a result of the women's
liberation movement. 23

Feminism also has its variants among Muslims. In 2009, Musawah ("equality" in Arabic) was launched as
a global movement for equity and justice in the Muslim family. It brought together activists, scholars,
legal practitioners, policy makers, and grassroots women and men from all over the world. 24 Their
belief is that there cannot be justice without equality, and its holistic framework integrates Islamic
teachings, universal human rights, national constitutional guarantees of equality, and the lived realities
of women and men. 25

There is now more space to believe that portraying only women as victims will not always promote
gender equality before the law. It sometimes aggravates the gap by conceding that women have always
been dominated by men. In doing so, it renders empowered women invisible; or, in some cases, that
men as human beings can also become victims. HITAEC

In this light, it may be said that violence in the context of intimate relationships should not be seen and
encrusted as a gender issue; rather, it is a power issue. 26 Thus, when laws are not gender-neutral, male
victims of domestic violence may also suffer from double victimization first by their abusers and second
by the judicial system. 27 Incidentally, focusing on women as the victims entrenches some level of
heteronormativity. 28 It is blind to the possibility that, whatever moral positions are taken by those who
are dominant, in reality intimate relationships can also happen between men. 29

I accept that for purposes of advocacy and for a given historical period, it may be important to highlight
abuse of women qua women. 30 This strategy was useful in the passing of Republic Act No. 9262. It was
a strategy that assured that the problem of battered women and children in the context of various
intimate relationships becomes publicly visible. However, unlike advocacy, laws have the tendency to be
resilient and permanent. Its existence may transcend historical periods that dictate effective advocacy.
Laws also have a constitutive function — the tendency to create false consciousness when the labels and
categories it mandates succeed in reducing past evils but turn a blind eye to other issues.

For instance, one of the first cases that laid down the requisites for determining whether there was a
violation of the equal protection of the law clause of the Constitution was the 1939 case of People v.
Cayat. 31 It laid down the requirements of reasonable classification which requires that it (a) must rest
on substantial distinctions, (b) must be germane to the purposes of the law, (c) must not be limited to
existing conditions only, and (d) must apply equally to all members of the same class. 32 Even as early as
1919, the Court in Rubi v. Provincial Board of Mindoro 33 recognized the concept of reasonable
classification holding that "[t]he pledge that no person shall be denied the equal protection of the laws
is not infringed by a statute which is applicable to all of a class. The classification must have a reasonable
basis and cannot be purely arbitrary in nature." 34 DEScaT

Yet, it is in these two cases that the Court concluded the following:

As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs.
Tubban [Kalinga] ([1915], 29 Phil. 434). The question here arose as to the effect of a tribal marriage in
connection with Article 423 of the Penal Code concerning the husband who surprises his wife in the act
of adultery. In discussing the point, the court makes use of the following language: IcSHTA

. . . we are not advised of any provision of law which recognizes as legal a tribal marriage of so-called
non-Christians or members of uncivilized tribes, celebrated within that province without compliance
with the requisites prescribed by General Orders No. 68 . . . . We hold also that the fact that the accused
is shown to be a member of an uncivilized tribe, of a low order of intelligence, uncultured and
uneducated, should be taken into consideration as a second marked extenuating circumstance. . . 35
(Emphasis supplied)

The description of the label and the stereotype of "non-Christian tribe" would later on be corrected by
the Constitution, 36 law, 37 and jurisprudence. 38

The description of the label and the stereotype that only women can be considered victims may also
evolve in the same way. We should hope that the situation of patriarchy will not be permanent. Better
cultural structures more affirming of human dignity should evolve. 39 cIADTC

In a future case, the fact that there may be battered men should not cause the nullification of
protections given to women and children.

The Constitution states that: "[t]he State values the dignity of every human person and guarantees full
respect for human rights." 40 The guarantee of full respect should not mean that protections already
given to those who suffer historical or cultural prejudices should be automatically rescinded if only the
scope of the law is found wanting.

Our Constitution also mandates that the State "shall ensure the fundamental equality before the law of
women and men." 41 This is similar to the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) 42 which requires that the Philippines as state party take all appropriate
measures "[to] modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices which are based on the
idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and
women." 43 The use of affirmative language should imply that in the proper suit, a declaration of
unconstitutionality on the ground of the equal protection should not automatically mean that the entire
social legislation that provides effective and efficient protection of women be set aside. IEDHAT
We have declared that "[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is . . . as inoperative as though it had never been passed." 44
However, the seemingly all-inclusive statement of absolute retroactive invalidity may not always be
justified. 45 One established exception is the doctrine of operative fact.

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and
fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute
prior to a determination of unconstitutionality is an operative fact and may have consequences which
cannot always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on
those who have relied on the invalid law. 46 IEaHSD

The possibility that the constitutionality of Republic Act No. 9262 may be challenged by male victims of
abuse in intimate relationships ventures to carve another exception if this court is to ensure the
guarantee of fundamental equality before the law of women and men 47 as well as value the dignity of
every human person. 48 Applying the general rule or the existing doctrine of operative facts would
mean removing the protection afforded to women. It will thus contradict the very reason it is being
assailed and result to an even worse state of laws where none is protected from intimate violence.

But again, it is not in this case that we consider these possibilities.

By concurring with these statements I express a hope: that the normative constitutional requirements of
human dignity and fundamental equality can become descriptive reality. The socially constructed
distinctions between women and men that have afflicted us and spawned discrimination and violence
should be eradicated sooner. Power and intimacy should not co-exist.

The intimate spaces created by our human relationships are our safe havens from the helter skelter of
this world. It is in that space where we grow in the safety of the special other who we hope will be there
for our entire lifetime. If that is not possible, then for such time as will be sufficient to create cherished
memories enough to last for eternity. AaIDCS

I concur in the ponencia. Against abominable acts, let this law take its full course. SaHTCE
[G.R. No. 128959. September 30, 2005.]

CIRIACO 'BOY' GUINGGUING, petitioner, vs. THE HONORABLE COURT OF APPEALS and THE PEOPLE OF
THE PHILIPPINES, respondents.

DECISION

TINGA, J p:

The liberty of the press is indeed essential. Whoever would overthrow the liberty of a nation must begin
by subduing the freeness of speech.

- Benjamin Franklin 1

The right of free expression stands as a hallmark of the modern democratic and humane state. 2 Not
only does it assure a person's right to say freely what is thought freely, it likewise evinces the polity's
freedom from psychological insecurity. This fundamental liberty is translated into the constitutional
guarantee that no law shall be passed abridging the freedom of speech, of expression, or the press, 3
contained in the Bill of Rights, 4 which itself obtains a position of primacy in our fundamental law. 5

Criminal libel laws present a special problem. At face value, they might strike as laws passed that abridge
the freedom of speech, expression, or the press. Whatever seeming conflict between these two
precepts has long been judicially resolved with the doctrine that libelous speech does not fall within the
ambit of constitutional protection. Nonetheless, in ascertaining what class of materials may be
considered as libelous, the freedom of expression clause, its purposes as well as the evils it guards
against, warrant primordial consideration and application. IcHTED

Before this Court is a Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure, assailing
the Decision 6 and the Resolution 7 of the Court of Appeals (CA) dated 29 July 1996 and 3 October 1996,
respectively, in CA-G.R. CR No. 16413. The CA affirmed with modification 8 the decision 9 rendered by
the Regional Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco "Boy" Guingguing (petitioner) and
Segundo Lim (Lim) guilty beyond reasonable doubt of the crime of libel. This petition for certiorari was
filed by petitioner alone, hence the verdict of guilt with respect to Lim had already become final and
executory.

The antecedent facts follow.

This case originated from a criminal complaint for libel filed by Cirse "Choy" Torralba (complainant)
against Lim and petitioner under Criminal Case No. CBU-26582. Complainant was a broadcast journalist
who handled two programs for radio stations DYLA and DYFX. The radio stations were based in Cebu
City but the programs were aired over a large portion of the Visayas and Mindanao. 10

On 13 October 1991, Lim caused the publication of records of criminal cases filed against complainant as
well as photographs 11 of the latter being arrested. These were published by means of a one-page
advertisement paid for by Lim in the Sunday Post, a weekly publication edited and published by
petitioner. The Sunday Post was circulated in the province of Bohol, as well as in the Visayas and
Mindanao. 12 The full text of the advertisement which was the basis of the information 13 for libel
reads:

REQUEST FOR PUBLIC SERVICE

ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY

TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO ENLIGHTEN ME REGARDING THE DISPOSITION OF
THE FOLLOWING WHICH APPEAR HEREUNDER. THE CASES WERE FOUND IN THE BLOTTER OF THE CEBU
CITY POLICE DEPARTMENT. PLEASE DO TELL ME THE STATUS OF THOSE CASES, WHETHER THEY HAVE
BEEN DISMISSED, ARCHIVED AND/OR PENDING.

Name: CIRSE 'CHOY' TORRALBA

CRIM. CASE NO. R-43035

FOR: MALICIOUS MISCHIEF

DATE FILED: MAY 10, 1979

COMPLAINANTS: DR. JOVENAL ALMENDRAS

ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY

MR. VICTORIANO VELOSO

ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY

DISPOSITION: PENDING ARREST

CRIM. CASE NO. 17984-R

FOR: ESTAFA

DATE FILED: July 12, 1982

COMPLAINANTS: MR. PIO Y. GO AND

MRS. ROSALITA R. ROLDAN

ADDRESS: c/o 2nd Floor Martinez Bldg.

(ALPHA MKTG., INC.),

Jones Ave., Cebu City

DISPOSITION: PENDING ARREST

CRIM. CASE NO. 14843-R

FOR: SERIOUS PHYSICAL INJURIES

DATED FILED: APRIL 28, 1980

COMPLAINANTS:

ADDRESS:

DISPOSITION: PROVISIONALLY DISMISSED

DATED: APRIL 14, 1991

NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER CLIPPING COURTESY OF A CEBU CITY
CONCERNED CITIZEN. THE CAPTION STORY BELOW TELLS ALL. IF YOU KNOW WHO THE BUSINESSMAN
ALLUDED TO IN THE CAPTION, PLEASE DO TELL ME.

[Thereafter followed by a picture of a person with face blotted out being arrested and an inset picture of
the same person with face likewise blotted out, being detained, these pictures being followed by the
caption, which states]: AaITCH

'ESTAFA CASE. Members of Cebu City Police Intelligence group under Lt. Col. Eduardo Ricardo arrested
last night a businessman (extreme left) for his alleged involvement in estafa case filed by APOCEMCO.
Left photo a member of the team serves the warrant of arrest order issued by CEBU RTC Judge German
Lee.

ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY TORRALBA TO HAVE BEEN SERVED A
WARRANT OF ARREST IN A (P)LUSH UPTOWN HOTEL IN CEBU CITY BY OPERATIVES OF THE CEBU CITY
POLICE. NOW TELL ME, IS IT YOU THE SAME CHOY TORRALBA REFERRED TO IN THE CAPTION STORY. IF
INDEED YOU ARE THE ONE AND THE SAME WHO APPEARED IN THE PICTURE BELOW, PLEASE TO (sic)
INFORM ME.:

[Thereafter followed by another picture, this time, the face of the person being arrested is clearly shown
to be that of Cirse Choy Torralba, followed by this caption.]

SERENE EVENING: The otherwise serene evening enjoyed by businessman Choy Torralba (left) in a plush
uptown Hotel was disturbed by operatives (right) of the Cebu City Police under P/Lt/Col. Eduardo
Ricardo just to serve on the former a warrant of arrest issued by Cebu RTC Judge German Lee relative to
the suit filed by Apocemco against the businessman (PR)

THANK YOU, AND MY BEST REGARDS.

PAID SPACE BY: (sgd.) SEGUNDO LIM 14

Asserting inter alia that he had been acquitted and the case/s referred to had already been settled,
complainant sought Lim and petitioner's conviction for libel. At the same time, he asked for moral,
compensatory and exemplary damages as well as attorney's fees because the publication allegedly
placed him in public contempt and ridicule. It was claimed that the publication was also designed to
degrade and malign his person and destroy him as a broadcast journalist. 15

Lim, in his defense, claimed that complainant was allegedly making scurrilous attacks against him and his
family over the airwaves. Since Lim had no access to radio time, he opted for paid advertisements via
newspaper to answer the attacks, 16 as a measure of self-defense. Lim also argued that complainant, as
a media man and member of the fourth estate, occupied a position almost similar to a public
functionary and should not be onion-skinned and be able to absorb the thrust of public scrutiny. 17

After trial, the lower court concluded that the publication complained of was indeed libelous. 18
Declaring that malice is the most important element of libel, it held that the same was present in the
case because every defamatory publication prima facie implies malice on the part of the author and
publisher towards the person subject thereof. 19 The lower court gave no credence to Lim and
petitioner's argument that the publication was resorted to in self-defense.

The trial court likewise disregarded the insulative effects of complainant's status as a mediaman to the
prosecution of the criminal libel charge. The publication of a calumny even against public officers or
candidates for public office, according to the trial court, is an offense most dangerous to the people. It
deserves punishment because the latter may be deceived thereby and reject the best and deserving
citizens to their great injury. 20 It further held that a private reputation is as constitutionally protected
as the enjoyment of life, liberty and property such that anybody who attacks a person's reputation by
slanderous words or libelous publications is obliged to make full compensation for the damage done. 21

On appeal, the CA modified the penalty imposed but it affirmed the RTC's finding of guilt. The CA
likewise held that self-defense was unavailing as a justification since the defendant should not go
beyond explaining what was previously said of him. The appellate court asserted that the purpose of
self-defense in libel is to repair, minimize or remove the effect of the damage caused to him but it does
not license the defendant to utter blow-for-blow scurrilous language in return for what he received.
Once the defendant hits back with equal or more scurrilous remarks unnecessary for his defense, the
retaliation becomes an independent act for which he may be liable. 22 For this reason, the CA refused to
sanction the invocation of self-defense.

Petitioner now comes before this Court praying for the reversal of the judgment against him. Petitioner
contends inter alia that as editor-publisher of the Sunday Post and as a member of the fourth estate, the
lower courts' finding of guilt against him constitutes an infringement of his constitutional right to
freedom of speech and of the press. 23 Petitioner likewise faults the lower courts' failure to appreciate
their invocation of self-defense. SEHaTC

For resolution of this Court, therefore, is the fundamental question of whether the publication subject
matter of the instant case is indeed libelous. While the findings and conclusions of the lower courts are
rigid in their application of the strict letter of the law, the issue seems more complex than it appears at
first blush. The Court is compelled to delve deeper into the issue considering that libel principles
formulated at one time or another have waxed and waned through the years, in the constant ebb and
flow of judicial review. 24 A change in the factual milieu of a case is apt to evoke a change in the
judgment applicable. Viewed in this context, the petition has merit and the judgment appealed from
must be reversed.

Criminal Libel vis-à-vis the

Guarantee of Free Speech

Under our law, criminal libel is defined as a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is
dead. 25 Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b)
publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice. 26

Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for
libel. In the landmark opinion of England's Star Chamber in the Libelis Famosis case in 1603, two major
propositions in the prosecution of defamatory remarks were established: first, that libel against a public
person is a greater offense than one directed against an ordinary man, and second, that it is immaterial
that the libel be true. 27 These propositions were due to the fact that the law of defamatory libel was
developed under the common law to help government protect itself from criticism and to provide an
outlet for individuals to defend their honor and reputation so they would not resort to taking the law
into their own hands. 28

Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger for
seditious libel in the then English colony of New York. Zenger, the publisher of the New-York Weekly
Journal, had been charged with seditious libel, for his paper's consistent attacks against Colonel William
Cosby, the Royal Governor of New York. In his defense, Zenger's counsel, Andrew Hamilton, argued that
the criticisms against Governor Cosby were "the right of every free-born subject to make when the
matters so published can be supported with truth." 29 The jury, by acquitting Zenger, acknowledged
albeit unofficially the defense of truth in a libel action. The Zenger case also laid to rest the idea that
public officials were immune from criticism. 30

The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the
emergence of the American democratic ideal. It has been characterized as the first landmark in the
tradition of a free press, then a somewhat radical notion that eventually evolved into the First
Amendment 31 in the American Bill of Rights and also proved an essential weapon in the war of words
that led into the American War for Independence. 32

Yet even in the young American state, the government paid less than ideal fealty to the proposition that
Congress shall pass no law abridging the freedom of speech. The notorious Alien and Sedition Acts of
1798 33 made it a crime for any person who, by writing, speaking or printing, should threaten an officer
of the government with damage to his character, person, or estate. The law was passed at the insistence
of President John Adams, whose Federalist Party had held a majority in Congress, and who had faced
persistent criticism from political opponents belonging to the Jeffersonian Republican Party. As a result,
at least twenty-five people, mostly Jeffersonian Republican editors, were arrested under the law. The
Acts were never challenged before the U.S. Supreme Court, but they were not subsequently renewed
upon their expiration. 34

The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of President
Adams in 1800. In his stead was elected Thomas Jefferson, a man who once famously opined, "Were it
left to me to decide whether we should have a government without newspapers, or newspapers
without a government, I should not hesitate a moment to prefer the latter." 35

There is an important observation to be made about the quality of the American press during the time
of Jefferson, one that is crucial to the contemporaneous understanding of the "freedom of expression"
clause at the time of its inception. The tenor of the public debate during that era was hardly polite.
About the impending election of Jefferson, the New England Courant predicted that "murder, robbery,
rape and adultery and incest will be openly taught and practiced, the air will be rent with cries of
distress, the soil soaked with blood and the nation black with crimes." 36 After Jefferson was elected,
rumors spread about his dalliances with his slave, Sally Hemmings, adding more fodder to his critics. The
thirteen-year old William Cullen Bryant, who would grow up to become a prominent poet and
abolitionist, published the following doggerel: "Thy country's ruin and thy country's shame!/ Go wretch!
Resign the Presidential chair/Disclose thy secret measures foul and fair. . ./ Go scan, philosophist, thy
[Sally's] charms/And sink supinely in her sable arms." 37

Any comprehensive history of the American media during the first few decades of the existence of the
United States would reveal a similar preference in the media for such "mad-dog rhetoric." 38 These
observations are important in light of the misconception that freedom of expression extends only to
polite, temperate, or reasoned expression. The assailed decision of the RTC betrays such a perception,
when it opined that the subject advertisement was libelous "because by the language used, it had
passed from the bounds of playful gist, and intensive criticism into the region of scurrilous calumniation
and intemperate personalities." 39 Evidently, the First Amendment was designed to protect expression
even at its most rambunctious and vitriolic form as it had prevalently taken during the time the clause
was enacted. HCDAcE

Nonetheless, juristic enforcement of the guarantee of freedom of expression was not demonstrably
prominent in the United States during most of the 1800s. Notably, the prevalent philosophy then was
that the Bill of Rights did not apply to the different federal states. 40 When the US Supreme Court was
confronted with substantial First Amendment issues in the late 1800s and early 1900s, it responded by
repeatedly declining to protect free speech. 41 The subsequent enactment of the due process clause in
the Fourteenth Amendment eventually allowed the U.S. Supreme Court to accept, in Gitlow v. New York
42 that the First Amendment was protected from impairment by the States, thus allowing for a more
vigorous enforcement of the freedom of expression clause in the twentieth century. 43

The most important American ruling on libel, arguably from which modern libel law emerged 44 was
New York Times v. Sullivan, 45 penned by the liberal lion Justice William Brennan, Jr. In ascertaining
whether the New York Times was liable for damages in a libel action, the U.S. Supreme Court had
acknowledged that the writing in question, an advertisement published in the paper 46 extolling the
virtues of the civil rights movement, had contained several factual inaccuracies in describing actions
taken by Montgomery, Alabama officials on civil rights protesters. 47 The Court even concluded that at
most, there was a finding against the New York Times of negligence in failing to discover the
misstatements against the news stories in the newspaper's own files. 48

Nonetheless, the U.S. Supreme Court squarely assessed the import of the First Amendment freedoms in
the prosecution of criminal libel. Famously, the precedent was established that a public official may not
successfully sue for libel unless the official can prove actual malice, which was defined as "with
knowledge that the statement was false or with reckless disregard as to whether or not it was true." 49
By this standard, it was concluded that factual errors aside, actual malice was not proven to sustain the
convictions for libel. Moreover, leeway was allowed even if the challenged statements were factually
erroneous if honestly made. 50

Shortly after New York Times was promulgated, its principles were extended by the U.S. Supreme Court
to criminal libel actions in Garrison v. Louisiana. 51 The decision, also penned by Justice Brennan,
commented on the marked decline in the common resort to criminal libel actions:

Where criticism of public officials is concerned, we see no merit in the argument that criminal libel
statutes serve interests distinct from those secured by civil libel laws, and therefore should not be
subject to the same limitations. At common law, truth was no defense to criminal libel. Although the
victim of a true but defamatory publication might not have been unjustly damaged in reputation by the
libel, the speaker was still punishable since the remedy was designed to avert the possibility that the
utterance would provoke an enraged victim to a breach of peace . . .

[However], preference for the civil remedy, which enabled the frustrated victim to trade chivalrous
satisfaction for damages, has substantially eroded the breach of peace justification for criminal libel
laws. In fact, in earlier, more violent times, the civil remedy had virtually pre-empted the field of
defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual
desuetude. 52

Then, the Court proceeded to consider whether the historical limitation of the defense of truth in
criminal libel to utterances published "with good motives and for justifiable ends:" 53

. . . The "good motives" restriction incorporated in many state constitutions and statutes to reflect
Alexander Hamilton's unsuccessfully urged formula in People v. Croswell, liberalized the common-law
rule denying any defense for truth. . . . In any event, where the criticism is of public officials and their
conduct of public business, the interest in private reputation is overborne by the larger public interest,
secured by the Constitution, in the dissemination of truth. . . .

Moreover, even where the utterance is false, the great principles of the Constitution which secure
freedom of expression in this area preclude attaching adverse consequences to any except the knowing
or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk
that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the ascertainment of truth. . . . 54

Lest the impression be laid that criminal libel law was rendered extinct in regards to public officials, the
Court made this important qualification in Garrison:

The use of calculated falsehood, however, would put a different cast on the constitutional question.
Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free
speech, it does not follow that the lie, knowingly and deliberately published about a public official,
should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those
unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective
political tool to unseat the public servant or even topple an administration. That speech is used as a tool
for political ends does not automatically bring it under the protective mantle of the Constitution. For the
use of the known lie as a tool is at once with odds with the premises of democratic government and
with the orderly manner in which economic, social, or political change is to be effected. 55

Another ruling crucial to the evolution of our understanding was Curtis Publishing Co. v. Butts, 56 which
expanded the actual malice test to cover not just public officials, but also public figures. The U.S.
Supreme Court, speaking through Chief Justice Warren, stated that:

[D]ifferentiation between 'public figures' and 'public officials' and adoption of separate standards of
proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the
distinctions between governmental and private sectors are blurred. . . . [I]t is plain that although they
are not subject to the restraints of the political process, 'public figures', like 'public officials', often play
an influential role in ordering society. And surely as a class these 'public figures' have as ready access as
'public officials' to mass media of communication, both to influence policy and to counter criticism of
their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such
persons, and freedom of the press to engage in uninhibited debate about their involvement in public
issues and events is as crucial as it is in the case of "public officials." The fact that they are not amenable
to the restraints of the political process only underscores the legitimate and substantial nature of the
interest, since it means that public opinion may be the only instrument by which society can attempt to
influence their conduct. 57

The public figure concept was later qualified in the case of Gertz v. Welch, Inc., 58 which held that a
private person should be able to recover damages without meeting the New York Times standard. 59 In
doing so, the U.S. Supreme Court recognized the legitimate state interest in compensating private
individuals for wrongful injury to reputation. 60

The prominent American legal commentator, Cass Sunstein, has summarized the current American
trend in libel law as follows: HTSIEa

[C]onsider the law of libel. Here we have an explicit system of free speech tiers. To simplify a complex
body of law: In the highest, most-speech protective tier is libelous speech directed against a "public
figure". Government can allow libel plaintiffs to recover damages as a result of such speech if and only if
the speaker had "actual malice" — that is, the speaker must have known that the speech was false, or
he must have been recklessly indifferent to its truth or falsity. This standard means that the speaker is
protected against libel suits unless he knew that he was lying or he was truly foolish to think that he was
telling the truth. A person counts as a public figure (1) if he is a "public official" in the sense that he
works for the government, (2) if, while not employed by government, he otherwise has pervasive fame
or notoriety in the community, or (3) if he has thrust himself into some particular controversy in order to
influence its resolution. Thus, for example, Jerry Falwell is a public figure and, as a famous case holds, he
is barred from recovering against a magazine that portrays him as having had sex with his mother.
Movie stars and famous athletes also qualify as public figures. False speech directed against public
figures is thus protected from libel actions except in quite extreme circumstances. 61

It may also be noted that this heightened degree of protection afforded to free expression to comment
on public figures or matters against criminal prosecution for libel has also gained a foothold in Europe.
Article 10 of the European Convention on Human Rights and Fundamental Freedoms provides that
"[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by public authority and regardless of
frontiers." 62 The European Court of Human Rights applied this provision in Lingens v. Austria, 63 in
ruling that the Republic of Austria was liable to pay monetary damages "as just satisfaction" to a
journalist who was found guilty for defamation under the Austrian Criminal Code. 64 The European
Court noted:

[Article 10] is applicable not only to 'information' or 'ideas' that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the
demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic
society'. . . . These principles are of particular importance as far as the press is concerned. Whilst the
press must not overstep the bounds set, inter alia, for the 'protection of the reputation of others', it is
nevertheless incumbent on it to impart information and ideas on political issues just as on those in other
areas of public interest. Not only does the press have the task of imparting such information and ideas:
the public also has the right to receive them. . . . 65

The international trend in diminishing the scope, if not the viability, of criminal libel prosecutions is
clear. Most pertinently, it is also evident in our own acceptance in this jurisdiction of the principles
applied by the U.S. Supreme Court in cases such as New York Times and Garrison.

Particularly, this Court has accepted the proposition that the actual malice standard governs the
prosecution of criminal libel cases concerning public figures. In Adiong v. COMELEC, 66 the Court cited
New York Times in noting that "[w]e have adopted 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." 67 The Court was even more explicit in
its affirmation of New York Times in Vasquez v. Court of Appeals. 68 Speaking through Justice Mendoza:

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official
conduct, unless the public official concerned 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. This is
the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with
approval in several of its own decisions. 69 This is the rule of "actual malice." In this case, the
prosecution failed to prove not only that the charges made by petitioner were false but also that
petitioner made them with knowledge of their falsity or with reckless disregard of whether they were
false or not. 70

The Court has likewise extended the "actual malice" rule to apply not only to public officials, but also to
public figures. In Ayer Productions Pty. Ltd. v. Capulong, 71 the Court cited with approval the following
definition of a public figure propounded by an American textbook on torts:

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by
adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and
his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be
included in this category are those who have achieved some degree of reputation by appearing before
the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer.
The list is, however, broader than this. It includes public officers, famous inventors and explorers, war
heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted
Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is
focused upon him as a person. 72

Ayer did not involve a prosecution for libel, but a complaint for injunction on the filming of a dramatized
account of the 1986 EDSA Revolution. Nonetheless, its definition of a public figure is important to this
case, as it clearly establishes that even non-governmental officials are considered public figures. In fact,
the definition propounded in Ayer was expressly applied by the Court in Borjal v. Court of Appeals 73 in
ascertaining whether the complainant therein was a public figure, thus warranting the application of the
actual malice test. 74

We considered the following proposition as settled in this jurisdiction: that in order to justify a
conviction for criminal libel against a public figure, it must be established beyond reasonable doubt that
the libelous statements were made or published with actual malice, meaning knowledge that the
statement was false or with reckless disregard as to whether or not it was true. As applied to the
present petition, there are two main determinants: whether complainant is a public figure, and
assuming that he is, whether the publication of the subject advertisement was made with actual malice.
Sadly, the RTC and the CA failed to duly consider both propositions.

Complainant Is a Public Figure

There should be little controversy in holding that complainant is a public figure. He is a broadcast
journalist hosting two radio programs aired over a large portion of the Visayas and Mindanao. Measured
against the definition provided in Ayer, complainant would definitely qualify as a public figure.
Complainant even asserted before the trial court that his broadcast was listened to widely, hence, his
notoriety is unquestionable. AacCHD
Complainant's standing as a public figure is further militated by the contextual circumstances of the
case. The newspaper in question, the Sunday Post, is particularly in circulation in the areas where
complainant's broadcasts were aired. Certainly, it cannot be denied that the target audience of the
newspaper were the same persons who may have listened regularly to the complainant's broadcast.
Even if the sphere of complainant's renown is limited in geography, it is in the same plane as the
circulation of the offending newspaper. The extent of complainant's ability to influence hearts and
minds through his broadcasts need not be established, only that he has such capacity and willingness to
exert an influence. Complainant's volition to practice the radio broadcasting profession necessarily
thrusts him in the public sphere.

Actual Malice Not Proven

As it has been established that complainant was a public figure, it was incumbent upon the prosecution
to prove actual malice on the part of Lim and petitioner when the latter published the article subject
matter of the complaint. Set otherwise, the prosecution must have established beyond reasonable
doubt that the defendants knew the statements in the advertisement was false or nonetheless
proceeded with reckless disregard as to publish it whether or not it was true.

It should thus proceed that if the statements made against the public figure are essentially true, then no
conviction for libel can be had. Any statement that does not contain a provably false factual connotation
will receive full constitutional protection. 75 An examination of the records of this case showed that the
précis of information contained in the questioned publication were actually true. Thus, complainant
himself testified:

Q But is it true that these cases published in Exhibit "F-1" are actually existing or previous cases?

A At the time of the publication those cases were terminated, long terminated.

Q But is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May
10, 1979 against you?

FISCAL ROCAMORA:

Your Honor, I believe the witness did not understand the question.

COURT: (to Stenographer)

Read back the question.

Q Is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May 10,
1979, against you?

A I really do not know about that accusation.

COURT:

Proceed.
ATTY. FLORIDO:

Q When you came across the publication, did you check if in fact there was a case docketed with
that number against you? Did you check?

A I did not.

Q: Now, is it true that there was a criminal case against you for Estafa docketed as criminal case
No. 17984-R filed July 21, 1982 where the complaints were Pio Go and Mrs. Rosalita Roldan?

A: Yes.

Q: Is it true that there was also a criminal case filed against you numbered 14843-R for Serious
Physical Injuries, date filed April 28, 1980 which in this publication appears provisionally dismissed April
14, 1991?

A: That case, I do not have any idea about it.

Q: Did you inquire from the appropriate Court when you received a copy of this to find out if it is
true that these cases were filed against you?

A: As far as I know, in fact, I never received any subpoena or anything about this case.

Q: Yes, but did you upon receipt of Exhibit "F-1", did you inquire from the Court whether it is true
that these cases had been recorded as filed against you?

A: Well, as far as I know like the Estafa case, I was already long been acquitted in that case.

Q: You did not answer the question. Will you please answer.

COURT: (to witness)

Q: The question is, did you inquire from the Court concerned whether that case exist?

A: Yes.

COURT:

Proceed.

ATTY. FLORIDO:

Q: And you discovered that they were true that this was provisionally dismissed with reference to
14843-R for Serious Physical Injuries. You made inquiries?

A: Yes.

Q: And you also know that Dr. Jovenal Almendras your godfather in the wedding had also filed a
case of Malicious Mischief against you?
A: I know but that was in the past.

Q: Yes, I know that that was in the past, but that is true?

A: Yes.

Q: So, there is nothing false so far as Exhibit "F-1"?

A: There is no question about that but that is malicious.

Q: Let me see. On the lefthand side of the bottom it says. "Not too long ago, I received the
following newspaper clippings courtesy of the Cebu City concerned citizens. The caption story below
tells all. If you know who the businessman alluded to in the caption. Please do tells me and then, there is
a photograph a reprint from Sun Star publication. Do you confirm that? 76

xxx xxx xxx

Q: But is it true that you were arrested per this photograph and I quote. "In a plush uptown hotel
was disturbed by operatives (right) of the Cebu City Police under Police Lieutenant Col. Eduardo Ricardo
just to serve on the former a warrant of arrest issued by the Cebu RTC Judge German Lee relative to the
suit filed by Apocemco against a businessman". Is it true that you were arrested?

A: Yes.

Q: So this photograph is genuine photograph?

A: Yes.

Q: And you claimed that you have a good reputation and that good reputation had been soiled by
the accused in this case. Let me ask you concerning your reputation then. Is it not a fact that aside from
this record of criminal cases appearing in Exhibit "F-1", you have also been at one time or another been
accused of several other criminal cases both in and out of the City of Cebu?

A: Yes, before, 10 years, 15 years ago.

Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have the following per
certificate which we marked as Exhibit "2". Criminal Case Nos. 14843-R for Serious Physical Injuries,
Torralba Cirse "Choy"; 17984-R, for Estafa; Torralba Cirse R. R-43035 for Malicious Mischief. You will
confirm that the same Cirse Torralba and/or Choy Torralba and/or Cirse R. Torralba mentioned in this
certificate refer to your person?

A: Yes.

Q: Now, aside from these criminal cases in the Municipal Trial Courts in Cities, in Cebu City, you
also have 1, 2, 3, 4, 5, 6, 7, 8, 9 criminal cases before the Regional Trial Court of Cebu per certificate that
I marked as Exhibit "3". Is that correct?
A: Yes, but all those cases have already been either acquitted or dismissed. I will present the
certification.

Q: Specifically, these cases has something to do with your character. Let me count 1, 2, 3, 4, 5 cases
for Estafa, the 6th case for issuance of a bouncing check, the 7th case is a case for issuance of a
bouncing check; and the 9th is also for issuance of a bouncing check. You will confirm that?

xxx xxx xxx

COURT: (to witness)

Q: What happened to those cases? cHCSDa

A: I was acquitted your Honor. I was acquitted in all those cases, some are dismissed, and
fortunately, your Honor, I do not have any conviction. 77

From the foregoing, it is clear that there was nothing untruthful about what was published in the Sunday
Post. The criminal cases listed in the advertisement as pending against the complainant had indeed been
filed. It may have been inconvenient for the complainant that these matters may have been divulged,
yet such information hardly falls within any realm of privacy complainant could invoke, since the
pendency of these criminal charges are actually matters of public record.

The information, moreover, went into the very character and integrity of complainant to which his
listening public has a very legitimate interest. Complainant hosts a public affairs program, one which he
himself claimed was imbued with public character since it deals with "corruptions in government,
corruptions by public officials, irregularities in government in comrades." 78 By entering into this line of
work, complainant in effect gave the public a legitimate interest in his life. He likewise gave them a stake
in finding out if he himself had the integrity and character to have the right to criticize others for their
conduct.

In convicting the defendants, the lower courts paid particular heed to Article 354 of the Revised Penal
Code, which provides that "every defamatory imputation is presumed to be malicious, even if it be true,
if no good intention and justifiable motive for making it is shown . . .". We hold that this provision, as
applied to public figures complaining of criminal libel, must be construed in light of the constitutional
guarantee of free expression, and this Court's precedents upholding the standard of actual malice with
the necessary implication that a statement regarding a public figure if true is not libelous. The provision
itself allows for such leeway, accepting as a defense "good intention and justifiable motive." The
exercise of free expression, and its concordant assurance of commentary on public affairs and public
figures, certainly qualify as "justifiable motive," if not "good intention."

It cannot be helped if the commentary protected by the Bill of Rights is accompanied by excessive color
or innuendo. Certainly, persons in possession of truthful facts are not obliged to present the same in
bland fashion. These true facts may be utilized to convince the listener/reader against a particular
position, or to even dissuade one against accepting the credibility of a public figure. Dry facts, by
themselves, are hardly stirring. It is the commentary thereupon that usually animates the discourse
which is encouraged by the Constitution as integral to the democratic way of life. This is replete in many
components of our daily life, such as political addresses, televised debates, and even commercial
advertisements.

As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but
even expression in its most unsophisticated form. Criminal libel stands as a necessary qualification to
any absolutist interpretation of the free speech clause, if only because it prevents the proliferation of
untruths which if unrefuted, would gain an undue influence in the public discourse. But in order to
safeguard against fears that the public debate might be muted due to the reckless enforcement of libel
laws, truth has been sanctioned as a defense, much more in the case when the statements in question
address public issues or involve public figures.

In ascertaining the degree of falsity that would constitute actual malice, the Court, citing New York
Times, has even gone so far as acknowledging:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone
does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable care, the press should not be held to
account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There
must be some room for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical agencies in our
democracy. In Bulletin Publishing Corp. v. Noel we held —

A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to court
by one group or another on criminal or civil charges for libel, so long as the newspaper respects and
keeps within the standards of morality and civility prevailing within the general community.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements,
rules governing liability for injury to reputation are required to allow an adequate margin of error by
protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that
liability for defamation of a public official or public figure may not be imposed in the absence of proof of
"actual malice" on the part of the person making the libelous statement. 79

To this end, the publication of the subject advertisement by petitioner and Lim cannot be deemed by
this Court to have been done with actual malice. Aside from the fact that the information contained in
said publication was true, the intention to let the public know the character of their radio commentator
can at best be subsumed under the mantle of having been done with good motives and for justifiable
ends. The advertisement in question falls squarely within the bounds of constitutionally protected
expression under Section 4, Article III, and thus, acquittal is mandated.

WHEREFORE, premises considered, the petition is GRANTED. The assailed Decision and Resolution of the
Court of Appeals dated 29 July 1996 and 3 October 1996, respectively, in CA-G.R. CR No. 16413 are
REVERSED and SET ASIDE insofar as they affect petitioner. The Decision of the Regional Trial Court of
Cebu City, promulgated on 17 May 1994, as regards petitioner is likewise REVERSED and SET ASIDE and
petitioner is ACQUITTED of the charge of libel therein. No costs. EDHTAI

SO ORDERED.

Puno, Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.

[A.M. No. P-02-1651. June 22, 2006.]

(formerly OCA I.P.I. No. 00-1021-P)

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent.

Antonio Manzano for complainant.

Teodorico M. Diesmos for respondent.

SYLLABUS

1. REMEDIAL LAW; APPEALS; RESIDUAL ISSUES TO BE RESOLVED IN CASE AT BAR. — In our decision
dated August 4, 2003, after a long and arduous scrutiny into the origins and development of the religion
clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving religious
freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the religion clauses in our Constitution; and (2) in deciding
respondent's plea of exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest test, which must be
applied. Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the
ultimate issue of whether respondent was to be held administratively liable for there was need to give
the State the opportunity to adduce evidence that it has a more "compelling interest" to defeat the
claim of the respondent to religious freedom. Thus, in the decision dated August 4, 2003, we remanded
the complaint to the Office of the Court Administrator (OCA), and ordered the Office of the Solicitor
General (OSG) to intervene in the case so it can: (a) examine the sincerity and centrality of respondent's
claimed religious belief and practice; (b) present evidence on the state's "compelling interest" to
override respondent's religious belief and practice; and (c) show that the means the state adopts in
pursuing its interest is the least restrictive to respondent's religious freedom. It bears stressing,
therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS COURT SHOULD
TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING
CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been ruled upon
prior to the remand, and constitute "the law of the case" insofar as they resolved the issues of which
framework and test are to be applied in this case, and no motion for its reconsideration having been
filed. The only task that the Court is left to do is to determine whether the evidence adduced by the
State proves its more compelling interest. This issue involves a pure question of fact. SACHcD

2. ID.; CIVIL PROCEDURE; JUDGMENT; THE DECISION DATED AUGUST 4, 2003 OF THE SUPREME
COURT ON THE CASE AT BAR ATTAINED FINALITY AND CONSTITUTES THE LAW OF THE CASE WHEN NO
MOTION FOR RECONSIDERATION HAS BEEN FILED. — Mr. Justice Carpio's insistence, in his dissent, in
attacking the ruling of this case interpreting the religious clauses of the Constitution, made more than
two years ago, is misplaced to say the least. Since neither the complainant, respondent nor the
government has filed a motion for reconsideration assailing this ruling, the same has attained finality
and constitutes the law of the case. Any attempt to reopen this final ruling constitutes a crass
contravention of elementary rules of procedure. Worse, insofar as it would overturn the parties' right to
rely upon our interpretation which has long attained finality, it also runs counter to substantive due
process. Be that as it may, even assuming that there were no procedural and substantive infirmities in
Mr. Justice Carpio's belated attempts to disturb settled issues, and that he had timely presented his
arguments, the results would still be the same.

3. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; TWO SALIENT
FEATURES IN THE REVIEW OF RELIGIOUS HISTORY. — [T]wo salient features in the review of religious
history: First, with minor exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the
Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of
religion by secular powers to promote secular purposes and policies, and the willing acceptance of that
role by the vanguards of religion in exchange for the favors and mundane benefits conferred by
ambitious princes and emperors in exchange for religion's invaluable service. This was the context in
which the unique experiment of the principle of religious freedom and separation of church and state
saw its birth in American constitutional democracy and in human history.

4. ID.; ID.; ID.; ID.; THE ESTABLISHMENT AND FREE EXERCISE CLAUSES DO NOT SERVE
CONTRADICTORY PURPOSES; EXPLAINED. — The Establishment and Free Exercise Clauses, it should be
noted, were not designed to serve contradictory purposes. They have a single goal — to promote
freedom of individual religious beliefs and practices. In simplest terms, the Free Exercise Clause
prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice,
while the Establishment Clause prohibits government from inhibiting religious belief with rewards for
religious beliefs and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence individual religious beliefs and
practices. cAIDEa

5. ID.; ID.; ID.; ID.; RELIGION CLAUSES IN THE UNITED STATES CONSTITUTION AND PHILIPPINE
CONSTITUTION, DISTINGUISHED. — By juxtaposing the American Constitution and jurisprudence against
that of the Philippines, it is immediately clear that one cannot simply conclude that we have adopted —
lock, stock and barrel — the religion clauses as embodied in the First Amendment, and therefore, the
U.S. Court's interpretation of the same. Unlike in the U.S. where legislative exemptions of religion had to
be upheld by the U.S. Supreme Court as constituting permissive accommodations, similar exemptions
for religion are mandatory accommodations under our own constitutions. Thus, our 1935, 1973 and
1987 Constitutions contain provisions on tax exemption of church property, salary of religious officers in
government institutions, and optional religious instruction. Our own preamble also invokes the aid of a
divine being. These constitutional provisions are wholly ours and have no counterpart in the U.S.
Constitution or its amendments. They all reveal without doubt that the Filipino people, in adopting
these constitutions, manifested their adherence to the benevolent neutrality approach that requires
accommodations in interpreting the religion clauses.

6. ID.; ID.; ID.; ID.; BENEVOLENT NEUTRALITY-ACCOMMODATION, WHETHER MANDATORY OR

PERMISSIVE, IS THE SPIRIT, INTENT AND FRAMEWORK UNDERLYING THE PHILIPPINE CONSTITUTION. —
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it
asserted that the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to
the 1935 Constitution is a misreading of the ponencia. What the ponencia pointed out was that even as
early as 1935, or more than three decades before the U.S. Court could validate the exemption in Walz as
a form or permissible accommodation, we have already incorporated the same in our Constitution, as a
mandatory accommodation. There is no ambiguity with regard to the Philippine Constitution's
departure from the U.S. Constitution, insofar as religious accommodations are concerned. It is
indubitable that benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution. . . . We therefore reject Mr. Justice
Carpio's total adherence to the U.S. Court's interpretation of the religion clauses to effectively deny
accommodations on the sole basis that the law in question is neutral and of general application. For
even if it were true that "an unbroken line of U.S. Supreme Court decisions" has never held that "an
individual's religious beliefs [do not] excuse him from compliance with an otherwise valid law
prohibiting conduct that the State is free to regulate," our own Constitutions have made significant
changes to accommodate and exempt religion. Philippine jurisprudence shows that the Court has
allowed exemptions from a law of general application, in effect, interpreting our religion clauses to
cover both mandatory and permissive accommodations.

7. ID.; ID.; ID.; ID.; COMPELLING STATE INTEREST TEST; PROPER IN CASE INVOLVING PURELY
CONDUCT BASED ON RELIGIOUS BELIEF AS IN CASE AT BAR. — Having established that benevolent
neutrality-accommodation is the framework by which free exercise cases must be decided, the next
question then turned to the test that should be used in ascertaining the limits of the exercise of religious
freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in cases
involving purely conduct based on religious belief, as in the case at bar, the compelling state interest
test, is proper, viz.: Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible Society, the Court mentioned
the "clear and present danger" test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions of society and law. The Victoriano
case mentioned the "immediate and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least restrictive means to accomplish
the goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano, German went back to the Gerona rule. Ebralinag then employed the "grave and immediate
danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the
"clear and present danger" test in the maiden case of American Bible Society. Not surprisingly, all the
cases which employed the "clear and present danger" or "grave and immediate danger" test involved, in
one form or another, religious speech as this test is often used in cases on freedom of expression. On
the other hand, the Gerona and German cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which was the authority cited by German
has been overruled by Ebralinag which employed the "grave and immediate danger" test. Victoriano
was the only case that employed the "compelling state interest" test, but as explained previously, the
use of the test was inappropriate to the facts of the case. The case at bar does not involve speech as in
American Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and present danger" and "grave
and immediate danger" tests were appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The "compelling state interest" test is
proper where conduct is involved for the whole gamut of human conduct has different effects on the
state's interests: some effects may be immediate and short-term while others delayed and far-reaching.
A test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over
the right to religious freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights — "the most inalienable and sacred of all human rights," in the words of Jefferson.
This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The
entire constitutional order of limited government is premised upon an acknowledgment of such higher
sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of interests which balances a
right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest
of the state can prevail over the fundamental right to religious liberty. The test requires the state to
carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. In determining which shall prevail between
the state's interest and religious liberty, reasonableness shall be the guide. The "compelling state
interest" serves the purpose of revering religious liberty while at the same time affording protection to
the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e.,
refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the
paramount interests of the state, seeks to protect the very state, without which, religious liberty will not
be preserved. At this point, we take note of Mr. Justice Carpio's dissent, which, while loosely disputing
the applicability of the benevolent neutrality framework and compelling state interest test, states that
"[i]t is true that a test needs to be applied by the Court in determining the validity of a free exercise
claim of exemption as made here by Escritor." This assertion is inconsistent with the position negating
the benevolent neutrality or accommodation approach. If it were true, indeed, that the religion clauses
do not require accommodations based on the free exercise of religion, then there would be no need for
a test to determine the validity of a free exercise claim, as any and all claims for religious exemptions
from a law of general application would fail. aDSHCc

8. ID.; ID.; ID.; ID.; DOCTRINE IN SMITH INAPPLICABLE TO CASE AT BAR. — Mr. Justice Carpio
asserts that the Smith doctrine cannot be dismissed because it does not really espouse the strict
neutrality approach, but more of permissive accommodation. Mr. Justice Carpio's assertion misses the
point. Precisely because the doctrine in Smith is that only legislative accommodations are allowed under
the Free Exercise Clause, it cannot be used in determining a claim of religion exemption directly
anchored on the Free Exercise Clause. Thus, even assuming that the Smith doctrine actually espouses
the theory of accommodation or benevolent neutrality, the accommodation is limited to the permissive,
or legislative exemptions. It, therefore, cannot be used as a test in determining the claims of religious
exemptions directly under the Free Exercise Clause because Smith does not recognize such exemption.
Moreover, Mr. Justice Carpio's advocacy of the Smith doctrine would effectively render the Free
Exercise protection — a fundamental right under our Constitution — nugatory because he would deny
its status as an independent source of right.

9. ID.; ID.; ID.; ID.; COMPELLING STATE INTEREST TEST; ELUCIDATED. — [T]he compelling state
interest test involves a three-step process. We explained this process in detail, by showing the questions
which must be answered in each step, viz.: . . . First, "[H]as the statute or government action created a
burden on the free exercise of religion?" The courts often look into the sincerity of the religious belief,
but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring
about its truth as held in Ballard and Cantwell. The sincerity of the claimant's belief is ascertained to
avoid the mere claim of religious beliefs to escape a mandatory regulation. . . . Second, the court asks:
"[I]s there a sufficiently compelling state interest to justify this infringement of religious liberty?" In this
step, the government has to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if exemption is given; it must
precisely show how and to what extent those objectives will be undermined if exemptions are granted. .
. . Third, the court asks: ''[H]as the state in achieving its legitimate purposes used the least intrusive
means possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?" The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious liberties . . . . Again, the application of
the compelling state interest test could result to three situations of accommodation: First, mandatory
accommodation would result if the Court finds that accommodation is required by the Free Exercise
Clause. Second, if the Court finds that the State may, but is not required to, accommodate religious
interests, permissive accommodation results. Finally, if the Court finds that that establishment concerns
prevail over potential accommodation interests, then it must rule that the accommodation is prohibited.

10. ID.; ID.; ID.; ID.; AN EXEMPTION FROM A LAW OF GENERAL APPLICATION IS POSSIBLE EVEN IF
ANCHORED DIRECTLY ON AN INVOCATION OF THE FREE EXERCISE CLAUSE. — One of the central
arguments in Mr. Justice Carpio's dissent is that only permissive accommodation can carve out an
exemption from a law of general application. He posits the view that the law should prevail in the
absence of a legislative exemption, and the Court cannot make the accommodation or exemption. Mr.
Justice Carpio's position is clearly not supported by Philippine jurisprudence. The cases of American
Bible Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent
neutrality-accommodation covers not only the grant of permissive, or legislative accommodations, but
also mandatory accommodations. Thus, an exemption from a law of general application is possible, even
if anchored directly on an invocation of the Free Exercise Clause alone, rather than a legislative
exemption. Moreover, it should be noted that while there is no Philippine case as yet wherein the Court
granted an accommodation/exemption to a religious act from the application of general penal laws,
permissive accommodation based on religious freedom has been granted with respect to one of the
crimes penalized under the Revised Penal Code, that of bigamy. cDTIAC
11. ID.; ID.; ID.; ID.; ID.; RATIONALE. — [T]he crux of the matter is whether this Court can make
exemptions as in Ebralinag and the American Bible Society, in cases involving criminal laws of general
application. We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion
clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more
pronounced and given leeway than in the U.S. Second, the whole purpose of the accommodation
theory, including the notion of mandatory accommodations, was to address the "inadvertent
burdensome effect" that an otherwise facially neutral law would have on religious exercise. Just because
the law is criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise Clause.
As stated by Justice O'Connor in her concurring opinion in Smith, "[t]here is nothing talismanic about
neutral laws of general applicability or general criminal prohibitions, for laws neutral towards religion
can coerce a person to violate his religious conscience or intrude upon his religious duties just as
effectively as laws aimed at religion." Third, there is wisdom in accommodation made by the Court as
this is the recourse of minority religions who are likewise protected by the Free Exercise Clause.
Mandatory accommodations are particularly necessary to protect adherents of minority religions from
the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility to
the minority. As stated in our Decision, dated August 4, 2003: . . . In a democratic republic, laws are
inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict
with the religious scruples of those holding different world views, even in the absence of a deliberate
intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter
because some laws are so necessary to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the advancement of public purposes so small
or incomparable that only indifference or hostility could explain a refusal to make exemptions. Because
of plural traditions, legislators and executive officials are frequently willing to make such exemptions
when the need is brought to their attention, but this may not always be the case when the religious
practice is either unknown at the time of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature; while a constitutional interpretation
that requires accommodations extends this treatment to religious faiths that are less able to protect
themselves in the political arena. Fourth, exemption from penal laws on account of religion is not
entirely an alien concept, nor will it be applied for the first time, as an exemption of such nature, albeit
by legislative act, has already been granted to Moslem polygamy and the criminal law of bigamy. Finally,
we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the Bill
of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property,
the Religion Clauses are stated in absolute terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free speech is comparable in its absolute grant.
Given the unequivocal and unqualified grant couched in the language, the Court cannot simply dismiss a
claim of exemption based on the Free Exercise Clause, solely on the premise that the law in question is a
general criminal law. If the burden is great and the sincerity of the religious belief is not in question,
adherence to the benevolent neutrality-accommodation approach require that the Court make an
individual determination and not dismiss the claim outright.
12. ID.; ID.; ID.; ID.; COMPELLING STATE INTEREST TEST; APPLICATION THEREOF. — [T]he free
exercise of religion is specifically articulated as one of the fundamental rights in our Constitution. It is a
fundamental right that enjoys a preferred position in the hierarchy of rights — "the most inalienable and
sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend that the state's
interest is important, because our Constitution itself holds the right to religious freedom sacred. The
State must articulate in specific terms the state interest involved in preventing the exemption, which
must be compelling, for only the gravest abuses, endangering paramount interests can limit the
fundamental right to religious freedom. To rule otherwise would be to emasculate the Free Exercise
Clause as a source of right by itself. Thus, it is not the State's broad interest in "protecting the
institutions of marriage and the family," or even "in the sound administration of justice" that must be
weighed against respondent's claim, but the State's narrow interest in refusing to make an exception for
the cohabitation which respondent's faith finds moral. In other words, the government must do more
than assert the objectives at risk if exemption is given; it must precisely show how and to what extent
those objectives will be undermined if exemptions are granted. This, the Solicitor General failed to do.
To paraphrase Justice Blackmun's application of the compelling interest test, the State's interest in
enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot
be merely abstract or symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to
enforce that prohibition. In the case at bar, the State has not evinced any concrete interest in enforcing
the concubinage or bigamy charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The State's asserted interest thus amounts only to the symbolic
preservation of an unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo
and Vitug, in their concurring opinions in our Decision, dated August 4, 2003, to deny the exemption
would effectively break up "an otherwise ideal union of two individuals who have managed to stay
together as husband and wife [approximately twenty-five years]" and have the effect of defeating the
very substance of marriage and the family. aDSTIC

13. ID.; ID.; ID.; ID.; RELIGION CLAUSES; CONSTRUED. — At bottom, the slippery slope argument of
Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises the issue of equality among religions,
we look to the words of the Religion Clauses, which clearly single out religion for both a benefit and a
burden: "No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. . ." On its face, the language grants a unique advantage to religious conduct, protecting it from
governmental imposition; and imposes a unique disadvantage, preventing the government from
supporting it. To understand this as a provision which puts religion on an equal footing with other bases
for action seems to be a curious reading. There are no "free exercise" of "establishment" provisions for
science, sports, philosophy, or family relations. The language itself thus seems to answer whether we
have a paradigm of equality or liberty; the language of the Clause is clearly in the form of a grant of
liberty. In this case, the government's conduct may appear innocent and nondiscriminatory but in effect,
it is oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed
to protect the minority from the majority, the question of which perspective is appropriate would seem
easy to answer. Moreover, the text, history, structure and values implicated in the interpretation of the
clauses, all point toward this perspective. Thus, substantive equality — a reading of the religion clauses
which leaves both politically dominant and the politically weak religious groups equal in their inability to
use the government (law) to assist their own religion or burden others — makes the most sense in the
interpretation of the Bill of Rights, a document designed to protect minorities and individuals from
mobocracy in a democracy (the majority or a coalition of minorities).

14. ID.; ID.; ID.; ID.; COMPELLING STATE INTEREST TEST; LEAST INTRUSIVE MEANS POSSIBLE SHALL
BE USED BY THE STATE SO THAT THE FREE EXERCISE IS NOT INFRINGED ANY MORE THAN NECESSARY TO
ACHIEVE THE LEGITIMATE GOAL OF THE STATE. — [E]ven assuming that the OSG has proved a
compelling state interest, it has to further demonstrate that the state has used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal
of the state, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible
on religious liberties. Again, the Solicitor General utterly failed to prove this element of the test. Other
than the two documents offered as cited above which established the sincerity of respondent's religious
belief and the fact that the agreement was an internal arrangement within respondent's congregation,
no iota of evidence was offered. In fact, the records are bereft of even a feeble attempt to procure any
such evidence to show that the means the state adopted in pursuing this compelling interest is the least
restrictive to respondent's religious freedom.

YNARES-SANTIAGO, J., dissenting opinion:

1. POLITICAL LAW; ADMINISTRATIVE LAW; PUBLIC OFFICERS AND EMPLOYEES; NO UNTOWARD

CONDUCT INVOLVING PUBLIC OFFICERS SHOULD BE LEFT WITHOUT PROPER AND COMMENSURATE
ACTION. — The degree of morality required of every employee or official in the public service has been
consistently high. The rules are particularly strict when the respondent is a Judge or a court employee.
Even where the Court has viewed certain cases with human understanding and compassion, it has
insisted that no untoward conduct involving public officers should be left without proper and
commensurate sanction. The compassion is shown through relatively light penalties. Never, however,
has this Court justified, condoned, or blessed the continuation of an adulterous or illicit relationship
such as the one in this case, after the same has been brought to its attention. EcICSA

2. ID.; ID.; ID.; CIVIL SERVICE LAW; PUNISHES PUBLIC OFFICERS AND EMPLOYEES FOR DISGRACEFUL
AND IMMORAL CONDUCT; MORAL AND IMMORAL, DEFINED. — The Civil Service Law punishes public
officers and employees for disgraceful and immoral conduct. Whether an act is immoral within the
meaning of the statute is not to be determined by respondent's concept of morality. The law provides
the standard; the offense is complete if respondent intended to perform, and did in fact perform, the
act which it condemns. The layman's definition of what is "moral" pertains to excellence of character or
disposition. It relates to the distinction between right and wrong; virtue and vice; ethical praise or
blame. Moral law refers to the body of requirements in conformity to which virtuous action consists.
Applied to persons, it is conformity to the rules of morality, being virtuous with regards to moral
conduct. That which is not consistent with or not conforming to moral law, opposed to or violating
morality, and now, more often, morally evil or impure, is immoral. Immoral is the state of not being
virtuous with regard to sexual conduct. The term begs the definition. Hence, anything contrary to the
standards of moral conduct is immoral. A grossly immoral act must be so corrupt and false as to
constitute a criminal act or so unprincipled as to be reprehensible to a high degree. Anything plainly evil
or dissolute is, of course, unchangingly immoral. However, at the fringes or boundary limits of what is
morally acceptable and what is unacceptably wrong, the concept of immorality tends to shift according
to circumstances of time, person, and place. When a case involving the concept of immorality comes to
court, the applicable provisions of law and jurisprudence take center stage.

3. CRIMINAL LAW; CRIMES AGAINST CHASTITY; CONCUBINAGE; ABANDONMENT BY THE LEGAL

HUSBAND WITHOUT JUSTIFICATION DOES NOT EXCULPATE THE OFFENDER, IT MERELY MITIGATES THE
PENALTY. — We cannot overlook the fact that respondent Escritor would have been convicted for a
criminal offense if the offended party had been inclined and justified to prosecute her prior to his death
in 1998. Even now, she is a co-principal in the crime of concubinage. A married woman who has sexual
intercourse with a man not her husband, and the man who has carnal knowledge of her knowing her to
be married, commit the crime of adultery. Abandonment by the legal husband without justification does
not exculpate the offender; it merely mitigates the penalty. The concubine with whom a married man
cohabits suffers the penalty of destierro. It is true that criminal proceedings cannot be instituted against
persons charged with adultery or concubinage except upon complaint of the offended party. This does
not mean that no actionable offense has been committed if the offended party does not press charges.
It simply cannot be prosecuted. The conduct is not thereby approved, endorsed or commended. It is
merely tolerated. The inescapable fact in this case is that acts defined as criminal under penal law have
been committed.

4. ID.; ID.; ID.; AN ACT SO CORRUPT OR FALSE AS TO CONSTITUTE A CRIMINAL ACT IS GROSSLY
IMMORAL, NOT MERELY IMMORAL. — Our existing rule is that an act so corrupt or false as to constitute
a criminal act is "grossly immoral." It is not merely "immoral." Respondent now asks the Court to go all
the way to the opposite extreme and condone her illicit relations with not even an admonition or a
slight tap on the wrist. cEAHSC

5. POLITICAL LAW; ADMINISTRATIVE LAW; PUBLIC OFFICERS AND EMPLOYEES; COURT PERSONNEL;
REQUIRED DECORUM. — The Court has ruled that in the case of public servants who are in the judiciary,
their conduct and behavior, from the presiding judge to the lowliest clerk, must not only be
characterized by propriety and decorum, but above all else, must be above suspicion. In Burgos v.
Aquino, it was ruled: The Code of Judicial Ethics mandates that the conduct of court personnel must be
free from any whiff of impropriety, not only with respect to his duties in the judicial branch but also to
his behavior outside the court as a private individual. There is no dichotomy of morality; a court
employee is also judged by his private morals. These exacting standards of morality and decency have
been strictly adhered to and laid down by the Court to those in the service of the judiciary. Respondent,
as a court stenographer, did not live up to her commitment to lead a moral life. Her act of maintaining
relations with Atty. Burgos speaks for itself.

6. ID.; ID.; ID.; ID.; FREEDOM OF RELIGION IS UNAVAILING IN CASE AT BAR. — Respondent cannot
legally justify her conduct by showing that it was morally right by the standards of the congregation to
which she belongs. Her defense of freedom of religion is unavailing. Her relationship with Mr. Quilapio is
illicit and immoral, both under the Revised Administrative Code and the Revised Penal Code,
notwithstanding the supposed imprimatur given to them by their religion. The peculiar religious
standards alleged to be those of the sect to which respondent belongs can not shield her from the
effects of the law. Neither can her illicit relationship be condoned on the basis of a written agreement
approved by their religious community. To condone what is inherently wrong in the face of the
standards set by law is to render nugatory the safeguards set to protect the civil service and, in this case,
the judiciary. The Court cannot be the instrument by which one group of people is exempted from the
effects of these laws just because they belong to a particular religion. Moreover, it is the sworn mandate
of the Court to supervise the conduct of an employee of the judiciary, and it must do so with an even
hand regardless of her religious affiliation. Respondent invokes her constitutional right to religious
freedom. The separation of church and state has been inviolable in this jurisdiction for a century.
However, the doctrine is not involved in this case. Furthermore, the legislature made cohabitation with
a woman who is not one's wife a crime through the enactment of the Revised Penal Code. The
legislative power has also seen fit to enact the Civil Service Law and has given said law general
application.

7. ID.; ID.; ID.; ID.; ID.; THE ARGUMENT THAT A MARITAL RELATIONSHIP IS THE CONCERN OF
RELIGIOUS AUTHORITIES AND NOT THE STATE HAS NO BASIS. — The argument that a marital
relationship is the concern of religious authorities and not the State has no basis. In Reynolds v. United
States, the U.S. Supreme Court stated: It is impossible to believe that the constitutional guaranty of
religious freedom was intended to prohibit legislation in respect to this most important feature of social
life. Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations, a
civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits
spring social relations and social obligations and duties, with which government is necessarily required
to deal. The strengthening of marriage ties and the concomitant hostility to adulterous or illicit marital
relations is a primary governmental concern. It has nothing to do with the particular religious affiliations
of those affected by legislation in this field. The relations, duties, obligations and consequences of
marriage are important to the morals and civilization of a people and to the peace and welfare of
society. Any attempt to inject freedom of religion in an effort to exempt oneself from the Civil Service
rules relating to the sanctity of the marriage tie must fail. We must not exempt illegal conduct or
adulterous relations from governmental regulation simply because their practitioners claim it is part of
their free exercise of religious profession and worship. Indeed, the Court distinguishes between religious
practices, including the seemingly bizarre, which may not be regulated, and unacceptable religious
conduct which should be prevented despite claims that it forms part of religious freedom.

8. ID.; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; A CLEAR AND PRESENT
DANGER OF A SUBSTANTIVE EVIL, DESTRUCTIVE TO PUBLIC MORALS, IS A GROUND FOR THE
REASONABLE REGULATION OF THE FREE EXERCISE AND ENJOYMENT OF RELIGIOUS PROFESSION. — A
clear and present danger of a substantive evil, destructive to public morals, is a ground for the
reasonable regulation of the free exercise and enjoyment of religious profession. In addition to the
destruction of public morals, the substantive evil in this case is the tearing down of morality, good order,
and discipline in the judiciary. ACETIa
9. ID.; ID.; ID.; ID.; EXEMPTIONS GRANTED UNDER OUR MUSLIM LAWS TO LEGITIMATE
FOLLOWERS OF ISLAM DO NOT APPLY TO MEMBERS OF JEHOVAH'S WITNESS. — Soledad S. Escritor and
Luciano D. Quilapio are devoted members of Jehovah's Witness. Exemptions granted under our Muslim
Laws to legitimate followers of Islam do not apply to them. The Court has no legislative power to place
Jehovah's Witness in the same legal category as Muslims.

10. ID.; ADMINISTRATIVE LAW; PUBLIC OFFICERS AND EMPLOYEES; COURT PERSONNEL;
IMMORALITY; PENALTY; CASE AT BAR. — Immorality is punishable by suspension of six (6) months and
one day to one (1) year for the first offense and dismissal for the second offense. Considering that
respondent's misconduct is in the nature of a continuing offense, it must be treated as a first offense,
and her continued cohabitation with Luciano E. Quilapio, Jr. must be deemed a second offense, which
will warrant the penalty of dismissal.

CARPIO, J., dissenting opinion:

1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; COMPELLING

STATE INTEREST ABANDONED BY THE UNITED SUPREME COURT IN THE EMPLOYMENT DIVISION V.
SMITH CASES; THE GUARANTEE OF RELIGIOUS LIBERTY AS EMBODIED IN THE FREE EXERCISE CLAUSE
DOES NOT REQUIRE THE GRANT OF EXEMPTIONS FROM THE GENERALLY APPLICABLE LAWS TO
INDIVIDUALS WHOSE RELIGIOUS PRACTICE CONFLICT WITH THOSE LAWS. — The majority opinion relies
heavily on Sherbert v. Verner in upholding Escritor's claim of exemption from administrative liability
grounded on her religious belief as a member of the Jehovah's Witnesses. This religious sect allows
Escritor's cohabitation with Luciano D. Quilapio, Jr., who has a subsisting marriage with another woman.
The compelling state interest test espoused in Sherbert has been abandoned more than 15 years ago by
the U.S. Supreme Court in the Employment Division v. Smith cases. In the Smith cases, the U.S. Supreme
Court set aside the balancing test for religious minorities laid down in Sherbert. Instead, the U.S.
Supreme Court ruled categorically in the Smith cases that the guarantee of religious liberty as embodied
in the Free Exercise Clause does not require the grant of exemptions from generally applicable laws to
individuals whose religious practice conflict with those laws.

2. ID.; ID.; ID.; ID.; ID.; ID.; ID.; COMPELLING STATE INTEREST IS NOT THE CORRECT TEST; CASE AT
BAR. — What the Smith cases teach us is that the compelling state interest test in Sherbert is not the
correct test in determining the legitimacy of a claim of exemption from generally applicable, religion-
neutral laws that have the incidental effect of burdening particular religious practice. Any such claim for
exemption should be analyzed by considering whether the conduct in question is one that "the State has
validly proscribed," irrespective of the sincerity or centrality of an individual's religious beliefs. Here,
Escritor is indisputably engaged in criminal conduct. Escritor's continued cohabitation with Quilapio is
patently in violation of Article 334 of the Revised Penal Code on concubinage. Article 334 makes no
exception for religiously sanctioned cohabitation such as that existing between Escritor and Quilapio.
The majority opinion in fact concedes that the present case involves a claim of exemption "from a law of
general applicability that inadvertently burdens religious exercise." The majority opinion even concedes
further that the conduct in question is one "which Philippine law and jurisprudence consider both
immoral and illegal." And yet, the majority opinion expediently brushes aside the illegality of Escritor's
questioned conduct using the obsolete compelling state interest test in Sherbert. DAETHc

3. ID.; ID.; ID.; ID.; THREE PRINCIPAL THEORIES; EXPLAINED. — While the majority opinion only
mentions separation and benevolent neutrality, a close reading of the major U.S. Supreme Court
opinions specifically relating to the religion clauses presents three principal theories at play, namely, (a)
the strict separation or "no aid" theory, (b) the governmental neutrality theory, and (c) the
accommodation or benevolent neutrality theory. The strict separation or "no aid" theory holds that the
establishment clause viewed in conjunction with the free exercise clause requires a strict separation of
church and state and that government can do nothing which involves Governmental support of religion
or which is favorable to the cultivation of religious interests. This theory found its first expression in the
case of Everson v. Board of Education, which espoused the "no aid" principle. Thus, the government
cannot by its programs, policies, or laws do anything to aid or support religion or religious activities.
Everson upheld the validity of a New Jersey statute authorizing bus fare reimbursement to parents of
parochial, as well as public school children. Apparently, the strict interpretation or "no aid" theory
prohibits state benefits to a particular sect or sects only, but does not prohibit benefits that accrue to
all, including one or more sects. Everson did not involve religiously motivated conduct that constituted a
violation of a criminal statute. Under the governmental neutrality theory, the establishment clause
requires government to be neutral on religious matters. This theory was articulated by Mr. Justice Clark
in the case of Abington School District v. Schempp, where he stated that what the Constitution requires
is "wholesome neutrality," i.e., laws and governmental programs must be directed to secular ends and
must have a primary effect that neither advances nor inhibits religion. This test as stated by Mr. Justice
Clark embodies a theory of strict neutrality — thus, the government may not use the religious factor as a
basis for classification with the purpose of advancing or inhibiting religion: The place of religion in our
society is an exalted one, achieved through a long tradition of reliance on the home, the church and the
inviolable citadel of the individual heart and mind. We have come to recognize through bitter
experience that it is not within the power of government to invade that citadel, whether its purpose or
effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the state
is firmly committed to a position of neutrality. However, the concept of governmental neutrality can be
interpreted in various ways — to some, anything but total neutrality is anathema; to others, "neutrality
can only mean that government policy must place religion at neither a special advantage nor a special
disadvantage." Schempp struck down a Pennsylvania law allowing the recitation of the Lord's Prayer and
the reading of the Bible without comment in public schools, although the recitation and reading were
voluntary and did not favor any sect. Schempp did not involve religiously motivated conduct that
constituted a violation of a criminal statute. The accommodation theory provides that any limitation
derived from the establishment clause on cannot be rigidly applied so as to preclude all aid to religion
and that in some situations government must, and in other situations may, accommodate its policies
and laws in the furtherance of religious freedom. The accommodation theory found its first expression
in Zorach v. Clauson. The U.S. Supreme Court held in Zorach that a state could authorize an arrangement
whereby public school children could be released one hour a week for religious instruction off the
school premises. Zorach did not involve religiously motivated conduct that constituted a violation of a
criminal statute.
4. ID.; ID.; ID.; ID.; ID.; ACCOMMODATION THEORY; MAJORITY OPINION FAILS TO MENTION THAT
A DISTINCTION IS OFTEN DRAWN BY COURTS AND COMMENTATORS BETWEEN MANDATORY
ACCOMMODATION AND PERMISSIVE ACCOMMODATION; MANDATORY AND PERMISSIVE
ACCOMMODATION, DISTINGUISHED. — The majority opinion vigorously argues the merits of adopting
the theory of accommodation in the interpretation of our Constitution's religion clauses. However, the
majority opinion fails to mention that a distinction is often drawn by courts and commentators between
mandatory accommodation and permissive accommodation. Mandatory accommodation is exemplified
by the key idea in Sherbert that exemptions from generally applicable laws are required by force of the
Free Exercise Clause, which the majority opinion adheres to in granting Escritor's claim of free exercise
exemption. Permissive accommodation refers to exercises of political discretion that benefit religion,
and that the Constitution neither requires nor forbids. The U.S. Supreme Court recognized in Smith II
that although the Free Exercise Clause did not require permissive accommodation, the political branches
could shield religious exercise through legislative accommodation, for example, by making an exception
to proscriptive drug laws for sacramental peyote use. It is true that a test needs to be applied by the
Court in determining the validity of a free exercise claim of exemption as made here by Escritor. The
compelling state interest test in Sherbert pushes the limits of religious liberty too far, and so too does
the majority opinion insofar as it grants Escritor immunity to a law of general operation on the ground of
religious liberty. Making a distinction between permissive accommodation and mandatory
accommodation is more critically important in analyzing free exercise exemption claims. Such limitations
forces the Court to confront how far it can validly set the limits of religious liberty under the Free
Exercise Clause, rather than presenting the separation theory and accommodation theory as opposite
concepts, and then rejecting relevant and instructive American jurisprudence (such as the Smith cases)
just because it does not espouse the theory selected. CacHES

5. ID.; ID.; ID.; ID.; ID.; ID.; PERMISSIVE ACCOMMODATION; WHAT THE SMITH CASES REALLY
ESPOUSE. — Theories are only guideposts and "there is no magic formula to settle all disputes between
religion and the law, no legal pill to ease the pain of perceived injustice and religious oppression, and
certainly no perfect theory to bind judges or legislators." The Smith cases, particularly Smith II, cannot
be so easily dismissed by the majority opinion and labeled as "best exemplifying the strict neutrality
approach." The Smith Court affirmed the power and the discretion of legislatures to enact statutory
protection beyond what the Free Exercise Clause required. The U.S. Supreme Court indicated in Smith II
that legislatures could enact accommodations to protect religion beyond the Free Exercise Clause
minimum without "establishing" religion and thereby running afoul of the Establishment Clause. What
the Smith cases espouse, therefore, is not really the strict neutrality approach, but more of permissive
accommodation.

6. ID.; ADMINISTRATIVE LAW; PUBLIC OFFICERS AND EMPLOYEES; COURT PERSONNEL; ESCRITOR'S
ADMITTED COHABITATION WITH QUILAPIO IS SUFFICIENT BASIS TO HOLD HER GUILTY OF CONDUCT
PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE. — Even assuming that the theory of benevolent
neutrality and the compelling state interest test are applicable, the State has a compelling interest in
exacting from everyone connected with the dispensation of justice, from the highest magistrate to the
lowest of its personnel, the highest standard of conduct. This Court has repeatedly held that "the image
of a court of justice is necessarily mirrored in the conduct, official or otherwise, of the men and women
who work thereat." While arguably not constituting "disgraceful and immoral conduct," Escritor's
cohabitation with Quilapio is a patent violation of our penal law on concubinage that vitiates "the
integrity of court personnel and the court itself." The public's faith and confidence in the administration
of justice would certainly be eroded and undermined if tolerated within the judiciary's ranks are court
employees blatantly violating our criminal laws. I therefore maintain that Escritor's admitted
cohabitation with Quilapio is sufficient basis to hold her guilty of conduct prejudicial to the best interest
of the service and to impose upon her the appropriate penalty.

7. ID.; ID.; ID.; ID.; IN DISMISSING THE COMPLAINT AGAINST ESCRITOR, THE MAJORITY OPINION
EFFECTIVELY CONDONES AND ACCORDS A SEMBLANCE OF LEGITIMACY TO HER PATENTLY UNLAWFUL
COHABITATION WITH QUILAPIO; ELUCIDATED. — In dismissing the administrative complaint against
Escritor, the majority opinion effectively condones and accords a semblance of legitimacy to her
patently unlawful cohabitation with Quilapio, while in the eyes of the law, Quilapio remains married to
his legal wife. This condonation in fact facilitates the circumvention by Escritor and Quilapio of Articles
334 and 349 of the Revised Penal Code on concubinage and bigamy. Without having his first marriage
legally dissolved, Quilapio can now continue to cohabit with Escritor with impunity. How do we reconcile
this scenario with the Constitution's emphatic declaration that marriage is "an inviolable social
institution"? By choosing to turn a blind eye to Escritor's criminal conduct, the majority is in fact
recognizing and according judicial imprimatur to a practice, custom or agreement that subverts
marriage, albeit one that is sanctioned by a particular religious sect. The majority's opinion here bestows
"a credibility and legitimacy upon the religious belief in question simply by its being judicially recognized
as constitutionally sacrosanct." This is another problem that arises in free exercise exemption analysis —
the benevolent neutrality approach fails to take into account the role that equality plays in free exercise
theory. While the text of the Free Exercise Clause is consistent with protecting religion from
discrimination, it does not compel discrimination in favor of religion. However, the benevolent neutrality
approach promotes its own form of inequality when under it, exemptions are granted only to religious
claimants like Escritor, whose religiously-sanctioned but otherwise illegal conjugal arrangement with
Quilapio acquires a veneer of "special judicial reinforcement." It may well be asked how, under a well-
meaning but overly solicitous grant of exemption based on the Freedom of Exercise Clause of our
Constitution, an individual can be given the private right to ignore a generally applicable, religion-neutral
law. For this is what the majority opinion has effectually granted Escritor in dismissing the administrative
complaint against her. The accommodation of Escritor's religious beliefs under the benevolent neutrality
approach is too high a price to pay when weighed against its prejudicial effect on the sound
administration of justice and the protection of marriage and the family as basic social institutions.

8. ID.; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF RELIGION; CASE AT BAR IS NOT AN
ISSUE OF A STATUTE COLLIDING WITH CENTRALLY OR VITALLY HELD BELIEFS OF A RELIGIOUS
DENOMINATION, AS IN THE CASE OF SHERBERT. — [T]here is even no claim here that concubinage is
central to the religious belief of the Jehovah's Witnesses, or even a part of the religious belief of the
Jehovah's Witnesses. Escritor merely claims that her live-in arrangement with a married man is, in the
words of the majority opinion, "in conformity with her and her partner's religious belief." This case is not
an issue of a statute colliding with centrally or vitally held beliefs of a religious denomination, as in the
case of Sherbert. This case is about a religious cover for an obviously criminal act. The positive law and
the institutions of government are concerned not with correct belief but with overt conduct related to
good order, peace, justice, freedom, and community welfare. Hence, while there are times when
government must adapt to, or acquiesce to meet the needs of religious exercise, there are also times
when the exercises a religion wishes to pursue must be adapted or even prohibited in order to meet the
needs of public policy. For indeed, even religious liberty has its limits. And certainly, "there is a price to
be paid, even by religion, for living in a constitutional democracy." Certainly, observance of provisions of
the Revised Penal Code, whose validity or constitutionality are not even challenged, is a price that all
religions in the Philippines must willingly pay for the sake of good order and peace in the community. To
hold otherwise would, as aptly stated in Reynolds v. U.S., "make the professed doctrines of religious
belief superior to the law of the land," and in effect "permit every citizen to become a law unto himself."
The majority opinion will make every religion a separate republic, making religion a haven for criminal
conduct that otherwise would be punishable under the laws of the land. Today concubinage, tomorrow
bigamy, will enjoy protection from criminal sanction under the new doctrine foisted by the majority
opinion. SDIaHE

RESOLUTION

PUNO, J p:

While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again
stands before the Court invoking her religious freedom and her Jehovah God in a bid to save her family
— united without the benefit of legal marriage — and livelihood. The State, on the other hand, seeks to
wield its power to regulate her behavior and protect its interest in marriage and family and the integrity
of the courts where respondent is an employee. How the Court will tilt the scales of justice in the case at
bar will decide not only the fate of respondent Escritor but of other believers coming to Court bearing
grievances on their free exercise of religion. This case comes to us from our remand to the Office of the
Court Administrator on August 4, 2003. 1

I. THE PAST PROCEEDINGS

In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F.
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of
respondent Soledad Escritor, court interpreter in said court, for living with a man not her husband, and
having borne a child within this live-in arrangement. Estrada believes that Escritor is committing an
immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed
therein as it might appear that the court condones her act. 2 Consequently, respondent was charged
with committing "disgraceful and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code. 3

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her
husband having died in 1998. 4 She admitted that she started living with Luciano Quilapio, Jr. without
the benefit of marriage more than twenty years ago when her husband was still alive but living with
another woman. She also admitted that she and Quilapio have a son. 5 But as a member of the religious
sect known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with their religious beliefs and has the
approval of her congregation. 6 In fact, after ten years of living together, she executed on July 28, 1991,
a "Declaration of Pledging Faithfulness." 7

For Jehovah's Witnesses, the Declaration allows members of the congregation who have been
abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting
union moral and binding within the congregation all over the world except in countries where divorce is
allowed. As laid out by the tenets of their faith, the Jehovah's congregation requires that at the time the
declarations are executed, the couple cannot secure the civil authorities' approval of the marital
relationship because of legal impediments. Only couples who have been baptized and in good standing
may execute the Declaration, which requires the approval of the elders of the congregation. As a matter
of practice, the marital status of the declarants and their respective spouses' commission of adultery are
investigated before the declarations are executed. 8 Escritor and Quilapio's declarations were executed
in the usual and approved form prescribed by the Jehovah's Witnesses, 9 approved by elders of the
congregation where the declarations were executed, 10 and recorded in the Watch Tower Central
Office. 11

Moreover, the Jehovah's congregation believes that once all legal impediments for the couple are lifted,
the validity of the declarations ceases, and the couple should legalize their union. In Escritor's case,
although she was widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate
was still not capacitated to remarry. Thus, their declarations remained valid. 12 In sum, therefore,
insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain members in good standing in the congregation.
EAcTDH

By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her
conjugal arrangement does not constitute disgraceful and immoral conduct for which she should be held
administratively liable, 13 the Court had to determine the contours of religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.

A. RULING

In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development
of the religion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims
involving religious freedom (1) benevolent neutrality or accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the religion clauses in our Constitution; and (2)
in deciding respondent's plea of exemption based on the Free Exercise Clause (from the law with which
she is administratively charged), it is the compelling state interest test, the strictest test, which must be
applied. 14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate
issue of whether respondent was to be held administratively liable for there was need to give the State
the opportunity to adduce evidence that it has a more "compelling interest" to defeat the claim of the
respondent to religious freedom. Thus, in the decision dated August 4, 2003, we remanded the
complaint to the Office of the Court Administrator (OCA), and ordered the Office of the Solicitor General
(OSG) to intervene in the case so it can:

(a) examine the sincerity and centrality of respondent's claimed religious belief and practice;

(b) present evidence on the state's "compelling interest" to override respondent's religious belief
and practice; and

(c) show that the means the state adopts in pursuing its interest is the least restrictive to
respondent's religious freedom. 15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH
THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST
APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues
have already been ruled upon prior to the remand, and constitute "the law of the case" insofar as they
resolved the issues of which framework and test are to be applied in this case, and no motion for its
reconsideration having been filed. 16 The only task that the Court is left to do is to determine whether
the evidence adduced by the State proves its more compelling interest. This issue involves a pure
question of fact.

B. LAW OF THE CASE

Mr. Justice Carpio's insistence, in his dissent, in attacking the ruling of this case interpreting the religious
clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since neither
the complainant, respondent nor the government has filed a motion for reconsideration assailing this
ruling, the same has attained finality and constitutes the law of the case. Any attempt to reopen this
final ruling constitutes a crass contravention of elementary rules of procedure. Worse, insofar as it
would overturn the parties' right to rely upon our interpretation which has long attained finality, it also
runs counter to substantive due process.

Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice
Carpio's belated attempts to disturb settled issues, and that he had timely presented his arguments, the
results would still be the same.

We review the highlights of our decision dated August 4, 2003.

1. OLD WORLD ANTECEDENTS

In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion
clauses, because "one cannot understand, much less intelligently criticize the approaches of the courts
and the political branches to religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval world and in the American
experience." 17 We delved into the conception of religion from primitive times, when it started out as
the state itself, when the authority and power of the state were ascribed to God. 18 Then, religion
developed on its own and became superior to the state, 19 its subordinate, 20 and even becoming an
engine of state policy. 21

We ascertained two salient features in the review of religious history: First, with minor exceptions, the
history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed,
and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular
purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange
for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for
religion's invaluable service. This was the context in which the unique experiment of the principle of
religious freedom and separation of church and state saw its birth in American constitutional democracy
and in human history. 22

Strictly speaking, the American experiment of freedom and separation was not translated in the First
Amendment. That experiment had been launched four years earlier, when the founders of the republic
carefully withheld from the new national government any power to deal with religion. As James
Madison said, the national government had no "jurisdiction" over religion or any "shadow of right to
intermeddle" with it. 23

The omission of an express guaranty of religious freedom and other natural rights, however, nearly
prevented the ratification of the Constitution. The restriction had to be made explicit with the adoption
of the religion clauses in the First Amendment as they are worded to this day. Thus, the First
Amendment did not take away or abridge any power of the national government; its intent was to make
express the absence of power. 24 It commands, in two parts (with the first part usually referred to as
the Establishment Clause and the second part, the Free Exercise Clause), viz:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise
thereof. 25

The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve
contradictory purposes. They have a single goal — to promote freedom of individual religious beliefs
and practices. In simplest terms, the Free Exercise Clause prohibits government from inhibiting religious
beliefs with penalties for religious beliefs and practice, while the Establishment Clause prohibits
government from inhibiting religious belief with rewards for religious beliefs and practices. In other
words, the two religion clauses were intended to deny government the power to use either the carrot or
the stick to influence individual religious beliefs and practices. 26
In sum, a review of the Old World antecedents of religion shows the movement of establishment of
religion as an engine to promote state interests, to the principle of non-establishment to allow the free
exercise of religion. DICSaH

2. RELIGION CLAUSES IN THE U.S. CONTEXT

The Court then turned to the religion clauses' interpretation and construction in the United States, not
because we are bound by their interpretation, but because the U.S. religion clauses are the precursors
to the Philippine religion clauses, although we have significantly departed from the U.S. interpretation
as will be discussed later on.

At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught
with inconsistencies whether within a Court decision or across decisions. For while there is widespread
agreement regarding the value of the First Amendment religion clauses, there is an equally broad
disagreement as to what these clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact meaning and the paucity of
records in the U.S. Congress renders it difficult to ascertain its meaning. 27

U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the
religion clauses. First is the standard of separation, which may take the form of either (a) strict
separation or (b) the tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers to
as the second theory of governmental neutrality. Although the latter form is not as hostile to religion as
the former, both are anchored on the Jeffersonian premise that a "wall of separation" must exist
between the state and the Church to protect the state from the church. 28 Both protect the principle of
church-state separation with a rigid reading of the principle. On the other hand, the second standard,
the benevolent neutrality or accommodation, is buttressed by the view that the wall of separation is
meant to protect the church from the state. A brief review of each theory is in order.

a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was meant to protect the state from the
church, and the state's hostility towards religion allows no interaction between the two. According to
this Jeffersonian view, an absolute barrier to formal interdependence of religion and state needs to be
erected. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could
the state adjust its secular programs to alleviate burdens the programs placed on believers. 29 Only the
complete separation of religion from politics would eliminate the formal influence of religious
institutions and provide for a free choice among political views, thus a strict "wall of separation" is
necessary. 30

Strict separation faces difficulties, however, as it is deeply embedded in American history and
contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from religion. 31 For example, less than
twenty-four hours after Congress adopted the First Amendment's prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings
enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day
of Thanksgiving and Prayer. 32 Thus, strict separationists are caught in an awkward position of claiming
a constitutional principle that has never existed and is never likely to. 33

The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the
governmental neutrality theory) finds basis in Everson v. Board of Education, 34 where the Court
declared that Jefferson's "wall of separation" encapsulated the meaning of the First Amendment.
However, unlike the strict separationists, the strict neutrality view believes that the "wall of separation"
does not require the state to be their adversary. Rather, the state must be neutral in its relations with
groups of religious believers and non-believers. "State power is no more to be used so as to handicap
religions than it is to favor them." 35 The strict neutrality approach is not hostile to religion, but it is
strict in holding that religion may not be used as a basis for classification for purposes of governmental
action, whether the action confers rights or privileges or imposes duties or obligations. Only secular
criteria may be the basis of government action. It does not permit, much less require, accommodation
of secular programs to religious belief. 36

The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment
Clause, it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed
out by Justice Goldberg in his concurring opinion in Abington School District v. Schempp, 37 strict
neutrality could lead to "a brooding and pervasive devotion to the secular and a passive, or even active,
hostility to the religious" which is prohibited by the Constitution. 38 Professor Laurence Tribe
commented in his authoritative treatise, viz:

To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise
clause. The Framers, whatever specific applications they may have intended, clearly envisioned religion
as something special; they enacted that vision into law by guaranteeing the free exercise of religion but
not, say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is
not surprising that the [U.S.] Supreme Court has rejected strict neutrality, permitting and sometimes
mandating religious classifications. 39

Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict
neutrality, is that while the Jeffersonian wall of separation "captures the spirit of the American ideal of
church-state separation," in real life, church and state are not and cannot be totally separate. This is all
the more true in contemporary times when both the government and religion are growing and
expanding their spheres of involvement and activity, resulting in the intersection of government and
religion at many points. 40

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of
separation," associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall
that is meant to protect the state from the church, the wall is meant to protect the church from the
state. 41 This doctrine was expressed in Zorach v. Clauson, 42 which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no
concert or union or dependency one or the other. That is the common sense of the matter. Otherwise,
the state and religion would be aliens to each other — hostile, suspicious, and even unfriendly. Churches
could not be required to pay even property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who helped parishioners into their places of
worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in
the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me
God" in our courtroom oaths — these and all other references to the Almighty that run through our
laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or
agnostic could even object to the supplication with which the Court opens each session: "God save the
United States and this Honorable Court."

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom
to worship as one chooses. . . When the state encourages religious instruction or cooperates with
religious authorities by adjusting the schedule of public events, it follows the best of our traditions. For it
then respects the religious nature of our people and accommodates the public service to their spiritual
needs. To hold that it may not would be to find in the Constitution a requirement that the government
show a callous indifference to religious groups. . . But we find no constitutional requirement which
makes it necessary for government to be hostile to religion and to throw its weight against efforts to
widen their effective scope of religious influence. 43

Benevolent neutrality recognizes that religion plays an important role in the public life of the United
States as shown by many traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription of "In God We Trust" on American
currency; the recognition of America as "one nation under God" in the official pledge of allegiance to the
flag; the Supreme Court's time-honored practice of opening oral argument with the invocation "God
save the United States and this Honorable Court"; and the practice of Congress and every state
legislature of paying a chaplain, usually of a particular Protestant denomination, to lead representatives
in prayer. These practices clearly show the preference for one theological viewpoint — the existence of
and potential for intervention by a god — over the contrary theological viewpoint of atheism. Church
and government agencies also cooperate in the building of low-cost housing and in other forms of poor
relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government activities
with strong moral dimension. 44

Examples of accommodations in American jurisprudence also abound, including, but not limited to the
U.S. Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the
legislature in daily prayers, 45 or requiring employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge; 46 for government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual behavior; 47 or to provide
religious school pupils with books; 48 or bus rides to religious schools; 49 or with cash to pay for state-
mandated standardized tests. 50

(1) Legislative Acts and the Free Exercise Clause

As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked
in relation to governmental action, almost invariably in the form of legislative acts. EAcIST

Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both.
This is true whether one subscribes to the separationist approach or the benevolent neutrality or
accommodationist approach.

But the more difficult religion cases involve legislative acts which have a secular purpose and general
applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the
government action is not religiously motivated, these laws have a "burdensome effect" on religious
exercise.

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. The purpose of
accommodations is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion. As Justice Brennan explained, the "government [may] take religion into account . . . to exempt,
when possible, from generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish." 51 In the ideal world, the legislature
would recognize the religions and their practices and would consider them, when practical, in enacting
laws of general application. But when the legislature fails to do so, religions that are threatened and
burdened may turn to the courts for protection. 52

Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a
facially neutral law, but an exemption from its application or its "burdensome effect," whether by the
legislature or the courts. 53 Most of the free exercise claims brought to the U.S. Court are for
exemption, not invalidation of the facially neutral law that has a "burdensome" effect. 54

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith

The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the
case of Sherbert v. Verner, 55 which ruled that state regulation that indirectly restrains or punishes
religious belief or conduct must be subjected to strict scrutiny under the Free Exercise Clause. 56
According to Sherbert, when a law of general application infringes religious exercise, albeit incidentally,
the state interest sought to be promoted must be so paramount and compelling as to override the free
exercise claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as
her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was
denied. She sought recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee's conscientious objection to Saturday work constitutes no conduct prompted
by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the
South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must be either
because her disqualification as a beneficiary represents no infringement by the State of her
constitutional right of free exercise, or because any incidental burden on the free exercise of appellant's
religion may be justified by a "compelling state interest in the regulation of a subject within the State's
constitutional power to regulate. . . ." 57 (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement to the religious right and a colorable state interest.
"(I)n this highly sensitive constitutional area, '[o]nly the gravest abuses, endangering paramount
interests, give occasion for permissible limitation.'" 58 The Court found that there was no such
compelling state interest to override Sherbert's religious liberty. It added that even if the state could
show that Sherbert's exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state to show that no alternative
means of regulations would address such detrimental effects without infringing religious liberty. The
state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption
from the Saturday work requirement that caused her disqualification from claiming the unemployment
benefits. The Court reasoned that upholding the denial of Sherbert's benefits would force her to choose
between receiving benefits and following her religion. This choice placed "the same kind of burden upon
the free exercise of religion as would a fine imposed against (her) for her Saturday worship." This
germinal case of Sherbert firmly established the exemption doctrine, 59 viz:

It is certain that not every conscience can be accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes. ESTCDA

Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a
sincerely held religious belief or practice, the state must justify the burden by demonstrating that the
law embodies a compelling interest, that no less restrictive alternative exists, and that a religious
exemption would impair the state's ability to effectuate its compelling interest. As in other instances of
state action affecting fundamental rights, negative impacts on those rights demand the highest level of
judicial scrutiny. After Sherbert, this strict scrutiny balancing test resulted in court-mandated religious
exemptions from facially-neutral laws of general application whenever unjustified burdens were found.
60

Then, in the 1972 case of Wisconsin v. Yoder, 61 the U.S. Court again ruled that religious exemption was
in order, notwithstanding that the law of general application had a criminal penalty. Using heightened
scrutiny, the Court overturned the conviction of Amish parents for violating Wisconsin compulsory
school-attendance laws. The Court, in effect, granted exemption from a neutral, criminal statute that
punished religiously motivated conduct. Chief Justice Burger, writing for the majority, held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a
claim that such attendance interferes with the practice of a legitimate religious belief, it must appear
either that the State does not deny the free exercise of religious belief by its requirement, or that there
is a state interest of sufficient magnitude to override the interest claiming protection under the Free
Exercise Clause. Long before there was general acknowledgement of the need for universal education,
the Religion Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the
establishment of any religion. The values underlying these two provisions relating to religion have been
zealously protected, sometimes even at the expense of other interests of admittedly high social
importance. . .

The essence of all that has been said and written on the subject is that only those interests of the
highest order and those not otherwise served can overbalance legitimate claims to the free exercise of
religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct is always outside the
protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously
based, are often subject to regulation by the States in the exercise of their undoubted power to
promote the health, safety, and general welfare, or the Federal government in the exercise of its
delegated powers . . . But to agree that religiously grounded conduct must often be subject to the broad
police power of the State is not to deny that there are areas of conduct protected by the Free Exercise
Clause of the First Amendment and thus beyond the power of the State to control, even under
regulations of general applicability. . . .This case, therefore, does not become easier because
respondents were convicted for their "actions" in refusing to send their children to the public high
school; in this context belief and action cannot be neatly confined in logic-tight compartments. . . 62

The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were
subject to heightened scrutiny or compelling interest test if government substantially burdened the
exercise of religion; (b) heightened scrutiny or compelling interest test governed cases where the
burden was direct, i.e., the exercise of religion triggered a criminal or civil penalty, as well as cases
where the burden was indirect, i.e., the exercise of religion resulted in the forfeiture of a government
benefit; 63 and (c) the Court could carve out accommodations or exemptions from a facially neutral law
of general application, whether general or criminal.

The Sherbert-Yoder doctrine had five main components. First, action was protected — conduct beyond
speech, press, or worship was included in the shelter of freedom of religion. Neither Sherbert's refusal
to work on the Sabbath nor the Amish parents' refusal to let their children attend ninth and tenth
grades can be classified as conduct protected by the other clauses of the First Amendment. Second,
indirect impositions on religious conduct, such as the denial of twenty-six weeks of unemployment
insurance benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue
in Yoder, were prohibited. Third, as the language in the two cases indicate, the protection granted was
extensive. Only extremely strong governmental interests justified impingement on religious conduct, as
the absolute language of the test of the Free Exercise Clause suggests. 64

Fourth, the strong language was backed by a requirement that the government provide proof of the
important interest at stake and of the dangers to that interest presented by the religious conduct at
issue. Fifth, in determining the injury to the government's interest, a court was required to focus on the
effect that exempting religious claimants from the regulation would have, rather than on the value of
the regulation in general. Thus, injury to governmental interest had to be measured at the margin:
assuming the law still applied to all others, what would be the effect of exempting the religious claimant
in this case and other similarly situated religious claimants in the future? Together, the fourth and fifth
elements required that facts, rather than speculation, had to be presented concerning how the
government's interest would be harmed by excepting religious conduct from the law being challenged.
65

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a
discipline to prevent manipulation in the balancing of interests. The fourth and the fifth elements
prevented the likelihood of exaggeration of the weight on the governmental interest side of the balance,
by not allowing speculation about the effects of a decision adverse to those interests nor accepting that
those interests would be defined at a higher level of generality than the constitutional interests on the
other side of the balance. 66

Thus, the strict scrutiny and compelling state interest test significantly increased the degree of
protection afforded to religiously motivated conduct. While not affording absolute immunity to religious
activity, a compelling secular justification was necessary to uphold public policies that collided with
religious practices. Although the members of the U.S. Court often disagreed over which governmental
interests should be considered compelling, thereby producing dissenting and separate opinions in
religious conduct cases, this general test established a strong presumption in favor of the free exercise
of religion. 67 Most scholars and courts agreed that under Sherbert and Yoder, the Free Exercise Clause
provided individuals some form of heightened scrutiny protection, if not always a compelling interest
one. 68 The 1990 case of Employment Division, Oregon Department of Human Resources v. Smith, 69
drastically changed all that. SHTaID

Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a
hallucinogenic substance. Specifically, individuals challenged the state's determination that their
religious use of peyote, which resulted in their dismissal from employment, was misconduct
disqualifying them from receipt of unemployment compensation benefits. 70

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an
exemption from an otherwise valid law. Scalia said that "[w]e have never held that an individual's
religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the
State is free to regulate. On the contrary, the record of more than a century of our free exercise
jurisprudence contradicts that proposition." 71 Scalia thus declared "that the right of free exercise does
not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability
of the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).'" 72

Justice Scalia's opinion then reviewed the cases where free exercise challenges had been upheld — such
as Cantwell, Murdock, Follet, Pierce, and Yoder — and said that none involved the free exercise clause
claims alone. All involved "the Free Exercise Clause in conjunction with other constitutional protections,
such as freedom of speech and of the press, or the right of parents to direct the education of their
children." 73 The Court said that Smith was distinguishable because it did not involve such a "hybrid
situation," but was a free exercise claim "unconnected with any communicative activity or parental
right." 74

Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of
unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that
"[e]ven if we were inclined to breathe into Sherbert some life beyond the unemployment compensation
field, we would not apply it to require exemptions from a generally applicable criminal law." 75

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general
applicability that burden religion. Justice Scalia said that "[p]recisely because 'we are a cosmopolitan
nation made up of people of almost conceivable religious preference,' and precisely because we value
and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as
applied to the religious objector, every regulation of conduct that does not protect an interest of the
highest order." The Court said that those seeking religious exemptions from laws should look to the
democratic process for protection, not the courts. 76

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the
compelling justification approach were abandoned for evaluating laws burdening religion; neutral laws
of general applicability only have to meet the rational basis test, no matter how much they burden
religion. 77

Justice O'Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state
interest test, asserting that "(t)he compelling state interest test effectuates the First Amendment's
command that religious liberty is an independent liberty, that it occupies a preferred position, and that
the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by
clear and compelling government interest 'of the highest order.'" 78 She said that strict scrutiny is
appropriate for free exercise challenges because "[t]he compelling interest test reflects the First
Amendment's mandate of preserving religious liberty to the fullest extent possible in a pluralistic
society." 79

Justice O'Connor also disagreed with the majority's description of prior cases and especially its leaving
the protection of minority religions to the political process. She said that, "First Amendment was
enacted precisely to protect the rights of those whose religious practice are not shared by the majority
and may be viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The
dissenting Justices agreed with Justice O'Connor that the majority had mischaracterized precedents,
such as in describing Yoder as a "hybrid" case rather than as one under the free exercise clause. The
dissent also argued that strict scrutiny should be used in evaluating government laws burdening religion.
81

Criticism of Smith was intense and widespread. 82 Academics, Justices, and a bipartisan majority of
Congress noisily denounced the decision. 83 Smith has the rather unusual distinction of being one case
that is almost universally despised (and this is not too strong a word) by both the liberals and
conservatives. 84 Liberals chasten the Court for its hostility to minority faiths which, in light of Smith's
general applicability rule, will allegedly suffer at the hands of the majority faith whether through
outright hostility or neglect. Conservatives bemoan the decision as an assault on religious belief leaving
religion, more than ever, subject to the caprice of an ever more secular nation that is increasingly hostile
to religious belief as an oppressive and archaic anachronism. 85

The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a
shallow understanding of free exercise jurisprudence. 86 First, the First amendment was intended to
protect minority religions from the tyranny of the religious and political majority. 87 Critics of Smith
have worried about religious minorities, who can suffer disproportionately from laws that enact
majoritarian mores. 88 Smith, in effect would allow discriminating in favor of mainstream religious
groups against smaller, more peripheral groups who lack legislative clout, 89 contrary to the original
theory of the First Amendment. 90 Undeniably, claims for judicial exemption emanate almost invariably
from relatively politically powerless minority religions and Smith virtually wiped out their judicial
recourse for exemption. 91 Second, Smith leaves too much leeway for pervasive welfare-state-
regulation to burden religion while satisfying neutrality. After all, laws not aimed at religion can hinder
observance just as effectively as those that target religion. 92 Government impairment of religious
liberty would most often be of the inadvertent kind as in Smith considering the political culture where
direct and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free
Exercise Clause could not afford protection to inadvertent interference, it would be left almost
meaningless. 93 Third, the Reynolds-Gobitis-Smith 94 doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental religious convictions of an
individual in order to pursue some trivial state economic or bureaucratic objective. This is especially true
when there are alternative approaches for the state to effectively pursue its objective without serious
inadvertent impact on religion. 95

At bottom, the Court's ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining
and limiting the term "religion" in today's pluralistic society, and (2) the belief that courts have no
business determining the significance of an individual's religious beliefs. For the Smith Court, these two
concerns appear to lead to the conclusion that the Free Exercise Clause must protect everything or it
must protect virtually nothing. As a result, the Court perceives its only viable options are to leave free
exercise protection to the political process or to allow a "system in which each conscience is a law unto
itself." 96 The Court's characterization of its choices have been soundly rejected as false, viz:
If one accepts the Court's assumption that these are the only two viable options, then admittedly, the
Court has a stronger argument. But the Free Exercise Clause cannot be summarily dismissed as too
difficult to apply and this should not be applied at all. The Constitution does not give the judiciary the
option of simply refusing to interpret its provisions. The First Amendment dictates that free exercise of
"religion" must be protected. Accordingly, the Constitution compels the Court to struggle with the
contours of what constitutes "religion." There is no constitutional opt-out provision for constitutional
words that are difficult to apply. IcHSCT

Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large
area of middle ground exists between the Court's two opposing alternatives for free exercise
jurisprudence. Unfortunately, this middle ground requires the Court to tackle difficult issues such as
defining religion and possibly evaluating the significance of a religious belief against the importance of a
specific law. The Court describes the results of this middle ground where "federal judges will regularly
balance against the importance of general laws the significance of religious practice," and then dismisses
it as a "parade of horribles" that is too "horrible to contemplate."

It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religious
individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity and
significance rather than acquiesce to the Court's approach of simply refusing to grant any constitutional
significance to their beliefs at all. If the Court is concerned about requiring lawmakers at times
constitutionally to exempt religious individuals from statutory provisions, its concern is misplaced. It is
the lawmakers who have sought to prevent the Court from dismantling the Free Exercise Clause through
such legislation as the [Religious Freedom Restoration Act of 1993], and in any case, the Court should
not be overly concerned about hurting legislature's feelings by requiring their laws to conform to
constitutional dictates. Perhaps the Court is concerned about putting such burden on judges. If so, it
would truly be odd to say that requiring the judiciary to perform its appointed role as constitutional
interpreters is a burden no judge should be expected to fulfill. 97

Parenthetically, Smith's characterization that the U.S. Court has "never held that an individual's religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is
free to regulate" — an assertion which Mr. Justice Carpio adopted unequivocally in his dissent — has
been sharply criticized even implicitly by its supporters, as blatantly untrue. Scholars who supported
Smith frequently did not do so by opposing the arguments that the Court was wrong as a matter of
original meaning [of the religion clauses] or that the decision conflicted with precedent [i.e. the Smith
decision made shocking use of precedent] — those points were often conceded. 98

To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in
Yoder, by asserting that these were premised on two constitutional rights combined — the right of
parents to direct the education of their children and the right of free exercise of religion. Under the
Court's opinion in Smith, the right of free exercise of religion standing alone would not allow Amish
parents to disregard the compulsory school attendance law, and under the Court's opinion in Yoder,
parents whose objection to the law was not religious would also have to obey it. The fatal flaw in this
argument, however, is that if two constitutional claims will fail on its own, how would it prevail if
combined? 99 As for Sherbert, the Smith Court attempted to limit its doctrine as applicable only to
denials of unemployment compensation benefits where the religiously-compelled conduct that leads to
job loss is not a violation of criminal law. And yet, this is precisely why the rejection of Sherbert was so
damaging in its effect: the religious person was more likely to be entitled to constitutional protection
when forced to choose between religious conscience and going to jail than when forced to choose
between religious conscience and financial loss. 100

Thus, the Smith decision elicited much negative public reaction especially from the religious community,
and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear. 101 So
much was the uproar that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993. 102 The RFRA was adopted to negate the Smith test and require strict
scrutiny for free exercise claims. Indeed, the findings section of the Act notes that Smith "virtually
eliminated the requirement that the government justify burdens on religious exercise imposed by laws
neutral toward religion." 103 The Act declares that its purpose is to restore the compelling interest test
as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in all cases
where free exercise of religion is substantially burdened; and to provide a claim of defense to a person
whose religious exercise is substantially burdened by government. 104 The RFRA thus sought to overrule
Smith and make strict scrutiny the test for all free exercise clause claims. 105

In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA unconstitutional, ruling
that Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The Court
ruled that Congress is empowered to enact laws "to enforce the amendment," but Congress is not
"enforcing" when it creates new constitutional rights or expands the scope of rights. 107

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial
respect for the constitutional decision-making by a coordinate branch of government. In Smith, Justice
Scalia wrote:

"Values that are protected against governmental interference through enshrinement in the Bill of Rights
are not thereby banished from the political process. Just as society believes in the negative protection
accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the
dissemination of the printed word, so also a society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its legislation as well."

By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous
Congress. Contrary to the Court's characterization of the RFRA as a kind of usurpation of the judicial
power to say what the Constitution means, the law offered no definition of Free Exercise, and on its face
appeared to be a procedural measure establishing a standard of proof and allocating the duty of
meeting it. In effect, the Court ruled that Congress had no power in the area of religion. And yet, Free
Exercise exists in the First Amendment as a negative on Congress. The power of Congress to act towards
the states in matters of religion arises from the Fourteenth Amendment. 108

From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to
give accommodations, is in effect contrary to the benevolent neutrality or accommodation approach.
Moreover, if we consider the history of the incorporation of the religion clauses in the U.S., the decision
in Smith is grossly inconsistent with the importance placed by the framers on religious faith. Smith is
dangerous precedent because it subordinates fundamental rights of religious belief and practice to all
neutral, general legislation. Sherbert recognized the need to protect religious exercise in light of the
massive increase in the size of government, the concerns within its reach, and the number of laws
administered by it. However, Smith abandons the protection of religious exercise at a time when the
scope and reach of government has never been greater. It has been pointed out that Smith creates the
legal framework for persecution: through general, neutral laws, legislatures are now able to force
conformity on religious minorities whose practice irritate or frighten an intolerant majority. 109

The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby
emasculating the Free Exercise Clause. Smith left religious freedom for many in the hands of the political
process, exactly where it would be if the religion clauses did not exist in the Bill of Rights. Like most
protections found in the Bill of Rights, the religion clauses of the First Amendment are most important
to those who cannot prevail in the political process. The Court in Smith ignores the fact that the
protections found in the Bill of Rights were deemed too important to leave to the political process.
Because mainstream religions generally have been successful in protecting their interests through the
political process, it is the non-mainstream religions that are adversely affected by Smith. In short, the
U.S. Supreme Court has made it clear to such religions that they should not look to the First Amendment
for religious freedom. 110

(3) Accommodation under the Religion Clauses

A free exercise claim could result to three kinds of accommodation: (a) those which are found to be
constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary
or legislative, i.e., not required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause; and (c) those which the religion clauses prohibit. 111

Mandatory accommodation results when the Court finds that accommodation is required by the Free
Exercise Clause, i.e., when the Court itself carves out an exemption. This accommodation occurs when
all three conditions of the compelling interest test are met, i.e, a statute or government action has
burdened claimant's free exercise of religion, and there is no doubt as to the sincerity of the religious
belief; the state has failed to demonstrate a particularly important or compelling governmental goal in
preventing an exemption; and that the state has failed to demonstrate that it used the least restrictive
means. In these cases, the Court finds that the injury to religious conscience is so great and the
advancement of public purposes is incomparable that only indifference or hostility could explain a
refusal to make exemptions. Thus, if the state's objective could be served as well or almost as well by
granting an exemption to those whose religious beliefs are burdened by the regulation, the Court must
grant the exemption. The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling their children in high school
as required by law. The Sherbert case is another example where the Court held that the state
unemployment compensation plan must accommodate the religious convictions of Sherbert. 112
In permissive accommodation, the Court finds that the State may, but is not required to, accommodate
religious interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not rule that the
state was required to provide tax exemptions. The Court declared that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the noninterference mandated by the
Free Exercise Clause." 113 Other examples are Zorach v. Clauson, 114 allowing released time in public
schools and Marsh v. Chambers, 115 allowing payment of legislative chaplains from public funds.
Parenthetically, the Court in Smith has ruled that this is the only accommodation allowed by the Religion
Clauses. aIAEcD

Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the
legislative accommodation runs afoul of the establishment or the free exercise clause, it results to a
prohibited accommodation. In this case, the Court finds that establishment concerns prevail over
potential accommodation interests. To say that there are valid exemptions buttressed by the Free
Exercise Clause does not mean that all claims for free exercise exemptions are valid. 116 An example
where accommodation was prohibited is McCollum v. Board of Education, 117 where the Court ruled
against optional religious instruction in the public school premises. 118

Given that a free exercise claim could lead to three different results, the question now remains as to
how the Court should determine which action to take. In this regard, it is the strict scrutiny-compelling
state interest test which is most in line with the benevolent neutrality-accommodation approach.

Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom
to carry out one's duties to a Supreme Being is an inalienable right, not one dependent on the grace of
legislature. Religious freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.

Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free
exercise disputes arise commonly when a law that is religiously neutral and generally applicable on its
face is argued to prevent or burden what someone's religious faith requires, or alternatively, requires
someone to undertake an act that faith would preclude. In essence, then, free exercise arguments
contemplate religious exemptions from otherwise general laws. 119

Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects
the First Amendment's mandate of preserving religious liberty to the fullest extent possible in a
pluralistic society. 120 Underlying the compelling state interest test is the notion that free exercise is a
fundamental right and that laws burdening it should be subject to strict scrutiny. 121

In its application, the compelling state interest test follows a three-step process, summarized as follows:

If the plaintiff can show that a law or government practice inhibits the free exercise of his religious
beliefs, the burden shifts to the government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or 'compelling') secular objective and that it is the least restrictive
means of achieving that objective. If the plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the
claimant's beliefs must be 'sincere', but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimant's religious denomination. 'Only beliefs rooted in
religion are protected by the Free Exercise Clause'; secular beliefs, however sincere and conscientious,
do not suffice. 122

In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the
separationist approach, or the benevolent neutrality approach. The benevolent neutrality approach has
also further been split by the view that the First Amendment requires accommodation, or that it only
allows permissible legislative accommodations. The current prevailing view as pronounced in Smith,
however, is that that there are no required accommodation under the First Amendment, although it
permits of legislative accommodations.

3. Religion Clauses in the Philippine Context: Constitution,

Jurisprudence and Practice

a. US Constitution and jurisprudence vis-à-vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is
immediately clear that one cannot simply conclude that we have adopted — lock, stock and barrel —
the religion clauses as embodied in the First Amendment, and therefore, the U.S. Court's interpretation
of the same. Unlike in the U.S. where legislative exemptions of religion had to be upheld by the U.S.
Supreme Court as constituting permissive accommodations, similar exemptions for religion are
mandatory accommodations under our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions
contain provisions on tax exemption of church property, 123 salary of religious officers in government
institutions, 124 and optional religious instruction. 125 Our own preamble also invokes the aid of a
divine being. 126 These constitutional provisions are wholly ours and have no counterpart in the U.S.
Constitution or its amendments. They all reveal without doubt that the Filipino people, in adopting
these constitutions, manifested their adherence to the benevolent neutrality approach that requires
accommodations in interpreting the religion clauses. 127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it
asserted that the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to
the 1935 Constitution is a misreading of the ponencia. What the ponencia pointed out was that even as
early as 1935, or more than three decades before the U.S. Court could validate the exemption in Walz as
a form or permissible accommodation, we have already incorporated the same in our Constitution, as a
mandatory accommodation. HcDSaT

There is no ambiguity with regard to the Philippine Constitution's departure from the U.S. Constitution,
insofar as religious accommodations are concerned. It is indubitable that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution. 128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely
adopted from the First Amendment of the U.S. Constitution . . . Philippine jurisprudence and
commentaries on the religious clauses also continued to borrow authorities from U.S. jurisprudence
without articulating the stark distinction between the two streams of U.S. jurisprudence [i.e., separation
and benevolent neutrality]. One might simply conclude that the Philippine Constitutions and
jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable
streams; thus, when a religion clause case comes before the Court, a separationist approach or a
benevolent neutrality approach might be adopted and each will have U.S. authorities to support it. Or,
one might conclude that as the history of the First Amendment as narrated by the Court in Everson
supports the separationist approach, Philippine jurisprudence should also follow this approach in light of
the Philippine religion clauses' history. As a result, in a case where the party claims religious liberty in
the face of a general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be breached if the
Court grants him an exemption. These conclusions, however, are not and were never warranted by the
1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three constitutions. It
is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole and
apparently conflicting provisions should be reconciled and harmonized in a manner that will give to all of
them full force and effect. From this construction, it will be ascertained that the intent of the framers
was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine
constitutions, and the enforcement of this intent is the goal of construing the constitution. 129 [citations
omitted]

We therefore reject Mr. Justice Carpio's total adherence to the U.S. Court's interpretation of the religion
clauses to effectively deny accommodations on the sole basis that the law in question is neutral and of
general application. For even if it were true that "an unbroken line of U.S. Supreme Court decisions" has
never held that "an individual's religious beliefs [do not] excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate," our own Constitutions have made
significant changes to accommodate and exempt religion. Philippine jurisprudence shows that the Court
has allowed exemptions from a law of general application, in effect, interpreting our religion clauses to
cover both mandatory and permissive accommodations. 130

To illustrate, in American Bible Society v. City of Manila, 131 the Court granted to plaintiff exemption
from a law of general application based on the Free Exercise Clause. In this case, plaintiff was required
by an ordinance to secure a mayor's permit and a municipal license as ordinarily required of those
engaged in the business of general merchandise under the city's ordinances. Plaintiff argued that this
amounted to "religious censorship and restrained the free exercise and enjoyment of religious
profession, to wit: the distribution and sale of bibles and other religious literature to the people of the
Philippines." Although the Court categorically held that the questioned ordinances were not applicable
to plaintiff as it was not engaged in the business or occupation of selling said "merchandise" for profit, it
also ruled that applying the ordinance to plaintiff and requiring it to secure a license and pay a license
fee or tax would impair its free exercise of religious profession and worship and its right of
dissemination of religious beliefs "as the power to tax the exercise of a privilege is the power to control
or suppress its enjoyment." The decision states in part, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship
carries with it the right to disseminate religious information. Any restraint of such right can only be
justified like other restraints of freedom of expression on the grounds that there is a clear and present
danger of any substantive evil which the State has the right to prevent. (citations omitted, emphasis
supplied)

Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of

Schools. 132 The case involved several Jehovah's Witnesses who were expelled from school for refusing
to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the religious freedom issue, a unanimous Court overturned an
earlier ruling denying such exemption, 133 using the "grave and imminent danger" test, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to
the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514,
517) is the existence of a grave and present danger of a character both grave and imminent, of a serious
evil to public safety, public morals, public health or any other legitimate public interest, that the State
has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners
from the schools is not justified. 134 (emphases supplied)

In these two cases, the Court itself carved out an exemption from a law of general application, on the
strength directly of the Free Exercise Clause.

We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde
Rope Workers Union 135 is an example of the application of Mr. Justice Carpio's theory of permissive
accommodation, where religious exemption is granted by a legislative act. In Victoriano, the
constitutionality of Republic Act No. 3350 was questioned. The said R.A. exempt employees from the
application and coverage of a closed shop agreement — mandated in another law — based on religious
objections. A unanimous Court upheld the constitutionality of the law, holding that "government is not
precluded from pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect." Interestingly, the secular purpose of the challenged law which the Court
upheld was the advancement of "the constitutional right to the free exercise of religion." 136

Having established that benevolent neutrality-accommodation is the framework by which free exercise
cases must be decided, the next question then turned to the test that should be used in ascertaining the
limits of the exercise of religious freedom. In our Decision dated August 4, 2003, we reviewed our
jurisprudence, and ruled that in cases involving purely conduct based on religious belief, as in the case at
bar, the compelling state interest test, is proper, viz: ADSTCI

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case
on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present
danger" test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of general applicability may burden
religious exercise provided the law is the least restrictive means to accomplish the goal of the law. The
case also used, albeit inappropriately, the "compelling state interest" test. After Victoriano, German
went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test and
overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and present
danger" test in the maiden case of American Bible Society. Not surprisingly, all the cases which
employed the "clear and present danger" or "grave and immediate danger" test involved, in one form or
another, religious speech as this test is often used in cases on freedom of expression. On the other
hand, the Gerona and German cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only
case that employed the "compelling state interest" test, but as explained previously, the use of the test
was inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo
where the "clear and present danger" and "grave and immediate danger" tests were appropriate as
speech has easily discernible or immediate effects. The Gerona and German doctrine, aside from having
been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief.
The "compelling state interest" test is proper where conduct is involved for the whole gamut of human
conduct has different effects on the state's interests: some effects may be immediate and short-term
while others delayed and far-reaching. A test that would protect the interests of the state in preventing
a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of
the state would suffice to prevail over the right to religious freedom as this is a fundamental right that
enjoys a preferred position in the hierarchy of rights — "the most inalienable and sacred of all human
rights", in the words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an
appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon
an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore not appropriate. Instead,
only a compelling interest of the state can prevail over the fundamental right to religious liberty. The
test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the
state to batter religion, especially the less powerful ones until they are destroyed. In determining which
shall prevail between the state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty while at the same time
affording protection to the paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very state, without which, religious
liberty will not be preserved. 137 (citations omitted)
At this point, we take note of Mr. Justice Carpio's dissent, which, while loosely disputing the applicability
of the benevolent neutrality framework and compelling state interest test, states that "[i]t is true that a
test needs to be applied by the Court in determining the validity of a free exercise claim of exemption as
made here by Escritor." This assertion is inconsistent with the position negating the benevolent
neutrality or accommodation approach. If it were true, indeed, that the religion clauses do not require
accommodations based on the free exercise of religion, then there would be no need for a test to
determine the validity of a free exercise claim, as any and all claims for religious exemptions from a law
of general application would fail.

Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and
mandatory accommodation is more critically important in analyzing free exercise exemption claims
because it forces the Court to confront how far it can validly set the limits of religious liberty under the
Free Exercise Clause, rather than presenting the separation theory and accommodation theory as
opposite concepts, and then rejecting relevant and instructive American jurisprudence (such as the
Smith case) just because it does not espouse the theory selected." He then asserts that the Smith
doctrine cannot be dismissed because it does not really espouse the strict neutrality approach, but more
of permissive accommodation. ACTISE

Mr. Justice Carpio's assertion misses the point. Precisely because the doctrine in Smith is that only
legislative accommodations are allowed under the Free Exercise Clause, it cannot be used in
determining a claim of religion exemption directly anchored on the Free Exercise Clause. Thus, even
assuming that the Smith doctrine actually espouses the theory of accommodation or benevolent
neutrality, the accommodation is limited to the permissive, or legislative exemptions. It, therefore,
cannot be used as a test in determining the claims of religious exemptions directly under the Free
Exercise Clause because Smith does not recognize such exemption. Moreover, Mr. Justice Carpio's
advocacy of the Smith doctrine would effectively render the Free Exercise protection — a fundamental
right under our Constitution — nugatory because he would deny its status as an independent source of
right.

b. The Compelling State Interest Test

As previously stated, the compelling state interest test involves a three-step process. We explained this
process in detail, by showing the questions which must be answered in each step, viz:

. . . First, "[H]as the statute or government action created a burden on the free exercise of religion?" The
courts often look into the sincerity of the religious belief, but without inquiring into the truth of the
belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and
Cantwell. The sincerity of the claimant's belief is ascertained to avoid the mere claim of religious beliefs
to escape a mandatory regulation. . . .

xxx xxx xxx

Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of
religious liberty?" In this step, the government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives will be undermined
if exemptions are granted. . . .

xxx xxx xxx

Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal
of the state?" The analysis requires the state to show that the means in which it is achieving its
legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate
state end that imposes as little as possible on religious liberties . . . . 138 [citations omitted]

Again, the application of the compelling state interest test could result to three situations of
accommodation: First, mandatory accommodation would result if the Court finds that accommodation is
required by the Free Exercise Clause. Second, if the Court finds that the State may, but is not required
to, accommodate religious interests, permissive accommodation results. Finally, if the Court finds that
the establishment concerns prevail over potential accommodation interests, then it must rule that the
accommodation is prohibited.

One of the central arguments in Mr. Justice Carpio's dissent is that only permissive accommodation can
carve out an exemption from a law of general application. He posits the view that the law should prevail
in the absence of a legislative exemption, and the Court cannot make the accommodation or exemption.

Mr. Justice Carpio's position is clearly not supported by Philippine jurisprudence. The cases of American
Bible Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent
neutrality-accommodation covers not only the grant of permissive, or legislative accommodations, but
also mandatory accommodations. Thus, an exemption from a law of general application is possible, even
if anchored directly on an invocation of the Free Exercise Clause alone, rather than a legislative
exemption.

Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive
accommodation based on religious freedom has been granted with respect to one of the crimes
penalized under the Revised Penal Code, that of bigamy.

In the U.S. case of Reynolds v. United States, 139 the U.S. Court expressly denied to Mormons an
exemption from a general federal law criminalizing polygamy, even if it was proven that the practice
constituted a religious duty under their faith. 140 In contradistinction, Philippine law accommodates the
same practice among Moslems, through a legislative act. For while the act of marrying more than one
still constitutes bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as
the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime
of bigamy "shall not apply to a person married . . . under Muslim law." Thus, by legislative action,
accommodation is granted of a Muslim practice which would otherwise violate a valid and general
criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent in our Decision
dated August 4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v. Malik, 141 he stated
that a Muslim Judge "is not criminally liable for bigamy because Shari'a law allows a Muslim to have
more than one wife."

From the foregoing, the weakness of Mr. Justice Carpio's "permissive-accommodation only" advocacy in
this jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that "the
guaranty of religious liberty as embodied in the Free Exercise Clause does not require the grant of
exemptions from generally applicable laws to individuals whose religious practice conflict with those
laws," his theory is infirmed by the showing that the benevolent neutrality approach which allows for
both mandatory and permissive accommodations was unequivocally adopted by our framers in the
Philippine Constitution, our legislature, and our jurisprudence. ScAIaT

Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the

antithesis to the notion that religion clauses, like the other fundamental liberties found in the Bill or
Rights, is a preferred right and an independent source of right.

What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not
applicable when the law in question is a generally applicable criminal law. Stated differently, even if Mr.
Justice Carpio conceded that there is no question that in the Philippine context, accommodations are
made, the question remains as to how far the exemptions will be made and who would make these
exemptions.

On this point, two things must be clarified: first, in relation to criminal statutes, only the question of
mandatory accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed
legislative accommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding
that the Free Exercise Clause required the accommodation, or mandatory accommodations) has already
been decided, not just once, but twice by the Court. Thus, the crux of the matter is whether this Court
can make exemptions as in Ebralinag and the American Bible Society, in cases involving criminal laws of
general application.

We hold that the Constitution itself mandates the Court to do so for the following reasons.

First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion
clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more
pronounced and given leeway than in the U.S.

Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the "inadvertent burdensome effect" that an otherwise facially neutral
law would have on religious exercise. Just because the law is criminal in nature, therefore, should not
bring it out of the ambit of the Free Exercise Clause. As stated by Justice O'Connor in her concurring
opinion in Smith, "[t]here is nothing talismanic about neutral laws of general applicability or general
criminal prohibitions, for laws neutral towards religion can coerce a person to violate his religious
conscience or intrude upon his religious duties just as effectively as laws aimed at religion." 142
Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions
who are likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly
necessary to protect adherents of minority religions from the inevitable effects of majoritarianism,
which include ignorance and indifference and overt hostility to the minority. As stated in our Decision,
dated August 4, 2003:

. . . In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those holding different world views,
even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials are
frequently willing to make such exemptions when the need is brought to their attention, but this may
not always be the case when the religious practice is either unknown at the time of enactment or is for
some reason unpopular. In these cases, a constitutional interpretation that allows accommodations
prevents needless injury to the religious consciences of those who can have an influence in the
legislature; while a constitutional interpretation that requires accommodations extends this treatment
to religious faiths that are less able to protect themselves in the political arena.

Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be
applied for the first time, as an exemption of such nature, albeit by legislative act, has already been
granted to Moslem polygamy and the criminal law of bigamy.

Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in
the Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or
property, the Religion Clauses are stated in absolute terms, unqualified by the requirement of "due
process," "unreasonableness," or "lawful order." Only the right to free speech is comparable in its
absolute grant. Given the unequivocal and unqualified grant couched in the language, the Court cannot
simply dismiss a claim of exemption based on the Free Exercise Clause, solely on the premise that the
law in question is a general criminal law. 143 If the burden is great and the sincerity of the religious
belief is not in question, adherence to the benevolent neutrality-accommodation approach require that
the Court make an individual determination and not dismiss the claim outright. ETHSAI

At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation
approach does not mean that the Court ought to grant exemptions every time a free exercise claim
comes before it. This is an erroneous reading of the framework which the dissent of Mr. Justice Carpio
seems to entertain. Although benevolent neutrality is the lens with which the Court ought to view
religion clause cases, the interest of the state should also be afforded utmost protection. This is
precisely the purpose of the test — to draw the line between mandatory, permissible and forbidden
religious exercise. Thus, under the framework, the Court cannot simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the orthodox view, as proposed by Mr.
Justice Carpio, for this precisely is the protection afforded by the religion clauses of the Constitution.
144 As stated in the Decision:

. . . While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or importance of the state interest
or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine
on the ideal towards which religious clause jurisprudence should be directed. We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of
its merits as discussed above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards which this approach is directed is
the protection of religious liberty "not only for a minority, however small- not only for a majority,
however large but for each of us" to the greatest extent possible within flexible constitutional limits. 145

II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to
be resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the
careful application of the compelling state interest test, i.e., determining whether respondent is entitled
to exemption, an issue which is essentially factual or evidentiary in nature.

After the termination of further proceedings with the OCA, and with the transmittal of the Hearing
Officer's report, 146 along with the evidence submitted by the OSG, this case is once again with us, to
resolve the penultimate question of whether respondent should be found guilty of the administrative
charge of "disgraceful and immoral conduct." It is at this point then that we examine the report and
documents submitted by the hearing officer of this case, and apply the three-step process of the
compelling state interest test based on the evidence presented by the parties, especially the
government.

On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and
centrality of respondent's claimed religious belief and practice are beyond serious doubt. 147 Thus,
having previously established the preliminary conditions required by the compelling state interest test,
i.e., that a law or government practice inhibits the free exercise of respondent's religious beliefs, and
there being no doubt as to the sincerity and centrality of her faith to claim the exemption based on the
free exercise clause, the burden shifted to the government to demonstrate that the law or practice
justifies a compelling secular objective and that it is the least restrictive means of achieving that
objective.

A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override respondent's fundamental right to
religious freedom. Neither did the government exert any effort to show that the means it seeks to
achieve its legitimate state objective is the least intrusive means.

The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" AND SUBMARKING — The September 30, 2003 Letter to the OSG of Bro.
Raymond B. Leach, Legal Representative of the Watch Tower Bible and Tract Society of the Philippines,
Inc.

PURPOSE: To show that the OSG exerted efforts to examine the sincerity and centrality of
respondent's claimed religious belief and practice.

2. Exhibit "B-OSG" AND SUBMARKING — The duly notarized certification dated September 30,
2003 issued and signed by Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of respondent's claimed religious
belief and practice; and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal
arrangement within the congregation of the Jehovah's Witnesses, cannot be a source of any legal
protection for respondent. HASTCa

In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to
override respondent's claimed religious belief and practice, in order to protect marriage and the family
as basic social institutions. The Solicitor General, quoting the Constitution 148 and the Family Code, 149
argues that marriage and the family are so crucial to the stability and peace of the nation that the
conjugal arrangement embraced in the Declaration of Pledging Faithfulness should not be recognized or
given effect, as "it is utterly destructive of the avowed institutions of marriage and the family for it
reduces to a mockery these legally exalted and socially significant institutions which in their purity
demand respect and dignity." 150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he
asserts that the State has a compelling interest in the preservation of marriage and the family as basic
social institutions, which is ultimately the public policy underlying the criminal sanctions against
concubinage and bigamy. He also argues that in dismissing the administrative complaint against
respondent, "the majority opinion effectively condones and accords a semblance of legitimacy to her
patently unlawful cohabitation . . ." and "facilitates the circumvention of the Revised Penal Code."
According to Mr. Justice Carpio, by choosing to turn a blind eye to respondent's criminal conduct, the
majority is in fact recognizing a practice, custom or agreement that subverts marriage. He argues in a
similar fashion as regards the state's interest in the sound administration of justice.

There has never been any question that the state has an interest in protecting the institutions of
marriage and the family, or even in the sound administration of justice. Indeed, the provisions by which
respondent's relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even the provisions
on marriage and family in the Civil Code and Family Code, all clearly demonstrate the State's need to
protect these secular interests.

Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights
in our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights —
"the most inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough to
contend that the state's interest is important, because our Constitution itself holds the right to religious
freedom sacred. The State must articulate in specific terms the state interest involved in preventing the
exemption, which must be compelling, for only the gravest abuses, endangering paramount interests
can limit the fundamental right to religious freedom. To rule otherwise would be to emasculate the Free
Exercise Clause as a source of right by itself.

Thus, it is not the State's broad interest in "protecting the institutions of marriage and the family," or
even "in the sound administration of justice" that must be weighed against respondent's claim, but the
State's narrow interest in refusing to make an exception for the cohabitation which respondent's faith
finds moral. In other words, the government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives will be undermined
if exemptions are granted. 151 This, the Solicitor General failed to do.

To paraphrase Justice Blackmun's application of the compelling interest test, the State's interest in
enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot
be merely abstract or symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to
enforce that prohibition. In the case at bar, the State has not evinced any concrete interest in enforcing
the concubinage or bigamy charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The State's asserted interest thus amounts only to the symbolic
preservation of an unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo
and Vitug, in their concurring opinions in our Decision, dated August 4, 2003, to deny the exemption
would effectively break up "an otherwise ideal union of two individuals who have managed to stay
together as husband and wife [approximately twenty-five years]" and have the effect of defeating the
very substance of marriage and the family. ETHIDa

The Solicitor General also argued against respondent's religious freedom on the basis of morality, i.e.,
that "the conjugal arrangement of respondent and her live-in partner should not be condoned because
adulterous relationships are constantly frowned upon by society"; 152 and "that State laws on marriage,
which are moral in nature, take clear precedence over the religious beliefs and practices of any church,
religious sect or denomination on marriage. Verily, religious beliefs and practices should not be
permitted to override laws relating to public policy such as those of marriage." 153

The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in
her dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These
arguments have already been addressed in our decision dated August 4, 2003. 154 In said Decision, we
noted that Mme. Justice Ynares-Santiago's dissenting opinion dwelt more on the standards of morality,
without categorically holding that religious freedom is not in issue. 155 We, therefore, went into a
discussion on morality, in order to show that:

(a) The public morality expressed in the law is necessarily secular for in our constitutional order, the
religion clauses prohibit the state from establishing a religion, including the morality it sanctions. 156
Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of
Professional Responsibility for lawyers, 157 or "public morals" in the Revised Penal Code, 158 or
"morals" in the New Civil Code, 159 or "moral character" in the Constitution, 160 the distinction
between public and secular morality on the one hand, and religious morality, on the other, should be
kept in mind; 161

(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests;
162

(c) The jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bar should be understood only in this realm where it has
authority. 163

(d) Having distinguished between public and secular morality and religious morality, the more
difficult task is determining which immoral acts under this public and secular morality fall under the
phrase "disgraceful and immoral conduct" for which a government employee may be held
administratively liable. 164 Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to another which Philippine
law and jurisprudence consider both immoral and illegal. 165

(e) While there is no dispute that under settled jurisprudence, respondent's conduct constitutes
"disgraceful and immoral conduct," the case at bar involves the defense of religious freedom, therefore
none of the cases cited by Mme. Justice Ynares-Santiago apply. 166 There is no jurisprudence in
Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovah's
Witnesses under the same circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore that her conduct is likewise
so "odious" and "barbaric" as to be immoral and punishable by law. 167

Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with
conduct prejudicial to the best interest of the service, and we reiterate that the dissent offends due
process as respondent was not given an opportunity to defend herself against the charge of "conduct
prejudicial to the best interest of the service." Indeed, there is no evidence of the alleged prejudice to
the best interest of the service. 168

Mr. Justice Carpio's slippery slope argument, on the other hand, is non-sequitur. If the Court grants
respondent exemption from the laws which respondent Escritor has been charged to have violated, the
exemption would not apply to Catholics who have secured church annulment of their marriage even
without a final annulment from a civil court. First, unlike Jehovah's Witnesses, the Catholic faith
considers cohabitation without marriage as immoral. Second, but more important, the Jehovah's
Witnesses have standards and procedures which must be followed before cohabitation without
marriage is given the blessing of the congregation. This includes an investigative process whereby the
elders of the congregation verify the circumstances of the declarants. Also, the Declaration is not a
blanket authority to cohabit without marriage because once all legal impediments for the couple are
lifted, the validity of the Declaration ceases, and the congregation requires that the couple legalize their
union.

At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he
raises the issue of equality among religions, we look to the words of the Religion Clauses, which clearly
single out religion for both a benefit and a burden: "No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. . ." On its face, the language grants a unique
advantage to religious conduct, protecting it from governmental imposition; and imposes a unique
disadvantage, preventing the government from supporting it. To understand this as a provision which
puts religion on an equal footing with other bases for action seems to be a curious reading. There are no
"free exercise" of "establishment" provisions for science, sports, philosophy, or family relations. The
language itself thus seems to answer whether we have a paradigm of equality or liberty; the language of
the Clause is clearly in the form of a grant of liberty. 169

In this case, the government's conduct may appear innocent and nondiscriminatory but in effect, it is
oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed to
protect the minority from the majority, the question of which perspective is appropriate would seem
easy to answer. Moreover, the text, history, structure and values implicated in the interpretation of the
clauses, all point toward this perspective. Thus, substantive equality — a reading of the religion clauses
which leaves both politically dominant and the politically weak religious groups equal in their inability to
use the government (law) to assist their own religion or burden others — makes the most sense in the
interpretation of the Bill of Rights, a document designed to protect minorities and individuals from
mobocracy in a democracy (the majority or a coalition of minorities). 170

As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room
for accommodation of religious exercises as required by the Free Exercise Clause. 171 Thus, in arguing
that respondent should be held administratively liable as the arrangement she had was "illegal per se
because, by universally recognized standards, it is inherently or by its very nature bad, improper,
immoral and contrary to good conscience," 172 the Solicitor General failed to appreciate that
benevolent neutrality could allow for accommodation of morality based on religion, provided it does not
offend compelling state interests. 173

Finally, even assuming that the OSG has proved a compelling state interest, it has to further
demonstrate that the state has used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the state, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on religious liberties. 174 Again, the
Solicitor General utterly failed to prove this element of the test. Other than the two documents offered
as cited above which established the sincerity of respondent's religious belief and the fact that the
agreement was an internal arrangement within respondent's congregation, no iota of evidence was
offered. In fact, the records are bereft of even a feeble attempt to procure any such evidence to show
that the means the state adopted in pursuing this compelling interest is the least restrictive to
respondent's religious freedom. cDHAaT
Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor's
conjugal arrangement cannot be penalized as she has made out a case for exemption from the law
based on her fundamental right to freedom of religion. The Court recognizes that state interests must be
upheld in order that freedoms — including religious freedom — may be enjoyed. In the area of religious
exercise as a preferred freedom, however, man stands accountable to an authority higher than the
state, and so the state interest sought to be upheld must be so compelling that its violation will erode
the very fabric of the state that will also protect the freedom. In the absence of a showing that such
state interest exists, man must be allowed to subscribe to the Infinite.

IN VIEW WHEREOF, the instant administrative complaint is dismissed.

SO ORDERED.

Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Azcuna, Tinga, Chico-Nazario and Garcia, JJ.,
concur.

Panganiban, C.J., joins J. Carpio's dissent.

Ynares-Santiago and Carpio, JJ., see dissenting opinion.

Carpio-Morales, J., I maintain my vote articulated in the dissenting opinion of J. Carpio in the Aug. 4,
2003 decision. I thus concur with his present dissent.

Callejo, J., concurs to the dissent made by Justice Carpio.

Velasco, Jr., J., took no part due to prior action of OCA.

YNARES-SANTIAGO, J., dissenting:

With due respect, I am unable to agree with the finding of the majority that "in this particular case and
under these particular circumstances, respondent Escritor's conjugal arrangement does not constitute
disgraceful and immoral conduct" and its decision to dismiss the administrative complaint filed by
petitioner against respondent Soledad S. Escritor. ECDaAc

The issue in this case is simple. What is the meaning or standard of "disgraceful and immoral conduct"
to be applied by the Supreme Court in disciplinary cases involving court personnel?

The degree of morality required of every employee or official in the public service has been consistently
high. The rules are particularly strict when the respondent is a Judge or a court employee. 1 Even where
the Court has viewed certain cases with human understanding and compassion, it has insisted that no
untoward conduct involving public officers should be left without proper and commensurate sanction. 2
The compassion is shown through relatively light penalties. Never, however, has this Court justified,
condoned, or blessed the continuation of an adulterous or illicit relationship such as the one in this case,
after the same has been brought to its attention.
Is it time to adopt a more liberal approach, a more "modern" view and a more permissive pragmatism
which allow adulterous or illicit relations to continue provided the job performance of the court
employee concerned is not affected and the place and order in the workplace are not compromised?
When does private morality involving a court employee become a matter of public concern?

The Civil Service Law punishes public officers and employees for disgraceful and immoral conduct. 3
Whether an act is immoral within the meaning of the statute is not to be determined by respondent's
concept of morality. The law provides the standard; the offense is complete if respondent intended to
perform, and did in fact perform, the act which it condemns. 4

The ascertainment of what is moral or immoral calls for the discovery of contemporary community
standards. For those in the service of the Government, provisions of law and court precedents also have
to be considered. The task is elusive.

The layman's definition of what is "moral" pertains to excellence of character or disposition. It relates to
the distinction between right and wrong; virtue and vice; ethical praise or blame. Moral law refers to the
body of requirements in conformity to which virtuous action consists. Applied to persons, it is
conformity to the rules of morality, being virtuous with regards to moral conduct. 5

That which is not consistent with or not conforming to moral law, opposed to or violating morality, and
now, more often, morally evil or impure, is immoral. Immoral is the state of not being virtuous with
regard to sexual conduct. 6

The term begs the definition. Hence, anything contrary to the standards of moral conduct is immoral. A
grossly immoral act must be so corrupt and false as to constitute a criminal act or so unprincipled as to
be reprehensible to a high degree. 7

Anything plainly evil or dissolute is, of course, unchangingly immoral. However, at the fringes or
boundary limits of what is morally acceptable and what is unacceptably wrong, the concept of
immorality tends to shift according to circumstances of time, person, and place. When a case involving
the concept of immorality comes to court, the applicable provisions of law and jurisprudence take
center stage.

Those who choose to tolerate the situation where a man and a woman separated from their legitimate
spouses decide to live together in an "ideal" and yet unlawful union state — or more specifically, those
who argue that respondent's cohabiting with a man married to another woman is not something which
is willful, flagrant, or shameless — show a moral indifference to the opinion of the good and respectable
members of the community in a manner prejudicial to the public service.

Insofar as concepts of morality are concerned, various individuals or cultures may indeed differ. In
certain countries, a woman who does not cover herself with a burka from head to foot may be arrested
for immoral behavior. In other countries, near nudity in beaches passes by unnoticed. In the present
case, the perceived fixation of our society over sex is criticized. The lesser degree of condemnation on
the sins of laziness, gluttony, vanity, selfishness, avarice and cowardice is decried as discriminatory.
The issue in this case is legal and not philosophical. It is a limited one. Is respondent Soledad S. Escritor
guilty of "disgraceful and immoral" conduct in the context of the Civil Service Law? Are there any
sanctions that must be imposed?

We cannot overlook the fact that respondent Escritor would have been convicted for a criminal offense
if the offended party had been inclined and justified to prosecute her prior to his death in 1998. Even
now, she is a co-principal in the crime of concubinage. A married woman who has sexual intercourse
with a man not her husband, and the man who has carnal knowledge of her knowing her to be married,
commit the crime of adultery. 8 Abandonment by the legal husband without justification does not
exculpate the offender; it merely mitigates the penalty. ATHCac

The concubine with whom a married man cohabits suffers the penalty of destierro. 9 It is true that
criminal proceedings cannot be instituted against persons charged with adultery or concubinage except
upon complaint of the offended party. 10 This does not mean that no actionable offense has been
committed if the offended party does not press charges. It simply cannot be prosecuted. The conduct is
not thereby approved, endorsed or commended. It is merely tolerated.

The inescapable fact in this case is that acts defined as criminal under penal law have been committed.

There are experts in Criminal Law who believe that the codal provisions on adultery and concubinage
are terribly outmoded and should be drastically revised. However, the task of amendment or revision
belongs to Congress, and not to the Supreme Court.

Our existing rule is that an act so corrupt or false as to constitute a criminal act is "grossly immoral." 11
It is not merely "immoral." Respondent now asks the Court to go all the way to the opposite extreme
and condone her illicit relations with not even an admonition or a slight tap on the wrist.

I do not think the Court is ready to render a precedent-setting decision to the effect that, under
exceptional circumstances, employees of the judiciary may live in a relationship of adultery or
concubinage with no fear of any penalty or sanction and that after being discovered and charged, they
may continue the adulterous relationship until death ends it. Indeed, the decision in this case is not
limited to court interpreter Soledad Escritor. It is not a pro hac vice ruling. It applies to court employees
all over the country and to everybody in the civil service. It is not a private ruling but one which is public
and far-reaching in its consequences.

In the 1975 case of De Dios v. Alejo, 12 the Court applied compassion and empathy but nonetheless
recognized as most important a mending of ways through a total breaking of relationships. The facts in
that case are strikingly similar to those in this case. Yet, the Court required a high degree of morality
even in the presence of apparently exculpating circumstances. It was stated:

While it is permissible to view with human understanding and compassion a situation like that in which
respondents find themselves, the good of the service and the degree of morality which every official and
employee in the public service must observe, if respect and confidence are to be maintained by the
government in the enforcement of the law, demand that no untoward conduct on his part, affecting
morality, integrity and efficiency, while holding office should be left without proper and commensurate
sanction, all attendant circumstances taken into account. In the instant case, We cannot close our eyes
to the important considerations that respondents have rendered government service for more than
thirty-three and twenty-five years, respectively, and that there is no showing that they have ever been
found guilty of any administrative misconduct during all those periods. In the case of respondent Alejo,
it seems rather sadistic to make her suffer the extreme penalty of dismissal from the service after she
had taken care of her co-respondent's four children, giving them the needed love and attention of a
foster mother after they were completely abandoned by their errant and unfaithful natural mother.
Even respondent Marfil, if to a lesser degree, is deserving of compassion. Most importantly, respondents
have amply demonstrated that they recognize their mistake and have, therefore, actually mended their
ways by totally breaking their relationship complained of, in order to conform with the imperatives of
public interest. (Emphasis supplied)

The standards for those in the judicial service are quite exacting.

The Court has ruled that in the case of public servants who are in the judiciary, their conduct and
behavior, from the presiding judge to the lowliest clerk, must not only be characterized by propriety and
decorum, but above all else, must be above suspicion. 13

In Burgos v. Aquino, 14 it was ruled:

The Code of Judicial Ethics mandates that the conduct of court personnel must be free from any whiff of
impropriety, not only with respect to his duties in the judicial branch but also to his behavior outside the
court as a private individual. There is no dichotomy of morality; a court employee is also judged by his
private morals. These exacting standards of morality and decency have been strictly adhered to and laid
down by the Court to those in the service of the judiciary. Respondent, as a court stenographer, did not
live up to her commitment to lead a moral life. Her act of maintaining relations with Atty. Burgos speaks
for itself.

Respondent Aquino was a court stenographer who was suspended for six months for maintaining illicit
relations with the husband of complainant Virginia E. Burgos. The Court therein stated that a second
offense shall result in dismissal.

We should not lose sight of the fact that the judicial system over which it presides is essentially
composed of human beings who, as such, are naturally prey to weakness and prone to errors.
Nonetheless, in Ecube-Badel v. Badel, 15 we imposed on respondent a suspension for six months and
one day to one year with warning of dismissal should the illicit relations be repeated or continued.

In Nalupta v. Tapec, 16 a deputy sheriff was suspended, also for six months, for having illicit relations
with a certain Cristian Dalida who begot a son by him. His wife complained and neighbors confirmed
that Tapec was frequently seen leaving the house of Consolacion Inocencio in the morning and returning
to it in the afternoon. Tapec and Inocencio begot two children. Consistently with the other cases, we
imposed the penalty of suspension for the first offense with the graver penalty of dismissal for a second
offense. TSHcIa
The earlier case of Aquino v. Navarro 17 involved an officer in the Ministry of Education, Culture and
Sports who was abandoned by her husband a year after their marriage and who lived alone for eighteen
years with their child. Pretending that she sincerely believed her husband to have died, she entered into
a marital relationship with Gonzalo Aquino and had children by him in 1968 and 1969. Eighteen days
before their third child was born on May 25, 1975, the two decided to get married. Notwithstanding the
illicit relationship which blossomed into a bigamous marriage, the full force of the law was not applied
on her, "considering the exceptional circumstances that befell her in her quest for a better life." Still, a
penalty of six months suspension was imposed with a warning that "any moral relapse on her part will
be severely dealt with."

Times are changing. Illicit sex is now looked upon more kindly. However, we should not completely
disregard or overlook a relationship of adultery or concubinage involving a court employee and not
order it to be terminated. It should not ignore what people will say about our moral standards and how
a permissive approach will be used by other court employees to freely engage in similarly illicit
relationship with no fear of disciplinary punishment.

As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr. had existing marriages with their
respective legitimate spouses when they decided to live together. To give an aura of regularity and
respectability to what was undeniably an adulterous and, therefore, immoral relationship, the two
decided to acquire through a religious ceremony what they could not accomplish legally. They executed
on July 28, 1991 the "Declaration of Pledging Faithfulness" to make their relationship what they alleged
it would be — a binding tie before Jehovah God.

In this case, respondent is charged not as a Jehovah's Witness but in her capacity as a court employee. It
is contended that respected elders of the Jehovah's Witnesses sanction "an informal conjugal
relationship" between respondent and her marital partner for more than two decades, provided it is
characterized by faithfulness and devotion to one another. However, the "informal conjugal
relationship" is not between two single and otherwise eligible persons where all that is missing is a valid
wedding ceremony. The two persons who started to live together in an ostensible marital relationship
are married to other persons.

We must be concerned not with the dogmas or rules of any church or religious sect but with the legal
effects under the Civil Service Law of an illicit or adulterous relationship characterized by the facts of this
case.

There is no conflict in this case between the dogmas or doctrines of the Roman Catholic Church and
those of the Jehovah's Witnesses or any other church or denomination. The perceived conflict is non-
existing and irrelevant.

The issue is legal and not religious. The terms "disgraceful" and "immoral" may be religious concepts,
but we are concerned with conduct which under the law and jurisprudence is proscribed and, if
perpetrated, how it should be punished.
Respondent cannot legally justify her conduct by showing that it was morally right by the standards of
the congregation to which she belongs. Her defense of freedom of religion is unavailing. Her relationship
with Mr. Quilapio is illicit and immoral, both under the Revised Administrative Code 18 and the Revised
Penal Code, 19 notwithstanding the supposed imprimatur given to them by their religion.

The peculiar religious standards alleged to be those of the sect to which respondent belongs can not
shield her from the effects of the law. Neither can her illicit relationship be condoned on the basis of a
written agreement approved by their religious community. To condone what is inherently wrong in the
face of the standards set by law is to render nugatory the safeguards set to protect the civil service and,
in this case, the judiciary.

The Court cannot be the instrument by which one group of people is exempted from the effects of these
laws just because they belong to a particular religion. Moreover, it is the sworn mandate of the Court to
supervise the conduct of an employee of the judiciary, and it must do so with an even hand regardless of
her religious affiliation.

I find that respondent's "Declaration of Pledging Faithfulness" does nothing for her insofar as this
administrative matter is concerned, for written therein are admissions regarding the legal impediments
to her marrying Quilapio. In the said document, she even pledged to seek all avenues to obtain legal
recognition by civil authorities of her union with Quilapio. 20 However, the record is silent as to any
effort on respondent's part to effect this covenant.

The evidence shows that respondent repeatedly admitted the existence of the legal infirmities that
plague her relationship with Quilapio. 21 As a court interpreter, she is an integral member of the
judiciary and her service as such is crucial to the administration of justice. Her acts and omissions
constitute a possible violation of the law — the very same law that she is sworn to uphold as an
employee of the judiciary. How can she work under the pretense of being a contributing force to the
judicial system if she herself is committing acts that may constitute breaking the law?

Respondent invokes her constitutional right to religious freedom. The separation of church and state has
been inviolable in this jurisdiction for a century. However, the doctrine is not involved in this case. 22
Furthermore, the legislature made cohabitation with a woman who is not one's wife a crime through the
enactment of the Revised Penal Code. 23 The legislative power has also seen fit to enact the Civil Service
Law and has given said law general application. cTEICD

The argument that a marital relationship is the concern of religious authorities and not the State has no
basis.

In Reynolds v. United States, 24 the U.S. Supreme Court stated:

It is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit
legislation in respect to this most important feature of social life. Marriage, while from its very nature a
sacred obligation, is, nevertheless, in most civilized nations, a civil contract, and usually regulated by
law. Upon it society may be said to be built, and out of its fruits spring social relations and social
obligations and duties, with which government is necessarily required to deal.

The strengthening of marriage ties and the concomitant hostility to adulterous or illicit marital relations
is a primary governmental concern. It has nothing to do with the particular religious affiliations of those
affected by legislation in this field.

The relations, duties, obligations and consequences of marriage are important to the morals and
civilization of a people and to the peace and welfare of society. 25 Any attempt to inject freedom of
religion in an effort to exempt oneself from the Civil Service rules relating to the sanctity of the marriage
tie must fail.

The U.S. Supreme Court in the above-cited case of Reynolds v. United States 26 upheld federal
legislation prohibiting bigamy and polygamy in territories of the United States, more specifically Utah.
Members of the Mormon Church asserted that the duty to practice polygamy was an accepted doctrine
of their church. In fact, Mormons had trekked from the regular States of the Union to what was then a
mere Territory in order to practice their religious beliefs, among them polygamy. The Court declared
that while it protected religious belief and opinion, it did not deprive Congress of the power to reach
actions violative of social duties or subversive of good order. Polygamy was outlawed even for Mormons
who considered it a religious obligation.

We must not exempt illegal conduct or adulterous relations from governmental regulation simply
because their practitioners claim it is part of their free exercise of religious profession and worship.

Indeed, the Court distinguishes between religious practices, including the seemingly bizarre, which may
not be regulated, and unacceptable religious conduct which should be prevented despite claims that it
forms part of religious freedom.

In Ebralinag v. Division Superintendent of Schools, 27 we validated the exemption of Jehovah's

Witnesses from coerced participation in flag ceremonies of public schools. Following the ruling in West
Virginia v. Barnette, 28 we declared that unity and loyalty, the avowed objectives of flag ceremonies,
cannot be attained through coercion. Enforced unity and loyalty is not a good that is constitutionally
obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means.

The exemption from participation in flag ceremonies cannot be applied to the tolerance of adulterous
relationships by court personnel in the name of religious freedom.

A clear and present danger of a substantive evil, destructive to public morals, is a ground for the
reasonable regulation of the free exercise and enjoyment of religious profession. 29 In addition to the
destruction of public morals, the substantive evil in this case is the tearing down of morality, good order,
and discipline in the judiciary.
Jurisprudence on immoral conduct of employees in the civil service has been consistent. There is
nothing in this case that warrants a departure from precedents. We must not sanction or encourage
illicit or adulterous relations among government employees.

Soledad S. Escritor and Luciano D. Quilapio are devoted members of Jehovah's Witness. Exemptions
granted under our Muslim Laws to legitimate followers of Islam do not apply to them. 30 The Court has
no legislative power to place Jehovah's Witness in the same legal category as Muslims.

In Bucatcat v. Bucatcat, 31 it was held that conduct such as that demonstrated by the respondent is
immoral and deserving of punishment. For such conduct, the respondent, another court interpreter, was
dismissed from the service. It was held:

Every employee of the judiciary should be an example of integrity, uprightness and honesty. Like any
public servant, he must exhibit the highest sense of honesty and integrity not only in the performance of
his official duties but in his personal and private dealings with other people, to preserve the court's good
name and standing. It cannot be overstressed that the image of a court of justice is mirrored in the
conduct, official and otherwise, of the personnel who work thereat, from the judge to the lowest of its
personnel. Court employees have been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve the good name and integrity of
courts of justice. cHSIDa

All those who work in the judiciary are bound by the most exacting standards of ethics and morality to
maintain the people's faith in the courts as dispensers of justice. In Liguid v. Camano, 32 it was ruled:

Surely, respondent's behavior of living openly and scandalously for over two (2) decades with a woman
not his wife and siring a child by her is representative of the gross and serious misconduct penalized by
the ultimate penalty of dismissal under Section 22 (c), Rule XIV of the Omnibus Rules Implementing
Book IV of Executive Order No. 292 otherwise known as the Revised Administrative Code of 1987. As
defined, misconduct is a transgression of some established or definite rule of action, more particularly,
unlawful behavior or gross negligence by the public officer. Respondent's conduct is an example of the
kind of gross and flaunting misconduct that so quickly and surely corrodes the respect for the courts
without which government cannot continue and that tears apart the bonds of our polity.

Earlier, in Navarro v. Navarro, 33 the penalty of suspension was imposed on a court employee for
maintaining illicit relations with a woman not his wife, thus:

Time and again we have stressed adherence to the principle that public office is a public trust. All
government officials and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest
lives. This constitutional mandate should always be in the minds of all public servants to guide them in
their actions during their entire tenure in the government service. The good of the service and the
degree of morality which every official and employee in the public service must observe, if respect and
confidence are to be maintained by the Government in the enforcement of the law, demand that no
untoward conduct on his part, affecting morality, integrity and efficiency while holding office should be
left without proper and commensurate sanction, all attendant circumstances taken into account.

The exacting standards of ethics and morality imposed upon court judges and court employees are
required to maintain the people's faith in the courts as dispensers of justice, and whose image is
mirrored by their actuations. As the Court eloquently stated through Madame Justice Cecilia Muñoz-
Palma:

[T]he image of the court of justice is necessarily mirrored in the conduct, official or otherwise, of the
men and woman who work thereat, from the judge to the least and lowest of its personnel — hence, it
becomes the imperative sacred duty of each and everyone in the court to maintain its good name and
standing as a true temple of justice. 34

The high degree of moral uprightness that is demanded of employees of the government entails many
sacrifices that are peculiar to the civil service. By aspiring to these positions, government employees are
deemed to have submitted themselves to greater scrutiny of their conduct, all in the pursuit of a
professional civil service. The Court has repeatedly applied these principles in analogous cases. 35

Immorality is punishable by suspension of six (6) months and one day to one (1) year for the first offense
and dismissal for the second offense. 36 Considering that respondent's misconduct is in the nature of a
continuing offense, it must be treated as a first offense, and her continued cohabitation with Luciano E.
Quilapio, Jr. must be deemed a second offense, which will warrant the penalty of dismissal.

ACCORDINGLY, I vote that respondent Soledad S. Escritor is GUILTY of immorality and disgraceful
conduct and should be SUSPENDED for a period of Six (6) months and One day without pay, with a
warning that the continuance of her illicit cohabitation with Luciano D. Quilapio, Jr. shall be deemed a
second offense which shall warrant the penalty of dismissal.

CARPIO, J., dissenting:

I maintain my dissent from the majority opinion as it now orders the dismissal of the administrative
complaint filed by petitioner Alejandro Estrada against respondent Soledad S. Escritor.

The majority opinion relies heavily on Sherbert v. Verner 1 in upholding Escritor's claim of exemption
from administrative liability grounded on her religious belief as a member of the Jehovah's Witnesses.
This religious sect allows Escritor's cohabitation with Luciano D. Quilapio, Jr., who has a subsisting
marriage with another woman.

The compelling state interest test espoused in Sherbert has been abandoned more than 15 years ago by
the U.S. Supreme Court in the Employment Division v. Smith 2 cases. In the Smith cases, the U.S.
Supreme Court set aside the balancing test for religious minorities laid down in Sherbert. Instead, the
U.S. Supreme Court ruled categorically in the Smith cases that the guarantee of religious liberty as
embodied in the Free Exercise Clause does not require the grant of exemptions from generally
applicable laws to individuals whose religious practice conflict with those laws. DIcTEC
In the first Employment Division v. Smith (Smith I), 3 petitioner denied respondents' application for
unemployment compensation benefits under an Oregon statute declaring ineligible for benefits
employees discharged for work-related misconduct. The misconduct for which respondents were
discharged from their jobs consisted of their ingesting peyote, a hallucinogenic drug, for sacramental
purposes at a ceremony of their Native American Church. The Oregon Supreme Court ruled that
although the denials of benefits were proper under Oregon law, Sherbert required the Oregon Supreme
Court to hold that the denials significantly burdened respondents' religious freedom in violation of the
Free Exercise Clause. The Oregon Supreme Court did not attach significance to the fact that peyote
possession is a felony in Oregon.

The U.S. Supreme Court vacated the Oregon Supreme Court's judgment and ordered the remand of the
case for a definitive ruling on whether the religious use of peyote is legal in Oregon. The U.S. Supreme
Court deemed the legality or illegality of the questioned conduct critical in its analysis of respondents'
claim for protection under the Free Exercise Clause.

In Smith I, the U.S. Supreme Court distinguished respondents' conduct with that involved in Sherbert,
thus:

. . . In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals Comm'n of Fla., 4 the conduct that
gave rise to the termination of employment was perfectly legal; indeed, the Court assumed that it was
immune from state regulation. 5 The results we reached in Sherbert, Thomas and Hobbie might well
have been different if the employees had been discharged for engaging in criminal conduct. . . . The
protection that the First Amendment provides to "legitimate claims to the free exercise of religion" does
not extend to conduct that a State has validly proscribed. 6 (Emphasis supplied)

In the second Employment Division v. Smith (Smith II), 7 the Oregon Supreme Court held on remand that
respondents' religiously inspired use of peyote fell within the prohibition of the Oregon statute
classifying peyote as a "controlled substance" and punishing its possession as a felony. Although the
Oregon Supreme Court noted that the statute makes no exception for the sacramental use of peyote, it
still concluded that the prohibition was not valid under the Free Exercise Clause.

The U.S. Supreme Court reversed the Oregon Supreme Court. The U.S. Supreme Court ruled that a claim
of exemption from a generally applicable law grounded on the right of free exercise could not be
evaluated under the compelling state interest test of Sherbert, particularly where such law does not
violate other constitutional protections. The U.S. Supreme Court expressly declared:

. . . We have never held that an individual's religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate. . . . 8

xxx xxx xxx

The only decisions in which we have held that the First Amendment bars application of a neutral,
generally applicable law to religiously motivated action have involved not the Free Exercise Clause
alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as
freedom of speech and of the press. . . . 9

Respondents argue that even though exemption from generally applicable criminal laws need not
automatically be extended to religiously motivated conduct, at least the claim for a religious exemption
must be evaluated under the balancing test set forth in Sherbert v. Verner. . . . In recent years we have
abstained from applying the Sherbert test (outside the unemployment compensation field) at all. . . . 10

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation
field, we would not apply it to require exemptions from a generally applicable criminal law. . . . 11
(Emphasis supplied)

What the Smith cases teach us is that the compelling state interest test in Sherbert is not the correct
test in determining the legitimacy of a claim of exemption from generally applicable, religion-neutral
laws that have the incidental effect of burdening particular religious practice. Any such claim for
exemption should be analyzed by considering whether the conduct in question is one that "the State has
validly proscribed," irrespective of the sincerity or centrality of an individual's religious beliefs.

Here, Escritor is indisputably engaged in criminal conduct. Escritor's continued cohabitation with
Quilapio is patently in violation of Article 334 of the Revised Penal Code on concubinage. Article 334
makes no exception for religiously sanctioned cohabitation such as that existing between Escritor and
Quilapio. The majority opinion in fact concedes that the present case involves a claim of exemption
"from a law of general applicability that inadvertently burdens religious exercise." 12 The majority
opinion even concedes further that the conduct in question is one "which Philippine law and
jurisprudence consider both immoral and illegal." 13 And yet, the majority opinion expediently brushes
aside the illegality of Escritor's questioned conduct using the obsolete compelling state interest test in
Sherbert. HCTDIS

The majority opinion mentions two "opposing strains of jurisprudence on the religion clauses" in U.S.
history, namely, separation or strict neutrality and benevolent neutrality or accommodation. The
majority opinion asserts that the framers of our 1935, 1973, and 1987 Constitutions intended to adopt a
benevolent neutrality approach in interpreting the religion clauses, i.e., the Establishment and Free
Exercise Clauses. The majority opinion then reasons that in determining claims of exemption based on
freedom of religion, this Court must adopt the compelling state interest test laid down by the U.S.
Supreme Court in Sherbert, which according to the majority, best exemplifies the benevolent neutrality
approach. Hence, even as the majority opinion acknowledges that the U.S. Supreme Court in the Smith
cases has abandoned the compelling state interest test espoused in Sherbert, the majority opinion
dismisses this abandonment in its analysis of Escritor's free exercise exemption claim by simply labeling
the Smith cases as exemplifying the strict neutrality approach.

The majority opinion blatantly ignores that whatever theory may be current in the United States —
whether strict neutrality, benevolent neutrality or some other theory — the undeniable fact is what is
clearly stated in Smith II:
. . . We have never held that an individual's religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate. . . . 14

Thus, from the 1879 case of Reynolds v. U.S. 15 on the practice of polygamy by Mormons to the 1988
and 1990 Smith cases on the use of prohibited drugs by native American Indians, the U.S. Supreme
Court has consistently held that religious beliefs do not excuse any person from liability for violation of a
valid criminal law of general application. The majority opinion simply refuses to face and accept this
reality.

The present case involves conduct that violates Article 334 of the Revised Penal Code, a provision of law
that no one challenges as unconstitutional. Clearly, the theories invoked in the majority opinion have no
application to the present case based on an unbroken line of U.S. Supreme Court decisions. In any event,
we shall discuss for academic purposes the merits of the theories advanced in the majority opinion.

While the majority opinion only mentions separation and benevolent neutrality, a close reading of the
major U.S. Supreme Court opinions specifically relating to the religion clauses presents three principal
theories at play, namely, (a) the strict separation or "no aid" theory, (b) the governmental neutrality
theory, and (c) the accommodation or benevolent neutrality theory. 16

The strict separation or "no aid" theory holds that the establishment clause viewed in conjunction with
the free exercise clause requires a strict separation of church and state and that government can do
nothing which involves governmental support of religion or which is favorable to the cultivation of
religious interests. 17 This theory found its first expression in the case of Everson v. Board of Education,
18 which espoused the "no aid" principle. Thus, the government cannot by its programs, policies, or
laws do anything to aid or support religion or religious activities. 19

Everson upheld the validity of a New Jersey statute authorizing bus fare reimbursement to parents of
parochial, as well as public school children. Apparently, the strict interpretation or "no aid" theory
prohibits state benefits to a particular sect or sects only, but does not prohibit benefits that accrue to
all, including one or more sects. Everson did not involve religiously motivated conduct that constituted a
violation of a criminal statute.

Under the governmental neutrality theory, the establishment clause requires government to be neutral
on religious matters. 20 This theory was articulated by Mr. Justice Clark in the case of Abington School
District v. Schempp, 21 where he stated that what the Constitution requires is "wholesome neutrality,"
i.e., laws and governmental programs must be directed to secular ends and must have a primary effect
that neither advances nor inhibits religion. 22 This test as stated by Mr. Justice Clark embodies a theory
of strict neutrality 23 — thus, the government may not use the religious factor as a basis for
classification with the purpose of advancing or inhibiting religion:

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the
home, the church and the inviolable citadel of the individual heart and mind. We have come to
recognize through bitter experience that it is not within the power of government to invade that citadel,
whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between
man and religion, the state is firmly committed to a position of neutrality. 24 (Italics supplied) SaCIDT

However, the concept of governmental neutrality can be interpreted in various ways — to some,
anything but total neutrality is anathema; to others, "neutrality can only mean that government policy
must place religion at neither a special advantage nor a special disadvantage." 25

Schempp struck down a Pennsylvania law allowing the recitation of the Lord's Prayer and the reading of
the Bible without comment in public schools, although the recitation and reading were voluntary and
did not favor any sect. Schempp did not involve religiously motivated conduct that constituted a
violation of a criminal statute.

The accommodation theory provides that any limitation derived from the establishment clause on
cannot be rigidly applied so as to preclude all aid to religion and that in some situations government
must, and in other situations may, accommodate its policies and laws in the furtherance of religious
freedom. 26 The accommodation theory found its first expression in Zorach v. Clauson. 27 The U.S.
Supreme Court held in Zorach that a state could authorize an arrangement whereby public school
children could be released one hour a week for religious instruction off the school premises. Zorach did
not involve religiously motivated conduct that constituted a violation of a criminal statute.

In his book Religion and the Constitution published in 1964, Professor Paul G. Kauper used the term
"benevolent neutrality" in the following context:

It would be a mistake, however, to suggest that the theory of accommodation . . . is unrelated to other
ideas and theories that have been developed, notably the no-aid and neutrality concepts. Rather,
accommodation, instead of being viewed as a wholly independent theory of interpretation, should be
seen as a modification of the no-aid or neutrality concepts. . . .

These ideas cannot be pressed to their absolute limit. Not only must the no-aid or neutrality concept be
subordinated to the necessities of free exercise, but an area of legislative discretion must be allowed
where a state may choose to advance the cause of religious freedom even at the expense of not being
completely neutral. Indeed, this may be described as the larger or benevolent neutrality. 28 (Emphasis
and italics supplied)

Six years later, the U.S. Supreme Court used the term "benevolent neutrality" for the first time in Walz v.
Tax Commission. 29 In Walz, the U.S. Supreme Court sustained the constitutionality of tax exemption of
property used exclusively for religious purposes on the basis of "benevolent neutrality," as follows:

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are
cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with
the other. . . .

xxx xxx xxx

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could
well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or
favored, none commanded, and none inhibited. The general principle deducible from the First
Amendment and all that has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference with religion. Short of those expressly
proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality
which will permit religious exercise to exist without sponsorship and without interference. 30 (Emphasis
and italics supplied)

At issue in Walz was a provision in New York's Constitution authorizing property tax exemptions to
religious organizations for religious properties used solely for religious worship. Walz did not involve
religiously motivated conduct that constituted a violation of a criminal statute.

The majority opinion cited the case of Walz in support of its assertion that the framers of the 1935
Constitution intended to adopt the benevolent neutrality approach in the interpretation of the religion
clauses, viz.:

. . . With the inclusion of the church property tax exemption in the body of the 1935 Constitution and
not merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in the
Walz case was given constitutional imprimatur under the regime of the 1935 Constitution. . . .

The U.S. Supreme Court decided Walz only in 1970, more than three decades after the adoption of our
1935 Constitution. It is certainly doubtful whether the framers of our 1935 Constitution intended to give
"constitutional imprimatur" to a theory of interpretation espoused in a case that was yet to be
formulated. Moreover, when the U.S. Supreme Court upheld the constitutionality of church property tax
exemption on the basis of "benevolent neutrality," it did so on grounds that no particular religion is
singled out for favorable treatment, and partly on historical grounds that church tax exemptions have
been accepted without challenge in all states for most of the nation's history. 31

The majority opinion vigorously argues the merits of adopting the theory of accommodation in the
interpretation of our Constitution's religion clauses. However, the majority opinion fails to mention that
a distinction is often drawn by courts and commentators between mandatory accommodation and
permissive accommodation. Mandatory accommodation is exemplified by the key idea in Sherbert that
exemptions from generally applicable laws are required by force of the Free Exercise Clause, 32 which
the majority opinion adheres to in granting Escritor's claim of free exercise exemption. HDICSa

Permissive accommodation refers to exercises of political discretion that benefit religion, and that the
Constitution neither requires nor forbids. 33 The U.S. Supreme Court recognized in Smith II that
although the Free Exercise Clause did not require permissive accommodation, the political branches
could shield religious exercise through legislative accommodation, 34 for example, by making an
exception to proscriptive drug laws for sacramental peyote use.

Professor Michael W. McConnell, whose views on the accommodation theory were frequently quoted
by the majority opinion, defends mandatory accommodation. 35 However, Prof. Kauper, likewise an
accommodationist, favors permissive accommodation, stating that "as a general proposition, no person
should be allowed to claim that because of his religion he is entitled as a matter of constitutional right to
claim an exemption from general regulatory and tax laws." 36 Prof. Kauper further explains his position
that religious liberty furnishes no ground for claiming immunity to laws which place reasonable
restrictions on overt conduct in the furtherance of public interests protected by the state's police power,
37 as follows:

Where the issue is not the use of governmental power to sanction religious belief and practices by some
positive program but the granting of exemption on religious grounds from laws of general operation,
what determines whether the government is required, or permitted, to make the accommodation?
While a state may appropriately grant exemptions from its general police and tax laws, it should not be
constitutionally required to do so unless this immunity can properly be claimed as part of the
constitutional guarantee of religious liberty. Thus, exemptions from property tax and military service,
health and labor laws should be at the discretion of government. Whether Sherbert carried the principle
of required accommodation too far is debatable. It may well be that the court here undertook a
determination of questions better left to the legislature and that in this area, . . . the policy of granting
exemptions on religious grounds should be left to legislative discretion. 38 (Emphasis supplied)

It is true that a test needs to be applied by the Court in determining the validity of a free exercise claim
of exemption as made here by Escritor. The compelling state interest test in Sherbert pushes the limits
of religious liberty too far, and so too does the majority opinion insofar as it grants Escritor immunity to
a law of general operation on the ground of religious liberty. Making a distinction between permissive
accommodation and mandatory accommodation is more critically important in analyzing free exercise
exemption claims. Such limitations forces the Court to confront how far it can validly set the limits of
religious liberty under the Free Exercise Clause, rather than presenting the separation theory and
accommodation theory as opposite concepts, and then rejecting relevant and instructive American
jurisprudence (such as the Smith cases) just because it does not espouse the theory selected.

Theories are only guideposts and "there is no magic formula to settle all disputes between religion and
the law, no legal pill to ease the pain of perceived injustice and religious oppression, and certainly no
perfect theory to bind judges or legislators." 39 The Smith cases, particularly Smith II, cannot be so easily
dismissed by the majority opinion and labeled as "best exemplifying the strict neutrality approach." The
Smith Court affirmed the power and the discretion of legislatures to enact statutory protection beyond
what the Free Exercise Clause required. The U.S. Supreme Court indicated in Smith II that legislatures
could enact accommodations to protect religion beyond the Free Exercise Clause minimum without
"establishing" religion and thereby running afoul of the Establishment Clause. 40 What the Smith cases
espouse, therefore, is not really the strict neutrality approach, but more of permissive accommodation.
41

Even assuming that the theory of benevolent neutrality and the compelling state interest test are
applicable, the State has a compelling interest in exacting from everyone connected with the
dispensation of justice, from the highest magistrate to the lowest of its personnel, the highest standard
of conduct. This Court has repeatedly held that "the image of a court of justice is necessarily mirrored in
the conduct, official or otherwise, of the men and women who work thereat." 42 While arguably not
constituting "disgraceful and immoral conduct," 43 Escritor's cohabitation with Quilapio is a patent
violation of our penal law on concubinage that vitiates "the integrity of court personnel and the court
itself." 44 The public's faith and confidence in the administration of justice would certainly be eroded
and undermined if tolerated within the judiciary's ranks are court employees blatantly violating our
criminal laws.

I therefore maintain that Escritor's admitted cohabitation with Quilapio is sufficient basis to hold her
guilty of conduct prejudicial to the best interest of the service and to impose upon her the appropriate
penalty. HSIDTE

Equally compelling is the State's interest in the preservation of marriage and the family as basic social
institutions, 45 which is ultimately the public policy underlying Articles 334 and 349 of the Revised Penal
Code. This Court has recognized in countless cases that marriage and the family are basic social
institutions in which the State is vitally interested 46 and in the protection of which the State has the
strongest interest. 47 In Domingo v. Court of Appeals, 48 the Court stressed that:

Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is the
foundation of the family;" as such, it "shall be protected by the State." . . . So crucial are marriage and
the family to the stability and peace of the nation that their "nature, consequences, and incidents are
governed by law and not subject to stipulation.

The same sentiment has been expressed in Article 149 of the Family Code:

The family, being the foundation of the nation, is a basic social institution which public policy cherishes
and protects. Consequently, family relations are governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given effect. (Emphasis supplied)

And yet, notwithstanding the foregoing compelling state interests at stake, the majority all too willingly
and easily places them in jeopardy by upholding Escritor's claim of exemption. On this point, Professor
William P. Marshall aptly observes that one of the problems involved in free exercise exemption analysis
is that it requires the Court to weigh the state interest against the interest of the narrower class
comprised only of those seeking exemption. On the other hand, in other doctrinal areas, the Court
balances the state interest in the regulation at issue against the interests of the regulated class taken as
a whole. Prof. Marshall persuasively argues that this leads to both unpredictability in the exemption
balancing process and potential inconsistency in result "as each regulation may be subject to limitless
challenges based upon the peculiar identity of the challenger." 49 Moreover, Prof. Marshall notes that
the exemption balancing process necessarily leads to underestimating the strength of the countervailing
state interest. 50 Indeed, the state interest in a challenged regulation will seldom be seriously
threatened if only a few persons seek exemption from it. 51

In dismissing the administrative complaint against Escritor, the majority opinion effectively condones
and accords a semblance of legitimacy to her patently unlawful cohabitation with Quilapio, while in the
eyes of the law, Quilapio remains married to his legal wife. This condonation in fact facilitates the
circumvention by Escritor and Quilapio of Articles 334 and 349 of the Revised Penal Code on
concubinage and bigamy. 52 Without having his first marriage legally dissolved, Quilapio can now
continue to cohabit with Escritor with impunity. How do we reconcile this scenario with the
Constitution's emphatic declaration that marriage is "an inviolable social institution"? 53

By choosing to turn a blind eye to Escritor's criminal conduct, the majority is in fact recognizing and
according judicial imprimatur to a practice, custom or agreement that subverts marriage, albeit one that
is sanctioned by a particular religious sect. The majority's opinion here bestows "a credibility and
legitimacy upon the religious belief in question simply by its being judicially recognized as
constitutionally sacrosanct." 54 This is another problem that arises in free exercise exemption analysis
— the benevolent neutrality approach fails to take into account the role that equality plays in free
exercise theory. 55 While the text of the Free Exercise Clause is consistent with protecting religion from
discrimination, it does not compel discrimination in favor of religion. 56 However, the benevolent
neutrality approach promotes its own form of inequality when under it, exemptions are granted only to
religious claimants like Escritor, whose religiously-sanctioned but otherwise illegal conjugal arrangement
with Quilapio acquires a veneer of "special judicial reinforcement." 57

Catholics may secure a church annulment of their marriage. A church annulment does not exempt
Catholics from criminal or administrative liability if they cohabit with someone other than their legal
spouse before their marriage is finally annulled by a civil court. Catholics cannot legally justify before
civil courts such act of concubinage on the ground that the act conforms to their religious beliefs
because they have a secured a church annulment which freed them from their marital vows. If this Court
condones Escritor's act of concubinage on religious grounds, then it will have to condone acts of
concubinage by Catholics who have secured church annulment of their marriage even without a final
annulment from a civil court. The majority pushes their opinion on a slippery slope. CSTEHI

It may well be asked how, under a well-meaning but overly solicitous grant of exemption based on the
Freedom of Exercise Clause of our Constitution, an individual can be given the private right to ignore a
generally applicable, religion-neutral law. For this is what the majority opinion has effectually granted
Escritor in dismissing the administrative complaint against her. The accommodation of Escritor's
religious beliefs under the benevolent neutrality approach is too high a price to pay when weighed
against its prejudicial effect on the sound administration of justice and the protection of marriage and
the family as basic social institutions.

Finally, there is even no claim here that concubinage is central to the religious belief of the Jehovah's
Witnesses, or even a part of the religious belief of the Jehovah's Witnesses. Escritor merely claims that
her live-in arrangement with a married man is, in the words of the majority opinion, "in conformity with
her and her partner's religious belief." This case is not an issue of a statute colliding with centrally or
vitally held beliefs of a religious denomination, as in the case of Sherbert. This case is about a religious
cover for an obviously criminal act.

In Sherbert, the conduct in question was the refusal of a member of the Seventh Day Adventist Church
to work on the Sabbath Day or on Saturdays, which prevented prospective employers from giving
petitioner in Sherbert employment. Petitioner in Sherbert then claimed unemployment benefits, which
the State denied because the law withheld benefits to those who failed without good cause to accept
available suitable work. In Sherbert, the questioned conduct — the refusal to work on Saturdays — was
part of the religious tenets of the Seventh Day Adventists. The questioned conduct in Sherbert was not a
criminal conduct, unlike the questioned conduct of Escritor in this case. Clearly, even assuming for the
sake of argument that Sherbert remains good law in the United States and thus has some persuasive
force here, still Sherbert is patently inapplicable to the present case.

The positive law and the institutions of government are concerned not with correct belief but with overt
conduct related to good order, peace, justice, freedom, and community welfare. 58 Hence, while there
are times when government must adapt to, or acquiesce to meet the needs of religious exercise, there
are also times when the exercises a religion wishes to pursue must be adapted or even prohibited in
order to meet the needs of public policy. 59 For indeed, even religious liberty has its limits. And
certainly, "there is a price to be paid, even by religion, for living in a constitutional democracy." 60

Certainly, observance of provisions of the Revised Penal Code, whose validity or constitutionality are not
even challenged, is a price that all religions in the Philippines must willingly pay for the sake of good
order and peace in the community. To hold otherwise would, as aptly stated in Reynolds v. U.S., 61
"make the professed doctrines of religious belief superior to the law of the land," and in effect "permit
every citizen to become a law unto himself." The majority opinion will make every religion a separate
republic, making religion a haven for criminal conduct that otherwise would be punishable under the
laws of the land. Today concubinage, tomorrow bigamy, will enjoy protection from criminal sanction
under the new doctrine foisted by the majority opinion. CSHcDT

Accordingly, I vote to suspend respondent Soledad S. Escritor for six months and one day without pay
for conduct prejudicial to the best interest of the service. However, the suspension shall be lifted
immediately upon Escritor's manifestation to this Court that she has ceased cohabiting with Luciano D.
Quilapio, Jr. Moreover, respondent Escritor is warned that her continued cohabitation with Quilapio,
during or after her suspension and while Quilapio's marriage with his legal wife still subsists, shall merit
the penalty of dismissal from the service.
[G.R. No. 117472. February 7, 1997.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Free Legal Assistance Group Anti-Death Penalty Task Force for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; AFFIDAVIT OF DESISTANCE; REGARDED WITH DISFAVOR IN CASE AT

BAR. — This is one occasion where an affidavit of desistance must be regarded with disfavor inasmuch
as the victim, in her tender age, manifested in court that she was pursuing the rape charges against the
accused-appellant. This court explained in the case of People vs. Gerry Ballabare, G.R. No. 108871,
promulgated on November 19, 1996, that: "As pointed out in People vs. Lim (24 190 SCRA 706 [1990],
which is also cited by the accused-appellant, an affidavit of desistance is merely an additional ground to
buttress the accused's defenses, 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." In the case at bar,
all that the accused-appellant offered as defenses mainly consisted of denial and alibi which cannot
outweigh the positive identification and convincing testimonies given by the prosecution. Hence, the
affidavit of desistance, which the victim herself intended to disregard as earlier discussed, must have no
bearing on the criminal prosecution against the accused-appellant, particularly on the trial court's
jurisdiction over the case.

2. ID.; ID.; THE RULE IS THAT THE CLIENT IS BOUND BY THE MISTAKE OF THE COUNSEL; EXCEPTION.
— The settled rule is that the client is bound by the negligence or mistakes of his counsel. One of the
recognized exceptions to this rule is gross incompetency in a way that the defendant is highly prejudiced
and prevented, in effect, from having his day in court to defend himself.

3. POLITICAL LAW; STATE; POSSESSES POWER TO SECURE THE SOCIETY AGAINST THREATENED
AND ACTUAL EVIL. — One of the indispensable powers of the state is the power to secure society
against threatened and actual evil. Pursuant to this, the legislative arm of government enacts criminal
laws that define and punish illegal acts that may be committed by its own subjects, the executive
agencies enforce these laws, and the judiciary tries and sentences the criminals in accordance with
these laws.

4. CRIMINAL LAW; PENALTY; DEATH SENTENCE; IMPOSABLE WHERE THE LAW ITSELF PROVIDES
THEREFOR. — In Harden, we ruled: "The penalty complained of is neither cruel, unjust nor excessive. In
Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that punishments are cruel
when they involve torture or a lingering death, but the punishment of death is not cruel, within the
meaning of that word as used in the constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life." (81 Phil. 741, 747 [1948]). Consequently, we
have time and again emphasized that our courts are not the fora for a protracted debate on the morality
or propriety of the death sentence where the law itself provides therefor in specific and well-defined
criminal acts. Thus we had ruled in the 1951 case of Limaco that: ". . . there are quite a number of
people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective.
However, as long as that penalty remains in the statute books, and as long as our criminal law provides
for its imposition on certain cases, it is the duty of judicial officers to respect and apply the law
regardless of their private opinions." (88 Phil. 36, 43 [1951]) and this we have reiterated in the 1995 case
of People vs. Veneracion, 249 SCRA 246, 253 [1995].

5. ID.; ID.; ID.; REQUIREMENT FOR THE RESTORATION THEREOF. — Article III, Section 19 (1) of the
1987 Constitution plainly vests in Congress the power to re-impose the death penalty "for compelling
reasons involving heinous crimes." This power is not subsumed in the plenary legislative power of
Congress, for it is subject to a clear showing of "compelling reasons involving heinous crimes." The
constitutional exercise of this limited power to re-impose the death penalty entails (1) that Congress
define or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death,
only crimes that qualify as heinous in accordance with the definition or description set in the death
penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case,
death can only be imposed upon the attendance of circumstances duly proven in court that characterize
the crime to be heinous in accordance with the definition or description set in the death penalty bill; and
(3) that Congress, in enacting this death penalty bill be singularly motivated by "compelling reasons
involving heinous crimes." Article III, Section 19 (1) of the 1987 Constitution simply states that Congress,
for compelling reasons involving heinous crimes, may re-impose the death penalty. Nothing in the said
provision imposes a requirement that for a death penalty bill to be valid, a positive manifestation in the
form of a higher incidence of crime should first be perceived and statistically proven following the
suspension of the death penalty. Neither does the said provision require that the death penalty be
resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society.
It is immaterial and irrelevant that R.A. No. 7659 cites that there has been an "alarming upsurge of such
crimes," for the same was never intended by said law to be the yardstick to determine the existence of
compelling reasons involving heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that "the
Congress, in the interest of justice, public order and rule of law, and the need to rationalize and
harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the death penalty
for said crimes."

6. ID.; ID.; ID.; ID.; HEINOUS CRIME, DEFINED. — In the second whereas clause of the preamble of
R.A. No. 7659, we find the definition or description of heinous crimes. Said clause provides that: ". . . the
crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses
and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are
repugnant and outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society." Justice Santiago Kapunan, in his dissenting opinion in People vs. Alicando,
251 SCRA 293 (1995) traced the etymological root of the word "heinous" to the Early Spartans words,
"haineus," meaning, hateful and abominable, which, in turn, was from the Greek prefix "haton,"
denoting acts so hatefully or shockingly evil. We find the foregoing definition or description to be a
sufficient criterion of what is to be considered a heinous crime. This criterion is deliberately undetailed
as to the circumstances of the victim, the accused, place, time, the manner of commission of crime, its
proximate consequences and effects on the victim as well as on society, to afford the sentencing
authority sufficient leeway to exercise his discretion in imposing the appropriate penalty in cases where
R.A. No. 7659 imposes not a mandatory penalty of death but the more flexible penalty of reclusion
perpetua to death.

7. ID.; ID.; ID.; R.A. No. 7659, IDENTIFIES CRIMES WARRANTING MANDATORY DEATH PENALTY AS
WELL AS THOSE PUNISHABLE BY RECLUSION PERPETUA TO DEATH. — Insofar as the element of
heinousness is concerned, R.A. No. 7659 has correctly identified crimes warranting the mandatory
penalty of death. As to the other crimes in R.A. No. 7659 punished by reclusion perpetua to death, they
are admittingly no less abominable than those mandatorily penalized by death. The proper time to
determine their heinousness in contemplation of law, is when on automatic review, we are called to
pass on a death sentence involving crimes punishable by reclusion perpetua to death under R.A. No.
7659, with the trial court meting out the death sentence in exercise of judicial discretion. This is not to
say, however, that the aggravating circumstances under the Revised Penal Code need be additionally
alleged as establishing the heinousness of the crime for the trial court to validly impose the death
penalty in the crimes under R.A. No. 7659 which are punished with the flexible penalty of reclusion
perpetua to death. In the first place, the 1987 Constitution did not amend or repeal the provisions of the
Revised Penal Code relating to aggravating circumstances. Secondly, R.A. No. 7659, while it specifies
circumstances that generally qualify a crime provided therein to be punished by the maximum penalty
of death, neither amends nor repeals the aggravating circumstances under the Revised Penal Code.

8. ID.; ID.; ID.; WHEN IMPOSABLE. — Construing R.A. No. 7659 in pari materia with the Revised
Penal Code, death may be imposed when (1) aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised Penal Code regarding the imposition of the
maximum penalty, and (2) other circumstances attend the commission of the crime which indubitably
characterize the same as heinous in contemplation of R.A. No. 7659 that justify the imposition of death,
albeit the imposable penalty is reclusion perpetua to death. Without difficulty, we understand the
rationale for the guided discretion granted in the trial court to cognize circumstances that characterize
the commission of the crime as heinous. Certainly there is an infinity of circumstances that may attend
the commission of a crime to the same extent that there is no telling the evil that man is capable of. The
legislature cannot and need not foresee and inscribe in law each and every loathsome act man is
capable of. It is sufficient thus that R.A. No. 7659 provides the test and yardstick for the determination
of the legal situation warranting the imposition of the supreme penalty of death.

9. ID.; ID.; ID.; RESTORATION THEREOF; RATIONALE. — The death penalty is imposed in heinous
crimes because the perpetrators thereof have committed unforgivably execrable acts that have so
deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to
lift the masses from abject poverty through organized governmental strategies based on a disciplined
and honest citizenry, and because they have so caused irreparable and substantial injury to both their
victim and the society and a repetition of their acts would pose actual threat to the safety of individuals
and the survival of government, they must be permanently prevented from doing so. At any rate, this
court has no doubts as to the innate heinousness of the crime of rape, as we have held in the case of
People vs. Cristobal, G.R. No. 116279, promulgated on January 29, 1996 "Rape is the forcible violation of
the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the
respect, freedom, and physical and moral integrity to which every person has a right. It causes grave
damage that can mark the victim for life. It is always an intrinsically evil act . . . an outrage upon decency
and dignity that hurts not only the victim but the society itself."

RESOLUTION

PER CURIAM p:

On June 25, 1996, we rendered our decision in the instant case affirming the conviction of the accused-
appellant for the crime of raping his ten-year old daughter. The crime having been committed sometime
in April, 1994, during which time Republic Act (R.A.) No. 7659, commonly known as the Death Penalty
Law, was already in effect, accused-appellant was inevitably meted out the supreme penalty of death.

On July 9, 1996, the accused-appellant timely filed a Motion for Reconsideration which focused on the
sinister motive of the victim's grandmother that precipitated the filing of the alleged false accusation of
rape against the accused. We find no substantial arguments on the said motion that can disturb our
verdict.

On August 6, 1996, accused-appellant discharged the defense counsel, Atty. Julian R. Vitug, and retained
the services of the Anti-Death Penalty Task Force of the Free Legal Assistance Group of the Philippines
(FLAG).

On August 23, 1996, we received the Supplemental Motion for Reconsideration prepared by the FLAG
on behalf of accused-appellant. The motion raises the following grounds for the reversal of the death
sentence:

"[1] Accused-appellant should not have been prosecuted since the pardon by the offended party and
her mother before the filing of the complaint acted as a bar to his criminal prosecution.

[2] The lack of a definite allegation of the date of the commission of the offense in the Complaint
and throughout trial prevented the accused-appellant from preparing an adequate defense.

[3] The guilt of the accused was not proved beyond a reasonable doubt.

[4] The Honorable Court erred in finding that the accused-appellant was the father or stepfather of
the complainant and in affirming the sentence of death against him on this basis.

[5] The trial court denied the accused-appellant of due process and manifested bias in the conduct
of the trial.

[6] The accused-appellant was denied his constitutional right to effective assistance of counsel and
to due process, due to the incompetence of counsel.

[7] R.A. [No.] 7659, reimposing the death penalty is unconstitutional per se:
a. For crimes where no death results from the offense, the death penalty is a severe and excessive
penalty in violation of Article III, Sec. 19 ( I ) of the 1987 Constitution.

b. The death penalty is cruel and unusual punishment in violation of Article III, Sec. 11 of the 1987
Constitution."

In sum, the Supplemental Motion for Reconsideration raises three (3) main issues: (1) mixed factual and
legal matters relating to the trial proceedings and findings; (2) alleged incompetence of accused-
appellant's former counsel; and (3) purely legal question of the constitutionality of R.A. No. 7659.

It is a rudimentary principle of law that matters neither alleged in the pleadings nor raised during the
proceedings below cannot be ventilated for the first time on appeal before the Supreme Court.
Moreover, as we have stated in our Resolution in Manila Bay Club Corporation v. Court of Appeals: 1

"If well-recognized jurisprudence precludes raising an issue only for the first time on appeal proper, with
more reason should such issue be disallowed or disregarded when initially raised only in a motion for
reconsideration of the decision of the appellate court." cdasia

It is to be remembered that during the proceedings of the rape case against the accused-appellant
before the sala of then presiding Judge Maximiano C. Asuncion, the defense attempted to prove that:

a) the rape case was motivated by greed, hence, a mere concoction of the alleged victim's
maternal grandmother;

b) the accused is not the real father of the complainant;

c) the size of the penis of the accused cannot have possibly penetrated the alleged victim's private
part; and

d) the accused was in Parañaque during the time of the alleged rape.

In his Brief before us when the rape case was elevated for automatic review, the accused-appellant
reiterated as grounds for exculpation:

a) the ill-motive of the victim's maternal grandmother in prompting her grandchild to file the rape
case;

b) the defense of denial relative to the size of his penis which could not have caused the healed
hymenal lacerations of the victim; and

c) the defense of alibi.

Thus, a second hard look at the issues raised by the new counsel of the accused-appellant reveals that in
their messianic appeal for a reversal of our judgment of conviction, we are asked to consider for the first
time, by way of a Supplemental Motion for Reconsideration, the following matters:
a) the affidavit of desistance written by the victim which acted as a bar to the criminal prosecution
for rape against the accused-appellant;

b) the vagueness attributed to the date of the commission of the offense in the Complaint which
deprived the accused-appellant from adequately defending himself;

c) the failure of this Court to clearly establish the qualifying circumstance that placed the accused-
appellant within the coverage of the Death Penalty Law;

d) the denial of due process and the manifest bias exhibited by the trial court during the trial of the
rape case.

Apparently, after a careful scrutiny of the foregoing points for reconsideration, the only legitimate issue
that We can tackle relates to the Affidavit of Desistance which touches on the lack of jurisdiction of the
trial court to have proceeded with the prosecution of the accused-appellant considering that the issue
of jurisdiction over the subject matter may be raised at any time, even during appeal. 2

It must be stressed that during the trial proceedings of the rape case against the accused-appellant, it
appeared that despite the admission made by the victim herself in open court that she had signed an
Affidavit of Desistance, she, nevertheless, "strongly pointed out that she is not withdrawing the charge
against the accused because the latter might do the same sexual assaults to other women." 3 Thus, this
is one occasion where an affidavit of desistance must be regarded with disfavor inasmuch as the victim,
in her tender age, manifested in court that she was pursuing the rape charges against the accused-
appellant.

We have explained in the case of People v. Gerry Ballabare, 4 that:

"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also cited by the accused-appellant,
an affidavit of desistance is merely an additional ground to buttress the accused's defenses, 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." 5

In the case at bar, all that the accused-appellant offered as defenses mainly consisted of denial and alibi
which cannot outweigh the positive identification and convincing testimonies given by the prosecution.
Hence, the affidavit of desistance, which the victim herself intended to disregard as earlier discussed,
must have no bearing on the criminal prosecution against the accused-appellant, particularly on the trial
court's jurisdiction over the case.

II

The settled rule is that the client is bound by the negligence or mistakes of his counsel. 6 One of the
recognized exceptions to this rule is gross incompetency in a way that the defendant is highly prejudiced
and prevented, in effect, from having his day in court to defend himself. 7
In the instant case, we believe that the former counsel of the accused-appellant to whom the FLAG
lawyers now impute incompetency had amply exercised the required ordinary diligence or that
reasonable decree of care and skill expected of him relative to his client's defense. As the rape case was
being tried on the merits, Atty. Vitug, from the time he was assigned to handle the case, dutifully
attended the hearings thereof. Moreover, he had seasonably submitted the Accused-Appellant's Brief
and the Motion for Reconsideration of our June 25, 1996 Decision with extensive discussion in support
of his line of defense. There is no indication of gross incompetency that could have resulted from a
failure to present any argument or any witness to defend his client. Neither has he acted haphazardly in
the preparation of his case against the prosecution evidence. The main reason for his failure to
exculpate his client, the accused-appellant, is the overwhelming evidence of the prosecution. The
alleged errors committed by the previous counsel as enumerated by the new counsel could not have
overturned the judgment of conviction against the accused-appellant.

III

Although its origins seem lost in obscurity, the imposition of death as punishment for violation of law or
custom, religious or secular, is an ancient practice. We do know that our forefathers killed to avenge
themselves and their kin and that initially, the criminal law was used to compensate for a wrong done to
a private party or his family, not to punish in the name of the state.

The dawning of civilization brought with it both the increasing sensitization throughout the later
generations against past barbarity and the institutionalization of state power under the rule of law.
Today every man or woman is both an individual person with inherent human rights recognized and
protected by the state and a citizen with the duty to serve the common weal and defend and preserve
society.

One of the indispensable powers of the state is the power to secure society against threatened and
actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that define and
punish illegal acts that may be committed by its own subjects, the executive agencies enforce these
laws, and the judiciary tries and sentences the criminals in accordance with these laws.

Although penologists, throughout history, have not stopped debating on the causes of criminal behavior
and the purposes of criminal punishment, our criminal laws have been perceived as relatively stable and
functional since the enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding
occasional opposition to the death penalty provisions therein. The Revised Penal Code, as it was
originally promulgated, provided for the death penalty in specified crimes under specific circumstances.
As early as 1886, though, capital punishment had entered our legal system through the old Penal Code,
which was a modified version of the Spanish Penal Code of 1870.

The opposition to the death penalty uniformly took the form of a constitutional question of whether or
not the death penalty is a cruel, unjust, excessive or unusual punishment in violation of the
constitutional proscription against cruel and unusual punishments. We unchangingly answered this
question in the negative in the cases of Harden v. Director of Prison, 8 People v. Limaco, 9 People v.
Camano, 10 People v. Puda 11 and People v. Marcos, 12 In Harden, we ruled:
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436,
the United States Supreme Court said that 'punishments are cruel when they involve torture or a
lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the
constitution. It implies there something inhuman and barbarous, something more than the mere
extinguishment of life.'" 13

Consequently, we have time and again emphasized that our courts are not the fora for a protracted
debate on the morality or propriety of the death sentence where the law itself provides therefor in
specific and well-defined criminal acts. Thus we had ruled in the 1951 case of Limaco that:

". . . there are quite a number of people who honestly believe that the supreme penalty is either morally
wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as
long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to
respect and apply the law regardless of their private opinions." 14

and this we have reiterated in the 1995 case of People v. Veneracion. 15

Under the Revised Penal Code, death is the penalty for the crimes of treason, correspondence with the
enemy during times of war, qualified piracy, parricide, murder, infanticide, kidnapping, rape with
homicide or with the use of deadly weapon or by two or more persons resulting in insanity, robbery with
homicide, and arson resulting in death. The list of capital offenses lengthened as the legislature
responded to the emergencies of the times. In 1941, Commonwealth Act (C.A.) No. 616 added
espionage to the list. In the 1950s, at the height of the Huk rebellion, the government enacted Republic
Act (R.A.) No. 1700, otherwise known as the Anti-Subversion Law, which carried the death penalty for
leaders of the rebellion. From 1971 to 1972, more capital offenses were created by more laws, among
them, the Anti-Hijacking Law, the Dangerous Drugs Act, and the Anti-Carnapping Law. During martial
law, Presidential Decree (P.D.) No. 1866 was enacted penalizing with death, among others, crimes
involving homicide committed with an unlicensed firearm.

In the aftermath of the 1986 revolution that dismantled the Marcos regime and led to the nullification
of the 1973 Constitution, a Constitutional Commission was convened following appointments thereto by
Corazon Aquino who was catapulted to power by the people.

Tasked with formulating a charter that echoes the new found freedom of a rejuvenated people, the
Constitutional Commissioners grouped themselves into working committees among which is the Bill of
Rights Committee with Jose B. Laurel, Jr.as Chairman and Father Joaquin G. Bernas, S.J., as Vice-
Chairman.

On July 17, 1986, Father Bernas presented the committee draft of the proposed bill of rights to the rest
of the commission. What is now Article III, Section 19 (1) of the 1987 Constitution was first denominated
as Section 22 and was originally worded as follows:

"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment, or the death
penalty inflicted. Death penalty already imposed shall be commuted to reclusion perpetua."
Father Bernas explained that the foregoing provision was the result of a consensus among the members
of the Bill of Rights Committee that the death penalty should be abolished. Having agreed to abolish the
death penalty, they proceeded to deliberate on how the abolition was to be done — whether the
abolition should be done by the Constitution or by the legislature — and the majority voted for a
constitutional abolition of the death penalty. Father Bernas explained:

". . . [T]here was a division in the Committee not on whether the death penalty should be abolished or
not, but rather on whether the abolition should be done by the Constitution — in which case it cannot
be restored by the legislature — or left to the legislature. The majority voted for the constitutional
abolition of the death penalty. And the reason is that capital punishment is inhuman for the convict and
his family who are traumatized by the waiting, even if it is never carried out. There is no evidence that
the death penalty deterred deadly criminals, hence, life should not be destroyed just in the hope that
other lives might be saved. Assuming mastery over the life of another man is just too presumptuous for
any man. The fact that the death penalty as an institution has been there from time immemorial should
not deter us from reviewing it. Human life is more valuable than an institution intended precisely to
serve human life. So, basically, this is the summary of the reasons which were presented in support of
the constitutional abolition of the death penalty". 16

The original wording of Article III, Section 19 (1), however, did not survive the debate that it instigated.
Commissioner Napoleon G. Rama first pointed out that "never in our history has there been a higher
incidence of crime" and that "criminality was at its zenith during the last decade". 17 Ultimately, the
dissent defined itself to an unwillingness to absolutely excise the death penalty from our legal system
and leave society helpless in the face of a future upsurge of crimes or other similar emergencies. As
Commissioner Rustico F. de los Reyes, Jr. suggested, "although we abolish the death penalty in the
Constitution, we should afford some amount of flexibility to future legislation," 18 and his concern was
amplified by the interpellatory remarks of Commissioner Lugum L. Commissioner and now Associate
Justice Florenz Regalado, Commissioner Crispino M. de Castro, Commissioner Ambrosio B. Padilla,
Commissioner Christian Monsod, Commissioner Francisco A. Rodrigo, and Commissioner Ricardo
Romulo. Commissioner Teodoro C. Padilla put it succinctly in the following exchange with Commissioner
Bacani:

"BISHOP BACANI. . . . At present, they explicitly make it clear that the church has never condemned the
right of the state to inflict capital punishment.

MR. PADILLA. . . . So it is granted that the state is not deprived of the right even from a moral standpoint
of imposing or prescribing capital punishment.

BISHOP BACANI. Yes. What I am saying is that from the Catholic point of view, that right of the
state is not forbidden.

MR. PADILLA. In fact . . . we have to accept that the state has the delegated authority from the Creator
to impose the death penalty under certain circumstances.
BISHOP BACANI. The state has the delegation from God for it to do what is needed for the sake of
the common good, but the issue at stake is whether or not under the present circumstances that will be
for the common good.

MR. PADILLA. But the delegated power of the state cannot be denied.

BISHOP BACANI. Yes, the state can be delegated by God at a particular stage in history, but it is
not clear whether or not that delegation is forever under all circumstances

MR. PADILLA. So this matter should be left to the legislature to determine, under certain specified
conditions or circumstances, whether the retention of the death penalty or its abolition would be for the
common good. I do not believe this Commission can a priori, and as was remarked within a few days or
even a month, determine a positive provision in the Constitution that would prohibit even the
legislature to prescribe the death penalty for the most heinous crimes, the most grievous offenses
attended by many qualifying and aggravating circumstances." 19

What followed, thus, were proposed amendments to the beleaguered provision. The move to add the
phrase, "unless for compelling reasons involving heinous crimes, the national assembly provides for the
death penalty," came from Commissioners Monsod, Jose E. Suarez and de los Reyes. Commissioner
Rodrigo, however, expressed reservations even as regards the proposed amendment. He said:

". . . [T]he issue here is whether or not we should provide this matter in the Constitution or leave it to
the discretion of our legislature. Arguments pro and con have been given. . . . But my stand is, we should
leave this to the discretion of the legislature.

The proposed amendment is halfhearted. It is awkward because we will, in effect, repeal by our
Constitution a piece of legislation and after repealing this piece of legislation, tell the legislature that we
have repealed the law and that the legislature can go ahead and enact it again. I think this is not worthy
of a constitutional body like ours. If we will leave the matter of the death penalty to the legislature, let
us leave it completely to the discretion of the legislature, but let us not have this half-baked provision.
We have many provisions in the Revised Penal Code imposing the death penalty. We will now revoke or
repeal these pieces of legislation by means of the Constitution, but at the same time say that it is up to
the legislature to impose this again.

. . . The temper and condition of the times change . . . and so we, I think we should leave this matter to
the legislature to enact statutes depending on the changing needs of the times. Let us entrust this
completely to the legislature composed of representatives elected by the people.

I do not say that we are not competent. But we have to admit the fact that we are not elected by the
people and if we are going to entrust this to the legislature, let us not be half-baked nor half-hearted
about it. Let us entrust it to the legislature 100 percent." 20

Nonetheless, the proposed amendment was approved with twenty-three (23) commissioners voting in
favor of the amendment and twelve (12) voting against it, followed by more revisions, hence the present
wording of Article III, Section 19 (1) of the 1987 Constitution in the following tenor:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua."

The implications of the foregoing provision on the effectivity of the death penalty provisions in the
Revised Penal Code and certain special criminal laws and the state of the scale of penalties thereunder,
were tremendous.

The immediate problem pertained to the applicable penalty for what used to be capital crimes. In
People v. Gavarra, 21 we stated that "in view of the abolition of the death penalty under Section 19,
Article III of the 1987 Constitution, the penalty that may be imposed for murder is reclusion temporal in
its maximum period to reclusion perpetua" 22 thereby eliminating death as the original maximum
period. The constitutional abolition of the death penalty, it seemed, limited the penalty for murder to
only the remaining periods, to wit, the minimum and the medium, which we then, in People v.
Masangkay, 23 People v. Atencio 24 and People v. Intino 25 divided into three new periods, to wit, the
lower half of reclusion temporal maximum as the minimum; the upper half of reclusion temporal
maximum as the medium; and reclusion perpetua as the maximum, in keeping with the three-grade
scheme under the Revised Penal Code. In People v. Munoz, 26 however, we reconsidered these
aforecited cases and after extended discussion, we concluded that the doctrine announced therein did
not reflect the intention of the framers. The crux of the issue was whether or not Article III, Section 19
(1) absolutely abolished the death penalty, for if it did, then, the aforementioned new three-grade
penalty should replace the old one where the death penalty constituted the maximum period. But if no
total abolition can be read from said constitutional provision and the death penalty is only suspended, it
cannot as yet be negated by the institution of a new three-grade penalty premised on the total
inexistence of the death penalty in our statute books. We thus ruled in Munoz:

"The advocates of the Masangkay ruling argue that the Constitution abolished the death penalty and
thereby limited the penalty for murder to the remaining periods, to wit, the minimum and the medium.
These should now be divided into three new periods in keeping with the three-grade scheme intended
by the legislature. Those who disagree feel that Article III, Section 19 (1) merely prohibits the imposition
of the death penalty and has not, by reducing it to reclusion perpetua, also correspondingly reduced the
remaining penalties. These should be maintained intact. cdt

A reading of Section 19 (1) of Article III will readily show that there is really nothing therein which
expressly declares the abolition of the death penalty. The provision merely says that the death penalty
shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter
provides for it and, if already imposed, shall be reduced to reclusion perpetua. The language, while
rather awkward, is still plain enough". 27

Nothing is more defining of the true content of Article III, Section 19 (1) of the 1987 Constitution than
the form in which the legislature took the initiative in re-imposing the death penalty.

The Senate never doubted its power as vested in it by the constitution, to enact legislation re-imposing
the death penalty for compelling reasons involving heinous crimes. Pursuant to this constitutional
mandate, the Senate proceeded to a two-step process consisting of: first, the decision, as a matter of
policy, to re-impose the death penalty or not; and second, the vote to pass on the third reading the bill
re-imposing the death penalty for compelling reasons involving heinous crimes.

On February 15, 1993, after a fierce and fiery exchange of arguments for and against capital
punishment, the Members of the Senate voted on the policy issue of death penalty. The vote was
explained, thus:

"SUSPENSION OF THE RULES

Upon motion of Senator Romulo, there being no objection, the Body suspended the Rules of the Senate.

Thereafter, upon motion of Senator Romulo, there being no objection, the Chair directed that a nominal
voting be conducted on the policy issue of death penalty.

INQUIRY OF SENATOR TOLENTINO

Asked by Senator Tolentino on how the Members of the Senate would vote on this policy question,
Senator Romulo stated that a vote of Yes would mean a vote in favor of death as a penalty to be
reincorporated in the scale of penalties as provided in the Revised Penal Code, and a vote of No would
be a vote against the reincorporation of death penalty in the scale of penalties in the Revised Penal
Code.

INQUIRY OF SENATOR ALVAREZ

xxx xxx xxx

The Chair explained that it was agreed upon that the Body would first decide the question whether or
not death penalty should be reimposed, and thereafter, a seven-man committee would be formed to
draft the compromise bill in accordance with the result of the voting. If the Body decides in favor of the
death penalty, the Chair said that the committee would specify the crimes on which death penalty
would be imposed. It affirmed that a vote of Yes in the nominal voting would mean a vote in favor of
death penalty on at least one crime, and that certain refinements on how the penalty would be imposed
would be left to the discretion of the seven-man committee.

xxx xxx xxx

INQUIRY OF SENATOR TAÑADA

In reply to Senator Tañada's query, the Chair affirmed that even if a senator would vote 'yes' on the
basic policy issue, he could still vote 'no' on the imposition of the death penalty on a particular crime.

REMARKS OF SENATOR TOLENTINO

Senator Tolentino observed that the Body would be voting on the basic policy issue of whether or not
the death penalty would be included in the scale of penalties found in Article 27 of the Revised Penal
Code, so that if it is voted down, the Body would discontinue discussing Senate Bill No. 891 pursuant to
the Rules, but if approved, a special committee, as agreed upon in the caucus, is going to be appointed
and whatever course it will take will depend upon the mandate given to it by the Body later on.

The Chair affirmed Senator Tolentino's observations.

REMARKS OF SENATOR ROCO

Senator Roco stated that the Body would vote whether or not death as a penalty will be reincorporated
in the scale of penalties provided by the Revised Penal Code. However, he pointed out that if the Body
decides in favor of death penalty, the Body would still have to address two issues: 1) Is the crime for
which the death penalty is supposed to be imposed heinous pursuant to the constitutional mandate? 2)
And, if so, is there a compelling reason to impose the death penalty for it? The death penalty, he
stressed, cannot be imposed simply because the crime is heinous." 28

With seventeen (17) affirmative votes and seven (7) negative votes and no abstention, the Chair
declared that the Senate has voted to re-incorporate death as a penalty in the scale of penalties as
provided in the Revised Penal Code. A nine-person committee was subsequently created to draft the
compromise bill pursuant to said vote. The mandate of the committee was to retain the death penalty,
while the main debate in the committee would be the determination of the crimes to be considered
heinous.

On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special Committee on the Death Penalty,
delivered his Sponsorship Speech. He began with an explanation as to why the Senate Bill No. 891 re-
imposes the death penalty by amending the Revised Penal Code and other special penal laws and
includes provisions that do not define or punish crimes but serve purposes allied to the reimposition of
the death penalty. Senator Tolentino stated:

". . . [W]hen the Senate approved the policy of reimposing the death penalty on heinous crimes and
delegated to the Special Committee the work of drafting a bill, a compromise bill that would be the
subject for future deliberations of this Body, the Committee had to consider that the death penalty was
imposed originally in the Revised Penal Code.

So, when the Constitution was approved in order to do away with the death penalty, unless Congress
should, for compelling reasons reimpose that penalty on heinous crimes, it was obvious that it was the
Revised Penal Code that was affected by that provision of the Constitution. The death penalty, as
provided in the Revised Penal Code, would be considered as having been repealed — all provisions on
the death penalty would be considered as having been repealed by the Constitution, until Congress
should, for compelling reasons, reimpose such penalty on heinous crimes. Therefore, it was not only one
article but many articles of the Revised Penal Code that were actually affected by the Constitution.

And it is in consideration of this consequence of the constitutional provision that our Special Committee
had to consider the Revised Penal Code itself in making this compromise bill or text of the bill. That is
why, in the proposed draft now under consideration which we are sponsoring, the specific provisions of
the Revised Penal Code are actually either reenacted or amended or both. Because by the effect of the
Constitution, some provisions were totally repealed, and they had to be reenacted so that the provisions
could be retained. And some of them had to be amended because the Committee thought that
amendments were proper." 29

In response to a query by Senator Gloria Macapagal-Arroyo as to whether or not it would have been
better if the Senate were to enact a special law which merely defined and imposed the death penalty for
heinous crimes, Senator Tolentino explicated, thus:

". . . [T]hat may be a way presenting the bill. But we must bear in mind that the death penalty is imposed
in the Revised Penal Code. Therefore, when the Constitution abolished the death penalty, it actually was
amending the Revised Penal Code to such an extent that the Constitution provides that where the death
penalty has already been imposed but not yet carried out, then the penalty shall be reclusion perpetua,
that is the penalty in the Revised Penal Code. So we thought that it would be best to just amend the
provisions of the Revised Penal Code, restoring the death penalty for some crimes that may be
considered as heinous. That is why the bill is in this form amending the provisions of the Revised Penal
Code.

Of course, if some people want to present a special bill . . . the whole trouble is, when a special bill is
presented and we want to punish in the special bill the case of murder, for instance, we will have to
reproduce the provisions of the Revised Penal Code on murder in order to define the crime for which
the death penalty shall be imposed. Or if we want to impose the death penalty in the case of kidnapping
which is punished in the Revised Penal Code, we will do the same —merely reproduce. Why will we do
that? So we just followed the simpler method of keeping the definition of the crime as the same and
merely adding some aggravating circumstances and reimposing the death penalty in these offenses
originally punished in the Revised Penal Code." 30

From March 17, 1993, when the death penalty bill was presented for discussion until August 16, 1993,
the Members of the Senate debated on its provisions.

The stiffest opposition thereto was bannered by Senator Lina who kept prodding the sponsors of the bill
to state the compelling reason for each and every crime for which the supreme penalty of death was
sought. Zeroing in on the statement in the preamble of the death penalty bill that the same is warranted
in the face of "the alarming upsurge of [heinous] crimes", Senator Lina demanded for solid statistics
showing that in the case of each and every crime in the death penalty bill, there was a significantly
higher incidence of each crime after the suspension of the death penalty on February 2, 1987 when the
1987 Constitution was ratified by the majority of the Filipino people, than before such ratification. 31
Inasmuch as the re-impositionists could not satisfy the abolitionists with sufficient statistical data for the
latter to accept the alarming upsurge of heinous crimes as a compelling reason justifying the
reimposition of the death penalty, Senator Lina concluded that there were, in fact, no compelling
reasons therefor. In the alternative, Senator Lina argued that the compelling reason required by the
constitution was that "the State has done everything in its command so that it can be justified to use an
inhuman punishment called death penalty". 32 The problem, Senator Lina emphasized, was that even
the re-impositionists admit that there were still numerous reforms in the criminal justice system that
may and must be put in place, and so clearly, the recourse to the enactment of a death penalty bill was
not in the nature of a last resort, hence, unconstitutional in the absence of compelling reasons. As an
initial reaction to Senator Lina's contentions, Senator Tolentino explained that the statement in the
preamble is a general one and refers to all the crimes covered by the bill and not to specific crimes. He
added that one crime may not have the same degree of increase in incidence as the other crimes and
that the public demand to impose the death penalty is enough compelling reason. 33

Equally fit to the task was Senator Wigberto Tañada to whom the battle lines were clearly drawn. He put
to issue two things: first, the definition of "heinous crimes" as provided for in the death penalty bill; and
second, the statement of compelling reasons for each and every capital crime. His interpellation of
Senator Tolentino clearly showed his objections to the bill:

"Senator Tañada. . . . But what would make crimes heinous, Mr. President? Are crimes heinous by
their nature or elements as they are described in the bill or are crimes heinous because they are
punished by death, as bribery and malversation are proposed to be punished in the bill?

Senator Tolentino. They are heinous by their nature, Mr. President, but that is not supposed to be
the exclusive criterion. The nature of the offense is the most important element in considering it
heinous but, at the same time, we should consider the relation of the offense to society in order to have
a complete idea of the heinous nature of these offenses.

In the case of malversation or bribery, for instance, these offenses by themselves connected with the
effect upon society and the government have made them fall under the classification of heinous crimes.
The compelling reason for imposing the death penalty is when the offenses of malversation and bribery
becomes so grave and so serious as indicated in the substitute bill itself, then there is a compelling
reason for the death penalty.

Senator Tañada. With respect to the compelling reasons, Mr. President, does the Gentleman
believe that these compelling reasons, which would call for the reimposition of the death penalty,
should be separately, distinctly and clearly stated for each crime so that it will be very clear to one and
all that not only are these crimes heinous but also one can see the compelling reasons for the
reimposition of the death penalty therefor?

Senator Tolentino. Mr. President, that matter was actually considered by the Committee. But the
decision of the Committee was to avoid stating the compelling reason for each and every offense that is
included in the substitute measure. That is why in the preamble, general statements were made to show
these compelling reasons. And that, we believe, included in the bill, when converted into law, would be
sufficient notice as to what were considered compelling reasons by the Congress, in providing the death
penalty for these different offenses.

If a matter like this is questioned before the Supreme Court, I would suppose that with the preamble
already in general terms, the Supreme Court would feel that it was the sense of Congress that this
preamble would be applicable to each and every offense described or punishable in the measure.
So we felt that it was not necessary to repeat these compelling reasons for each and every offense.

Senator Tañada. Mr. President, I am thinking about the constitutional limitations upon the power
of Congress to enact criminal legislation, especially the provisions on the Bill of Rights, particularly the
one which says that no person shall be held to answer for a criminal offense without due process of law.

Can we not say that under this provision, it is required that the compelling reasons be so stated in the
bill so that the bill, when it becomes a law, will clearly define the acts and the omissions punished as
crimes?

Senator Tolentino. Mr. President, I believe that in itself, as substantive law, this is sufficient. The
question of whether there is due process will more or less be a matter of procedure in the compliance
with the requirements of the Constitution with respect to due process itself which is a separate matter
from the substantive law as to the definition and penalty for crimes.

Senator Tañada. Under the Constitution, Mr. President, it appears that the reimposition of the
death penalty is subject to three conditions and these are:

1. Congress should so provide such reimposition of the death penalty;

2. There are compelling reasons; and

3. These involve heinous crimes.

Under these provision of the Constitution, paragraph 1, Section 13, does the distinguished Gentleman
not feel that Congress is bound to state clearly the compelling reasons for the reimposition of the death
penalty for each crime, as well as the elements that make each of the crimes heinous included in the
bill?

Senator Tolentino. Mr. President, that is a matter of opinion already. I believe that whether we
state the compelling reasons or not, whether we state why a certain offense is heinous, is not very
important. If the question is raised in the Supreme Court, it is not what we say in the bill that will be
controlling but what the Supreme Court will fell as a sufficient compelling reason or as to the heinous
nature whether the crime is heinous or not. The accused can certainly raise the matter of
constitutionality but it will not go into the matter of due process. It will go into the very power of
Congress to enact a bill imposing the death penalty. So that would be entirely separate from the matter
of due process." 34

Senator Francisco Tatad, on his part, pointed out that the death penalty bill violated our international
commitment in support of the worldwide abolition of capital punishment, the Philippines being a
signatory to the International Covenant on Civil and Political Rights and its Second Optional Protocol.
Senator Ernesto Herrera clarified, however, that in the United Nations, subject matters are submitted to
the different committees which vote on them for consideration in the plenary session. He stressed that
unless approved in the plenary session, a declaration would have no binding effect on signatory
countries. In this respect, the Philippines cannot be deemed irrevocably bound by said covenant and
protocol considering that these agreements have reached only the committee level. 35

After the protracted debate, the Members of the Senate voted on Senate Bill No. 891 on third reading.
With seventeen (17) affirmative votes, four (4) negative votes, and one abstention, the death penalty
bill was approved on third reading on August 16, 1993.

The Senate's vote to pass Senate Bill No. 891 on third reading on August 16, 1993 was a vindication of,
the House of Representatives. The House had, in the Eight Congress, earlier approved on third reading
House Bill No. 295 on the restoration of the death penalty for certain heinous crimes. The House was in
effect rebuffed by the Senate when the Senate killed House Bill No. 295 along with other bills coming
from the House. House Bill No. 295 was resurrected during the Ninth Congress in the form of House Bill
No. 62 which was introduced by twenty one (21) Members of the House of Representatives on October
27, 1992. House Bill No. 62 was a merger of House Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565,
1586, 2206, 3238, 3576 and 3632 authored by various Members of the Lower House.

In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably essayed the constitutional
vesting in Congress of the power to re-impose the death penalty for compelling reasons invoking
heinous crimes as well as the nature of this constitutional pre-requisite to the exercise of such power.

"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote:

'Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the
Congress shall thereafter provide for it. . . .'

The phrase 'unless, for compelling reasons involving heinous crimes, the Congress shall thereafter
provide for it was introduced as an amendment by then Comm. Christian Monsod.

The import of this amendment is unmistakable. By this amendment, the death penalty was not
completely abolished by the 1987 Constitution. Rather, it merely suspended the death penalty and gave
Congress the discretion to review it at the propitious time.

Arguing for the inclusion of said amendment in the fine provision, Comm. Ricardo Romulo said, and I
quote:

"'The people should have the final say on the subject, because, at some future time, the people might
want to restore death penalty through initiative and referendum.

Commissioner Monsod further argued, and I quote:

We cannot presume to have the wisdom of the ages. Therefore, it is entirely possible in the future that
circumstances may arise which we should not preclude today.

xxx xxx xxx

I believe that [there] are enough compelling reasons that merit the reimposition of the capital
punishment. The violent manner and the viciousness in which crimes are now committed with alarming
regularity, show very clearly a patent disregard of the law and a mockery of public peace and order.

In the public gallery section today are the relatives of the victims of heinous crimes — the Hultmans, the
Maguans, the Vizcondes, the Castanoses, and many more, and they are all crying for justice. We ought
to listen to them because their lives, their hopes, their dreams, their future have fallen asunder by the
cruel and vicious criminality of a few who put their selfish interest above that of society.

Heinous crime is an act or series of acts which, by the flagrantly violent manner in which the same was
committed or by the reason of its inherent viciousness, shows a patent disregard and mockery of the
law, public peace and order, or public morals. It is an offense whose essential and inherent viciousness
and atrocity are repugnant and outrageous to a civilized society and hence, shock the moral self of a
people.

Of late, we are witness to such kind of barbaric crimes.

The Vizconde massacre that took the lives of a mother and her two lovely daughters, will stand in the
people's memory for many long years as the epitome of viciousness and atrocity that are repugnant to
civilized society.

The senseless murder of Eldon Maguan, and up-and-coming young business executive, was and still is an
outrage that shocks the moral self of our people.

The mind-boggling death of Maureen Hultman, a comely 16 year-old high school student who dreamt of
becoming a commercial model someday, at the hands of a crazed man was so repulsive, so brutal that it
offends the sensibilities of Christians and non-Christians alike. cdasia

The cold-blooded double murder of Cochise Bernabe and Beebom Castanos, the lovely and promising
couple from the University of the Philippines, is eternally lodged in the recesses of our minds and still
makes our stomach turn in utter disgust.

xxx xxx xxx

The seriousness of the situation is such that if no radical action is taken by this body in restoring death
penalty as a positive response to the overwhelming clamor of the people, then, as Professor Esteban
Bautista of the Philippine Law Center said, and I quote:

'When people begin to believe that organized society is unwilling or unable to impose upon criminal
offenders the punishment they deserve, there are sown the seeds of anarchy — of self-help, of vigilante
justice and lynch law. The people will take the law upon their hands and exact vengeance in the nature
of personal vendetta.'

It is for this reason, Mr. Speaker, that I stand here and support House Bill No. 62.
As duly elected Representatives of our people, collectively, we ought to listen to our constituents and
heed their plea — a plea for life, liberty and pursuit of their happiness under a regime of justice and
democracy, and without threat that their loves ones will be kidnapped, raped or butchered.

But if such a misfortune befalls them, there is the law they could rely on for justice. A law that will exact
retribution for the victims. A law that will deter future animalistic behavior of the criminal who take
their selfish interest over and above that of society. A law that will deal a deathblow upon all heinous
crimes.

Mr. Speaker, my distinguished colleagues, for the preservation of all that we hold dear and sacred, let us
restore the death penalty." 36

A studious comparison of the legislative proceedings in the Senate and in the House of Representatives
reveals that, while both Chambers were not wanting of oppositors to the death penalty, the Lower
House seemed less quarrelsome about the form of the death penalty bill as a special law specifying
certain heinous crimes without regard to the provisions of the Revised Penal Code and more unified in
the perception of what crimes are heinous and that the fact of their very heinousness involves the
compulsion and the imperative to suppress, if not completely eradicate, their occurrence. Be it the
foregoing general statement of Representative Sanchez or the following details of the nature of the
heinous crimes enumerated in House Bill No. 62 by Representative Miguel L. Romero of Negros Oriental,
there was clearly, among the hundred or so re-impositionists in the Lower House, no doubt as to their
cause:

"My friends, this bill provides for the imposition of the death penalty not only for the importation,
manufacture and sale of dangerous drugs, but also for other heinous crimes such as treason; parricide;
murder; kidnapping; robbery; rape as defined by the Revised Penal Code with or without additionally
defined circumstances; plunder, as defined in R.A. 7080; piracy, as defined under Section 2 of PD 532;
carnapping, as defined in Section 2 of RA 6539, when the owner, driver or occupant is killed; hijacking,
as defined in . . . RA 6235; and arson resulting in the death of any occupants.

All these crimes have a common denominator which qualifies them to the level of heinous crimes. A
heinous crime is one which, by reason of its inherent or manifest wickedness, viciousness, atrocity or
perversity, is repugnant and outrageous to the common standards of decency and morality in a just and
civilized society.

For instance, the crime of treason is defined as a breach of allegiance to a government, committed by a
person who owes allegiance to it (U.S. v. Abad 1 Phil. 437). By the 'allegiance' is meant the obligation of
fidelity and obedience which individuals owe to the government under which they live or to their
sovereign in return for the protection which they receive (52 Am Jur 797).

In kidnapping, the though alone of one's loved one being held against his or her own will in some
unidentified . . . house by a group of scoundrels who are strangers is enough terrify and send shivers of
fear through the spine of any person, even scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson, what is being punished by death is the
fact that the perpetrator, at the time of the commission of the crime, thinks nothing of the other crime
he commits and sees it merely as a form of self-amusement. When a homicide is committed by reason
of the robbery, the culprits are perceived as willing to take human life in exchange for money or other
personal property.

In the crime of rape, not only do we speak of the pain and agony of the parents over the personal shock
and suffering of their child but the stigma of the traumatic and degrading incident which has shattered
the victim's life and permanently destroyed her reputation, not to mention the ordeal of having to
undergo the shameful experience of police interrogation and court hearings.

Piracy, which is merely a higher form of robbery, is punished for the universal hostility of the
perpetrators against their victims who are passengers and complement of the vessel, and because of the
fact that, in the high seas, no one may be expected to be able to come to the rescue of the helpless
victims. For the same reason, Mr. Speaker, the crime of air piracy is punished due to the evil motive of
the hijackers in making unreasonable demands upon the sovereignty of an entire nation or nations,
coupled with the attendant circumstance of subjecting the passengers to terrorism." 37

The debate on House Bill No. 62 lasted from October 27, 1992 to February 11, 1993. On February 11,
1993, the Members of the House of Representatives overwhelmingly approved the death penalty bill on
second reading.

On February 23, 1993, after explaining their votes, the Members of the House of Representatives cast
their vote on House Bill No. 62 when it was up for consideration on third reading. 38 The results were
123 votes in favor, 26 votes against, and 2 abstentions

After the approval on third reading of House Bill No. 62 on February 23, 1993 and of Senate Bill No. 891
on August 16, 1993, the Bicameral Conference Committee convened to incorporate and consolidate
them.

On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to Impose the Death Penalty on
Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended, Other Special
Penal Laws, and for Other Purposes," took effect. 39

Between December 31, 1993, when R.A. No. 7659 took effect, and the present time, criminal offenders
have been prosecuted under said law, and one of them, herein accused-appellant, has been, pursuant to
said law, meted out the supreme penalty of death for raping his ten-year old daughter. Upon his
conviction, his case was elevated to us on automatic review. On June 25, 1996, we affirmed his
conviction and the death sentence.

Now, accused-appellant comes to us in the heels of this court's affirmation of his death sentence and
raises for the first time the issue of the constitutionality of R.A. 7659. His thesis is two-fold: (1) that the
death penalty law is unconstitutional per se for having been enacted in the absence of compelling
reasons therefor; and (2) that the death penalty for rape is a cruel, excessive and inhuman punishment
in violation of the constitutional proscription against punishment of such nature.

We reject accused-appellant's proposition.

Three justices interposed their dissent hereto, agreeing with accused-appellant's view that Congress
enacted R.A. No. 7659 without complying with the twin requirements of compelling reasons and
heinous crimes.

At this juncture, the detailed events leading to the enactment of R.A. No. 7659 as unfurled in the
beginning of this disquisition, necessarily provide the context for the following analysis.

Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress the power to re-impose the
death penalty "for compelling reasons involving heinous crimes". This power is not subsumed in the
plenary legislative power of Congress, for it is subject to a clear showing of "compelling reasons
involving heinous crimes."

The constitutional exercise of this limited power to re-impose the death penalty entails (1) that Congress
define or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death,
only crimes that qualify as heinous in accordance with the definition or description set in the death
penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case,
death can only be imposed upon the attendance of circumstances duly proven in court that characterize
the crime to be heinous in accordance with the definition or description set in the death penalty bill; and
(3) that Congress, in enacting this death penalty bill be singularly motivated by "compelling reasons
involving heinous crimes."

In the second whereas clause of the preamble of R.A. No. 7659, we find the definition or description of
heinous crimes. Said clause provides that

". . . the crimes punishable by death under this Act are heinous for being grievous, odious and hateful
offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the common standards and norms of decency and morality
in a just, civilized and ordered society."

Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando, 40 traced the etymological root
of the word "heinous" to the Early Spartans' word, "haineus", meaning, hateful and abominable, which,
in turn, was from the Greek prefix "haton", denoting acts so hatefully or shockingly evil.

We find the foregoing definition or description to be a sufficient criterion of what is to be considered a

heinous crime. This criterion is deliberately undetailed as to the circumstances of the victim, the
accused, place, time, the manner of commission of crime, its proximate consequences and effects on
the victim as well as on society, to afford the sentencing authority sufficient leeway to exercise his
discretion in imposing the appropriate penalty in cases where R.A. No. 7659 imposes not a mandatory
penalty of death but the more flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina and Tañada grilled the sponsors of
the bill as regards what they perceived as a mere enumeration of capital crimes without a specification
of the elements that make them heinous. They were oblivious to the fact that there were two types of
crimes in the death penalty bill: first, there were crimes penalized by reclusion perpetua to death; and
second, there were crimes penalized by mandatory capital punishment upon the attendance of certain
specified qualifying circumstances.

Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death:

(1) Treason (Sec. 2);

(2) Qualified piracy (Sec. 3);

(3) Parricide (Sec. 5);

(4) Murder (Sec. 6);

(5) Infanticide (Sec. 7);

(6) Kidnapping and serious illegal detention if attended by any of the following four circumstances:
(a) the victim was detained for more than three days; (b) it was committed simulating public authority;
(c) serious physical injuries were inflicted on the victim or threats to kill him were made; and (d) if the
victim is a minor, except when the accused is any of the parents, female or a public officer (Sec. 8);

(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);

(8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building where
people usually gather; (c) a train, ship or airplane for public use; (d) a building or factory in the service of
public utilities; (e) a building for the purpose of concealing or destroying evidence of a crime; (f) an
arsenal, fireworks factory, or government museum; and (g) a storehouse or factory of explosive
materials located in an inhabited place; or regardless of what is burned, if the arson is perpetrated by
two or more persons (Sec. 10);

(9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly
weapon; (b) the rape is committed by two or more persons; and (c) the rape is attempted or frustrated
and committed with homicide (Sec. 11);

(10) Plunder involving at least P50 million (Sec. 12);

(11) Importation of prohibited drugs (Sec. 13);

(12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (Id.);

(13) Maintenance of den, dive or resort for users of prohibited drugs (Id.);

(14) Manufacture of prohibited drugs (Id.);

(15) Possession or use of prohibited drugs in certain specified amounts (Id.);

(16) Cultivation of plants which are sources of prohibited drugs (Id.)

(17) Importation of regulated drugs (Sec. 14);

(18) Manufacture of regulated drugs (Id.);

(19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated drugs
(Id.);

(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15);

(21) Possession or use of regulated drugs in specified amounts (Sec. 16);

(22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the

arresting officer (Sec. 17);

(23) Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the
latter (Sec. 19); and

(24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or
raped (Sec. 20).

All the foregoing crimes are not capital crimes per se, the uniform penalty for all of them being not
mandatory death but the flexible penalty of reclusion perpetua to death. In other words, it is premature
to demand for a specification of the heinous elements in each of foregoing crimes because they are not
anyway mandatorily penalized with death. The elements that call for the imposition of the supreme
penalty of death in these crimes, would only be relevant when the trial court, given the prerogative to
impose reclusion perpetua, instead actually imposes the death penalty because it has, in appreciating
the evidence proffered before it, found the attendance of certain circumstances in the manner by which
the crime was committed, or in the person of the accused on his own or in relation to the victim, or in
any other matter of significance to the commission of the crime or its effects on the victim or on society,
which circumstances characterize the criminal acts as grievous, odious, or hateful, or inherently or
manifestly wicked, vicious, atrocious or perverse as to be repugnant and outrageous to the common
standards and norms of decency and morality in a just, civilized and ordered society. cda

On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the following
crimes:

(1) Qualified bribery

"If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an
offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of
any offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death."
(Sec. 4)

(2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured or subjected to dehumanizing acts

"The penalty shall be death where the kidnapping or detention was committed for the purpose of
ransom from the victim or any other person, even if none of the circumstances above-mentioned were
present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subject to torture or
dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8)

(3) Destructive arson resulting in death

"If as a consequence of the commission of any of the acts penalized under this Article, death results, the
mandatory penalty of death shall be imposed." (Sec. 10)

(4) Rape with the victim becoming insane, rape with homicide and qualified

"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.

xxx xxx xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-
law spouse of the parent or the victim.

2. when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the children or other
relatives within the third degree of consanguinity.

4. when the victim is a religious or a child below seven (7) years old

5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS)
disease.

6. when committed by any member of the Armed Forces of the Philippines or the Philippine
National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation." (Sec. 11 )

(5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the
victim is a minor or the victim dies

"Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a
minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of
the death of victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec.
13)

(6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor or
the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty
[of death] shall be imposed in every case where a prohibited drug is administered, delivered or sold to a
minor who is allowed to use the same in such place.

Should a prohibited drug be the proximate case of the death of a person using the same in such den,
dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13)

(7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs
where the victim is a minor or the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a
minor, or should a regulated drug involved in any offense under this Section be the proximate cause of
the death of a victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec.
14)

(8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or
the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty [of
death] herein provided shall be imposed in every case where a regulated drug is administered, delivered
or sold to a minor who is allowed to use the same in such place.

Should a regulated drug be the proximate cause of death of a person using the same in such den, dive or
resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the
provisions of Section 20 of this Act to the contrary." (Sec. 15)

(9) Drug offenses if convicted are government officials, employees or officers including members of
police agencies and armed forces

"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of
Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs Act of
1972] shall be imposed, if those found guilty or any of the same offenses are government officials,
employees or officers including members of police agencies and the armed forces." (Sec. 19)

(10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if
convicted are government officials, employees or officers

"Any such above government official, employee or officer who is found guilty of 'planting' any
dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of
Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of another as
evidence to implicate the latter, shall suffer the same penalty as therein provided." (Sec. 19)

(11) In all the crimes in RA. No. 7659 in their qualified form

"When in the commission of the crime, advantage was taken by the offender of his public position, the
penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances.

The maximum penalty [of death] 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."
(Sec. 23)

It is specifically against the foregoing capital crimes that the test of heinousness must be squarely
applied.

The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is treated like an animal and utterly dehumanized as
to completely disrupt the normal course of his or her growth as a human being. The right of a person is
not only to live but to live a quality life, and this means that the rest of society is obligated to respect his
or her individual personality, the integrity and the sanctity of his or her own physical body, and the value
he or she puts in his or her own spiritual, psychological, material and social preferences and needs. Seen
in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the
death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson
resulting in death, and drug offenses involving minors or resulting in the death of the victim in the case
of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention
where the victim is detained for more than three days or serious physical injuries were inflicted on the
victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or
intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly
heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the state
finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from
decades of corrupt tyrannical rule that bankrupted the government and impoverished the population,
the Philippine Government must muster the political will to dismantle the culture of corruption,
dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society
and psyche of the populace. Terribly lacking the money to provide even the most basic services to its
people, any form of misappropriation or misapplication of government funds translates to an actual
threat to the very existence of government, and in turn, the very survival of the people it governs over.
Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to cause further destruction and damage to
society.

We have no doubt, therefore, that insofar as the element of heinousness is concerned, R.A. No. 7659
has correctly identified crimes warranting the mandatory penalty of death. As to the other crimes in R.A.
No. 7659 punished by reclusion perpetua to death, they are admittingly no less abominable than those
mandatorily penalized by death. The proper time to determine their heinousness in contemplation of
law, is when on automatic review, we are called to pass on a death sentence involving crimes punishable
by reclusion perpetua to death under R.A. No. 7659, with the trial court meting out the death sentence
in exercise of judicial discretion. This is not to say, however, that the aggravating circumstances under
the Revised Penal Code need be additionally alleged as establishing the heinousness of the crime for the
trial court to validly impose the death penalty in the crimes under R.A. No. 7659 which are punished
with the flexible penalty of reclusion perpetua to death.

In the first place, the 1987 Constitution did not amend or repeal the provisions of the Revised Penal
Code relating to aggravating circumstances. Secondly, R.A. No. 7659, while it specifies circumstances
that generally qualify a crime provided therein to be punished by the maximum penalty of death,
neither amends nor repeals the aggravating circumstances under the Revised Penal Code. Thus,
construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may be imposed when (1)
aggravating circumstances attend the commission of the crime as to make operative the provision of the
Revised Penal Code regarding the imposition of the maximum penalty; and (2) other circumstances
attend the commission of the crime which indubitably characterize the same as heinous in
contemplation of R.A. No. 7659 that justify the imposition of the death, albeit the imposable penalty is
reclusion perpetua to death. Without difficulty, we understand the rationale for the guided discretion
granted in the trial court to cognize circumstances that characterize the commission of the crime as
heinous. Certainly there is an infinity of circumstances that may attend the commission of a crime to the
same extent that there is no telling the evil that man is capable of. The legislature cannot and need not
foresee and inscribe in law each and every loathsome act man is capable of. It is sufficient thus that R.A.
7659 provides the test and yardstick for the determination of the legal situation warranting the
imposition of the supreme penalty of death. Needless to say, we are not unaware of the ever existing
danger of abuse of discretion on the part of the trial court in meting out the death sentence. Precisely to
reduce to nil the possibility of executing an innocent man or one criminal but not heinously criminal,
R.A. 7659 is replete with both procedural and substantive safeguards that ensure only the correct
application of the mandate of R.A. No. 7659.
In the course of the congressional debates on the constitutional requirement that the death penalty be
re-imposed for compelling reasons involving heinous crimes, we note that the main objection to the
death penalty bill revolved around the persistent demand of the abolitionists for a statement of the
reason in each and every heinous crime and statistical proof the such compelling reason actually exists.

We believe, however, that the elements of heinousness and compulsion are inseparable and are, in fact,
interspersed with each other. Because the subject crimes are either so revolting and debasing as to
violate the most minimum of the human standards of decency or its effects, repercussions, implications
and consequences so destructive, destabilizing, debilitating, or aggravating in the context of our socio-
political and economic agenda as a developing nation, these crimes must be frustrated, curtailed and
altogether eradicated. There can be no ifs or buts in the face of evil, and we cannot afford to wait until
we rub elbows with it before grasping it by the ears and thrashing it to its demission. cda

The abolitionists in congress insisted that all criminal reforms first be pursued and implemented before
the death penalty be re-imposed in case such reforms prove unsuccessful. They claimed that the only
compelling reason contemplated of by the constitution is that nothing else but the death penalty is left
for the government to resort to that could check the chaos and the destruction that is being caused by
unbridled criminality. Three of our colleagues, are of the opinion that the compelling reason required by
the constitution is that there occurred a dramatic and significant change in the socio-cultural milieu
after the suspension of the death penalty on February 2, 1987 such as an unprecedented rise in the
incidence of criminality. Such are, however, interpretations only of the phrase "compelling reasons" but
not of the conjunctive phrase "compelling reasons involving heinous crimes". The imposition of the
requirement that there be a rise in the incidence of criminality because of the suspension of the death
penalty, moreover, is an unfair and misplaced demand, for what it amounts to, in fact, is a requirement
that the death penalty first proves itself to be a truly deterrent factor in criminal behavior. If there was a
dramatically higher incidence of criminality during the time that the death penalty was suspended, that
would have proven that the death penalty was indeed a deterrent during the years before its
suspension. Suffice it to say that the constitution in the first place did not require that the death penalty
be first proven to be a deterrent; what it requires is that there be compelling reasons involving heinous
crimes.

Article III, Section 19 (1) of the 1987 Constitution simply states that congress, for compelling reasons
involving heinous crimes, may re-impose the death penalty. Nothing in the said provision imposes a
requirement that for a death penalty bill to be valid, a positive manifestation in the form of a higher
incidence of crime should first be perceived and statistically proven following the suspension of the
death penalty. Neither does the said provision require that the death penalty be resorted to as a last
recourse when all other criminal reforms have failed to abate criminality in society. It is immaterial and
irrelevant that R.A. No. 7659 cites that there has been an "alarming upsurge of such crimes", for the
same was never intended by said law to be the yardstick to determine the existence of compelling
reasons involving heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that "the Congress, in the
interest of justice, public order and rule of law, and the need to rationalize and harmonize the penal
sanctions for heinous crimes, finds compelling reasons to impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other ground for attacking the constitutionality of R.A.
No. 7659, i.e., that the death penalty imposed in rape is violative of the constitutional proscription
against cruel, degrading or inhuman punishment.

Accused-appellant first claims that the death penalty is per se a cruel, degrading or inhuman
punishment as ruled by the United States (U.S.) Supreme Court in Furman v. Georgia. 41 To state,
however, that the U.S. Supreme Court, in Furman, categorically ruled that the death penalty is a cruel,
degrading or inhuman punishment, is misleading and inaccurate.

The issue in Furman was not so much death penalty itself but the arbitrariness pervading the procedures
by which the death penalty was imposed on the accused by the sentencing jury. Thus, the defense
theory in Furman centered not so much on the nature of the death penalty as a criminal sanction but on
the discrimination against the black accused who is meted out the death penalty by a white jury that is
given the unconditional discretion to determine whether or not to impose the death penalty. In fact, the
long road of the American abolitionist movement leading to the landmark case of Furman was trekked
by American civil rights advocates zealously fighting against racial discrimination. Thus, the U.S. Supreme
Court stated in Furman:

"We cannot say from facts disclosed in these records that these defendants were sentenced to death
because they were black. Yet our task is not restricted to an effort to divine what motives impelled these
death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled
discretion of judges or juries the determination whether defendants committing these crimes should die
....

xxx xxx xxx

In a Nation committed to equal protection of the laws there is no permissible 'caste' aspect of law
enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty
enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and
despised. . . .

xxx xxx xxx

Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with
discrimination and discrimination is an ingredient not compatible with the idea of equal protection of
the laws that is implicit in the ban on 'cruel and unusual' punishments."

Furman, thus, did not outlaw the death penalty because it was cruel and unusual per se. While the U.S.
Supreme Court nullified all discretionary death penalty statutes in Furman, it did so because the
discretion which these statutes vested in the trial judges and sentencing juries was uncontrolled and
without any parameters, guidelines, or standards intended to lessen, if not altogether eliminate, the
intervention of personal biases, prejudices and discriminatory acts on the part of the trial judges and
sentencing juries.
Consequently, in the aftermath of Furman, when most of the states re-enacted their death penalty
statutes now bearing the procedural checks that were required by the U.S. Supreme Court, said court
affirmed the constitutionality of the new death penalty statutes in the cases of Gregg v. Georgia, 42
Jurek v. Texas, 43 and Profitt v. Florida. 44

Next, accused-appellant asseverates that the death penalty is a cruel, inhuman or degrading punishment
for the crime of rape mainly because the latter, unlike murder, does not involve the taking of life. In
support of his contention, accused-appellant largely relies on the ruling of the U.S. Supreme Court in
Coker v. Georgia. 45

In Coker, the U.S. Supreme Court ruled as follows:

". . . It is now settled that the death penalty is not invariably cruel and unusual punishment within the
meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment
for crime; neither is it always disproportionate to the crime for which it is imposed. It is also established
that imposing capital punishment, at least for murder, in accordance with the procedures provided
under the Georgia statutes saves the sentence from the infirmities which led the Court to invalidate the
prior Georgia capital punishment statute in Furman v. Georgia . . . .

xxx xxx xxx

In Gregg [v. Georgia] . . . the Court's judgment was that the death penalty for deliberate murder was
neither the purposeless imposition of severe punishment nor a punishment grossly disproportionate to
the crime. But the Court reserved the question of the constitutionality of the death penalty when
imposed for other crimes. . . .

That question, with respect to rape of an adult woman, is now before us.

xxx xxx xxx

. . . [T]he public judgment with respect to rape, as reflected in the statutes providing the punishment for
that crime, has been dramatically different. In reviving death penalty laws to satisfy Furman's mandate,
none of the States that had not previously authorized death for rape chose to include rape among
capital felonies. Of the 16 States in which rape had been a capital offense, only three provided the death
penalty for rape of an adult woman in their revised statutes — Georgia, North Carolina. and Louisiana. In
the latter two States, the death penalty was mandatory for those found guilty, and those laws were
invalidated by Woodson and Roberts. When Louisiana and North Carolina, respondent to those
decisions, again revised their capital punishment laws, they reenacted the death penalty for murder but
not for rape; none of the seven other legislatures that to our knowledge have amended or replaced their
death penalty statutes since July 2, 1976, including four States (in addition to Louisiana and North
Carolina) that had authorized the death sentence for rape prior to 1972 and had reacted to Furman with
mandatory statutes, included rape among the crimes for which death was an authorized punishment.

xxx xxx xxx

It should be noted that Florida, Mississippi, and Tennessee also authorized the death penalty in some
rape cases, but only where the victim was a child, and the rapist an adult, the Tennessee statute has
since been invalidated because the death sentence was mandatory. . . . The upshot is that Georgia is the
sole jurisdiction in the United States at the present time that authorizes a sentence of death when the
rape victim is an adult woman, and only two other jurisdictions provide capital punishment when the
victim is a child

The current judgment with respect to the death penalty for rape is not wholly unanimous among state
legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable
penalty for raping an adult woman.

. . . [T]he legislative rejection of capital punishment for rape strongly confirms our own judgment, which
is that death is indeed a disproportionate penalty for the crime of raping an adult woman.

We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense
and in its almost total contempt for the personal integrity and autonomy of the female victim and for
the latter's privilege of choosing those with whom intimate relationships are to be established. Short of
homicide, it is the 'ultimate violation of self.' It is also a violent crime because it normally involves force,
or the threat of force or intimidation, to over come the will and the capacity of the victim to resist. Rape
is very often accompanied by physical injury to the female and can also inflict mental and psychological
damage. Because it undermines the community's sense of security, there is public injury as well.

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the
injury to the person and to the public, it does not compare with murder, which does involve the
unjustified taking of human life. Although it may be accompanied by another crime, rape by definition
does not include the death of or even the serious injury to another person. The murderer kills; the
rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life
may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the
abiding conviction that the death penalty, which 'is unique in its severity and irrevocability' . . . is an
excessive penalty for the rapist who, as such, does not take human life."

The U.S. Supreme Court based its foregoing ruling on two grounds: first, that the public has manifested
its rejection of the death penalty as a proper punishment for the crime of rape through the willful
omission by the state legislatures to include rape in their new death penalty statutes in the aftermath of
Furman; and second, that rape, while concededly a dastardly contemptuous violation of a woman's
spiritual integrity, physical privacy, and psychological balance, does not involve the taking of life.

Anent the first ground, we fail to see how this could have any bearing on the Philippine experience and
in the context of our own culture.

Anent the second ground, we disagree with the court's predicate that the gauge of whether or not a
crime warrants the death penalty or not, is the attendance of the circumstance of death on the part of
the victim. Such a premise is in fact an ennobling of the biblical notion of retributive justice of "an eye
for an eye, a tooth for a tooth". We have already demonstrated earlier in our discussion of heinous
crimes that the forfeiture of life simply because life was taken, never was a defining essence of the
death penalty in the context of our legal history and cultural experience; rather, the death penalty is
imposed in heinous crimes because the perpetrators thereof have committed unforgivably execrable
acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the
national efforts to lift the masses from abject poverty through organized governmental strategies based
on a disciplined and honest citizenry, and because they have so caused irreparable and substantial injury
to both their victim and the society and a repetition of their acts would pose actual threat to the safety
of individuals and the survival of government, they must be permanently prevented from doing so. At
any rate, this court has no doubts as to the innate heinousness of the crime of rape, as we have held in
the case of People v. Cristobal: 46

"Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and
charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every
person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically
evil act . . . an outrage upon decency and dignity that hurts not only the victim but the society itself."

We are not unaware that for all the legal posturings we have so essayed here, at the heart of the issue
of capital punishment is the wistful, sentimental life-and-death question to which all of us, without
thinking, would answer, "life, of course, over death". But dealing with the fundamental question of
death provides a context for struggling with even more basic questions, for to grapple with the meaning
of death is, in an indirect way, to ask the meaning of life. Otherwise put, to ask what the rights are of the
dying is to ask what the rights are of the living.

"Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely
less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a
sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and
suppressive. If we are to preserve the humane society we will have to retain sufficient strength of
character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. It
seems very likely that capital punishment is a . . . necessary, if limited factor in that maintenance of
social tranquillity and ought to be retained on this ground. To do otherwise is to indulge in the luxury of
permitting a sense of false delicacy to reign over the necessity of social survival." 47

WHEREFORE, in view of all the foregoing, the Motion for Reconsideration and the Supplemental Motion
for Reconsideration are hereby DENIED 48 for LACK OF MERIT.

SO ORDERED.

Narvasa, C .J ., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ ., concur.

Separate Opinions

Time has transformed man into a highly intellectual and civilized, as well as, I wish to believe, a humane
and compassionate, being. The ancient edict of "an eye for an eye, a tooth for a tooth" has since been
abandoned by a society that recognizes the good in every man and gives a transgressor an opportunity
to reform. Somehow, however, certain vestiges of savage retribution still remain; indeed, the taking of a
human life continues, at least in some penal systems, to be an acceptable punishment.

In this country, the issue of whether or not the State should impose the death penalty has recently been
resolved with the ratification, on 02 February 1987, of the Constitution by 76.29% of the electorate.
Section 19, Article III, thereof, states:

"Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua."

Ours is a rule of law. The Supreme Court is not a political entity; it can merely apply and interpret the
law. It cannot, and it will not, spare itself from this constitutionally-mandated duty. Death penalty cases
are not excepted. In the discharge of its grave responsibility, nevertheless, the Court must act with
greatest caution and strictest circumspection for there can be no stake that can be higher, and no
penalty that can be graver, than the extinction by the State of human life.

The determination of when to prescribe the death penalty now lies with the sound discretion of the law-
making authority, the Congress of the Philippines, subject to the conditions that the fundamental law
has set forth, viz:

(1) That there must be compelling reasons to justify the imposition of the death penalty; and

(2) That the capital offense must involve a heinous crime.

It appears to me that the Constitution did not contemplate a simple "reimposition" of the death penalty
to offenses theretofore already provided in the Revised Penal Code or just because of it.

The term "compelling reasons" should be enough to indicate that there must be a marked change in the
milieu from that which has prevailed at the time of adoption of the 1987 Constitution, on the one hand,
to that which exists at the enactment of the statute prescribing the death penalty, upon the other hand,
that would make it distinctively inexorable to mandate the death penalty. That milieu must have turned
from bad to worse.

Most importantly, the circumstances that would characterize the "heinous nature" of the crime and
make it so exceptionally offensive as to warrant the death penalty must be spelled out with great clarity
in the law. To venture, in the case of murder, the crime could become "heinous" within the
Constitutional concept when, to exemplify, the victim is unnecessarily subjected to a painful and
excruciating death, or in the crime of rape when the offended party is callously humiliated or even
brutally killed by the accused.
I submit that, given the circumstances and the law before us, the Constitutional fiat (now being raised
for the first time in the instant Motion for Reconsideration) in the imposition of the death penalty has
not been satisfied.

I, therefore, vote for imposing instead the penalty of reclusion perpetua (the next lower penalty than
death).

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic Act
No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original) Motion
for Reconsideration filed by his previous counsel, 3 this transcendental issue was not brought up. Hence,
it was not passed upon by this Court in its Decision affirming the trial court's sentence of death. 4

The Constitution Abolished Death Penalty

Section 19, Article III of the 1987 Constitution provides:

"Sec. 19. (1 ) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be imposed, unless for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua." (Emphasis supplied)

The second and third sentences of the above provision are new and had not been written in the 1935,
1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death penalty
"unless for compelling reasons involving heinous crimes, Congress provides for it," and reduced "any
death penalty already imposed" to reclusion perpetua. The provision has both a prospective aspect (it
bars the future imposition of the penalty) and a retroactive one (it reduces imposed capital sentences to
the lesser penalty of imprisonment).

This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction to reclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may no longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas exclaimed, 6 "(t)he
majority voted for the constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the non-imposition of the death penalty, what he had in mind was the total
abolition and removal from the statute books of the death penalty. This became the intent of the
framers of the Constitution when they approved the provision and made it a part of the Bill of Rights."
With such abolition as a premise, restoration thereof becomes an exception to a constitutional
mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly
construed against the State and liberally in favor of the people. 8 In this light, RA 7659 enjoys no
presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to re-impose it on condition that it (Congress) 9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward" 10 ): the authority of Congress
to "provide for it" is not absolute. Rather, it is strictly limited:

(1) by "compelling reasons" that may arise after the Constitution became effective; and

(2) to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of
"compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-making
prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress, by law,
prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on individual
offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the death
penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating a new
article therein; 13 and (3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and in the
special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more severe sanction,
either collectively for all the offenses or individually for each of them.

Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is convicted
of a capital offense; and (2) the commission of which was accompanied by aggravating circumstances
not outweighed by mitigating circumstances.

The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted it by
the Constitution? More legally put: In reviving the death penalty, did Congress act with grave abuse of
discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III, Sec. 19? The
answer, I respectfully submit, is YES.

Heinous Crimes
To repeat, while the Constitution limited the power of Congress to prescribe the death penalty ONLY to
"heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress. As
already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death as an
applicable penalty. It did not give a standard or a characterization by which courts may be able to
appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:

"WHEREAS, the crimes punishable by death under this Act are heinous for being grievous, odious and
hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the common standards and norms of decency and morality
in a just, civilized and ordered society."

In my humble view, however, the foregoing clause is clearly an insufficient definition or characterization
of what a heinous crime is. It simply and gratuitously declared certain crimes to be "heinous" without
adequately justifying its bases therefor. It supplies no useful, workable, clear and unambiguous standard
by which the presence of heinousness can be determined. Calling the crimes "grievous, odious and
hateful" is not a substitute for an objective juridical definition. Neither is the description "inherent or
manifest wickedness, viciousness, atrocity and perversity." Describing blood as blue does not detract
from its being crimson in fact; and renaming gumamela as rose will not arm it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent
or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear
and unambiguous, the preamble can neither expand nor restrict its operation, much less prevail over its
text. 15 In this case, it cannot be the authoritative source to show compliance with the Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating circumstances. 16
There's nothing really new that Congress did which it could not have otherwise done had such provision
not been included in our fundamental law. cdt

In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery, 17 no new crimes were introduced by RA 7659. The offenses punished by death under
said law were already so punishable by the Revised Penal Code 18 and by special laws. In short, Sec. 19,
Article III of the Constitution did not have any impact upon the legislative action. It was effectively
ignored by Congress in enacting the capital punishment law.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to a
question of Sen. Ernesto Maceda, wryly said: 19

"So we did not go that far from the Revised Penal Code, Mr. President, and from existing special laws
which, before abolition of the death penalty, had already death as the maximum penalty."
By merely reimposing capital punishment on the very same crimes which were already penalized with
death prior to the charter's effectivity, Congress, I submit, has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our criminal
laws and 2) make its restoration possible only under and subject to stringent conditions is evident not
only from the language of the Constitution but also from the charter debates on this matter.

The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous, he
and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape victim". 20 Note that
the honorable commissioners did not just say "murder" but organized murder; not just rape but brutal
murder of a rape victim. While the debates were admittedly rather scanty, I believe that the available
information shows that, when deliberating on "heinousness", the Constitutional Commission did not
have in mind the offenses already existing and already penalized with death. I also believe that the
heinousness clause requires that:

1) the crimes should be entirely new offenses, the elements of which have an inherent quality,
degree or level of perversity, depravity or viciousness unheard of until then; or

2) even existing crimes, provided some new element or essential ingredient like "organized" or
"brutal" is added to show their utter perversity, odiousness or malevolence; or

3) the means or method by which the crime, whether new or old, is carried out evinces a degree or
magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to demonstrate its heinousness. 21

For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs Congress
to determine "compelling reasons" for the revival of the capital penalty. It is true that paragraphs 3 and
4 of the preamble of RA 7659 22 made some attempt at meeting this requirement. But such effort was
at best feeble and inconsequential. It should be remembered that every word or phrase in the
Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. Thus, I believe
that the compelling reasons and the characterization of heinousness cannot be done wholesale but
must shown for each and every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, in the words of Comm. Monsod,
"in the future, circumstances may arise which we should not preclude today . . . and that the conditions
and the situation (during the deliberations of the Constitutional Commission) might change for very
specific reasons" requiring the return of the constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo Garcia, in
answer to questions raised by Representative Edcel Lagman tried to explain these compelling reasons:
23

"MR. LAGMAN:

So what are the compelling reasons now, Mr. Speaker?. . .

MR. GARCIA (P.).

The worsening peace and order condition in the country, Mr. Speaker. That is one.

MR. LAGMAN.

So the compelling reason which the distinguished sponsor would like to justify or serve as an
anchor for the justification of the reimposition of the death penalty is the alleged worsening peace and
order situation. The Gentleman claims that is one of the compelling reasons. But before we dissect this
particular "compelling reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.)

Justice, Mr. Speaker.

MR. LAGMAN.

Justice.

MR. GARCIA (P.).

Yes, Mr. Speaker.

MR. LAGMAN.

Justice is a compelling reason, Mr. Speaker? Could the Gentleman kindly elaborate on that
answer? Why is justice a compelling reason as if justice was not obtained at the time the Constitution
abolished the death penalty? Any compelling reason should be a supervening circumstances after 1987.

MR. GARCIA (P.).

Mr. Speaker, I have repeatedly said again and again that if one lives in an organized society
governed by law, justice demands that crime be punished and that the penalty imposed be
commensurate with the offense committed.

MR. LAGMAN.

The Gentleman would agree with me that when the Constitution speaks of the compelling
reasons to justify the reimposition of death penalty, it refers to reasons which would supervene or come
after the approval of the 1987 Constitution. Is he submitting that justice, in his own concept of a
commensurate penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.).

That is precisely why we are saying that now, under present conditions, because of the
seriousness of the offenses being committed at this time, justice demands that the appropriate penalty
must be meted out for those who have committed heinous crimes.

xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order" and
"justice". With all due respect I submit that these grounds are not "compelling" enough to justify the
revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent. Statistics
from the Philippine National Police show that the crime volume and crime rate particularly on those
legislated capital offenses did not worsen but in fact declined between 1987, the date when the
Constitution took effect, and 1993, the year when RA 7659 was enacted.

Witness the following debate 24 also between Representatives Garcia and Lagman:

"MR. LAGMAN.

Very good, Mr. Speaker. Now, can we go to 1987. Could the Gentleman from Cebu inform us the
volume of the crime of murder in 1987?

MR. GARCIA (P.).

The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN.

So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.).

Yes, Mr. Speaker.

MR. LAGMAN.

That was in 1987. Mr. Speaker, could the distinguished chairman inform us the volume of
murder in 1988?

MR. GARCIA (P.).

It was 10,521, Mr. Speaker.

MR. LAGMAN.
 Or it was a reduction from 12,305 in 1987 to 10,521 in 1988. Correspondingly, the crime rate in
the very year after the abolition of the death penalty was reduced from 21 percent to 18 percent. Is that
correct, Mr. Speaker?

MR. GARCIA (P.).

That is correct, Mr. Speaker. Those are the statistics supplied by the PC.

MR. LAGMAN.

Now can we go again to 1987 when the Constitution abolished the death penalty? May we know
from the distinguished Gentleman the volume of robbery in 1987?

MR. GARCIA (P.).

Will the Gentleman state the figure? I will confirm it.

MR. LAGMAN.

No. Mr. Speaker, I am asking the question .

MR. GARCIA (P.).

It was 22,942, Mr. Speaker, and the crime rate was 40 percent.

MR. LAGMAN.

This was the year immediately after the abolition of the death penalty. Could the Gentleman tell
us the volume of robbery cases in 1988?

MR. GARCIA (P.).

It was 16,926, Mr. Speaker.

MR. LAGMAN.

Obviously the Gentleman would agree with me, Mr. Speaker that the volume of robbery cases
declined from 22,942 in 1987 or crime rate of 40 percent to 16,926 or a crime rate of 29 percent. Would
the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.).

This is what the statistics say. I understand we are reading now from the same document.

MR. LAGMAN.

Now, going to homicide, the volume 1987 was 12,870 or a crime rate of 22 percent. The volume
in 1988 was 11,132 or a crime rate of 19 percent. Would the Gentleman confirm that, Mr. Speaker?
MR. GARCIA (P.)

As I Said, Mr. Speaker, we are reading from the same document and I would not want to say
that the Gentleman is misreading the document that I have here.

MR. LAGMAN.

But would the Gentleman confirm that?

MR. GARCIA (P.).

The document speaks for itself ."

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of persons
arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25

"Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 — this was the year when the death penalty was abolished — the persons arrested in drug-
related cases were 3,062, and the figure dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It still decreased to
2,202 in 1990, and it increased again to 2,862 in 1991.

But in 1987, when the death penalty was abolished, as far as the drug-related cases are concerned, the
figure continued a downward trend, and there was no death penalty in this time from, 1988 to 1991."

In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any conclusiveness
the relationship between the prescription of the death penalty for certain offenses and the commission
or non-commission thereof.

This is a theory that can be debated on and on, 27 in the same manner that another proposition — that
the real deterrent to crime is the certainty of immediate arrest, prosecution and conviction of the culprit
without unnecessary risk, expense and inconvenience to the victim, his heirs or his witnesses — can be
argued indefinitely. 28 This debate can last till the academics grow weary of the spoken word, but it
would not lessen the constitutionally-imposed burden of Congress to act within the "heinousness" and
"compelling reasons" limits of its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee in favor of the accused — be zealously protected,
29 and any exception thereto meticulously screened. Any doubt should be resolved in favor of the
people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is not just
crimes — but capital crimes!

So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that "(n)o
person shall be deprived of life, liberty or property without due process of law." 31 This primary right of
the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by the 1987
Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence, the
Constitution values the dignity of every human person and guarantees full respect for human rights, 32
expressly prohibits any form of torture 33 which is arguably a lesser penalty than death, emphasizes the
individual right to life by giving protection to the life of the mother and the unborn from the moment of
conception 34 and establishes the people's rights to health, a balanced ecology and education. 35

This Constitutional explosion of concern for man more than property, for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its perceived
enemies.

Indeed, volumes have been written about individual rights to free speech, assembly and even religion.
But the most basic and most important of these rights is the right to life. Without life, the other rights
cease in their enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row Convicts"
submitted by the Free Legal Assistance Group 36 highlights this sad fact:

"(1) Since the reimposition of the death penalty, 186 persons 37 have been sentenced to death. At
the end of 1994, there were 24 death penalty convicts, at the end of 1995, the number rose to 90; an
average of seven (7) convicts per month, double the monthly average of capital sentences imposed the
prior year. From January to June 1996, the number of death penalty convicts reached 72, an average of
12 convicts per month, almost double the monthly average of capital sentences imposed in 1995.

(2) Of the 165 convicts polled, approximately twenty-one percent (21%) earn between P200 to
P2,900 monthly; while approximately twenty seven percent (27%) earn between P3,000 to P3,999
monthly. Those earning above P4,000 monthly are exceedingly few: seven percent (7%) earn between
P4,000 to P4,999, four percent (4%) earn between P5,000 to P5,999, seven percent (7%) earn between
P6,000 to P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%), those
earning P15,000 and above only one percent (1%). Approximately thirteen percent (13%) earn nothing
at all, while approximately two percent (2%) earn subsistence wages with another five percent (5%)
earning variable income. Approximately nine percent (9%) do not know how much they earn in a month.
(3) Thus, approximately two-thirds of the convicts, about 112 of them, earn below the government-
mandated minimum monthly wage of P4,290; ten (10) of these earn below the official poverty line set
by government. Twenty six (26) earn between P4,500.00 and P11,0000.00 monthly, indicating they
belong to the middle class; only one (1) earns P30,000.00 monthly. Nine (9) convicts earn variable
income or earn on a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.

(4) In terms of occupation, approximately twenty one percent (21%) are agricultural workers or
workers in animal husbandry; of these, thirty (30), or almost one-fifth thereof, are farmers. Thirty five
percent (35%) are in the transport and construction industry, with thirty one (31) construction workers
or workers in allied fields (carpentry, painting, welding) while twenty seven (27) are transport workers
(delivery, dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers. Eighteen
percent (18%) are in clerical, sales and service industries, with fourteen (14) sales workers (engaged in
buy and sell or fish, cigarette or rice vendors), twelve (12) service workers (butchers, beauticians,
security guards, shoemakers, tour guides, computer programmers, radio technicians) and four (4) clerks,
janitors, MERALCO employee and clerk). About four percent (4%) are government workers, with six (6)
persons belonging to the armed services (AFP, PNP and even CAFGU). Professionals, administrative
employee and executives comprise only three percent (3%), nine percent (9%) are unemployed.

(5) None of the DRC's use English as their medium of communication. About forty four percent
(44%), or slightly less than half speak and understand Tagalog; twenty six percent (26%), or about one-
fourth, speak and understand Cebuano. The rest speak and understand Bicolano, Ilocano, Ilonggo,
Kapampangan, Pangasinense and Waray. One (1) convict is a foreign national and speaks and
understand Niponggo.

(6) Approximately twelve percent (12%) graduated from college, about forty seven percent (47%)
finished varying levels of elementary education with twenty seven (27) graduating from elementary.
About thirty five percent (35%), fifty eight (58) convicts, finished varying levels of high school, with more
than half of them graduating from high school. Two (2) convicts finished vocational education; nine (9)
convicts did not study at all."

The foregoing profile based on age, language and socio-economic situations sufficiently demonstrates
that RA 7659 has militated against the poor and the powerless in society — those who cannot afford the
legal services necessary in capital crimes, where extensive preparation, investigation, research and
presentation are required. The best example to show the sad plight of the underprivileged is this very
case where the crucial issue of constitutionality was woefully omitted in the proceedings ill the trial
court and even before this Court until the Free Legal Assistance Group belatedly brought it up in the
Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated, intimidating
and damning. The effect of having a death penalty that is imposed more often than not upon the
impecunious is to engender in the minds of the latter, a sense — unfounded, to be sure, but unhealthy
nevertheless — of the unequal balance of the scales of justice. cdtai

Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-economic
profile of the DRCs, the law reviving capital punishment does not in any way single out or discriminate
against the poor, the unlettered or the underprivileged. To put it in another way, as far as the
disadvantaged are concerned, the law would still be complex and written in a strange and
incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be a certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and employment
opportunities, are consequently confined to living, working and subsisting in less-than-ideal
environments, amidst less-than-genteel neighbors similarly situated as themselves, and are therefore
inherently more prone to be involved (as victims or perpetrators) in vices, violence and crime. So from
that perspective, the law reviving the death penalty neither improves nor worsens their lot substantially.
Or, to be more precise, such law may even be said to help improve their situation (at least in theory) by
posing a much stronger deterrent to the commission of heinous crimes.

However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be powered to rise above themselves and
their situation. The basic postulates for such a position are, I think, simply that everyone ultimately
wants to better himself and that we cannot better ourselves individually to any significant degree if we
are unable to advance as an entire people and nation. All the pro-poor provisions of the Constitution
point in this direction. Yet we are faced with this law that effectively inflicts the ultimate punishment on
none other than the poor and disadvantaged in the greater majority of cases, and which penalty, being
so obviously final and so irreversibly permanent, erases all hope of reform, of change for the better. This
law, I submit, has no place in our legal, judicial and constitutional firmament.

Epilogue

In sum, I respectfully submit that:

(1) The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.

(2) The Charter effectively granted a new right: the constitutional right against the death penalty,
which is really a species of the right to life.

(3) Any law reviving the capital penalty must be strictly construed against the State and liberally in
favor of the accused because such a statute denigrates the Constitution, impinges on a basic right and
tends to deny equal justice to the underprivileged. liblex
(4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-
treated or brushed aside.

(5) Congressional power to prescribe death is severely limited by two concurrent requirements:

(a) First, Congress must provide a set of attendant circumstances which the prosecution must prove
beyond reasonable doubt, apart from the elements of the crime and itself. Congress must explain why
and how these circumstances define or characterize the crime as "heinous".

(b) Second, Congress has also the duty of laying out clear and specific reasons which arose after the
effectivity of the Constitution compelling the enactment of the law. It bears repeating that these
requirements are inseparable. They must both be present in view of the specific constitutional mandate
— "for compelling reasons involving heinous crimes." The compelling reason must flow from the
heinous nature of the offense.

(6) In every law reviving the capital penalty, the heinousness and compelling reasons must be set
out for each and every crime, and not just for all crimes generally and collectively.

"Thou shall not kill" is a fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the death
penalty, it advisedly limits such prerogative only to "cases of extreme gravity." 39 To quote Pope John
Paul II in his encyclical Evangelium Vitae (A Hymn to Life), 40 40a "punishment must be carefully
evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases
of absolute necessity: in other words, when it would not be possible otherwise to defend society . . .
(which is) very rare, if not practically non-existent."

Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death
penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and
above even the state which man created precisely to protect, cherish and defend him. The Constitution
reluctantly allows capital punishment only for "compelling reasons involving heinous crimes" just as the
Church grudgingly permits it only for reasons of "absolute necessity" involving crimes of "extreme
gravity", which are very rare and practically non-existent.

In the face of these evident truisms, I ask: Has Congress, in enacting RA 7659, amply discharged its
constitutional burden of proving the existence of "compelling reasons" to prescribe death against well-
defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, premises considered, I respectfully vote to grant partially the Supplemental Motion for
Reconsideration and to modify the dispositive portion of the decision of the trial court by deleting the
words "DEATH, as provided for under RA 7659," and substitute therefor reclusion perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.
[G.R. No. 180016. April 29, 2014.]

LITO CORPUZ, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PERALTA, J p:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated
November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision 1
dated March 22, 2007 and Resolution 2 dated September 5, 2007 of the Court of Appeals (CA), which
affirmed with modification the Decision 3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch
46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of Estafa
under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code. TADIHE

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City
sometime in 1990. Private complainant was then engaged in the business of lending money to casino
players and, upon hearing that the former had some pieces of jewelry for sale, petitioner approached
him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on commission
basis. Private complainant agreed, and as a consequence, he turned over to petitioner the following
items: an 18k diamond ring for men; a woman's bracelet; one (1) men's necklace and another men's
bracelet, with an aggregate value of P98,000.00, as evidenced by a receipt of even date. They both
agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return the same items,
within a period of 60 days. The period expired without petitioner remitting the proceeds of the sale or
returning the pieces of jewelry. When private complainant was able to meet petitioner, the latter
promised the former that he will pay the value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, after having received from one Danilo
Tangcoy, one (1) men's diamond ring, 18k, worth P45,000.00, one (1) three-baht men's bracelet, 22k,
worth P25,000.00; one (1) two-baht ladies' bracelet, 22k, worth P12,000.00, or in the total amount of
Ninety-Eight Thousand Pesos (P98,000.00), Philippine currency, under expressed obligation on the part
of said accused to remit the proceeds of the sale of the said items or to return the same, if not sold, said
accused, once in possession of the said items, with intent to defraud, and with unfaithfulness and abuse
of confidence, and far from complying with his aforestated obligation, did then and there wilfully,
unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit
the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the
accused failed and refused to return the said items or to remit the amount of Ninety-Eight Thousand
Pesos (P98,000.00), Philippine currency, to the damage and prejudice of said Danilo Tangcoy in the
aforementioned amount.
CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty.
Thereafter, trial on the merits ensued. CDAHIT

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On
the other hand, the defense presented the lone testimony of petitioner, which can be summarized, as
follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the
financing business of extending loans to Base employees. For every collection made, they earn a
commission. Petitioner denied having transacted any business with private complainant. However, he
admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank
receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him
for the supposed agreement to sell the subject pieces of jewelry, which he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa
under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty
imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of
an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of
Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8)
MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private complainant
Danilo Tangcoy the amount of P98,000.00 as actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the
decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San
Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term,
such that accused-appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision
correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional
P10,000.00, or a total of 7 years. The rest of the decision stands. TEIHDa

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition
stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND
APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH
ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT
THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID
NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT —

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY
SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05 JULY
1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT
WHICH WAS 02 MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT
DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD
— AN ELEMENT OF THE OFFENSE — WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT
THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH —

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER — ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL,

CONSISTENT WITH HUMAN EXPERIENCE; AHaETS

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following
counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the offense
and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight when
said court affirms the findings of the trial court, absent any showing that the findings are totally devoid
of support in the records, or that they are so glaringly erroneous as to constitute grave abuse of
discretion. 4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial
court. He now comes to this Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a
receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a
photocopy, thus, violating the best evidence rule. However, the records show that petitioner never
objected to the admissibility of the said evidence at the time it was identified, marked and testified
upon in court by private complainant. The CA also correctly pointed out that petitioner also failed to
raise an objection in his Comment to the prosecution's formal offer of evidence and even admitted
having signed the said receipt. The established doctrine is that when a party failed to interpose a timely
objection to evidence at the time they were offered in evidence, such objection shall be considered as
waived. 5 TCcSDE

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed
against him. He contends that the Information does not contain the period when the pieces of jewelry
were supposed to be returned and that the date when the crime occurred was different from the one
testified to by private complainant. This argument is untenable. The CA did not err in finding that the
Information was substantially complete and in reiterating that objections as to the matters of form and
substance in the Information cannot be made for the first time on appeal. It is true that the gravamen of
the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the appropriation or
conversion of money or property received to the prejudice of the owner 6 and that the time of
occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong
date of the occurrence of the crime, as reflected in the Information, do not make the latter fatally
defective. The CA ruled:

. . . An information is legally viable as long as it distinctly states the statutory designation of the offense
and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides
that a complaint or information is sufficient if it states the name of the accused; the designation of the
offense by the statute; the acts or omissions complained of as constituting the offense; the name of the
offended party; the approximate time of the commission of the offense, and the place wherein the
offense was committed. In the case at bar, a reading of the subject Information shows compliance with
the foregoing rule. That the time of the commission of the offense was stated as "on or about the fifth
(5th) day of July, 1991" is not likewise fatal to the prosecution's cause considering that Section 11 of the
same Rule requires a statement of the precise time only when the same is a material ingredient of the
offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal
Code (RPC) is the appropriation or conversion of money or property received to the prejudice of the
offender. Thus, aside from the fact that the date of the commission thereof is not an essential element
of the crime herein charged, the failure of the prosecution to specify the exact date does not render the
Information ipso facto defective. Moreover, the said date is also near the due date within which
accused-appellant should have delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant,
therefore, cannot now be allowed to claim that he was not properly apprised of the charges preferred
against him. 7
It must be remembered that petitioner was convicted of the crime of Estafa under Article 315,
paragraph 1 (b) of the RPC, which reads: TSacID

ART. 315. Swindling (estafa). — Any person who shall defraud another by any of the means
mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxx xxx xxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received such money,
goods, or other property; . . .

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal
property is received by the offender in trust, or on commission, or for administration, or under any
other obligation involving the duty to make delivery of, or to return the same; (b) that there be
misappropriation or conversion of such money or property by the offender or denial on his part of such
receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d)
that there is a demand made by the offended party on the offender. 8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the
offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how he
was able to locate petitioner after almost two (2) months from the time he gave the pieces of jewelry
and asked petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ:

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been
finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir. ETHIDa

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.
q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and
he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir. 9

No specific type of proof is required to show that there was demand. 10 Demand need not even be
formal; it may be verbal. 11 The specific word "demand" need not even be used to show that it has
indeed been made upon the person charged, since even a mere query as to the whereabouts of the
money [in this case, property], would be tantamount to a demand. 12 As expounded in Asejo v. People:
13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa
need not be formal or written. The appellate court observed that the law is silent with regard to the
form of demand in estafa under Art. 315 1(b), thus: cSDHEC

When the law does not qualify, We should not qualify. Should a written demand be necessary, the law
would have stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to
include both written and oral demand. Thus, the failure of the prosecution to present a written demand
as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the
accused, we held that the query was tantamount to a demand, thus:
. . . [T]he law does not require a demand as a condition precedent to the existence of the crime of
embezzlement. It so happens only that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same way, however, be established by other
proof, such as that introduced in the case at bar. 14

In view of the foregoing and based on the records, the prosecution was able to prove the existence of all
the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on
commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return the
same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit the
proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces of
jewelry within or after the agreed period despite demand from the private complainant, to the prejudice
of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is
unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great
respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor of
witnesses and their deportment on the witness stand, an opportunity denied the appellate courts,
which merely rely on the records of the case. 15 The assessment by the trial court is even conclusive and
binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA. 16 Truth is established not by the number
of witnesses, but by the quality of their testimonies, for in determining the value and credibility of
evidence, the witnesses are to be weighed not numbered. 17 DEcITS

As regards the penalty, while this Court's Third Division was deliberating on this case, the question of
the continued validity of imposing on persons convicted of crimes involving property came up. The
legislature apparently pegged these penalties to the value of the money and property in 1930 when it
enacted the Revised Penal Code. Since the members of the division reached no unanimity on this
question and since the issues are of first impression, they decided to refer the case to the Court en banc
for consideration and resolution. Thus, several amici curiae were invited at the behest of the Court to
give their academic opinions on the matter. Among those that graciously complied were Dean Jose
Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the
Speaker of the House of Representatives. The parties were later heard on oral arguments before the
Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the
following:

There seems to be a perceived injustice brought about by the range of penalties that the courts
continue to impose on crimes against property committed today, based on the amount of damage
measured by the value of money eighty years ago in 1932. However, this Court cannot modify the said
range of penalties because that would constitute judicial legislation. What the legislature's perceived
failure in amending the penalties provided for in the said crimes cannot be remedied through this
Court's decisions, as that would be encroaching upon the power of another branch of the government.
This, however, does not render the whole situation without any remedy. It can be appropriately
presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including
Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered
by the law, and in cases of excessive penalties. — Whenever a court has knowledge of any act which it
may deem proper to repress and which is not punishable by law, it shall render the proper decision, and
shall report to the Chief Executive, through the Department of Justice, the reasons which induce the
court to believe that said act should be made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such
statement as may be deemed proper, without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty,
taking into consideration the degree of malice and the injury caused by the offense. 18 DACTSa

The first paragraph of the above provision clearly states that for acts borne out of a case which is not
punishable by law and the court finds it proper to repress, the remedy is to render the proper decision
and thereafter, report to the Chief Executive, through the Department of Justice, the reasons why the
same act should be the subject of penal legislation. The premise here is that a deplorable act is present
but is not the subject of any penal legislation, thus, the court is tasked to inform the Chief Executive of
the need to make that act punishable by law through legislation. The second paragraph is similar to the
first except for the situation wherein the act is already punishable by law but the corresponding penalty
is deemed by the court as excessive. The remedy therefore, as in the first paragraph is not to suspend
the execution of the sentence but to submit to the Chief Executive the reasons why the court considers
the said penalty to be non-commensurate with the act committed. Again, the court is tasked to inform
the Chief Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code, 19 Guillermo B. Guevara opined that in Article 5,
the duty of the court is merely to report to the Chief Executive, with a recommendation for an
amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there
can exist no punishable act except those previously and specifically provided for by penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its
perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground
that the strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All
that the Court could do in such eventuality is to report the matter to the Chief Executive with a
recommendation for an amendment or modification of the legal provisions which it believes to be
harsh. 20
Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and
retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal Code, 21 echoed the
above-cited commentary, thus: CEDScA

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be
tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the
penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations of
particular statutes are too severe or are not severe enough, are questions as to which commentators on
the law may fairly differ; but it is the duty of the courts to enforce the will of the legislator in all cases
unless it clearly appears that a given penalty falls within the prohibited class of excessive fines or cruel
and unusual punishment." A petition for clemency should be addressed to the Chief Executive. 22

There is an opinion that the penalties provided for in crimes against property be based on the current
inflation rate or at the ratio of P1.00 is equal to P100.00. However, it would be dangerous as this would
result in uncertainties, as opposed to the definite imposition of the penalties. It must be remembered
that the economy fluctuates and if the proposed imposition of the penalties in crimes against property
be adopted, the penalties will not cease to change, thus, making the RPC, a self-amending law. Had the
framers of the RPC intended that to be so, it should have provided the same, instead, it included the
earlier cited Article 5 as a remedy. It is also improper to presume why the present legislature has not
made any moves to amend the subject penalties in order to conform with the present times. For all we
know, the legislature intends to retain the same penalties in order to deter the further commission of
those punishable acts which have increased tremendously through the years. In fact, in recent moves of
the legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. In
the crime of Plunder, from its original minimum amount of P100,000,000.00 plundered, the legislature
lowered it to P50,000,000.00. In the same way, the legislature lowered the threshold amount upon
which the Anti-Money Laundering Act may apply, from P1,000,000.00 to P500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be
excessive compared to the proposed imposition of their corresponding penalties. In Theft, the
provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by: HICEca

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen
exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this
paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may
be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing
stolen is more than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of
the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen
does not exceed 5 pesos. If such value exceeds said amount, the provision of any of the five preceding
subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the
thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty,
or the difficulty of earning a livelihood for the support of himself or his family. TSHEIc

In a case wherein the value of the thing stolen is P6,000.00, the above-provision states that the penalty
is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2
months). Applying the proposal, if the value of the thing stolen is P6,000.00, the penalty is imprisonment
of arresto mayor in its medium period to prision correccional minimum period (2 months and 1 day to 2
years and 4 months). It would seem that under the present law, the penalty imposed is almost the same
as the penalty proposed. In fact, after the application of the Indeterminate Sentence Law under the
existing law, the minimum penalty is still lowered by one degree; hence, the minimum penalty is arresto
mayor in its medium period to maximum period (2 months and 1 day to 6 months), making the offender
qualified for pardon or parole after serving the said minimum period and may even apply for probation.
Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence Law is
arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is
not too far from the minimum period under the existing law. Thus, it would seem that the present
penalty imposed under the law is not at all excessive. The same is also true in the crime of Estafa. 23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of
Theft and the damage caused in the crime of Estafa, the gap between the minimum and the maximum
amounts, which is the basis of determining the proper penalty to be imposed, would be too wide and
the penalty imposable would no longer be commensurate to the act committed and the value of the
thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the
penalties are not changed:

1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00, punished by prision

mayor minimum to prision mayor medium (6 years and 1 day to 10 years).
2. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punished by prision
correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years). 24

3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).
SEcTHA

4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable by arresto mayor medium
to prision correccional minimum (2 months and 1 day to 2 years and 4 months).

5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by arresto mayor (1 month and 1
day to 6 months).

6. P5.00 will become P500.00, punishable by arresto mayor minimum to arresto mayor medium.

xxx xxx xxx.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the
penalties are not changed, as follows:

1st. P12,000.00 to P22,000.00, will become P1,200,000.00 to P2,200,000.00, punishable by prision

correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years). 25

2nd. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months). 26

3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by arresto mayor
maximum to prision correccional minimum (4 months and 1 day to 2 years and 4 months).

4th. P200.00 will become P20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6
months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the
incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a valid
classification. The test developed by jurisprudence here and yonder is that of reasonableness, 27 which
has four requisites: AScTaD

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class. 28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions as
P10,000.00 may have been substantial in the past, but it is not so today, which violates the first
requisite; the IPR was devised so that those who commit estafa involving higher amounts would receive
heavier penalties; however, this is no longer achieved, because a person who steals P142,000.00 would
receive the same penalty as someone who steals hundreds of millions, which violates the second
requisite; and, the IPR violates requisite no. 3, considering that the IPR is limited to existing conditions at
the time the law was promulgated, conditions that no longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty
in Article 315 unconstitutional for violating the equal protection clause, what then is the penalty that
should be applied in case the amount of the thing subject matter of the crime exceeds P22,000.00? It
seems that the proposition poses more questions than answers, which leads us even more to conclude
that the appropriate remedy is to refer these matters to Congress for them to exercise their inherent
power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is
to go to Congress. Thus:

xxx xxx xxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-
Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to . . . if this Court will declare the incremental penalty rule
unconstitutional, then that would . . . the void should be filled by Congress. AIHTEa

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (P100,000.00)
Pesos . . .

DEAN DIOKNO:

Well, my presen . . . (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (P100,000.00) Pesos in excess of Twenty-Two Thousand
(P22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah . . .

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law . . .

JUSTICE PERALTA:

But if we de . . . (interrupted)

DEAN DIOKNO:

. . . then . . .

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unconstitutional, the court cannot fix the
amount . . .

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

. . . as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand

(P22,000.00) Pesos. SCaIcA

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress . . .

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

. . . and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two
Thousand (P22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you. DIHETS

xxx xxx xxx 29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual
punishment. Citing Solem v. Helm, 30 Dean Diokno avers that the United States Federal Supreme Court
has expanded the application of a similar Constitutional provision prohibiting cruel and unusual
punishment, to the duration of the penalty, and not just its form. The court therein ruled that three
things must be done to decide whether a sentence is proportional to a specific crime, viz.; (1) Compare
the nature and gravity of the offense, and the harshness of the penalty; (2) Compare the sentences
imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes are subject to the
same penalty or to less serious penalties; and (3) Compare the sentences imposed for commission of the
same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what
respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it
took into account the latter's recidivist statute and not the original penalty for uttering a "no account"
check. Normally, the maximum punishment for the crime would have been five years imprisonment and
a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the possibility of
parole under South Dakota's recidivist statute because of his six prior felony convictions. Surely, the
factual antecedents of Solem are different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the
offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the trust
and confidence reposed upon her by her employer. After accepting and allowing the helper to be a
member of the household, thus entrusting upon such person the protection and safekeeping of the
employer's loved ones and properties, a subsequent betrayal of that trust is so repulsive as to warrant
the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject
matter of the crime and which, by adopting the proposal, may create serious implications. For example,
in the crime of Malversation, the penalty imposed depends on the amount of the money malversed by
the public official, thus: TSEAaD

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved
in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved
is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the
property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal use. DAaEIc

The above-provisions contemplate a situation wherein the Government loses money due to the
unlawful acts of the offender. Thus, following the proposal, if the amount malversed is P200.00 (under
the existing law), the amount now becomes P20,000.00 and the penalty is prision correccional in its
medium and maximum periods (2 years 4 months and 1 day to 6 years). The penalty may not be
commensurate to the act of embezzlement of P20,000.00 compared to the acts committed by public
officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices
Act, specifically Section 3, 31 wherein the injury caused to the government is not generally defined by
any monetary amount, the penalty (6 years and 1 month to 15 years) 32 under the Anti-Graft Law will
now become higher. This should not be the case, because in the crime of malversation, the public
official takes advantage of his public position to embezzle the fund or property of the government
entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or
uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the bases
of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment or fine is
dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing
unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of the
thing unlawfully taken and no longer the element of force employed in entering the premises. It may
likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article 280, and
this kind of robbery because the former is punishable by prision correccional in its medium and
maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding P1,000.00
(P100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or intimidation,
which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it
is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed
without the penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the
penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed
is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of
the damage caused exceeds P1,000.00, but under the proposal, the value of the damage will now
become P100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1 day to 6 months).
And, if the value of the damaged property does not exceed P200.00, the penalty is arresto menor or a
fine of not less than the value of the damage caused and not more than P200.00, if the amount involved
does not exceed P200.00 or cannot be estimated. Under the proposal, P200.00 will now become
P20,000.00, which simply means that the fine of P200.00 under the existing law will now become
P20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature
despite the fact that the offense is categorized as a light felony penalized with a light penalty under
Article 26 of the RPC. 33 Unless we also amend Article 26 of the RPC, there will be grave implications on
the penalty of Fine, but changing the same through Court decision, either expressly or impliedly, may
not be legally and constitutionally feasible. aDSHCc

There are other crimes against property and swindling in the RPC that may also be affected by the
proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of the
damage caused, to wit: Article 311 (Theft of the property of the National Library and National Museum),
Article 312 (Occupation of real property or usurpation of real rights in property), Article 313 (Altering
boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling a minor), Article
318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article 331 (Destroying or
damaging statues, public monuments or paintings). Other crimes that impose Fine as a penalty will also
be affected, such as: Article 213 (Frauds against the public treasury and similar offenses), Article 215
(Prohibited Transactions), Article 216 (Possession of prohibited interest by a public officer), Article 218
(Failure of accountable officer to render accounts), Article 219 (Failure of a responsible public officer to
render accounts before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are
punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree
No. 705, as amended. 34 The law treats cutting, gathering, collecting and possessing timber or other
forest products without license as an offense as grave as and equivalent to the felony of qualified theft.
35 Under the law, the offender shall be punished with the penalties imposed under Articles 309 and 310
36 of the Revised Penal Code, which means that the penalty imposable for the offense is, again, based
on the value of the timber or forest products involved in the offense. Now, if we accept the said
proposal in the crime of Theft, will this particular crime of Illegal Logging be amended also in so far as
the penalty is concerned because the penalty is dependent on Articles 309 and 310 of the RPC? The
answer is in the negative because the soundness of this particular law is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and
other related provisions of these laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity. There may be some provisions of the law that should be
amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of the
Revised Penal Code by merely making a study of the applicability of the penalties imposable in the
present times. Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal luminaries and who, after due
proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even
create a new legislation which will adopt to the times. AaECSH

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the
oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now
pending in the Senate seeking to amend the Revised Penal Code, 37 each one proposing much needed
change and updates to archaic laws that were promulgated decades ago when the political, socio-
economic, and cultural settings were far different from today's conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp
legislative powers by judicial legislation and that in the course of such application or construction, it
should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend,
distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms. 38
The Court should apply the law in a manner that would give effect to their letter and spirit, especially
when the law is clear as to its intent and purpose. Succinctly put, the Court should shy away from
encroaching upon the primary function of a co-equal branch of the Government; otherwise, this would
lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be
increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and
awarded by the court, unless the deceased on account of permanent physical disability not caused by
the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the
recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate
succession, may demand support from the person causing the death, for a period not exceeding five
years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may
demand moral damages for mental anguish by reason of the death of the deceased. aSCHIT

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to the
death of the victim could not be contemplated as akin to the value of a thing that is unlawfully taken
which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning in
increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that
would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law
only imposes a minimum amount for awards of civil indemnity, which is P3,000.00. The law did not
provide for a ceiling. Thus, although the minimum amount for the award cannot be changed, increasing
the amount awarded as civil indemnity can be validly modified and increased when the present
circumstance warrants it. Corollarily, moral damages under Article 2220 39 of the Civil Code also does
not fix the amount of damages that can be awarded. It is discretionary upon the court, depending on the
mental anguish or the suffering of the private offended party. The amount of moral damages can, in
relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense committed as tantamount to
cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not
they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It is the
prerogative of the courts to apply the law, especially when they are clear and not subject to any other
interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio's opinions is that the incremental
penalty provision should be declared unconstitutional and that the courts should only impose the
penalty corresponding to the amount of P22,000.00, regardless if the actual amount involved exceeds
P22,000.00. As suggested, however, from now until the law is properly amended by Congress, all crimes
of Estafa will no longer be punished by the appropriate penalty. A conundrum in the regular course of
criminal justice would occur when every accused convicted of the crime of estafa will be meted
penalties different from the proper penalty that should be imposed. Such drastic twist in the application
of the law has no legal basis and directly runs counter to what the law provides. aEHTSc

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the
Ramos Administration by virtue of Republic Act No. 7659 40 in December 1993. The said law has been
questioned before this Court. There is, arguably, no punishment more cruel than that of death. Yet still,
from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act No. 9346,
41 the Court did not impede the imposition of the death penalty on the ground that it is a "cruel
punishment" within the purview of Section 19 (1), 42 Article III of the Constitution. Ultimately, it was
through an act of Congress suspending the imposition of the death penalty that led to its non-imposition
and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of
the law from which the proper penalty emanates unconstitutional in the present action. Not only is it
violative of due process, considering that the State and the concerned parties were not given the
opportunity to comment on the subject matter, it is settled that the constitutionality of a statute cannot
be attacked collaterally because constitutionality issues must be pleaded directly and not collaterally, 43
more so in the present controversy wherein the issues never touched upon the constitutionality of any
of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed
at the form or character of the punishment rather than its severity in respect of duration or amount, and
applies to punishments which public sentiment has regarded as cruel or obsolete, for instance, those
inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the wheel,
disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition. 44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does not
make it cruel and unusual. Expressed in other terms, it has been held that to come under the ban, the
punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the nature of the
offense as to shock the moral sense of the community." 45
Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our
modern time. EaTCSA

The solution to the present controversy could not be solved by merely adjusting the questioned
monetary values to the present value of money based only on the current inflation rate. There are other
factors and variables that need to be taken into consideration, researched, and deliberated upon before
the said values could be accurately and properly adjusted. The effects on the society, the injured party,
the accused, its socio-economic impact, and the likes must be painstakingly evaluated and weighed
upon in order to arrive at a wholistic change that all of us believe should be made to our existing law.
Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient personnel to conduct public
hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code. This
function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this
conclusion, to wit:

xxx xxx xxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you
have to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation . . .

PROFESSOR TADIAR:

Yes. SEDICa
JUSTICE PERALTA:

. . . and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of
those economic terms.

JUSTICE PERALTA:

Yeah, but . . .

PROFESSOR TADIAR:

And I don't think it is within the power of the Supreme Court to pass upon and peg the value to
One Hundred (P100.00) Pesos to . . .

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

. . . One (P100.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court . . .

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

. . . has no power to utilize the power of judicial review to in order to adjust, to make the
adjustment that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor. ETDHaC

PROFESSOR TADIAR:

Thank you. 46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role
of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order
to prevent injustice in the present controversy, the Court should not impose an obsolete penalty pegged
eighty three years ago, but consider the proposed ratio of 1:100 as simply compensating for inflation.
Furthermore, the Court has in the past taken into consideration "changed conditions" or "significant
changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of
a statute. The issue is no different from the Court's adjustment of indemnity in crimes against persons,
which the Court had previously adjusted in light of current times, like in the case of People v. Pantoja. 47
Besides, Article 10 of the Civil Code mandates a presumption that the lawmaking body intended right
and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the
proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively
discussed above, it is truly beyond the powers of the Court to legislate laws, such immense power
belongs to Congress and the Court should refrain from crossing this clear-cut divide. With regard to civil
indemnity, as elucidated before, this refers to civil liability which is awarded to the offended party as a
kind of monetary restitution. It is truly based on the value of money. The same cannot be said on
penalties because, as earlier stated, penalties are not only based on the value of money, but on several
other factors. Further, since the law is silent as to the maximum amount that can be awarded and only
pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it
can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The
RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in
its medium period, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its
minimum period, as maximum. However, the CA imposed the indeterminate penalty of four (4) years
and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as
maximum, plus one (1) year for each additional P10,000.00, or a total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People 48 is highly
instructive, thus: CSTEHI

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315. Swindling (estafa). — Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if
the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds
the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding
one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such case, and in connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or
reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article
65 of the same Code requires the division of the time included in the penalty into three equal portions
of time included in the penalty prescribed, forming one period of each of the three portions. Applying
the latter provisions, the maximum, medium and minimum periods of the penalty prescribed are:

Maximum — 6 years, 8 months, 21 days to 8 years

Medium — 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum — 4 years, 2 months, 1 day to 5 years, 5 months, 10 days 49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión
mayor minimum should be divided into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 65 50 of the RPC. 51 In the present case, the
amount involved is P98,000.00, which exceeds P22,000.00, thus, the maximum penalty imposable
should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for every additional
P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty which may be
imposed exceed 20 years. cHECAS

Considering that the amount of P98,000.00 is P76,000.00 more than the P22,000.00 ceiling set by law,
then, adding one year for each additional P10,000.00, the maximum period of 6 years, 8 months and 21
days to 8 years of prision mayor minimum would be increased by 7 years. Taking the maximum of the
prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the indeterminate
penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge
against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower
would then be prision correccional in its minimum and medium periods. Thus, the minimum term of the
indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking.
The Court should not pre-empt Congress and usurp its inherent powers of making and enacting laws.
While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous proposition,
lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is
hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5,
2007 of the Court of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the
Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable doubt of
the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code, are
hereby AFFIRMED with MODIFICATION that the penalty imposed is the indeterminate penalty of
imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision
correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of
the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House
of Representatives. ISADET

SO ORDERED.

Velasco, Jr., Leonardo-de Castro, Villarama, Jr., Perez, Mendoza and Reyez, JJ., concur.

Sereno, C.J., see concurring and dissenting opinion.

Carpio and Abad, JJ., see dissenting opinion.

Brion, J., see: concurring opinion.

Bersamin, J., I take no part due to prior action in the CA.

Del Castillo, J., I join the dissent of J. Abad.

Perlas-Bernabe, J., took no part.

Leonen, J., I dissent re penalties, see separate opinion.

Separate Opinions

SERENO, C.J., concurring and dissenting:

The measure of a just society depends not only on how it apprehends and punishes the guilty. It also lies
in the dignity and fairness it collectively accords convicted persons who, irrevocably, are still members of
that society. The duty of the Court in this case is not only to dispense justice, but to actively prevent
injustice wrought by inaction on the question of the continued justness of the penalties under Article
315 of the Revised Penal Code. EADSIa

I concur with the ponencia in affirming the conviction of petitioner but vote to apply the penalty for
estafa adjusted to the present value of the thing subject of the offense. Considering that the penalty has
remained untouched for eighty-three years, the Court cannot adhere to its literal imposition without
first revisiting the assigned values on which such penalty was based. The Legislature of 1930 pegged the
penalties at the prevailing value of money at the time of the enactment of the Revised Penal Code.
Apart from its representation as a basket of goods or as a means of exchange, money has no
independent value by itself, and that is how the law has always seen it. Even this outlook must then
necessarily affect our views regarding the liberty of persons and how money affects it.
My colleagues have presented differing approaches supported by equally keen arguments. However,
were we to take the convenient route of mechanical application, we would be perpetuating an
erroneous result from lamentable inaction. Would this Court abdicate its duty at the risk of endangering
the right to liberty of the accused? In the past, the Court has never shirked from its role of interpreting
the law, always with a careful consideration of its minimum burden: to prevent a result that is
manifestly unjust. That the fundamental right to life and liberty is made to depend solely on Congress or
the mere passage of time with respect to an omission is a result the Court should not be prepared to
accept.

The legislative intent behind provisions of the Revised Penal Code is to create prison terms dependent
upon the value of the property subject of the crime. A prison term is virtually monetized, while an
individual's life and well-being hang in the balance. It is incumbent upon the Court to preserve the intent
of Congress while crucially ensuring that the individual's liberty is not impinged upon any longer than
necessary. This is distinct from the situation contemplated under Article 5, par. 2 of the Penal Code, 1 in
which the Court would need to delve into the wisdom of the law, i.e., the appropriateness of the penalty
taking into account the degree of malice and the injury caused by the offense.

Thus, the crux of the present case is simple judicial application of the doctrines that in cases of doubt: 1)
the law must be construed in favor of the accused, 2) it is presumed that the lawmaking body intended
right and justice to prevail. This duty of judicial construction is understood to permeate every corner
where the Court exercises its adjudicative function, specifically in how it expounds on criminal rules. To
assume that the Court would be changing the penalty imprudently leads to a misplaced apprehension
that it dabbles in judicial legislation, when it is merely exercising its constitutional role of interpretation.
aSTECA

Adjusting the amounts to

the present value of money

recognizes that money is

simply an assigned

representation, similar to the

Court's ruling in People v.

Pantoja.

Ruling in accordance with "felt necessities of the time" 2 or in recognition of considerably changed
circumstances is not a novel judicial approach. In Central Bank Employees v. BSP, the Court posed this
question: Can a provision of law, initially valid, become subsequently unconstitutional on the ground
that its continued operation would violate the equal protection of the law? The Court thus considered
the legal effect of the passage of time, stating:
Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though
affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions.
....

In the Philippine setting, this Court declared the continued enforcement of a valid law as
unconstitutional as a "consequence of significant changes in circumstances." In Rutter v. Esteban, We
upheld the constitutionality of the moratorium law — despite its enactment and operation being a valid
exercise by the State of its police power — but also ruled that the continued enforcement of the
otherwise valid law would be unreasonable and oppressive. The Court noted the subsequent changes in
the country's business, industry and agriculture. Thus, the law was set aside because its continued
operation would be grossly discriminatory and lead to the oppression of the creditors." 3

It is axiomatic that laws, customs, public policy and practice evolve with the passage of time; so too,
does monetary valuation. Money has no value in and of itself except that which we assign, making it
susceptible to construction and interpretation. Money is not real in the sense that it is capable of being
indexed. Viewed in this way, human lives and liberty cannot be made dependent on a mere index of
almost a century ago.

I submit that in the present case, the Court is not even delving into questions of validity of the substance
of the statute. This is no different from the Court's adjustment of indemnity in crimes against persons or
the determination of valuation in expropriation cases. We have continually checked penalties in criminal
cases, adjusted the amounts of damages and indemnities according to the appropriateness thereof in
light of current times. We have done so with eyes open, knowing that the adjustments reflect a
realization that the value of the peso has changed over time. If the purchasing power of the peso was
accepted as a "judicially manageable standard" in those cases, there is no reason for the Court not to
apply it in favor of the accused herein, especially because it is mandated to do so. aSATHE

In People v. Pantoja, concerning compensatory damages for death, the Court explained this adjustment
in uncomplicated terms:

In 1948, the purchasing power of the Philippine peso was one-third of its pre-war purchasing power. In
1950, when the New Civil Code took effect, the minimum amount of compensatory damages for death
caused by a crime or quasi-delict was fixed in Article 2206 of the Code at P3,000. The article repealed by
implication Commonwealth Act No. 284. Hence, from the time the New Civil Code took effect, the
Courts could properly have awarded P9,000 as compensatory damages for death caused by a crime or
quasi-delict. It is common knowledge that from 1948 to the present (1968), due to economic
circumstances beyond governmental control, the purchasing power of the Philippine peso has declined
further such that the rate of exchange now in the free market is U.S. $1.00 to almost 4.00 Philippine
pesos. This means that the present purchasing power of the Philippine peso is one-fourth of its pre-war
purchasing power. We are, therefore, of the considered opinion that the amount of award of
compensatory damages for death caused by a crime or quasi-delict should now be P12,000." 4

I agree with the view of Justice Roberto A. Abad that while Article 2206 of the Civil Code sets only a
minimum amount, the Court since then has regularly increased amounts awarded by the lower courts.
Tellingly, these decisions and resolutions are not mere suggestions or guidelines for the trial courts'
exercise of discretion, but are actual findings of error. 5

Pantoja's recognition of inflation as a reality — among other instances when the Court has
acknowledged "changed conditions" — only shows that criminal rules, especially the implementation of
penalties, must also evolve. As societies develop, become more enlightened, new truths are disclosed.
The Court as an institution cannot ignore these truths to the detriment of basic rights. The reality is that
property-related crimes are affected by external economic forces, 6 rendering the penalties vulnerable
to these forces.

It is a basic constitutional

doctrine that the slightest

doubt must be resolved in

favor of the accused.

The constitutional mandate is that the Court must construe criminal rules in favor of the accused. In
fact, the slightest doubt must be resolved in favour of the accused. 7 This directive is moored on the
equally vital doctrine of presumption of innocence. 8 These principles call for the adoption of an
interpretation which is more lenient. 9 Time and again, courts harken back to the pro reo rule when
observing leniency, explaining: "The scales of justice must hang equal and, in fact should be tipped in
favor of the accused because of the constitutional presumption of innocence." 10 ACTaDH

This rule underpins the prospectivity of our penal laws (laws shall have no retroactive application, unless
the contrary is provided) and its exception (laws have prospective application, unless they are favorable
to the accused). 11 The pro reo rule has been applied in the imposition of penalties, specifically the
death penalty 12 and more recently, the proper construction and application of the Indeterminate
Sentence Law.

The rationale behind the pro reo rule and other rules that favor the accused is anchored on the
rehabilitative philosophy of our penal system. In People v. Ducosin, the Court explained that it is
"necessary to consider the criminal, first, as an individual and, second, as a member of society. This
opens up an almost limitless field of investigation and study which it is the duty of the court to explore
in each case as far as is humanly possible, with the end in view that penalties shall not be standardized
but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting
the social order." 13

Thus, with the same legislative intent to shorten a defendant's term of imprisonment embodied in the
Indeterminate Sentence Law, I believe the adjustment of penalties considered in the present case
forwards the State's concern "not only in the imperative necessity of protecting the social organization
against the criminal acts of destructive individuals but also in redeeming the individual for economic
usefulness and other social ends." 14 This approach would be more in accord with the pro reo rule and
the overarching paradigm of our penal system.
In past instances, the Court

has not only laid down

guidelines but made actual

policy determinations for the

imposition of penalties.

Section 1 of Batas Pambansa Blg. 22 or the Bouncing Checks Law imposes the penalty of imprisonment
of thirty days to one year OR a fine double the amount of the check, or both, at the court's discretion. In
Vaca v. Court of Appeals, the Supreme Court deleted the penalty of imprisonment meted out by the trial
court and imposed only the penalty of fine, reasoning: ITCHSa

Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the
national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly
that they had not committed a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the
judgment of the trial court and applied for probation to evade a prison term. It would best serve the
ends of criminal justice if in fixing the penalty within the range of discretion allowed by Section 1, par. 1,
the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of
redeeming valuable human material and preventing unnecessary deprivation of personal liberty and
economic usefulness with due regard to the protection of the social order. In this case, we believe that a
fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose
on each of the petitioners. 15

The Court did not expressly make a finding that the trial court erred in exercising its discretion, but
stated that correcting the penalty would best serve the ends of criminal justice. This policy was applied
in Lim v. People, 16 which imposed only the fine under B.P. Blg. 22. The Court then issued Administrative
Circular No. 12-2000, which states:

All courts and judges concerned should henceforth take note of the foregoing policy of the Supreme
Court on the matter of the imposition of penalties for violations of B.P. Blg. 22. The Court Administrator
shall cause the immediate dissemination of this Administrative Circular to all courts and judges
concerned.

This Administrative Circular, referred to and approved by the Supreme Court en banc, shall take effect
upon its issuance. 17

Administrative Circular No. 13-2001 further clarifies that: "The clear tenor and intention of
Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay
down a rule of preference in the application of the penalties provided for in B.P. Blg. 22 . . . such that
where the circumstances of both the offense and the offender clearly indicate good faith or a clear
mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the
more appropriate penalty. Needless to say, the determination of whether the circumstances warrant
the imposition of a fine alone rests solely upon the Judge." 18

Hence, the imposition of a policy on penalties is not far removed from the judicial construction exercised
in the present case. Establishing a policy or a rule of preference towards the unnecessary deprivation of
personal liberty and economic usefulness has always been within the scope of judicial power. aAHSEC

Article 10 of the Civil Code

mandates a presumption that

the lawmaking body intended

right and justice to prevail.

Article 10 of the Civil Code states: "In case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to prevail." The Code Commission found it
necessary to include this provision to "strengthen the determination of the Court to avoid an injustice
which may apparently be authorized in some way of interpreting the law." 19

In Salvacion v. Central Bank, the Court warned: "In our predisposition to discover the "original intent" of
a statute, courts become the unfeeling pillars of the status quo. Little do we realize that statutes or even
constitutions are bundles of compromises thrown our way by their framers. Unless we exercise
vigilance, the statute may already be out of tune and irrelevant to our day." Salvacion involved the rape
of a minor by a foreign tourist and the execution of the final judgment in the case for damages on the
tourist's dollar deposit accounts. The Court refused to apply Section 113 of Central Bank Circular No. 960
which exempts foreign currency deposits from attachment, garnishment or any other order or process
of any court, because "the law failed to anticipate the iniquitous effects producing outright injustice and
inequality such as the case before us." 20 Applying Article 10, the Court held: "In fine, the application of
the law depends on the extent of its justice. . . . Simply stated, when the statute is silent or ambiguous,
this is one of those fundamental solutions that would respond to the vehement urge of conscience." 21

The majority view states that to embark on this formulation is dangerous, uncertain, or too taxing. Yet
even counsel for the House of Representatives admits that inflation can be taken into consideration, and
that the values to be used in the conversion are easily available. There is sufficient basis — through the
efforts of the authorized statistical organizations 22 and Bangko Sentral ng Pilipinas, who collect data
year to year — that viably establish the purchasing power of the peso.

More importantly, fear of clogged dockets and the inconvenience of a perceived distortion are
operational concerns that are not sufficient justification to re-tilt the scales to the prejudice of the
accused. It does not impact on the fact that by adjusting the questioned amounts to the present value of
money, the Court would merely be following the mandate of Article 10 and fulfilling its proper
constitutional role. EAcHCI
I therefore vote to affirm the conviction of petitioner, but to impose the penalty adjusted to present
value, as proposed by Justice Abad.

CARPIO, J., dissenting:

I vote to grant the petition in part by declaring unconstitutional that portion of the first paragraph of
Article 315 of Act No. 3815, as amended (Code), mandating the imposition of maximum penalty based
on the amount of the fraud exceeding P22,000. I do so on the ground that imposing the maximum
period of the penalty prescribed in Article 315 1 of the Code in such a manner, unadjusted to inflation,
amounts to cruel punishment within the purview of Section 19 (1), Article III of the Constitution. 2

Cruel Punishment Clause Bans

Odious and Disproportionate Punishments

The Cruel Punishment Clause first appeared in the English Bill of Rights of 1689 3 which mandated that
"excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." The prohibition restrained the King from punishing convicts in ways inconsistent
with human dignity. 4 Over a century later, the Americans adopted the Clause as the Eighth Amendment
5 to their Bill of Rights of 1791. When the United States acquired these Islands in 1898 under the Treaty
of Paris (following the defeat of Spain in the Spanish-American War), the Eighth Amendment was
extended to this jurisdiction, first under President McKinley's Instructions to the Second Philippine
Commission and later under the Organic Acts passed by the US Congress. 6 The Clause was retained as
part of the Bill of Rights of succeeding Philippine Constitutions during the Commonwealth and post-
independence eras.

Early on, the question arose whether the Clause serves only to limit the legislature's power to inflict
certain forms of punishment (e.g., torture) or whether it also prohibits the legislature from imposing
punishments whose extent is excessive or disproportionate to the crime. 7 It did not take long for the US
Supreme Court to settle the debate. In reviewing a 1902 ruling of this Court sentencing an accused to 15
years of cadena temporal with fine and accessory penalties 8 for falsification of a public document, the
US Supreme Court set aside the judgment, holding that the punishment was "cruel in its excess of
imprisonment and that which accompanies and follows the imprisonment." 9 In refusing to give a
narrow interpretation to the Clause, that court observed that the "meaning and vitality of the
Constitution have developed against narrow and restrictive construction." 10 Proportionality is now a
staple analytical tool in the US jurisdiction to test claims of cruel punishment under penal statutes
imposing the death penalty. 11 EaIcAS

Our own jurisprudence subscribe to such construction of the Cruel Punishment Clause. During the US
colonial occupation, this Court was expectedly bound by the US Supreme Court's interpretation of the
Eighth Amendment as "the exact language of the Constitution of the United States [in the Eighth
Amendment] is used in the Philippine Bill [of 1902]" 12 and later, in the Autonomy Act of 1916. Hence,
in its rulings interpreting the Clause, the Court read the provision as a limitation on the power of the
colonial legislature not only on the form but also on the extent of punishments it can enact. 13
During the Commonwealth period, the text of the Eighth Amendment was substantially adopted as
Section 1 (19), Article III of the 1935 Constitution. 14 Owing in no small measure to the dearth of
discussion on the meaning of the Clause during the deliberations of the 1934 Constitutional Convention,
the Court saw no reason to deviate from its colonial-era jurisprudence. 15

The 1973 Constitution, replacing the 1935 Charter, retained the Clause as part of the Bill of Rights. 16
The Court, however, had no occasion to pass upon any matter calling for the interpretation of the Clause
until after the new Constitution, which carried over the Clause as Section 19 (1) of Article III, took effect
in February 1987. In its post-1987 jurisprudence, the Court continued to rely on its rulings rendered
under the 1935 Constitution. 17

Clearly then, the proposition that the Cruel Punishment Clause limits the legislature's power to inflict
certain forms of punishments only, allowing it to impose penalties disproportionate to the offense
committed, runs counter to the grain of decades-old jurisprudence here and abroad. Such
interpretation, which rests on a strict originalist reading of the Eighth Amendment of the US
Constitution, 18 never gained traction in the United States 19 and it makes no sense to insist that such
view applies in this jurisdiction.

In the first place, the US Constitution, unlike our present Constitution, has essentially remained
unchanged since its adoption in 1787 (save for the inclusion of the Bill of Rights in 1791 and other later
piecemeal amendments). The 1987 Constitution is already the third in the 20th century, following the
1935 Commonwealth Constitution and the 1973 Martial Law Constitution. 20 When the present
Constitution was ratified in 1987, nearly two millennia after the US adopted the Eighth Amendment, the
Filipino people who voted for its approval could not have intended Section 19 (1) of Article III to embody
the US originalists' interpretation of the Eighth Amendment. It is more consistent with reason and
common sense to say that the Filipino people understood the Clause to embrace "cruel, degrading and
inhuman" punishments in its 20th century, Filipino conception, grounded on their collective experiences
and sense of humanity. AEcIaH

Indeed, the Filipino people who ratified the present Constitution could not have intended to limit the
reach of the Cruel Punishment Clause to cover torture and other forms of odious punishments only
because nearly four decades before the present Constitution took effect, the Philippine government
joined the community of nations in approving the Universal Declaration of Human Rights (UDHR) in 1948
which bans "torture or . . . cruel, inhuman or degrading treatment or punishment." 21 In 1986, shortly
before the Constitution took effect, the Philippines ratified the International Covenant for Civil and
Political Rights (ICCPR) containing an identically worded prohibition. 22 These international norms
formed part of Philippine law as generally accepted principles of international law 23 and binding treaty
obligation, respectively. 24

Standards to Determine Impermissible Disproportionality

This Court has had occasion to devise standards of disproportionality to set the threshold for the breach
of the Cruel Punishment Clause. Punishments whose extent "shock public sentiment and violate the
judgment of reasonable people" 25 or "[are] flagrantly and plainly oppressive" 26 are considered
violative of the Clause. 27 Other than the cursory mention of these standards, however, we have made
no attempt to explore their parameters to turn them into workable judicial tools to adjudicate claims of
cruel punishment. Even if we did, it would have been well-nigh impossible to draw the line separating
"cruel" from legitimate punishments simply because these standards are overly broad and highly
subjective. 28 As a result, they ratchet the bar for the breach of the Clause to unreasonably high levels.
Unsurprisingly, no litigant has successfully mounted a challenge against statutes for violation of the
Clause. 29

Impermissible disproportionality is better gauged by testing punishments against the following

alternative parameters: (1) whether more serious crimes are equally or less severely punished; or (2)
whether the punishment reasonably advances the state interest behind the penalty. 30 These
parameters strike the proper balance of providing practical tools of adjudication to weigh claims of cruel
punishment while at the same time affording Congress discretionary leeway to craft penal statutes
addressing societal evils.

Value-based, Maximum Penalty Calibration Under Article 315

Disproportionate to the Crime of Estafa

More Serious Crimes

Equally Punished as Estafa

Article 315 of the Code calibrates the maximum penalty for estafa on an escalated basis once a
threshold amount of fraud is crossed (P22,000). The penalty escalates on a ratio of one year
imprisonment for every P10,000 fraud, with 20 years as ceiling. 31 Accordingly, for a fraud of P98,000,
the trial court sentenced petitioner to a maximum term of 15 years. TEDAHI

This punishment, however, is within the range of the penalty imposable on petitioner under the Code
had he "killed the [private complainant] jeweler in an angry confrontation." 32 The same penalty would
also be within the range prescribed by the Code had petitioner kidnapped the private complainant and
kept him detained for three days. 33 By any objective standard of comparison, crimes resulting in the
deprivation of life or liberty are unquestionably more serious than crimes resulting in the deprivation of
property. 34 By imposing a level of punishment for estafa equal to more serious crimes such as homicide
and kidnapping, Article 315's system of calibrating the maximum penalty based on the amount of fraud
is plainly arbitrary and disproportionate to the severity of the crime punished.

Maximum Penalty for Estafa

Unrelated to its Purpose

The felonies defined and penalized under Title 10, Book Two of the Code, as amended, as crimes against
property, including estafa under Article 315, are legislative measures safeguarding the right to property
of private individuals and the state. 35 The penalties of imprisonment and/or fine attached to each
crime are meant to deter and incapacitate criminals from infringing such right. The Cruel Punishment
Clause ensures that the state interest is advanced without sacrificing proportionality between the crime
and punishment. In short, the Clause acts as constitutional brake whenever Congress enacts punishment
whose severity is gratuitous, wholly unconnected to the purpose of the law.

Of the more than two dozen crimes originally defined by Congress in Title 10, Book Two of the Code, 36
only two crimes, estafa and theft, consider the amount of the property involved to calibrate the
maximum range of the penalty. All the rest either impose penalties irrespective of the amount of the
property involved 37 or provide a threshold amount based on the property involved for the imposition
of a straight (as opposed to calibrated) penalty. 38 Crucially, the calibration does not take into account
the real value of the peso.

Admittedly, Congress has ample discretion to fix penalties in the Code according to its best light. At the
time the Code took effect in 1932, when US$1.00 was equivalent to P1.00, the system of calibrated
penalty under Article 315 based on the amount appropriated arguably stayed clear of the Cruel
Punishment Clause. After 82 years, however, when the real value of the peso has depreciated
substantially with the current rate of US$1.00 to P40.00, an estafa of P142,000 in 1932, meriting a 20-
year penalty, should today require P5.6 million to merit a 20-year penalty. Put differently, P142,000 in
1932 is worth only P3,550 39 today, which should merit only a maximum penalty of six months and one
day to two years and four months imprisonment. 40 The enormous disparity in the values of fraud
between these points in time (exceeding 100%) and the imposition of the same level of maximum
punishment in both instances remove any semblance of reasonability in the manner by which the
punishment is derived and its connection to the purpose of the law. The arbitrary differential treatment
of estafa (and theft) crosses the line separating the exercise of valid legislative discretion and the Cruel
Punishment Clause. ACIDTE

This conclusion stands notwithstanding our holding in People v. Tongko 41 and Lim v. People 42 that the
system of calculating the maximum penalty under Article 315 does not offend the Cruel Punishment
Clause. Those cases involved paragraph 2 (d) of Article 315, as amended by Presidential Decree No. 818
(PD 818), 43 penalizing as estafa the issuance of unfunded or underfunded checks (not paragraph 1 (b),
the provision violated by petitioner). Our conclusion in those cases was grounded on the fact that
criminalizing the issuance of bouncing checks reasonably advances the state interest behind the law,
that is, ensuring the stability of commercial and banking transactions. 44 Such state interest is not
implicated here. The clause in Article 315 petitioner violated, penalizing the failure to return property
delivered in trust for disposition, secures the entirely different government interest of protecting private
property. To consider Tongko and Lim as binding precedents, precluding a different conclusion, is to
expand their ratio decidendi beyond the facts presented in those cases.

Penalty Imposable Under Article 315

The breach of the Cruel Punishment Clause by Article 315's system of calculating the maximum penalty
for estafa in excess of P22,000 means that only the minimum term of imprisonment provided under
Article 315 for such crime can be imposed on petitioner, namely, prision correccional in its maximum
period. This level of penalty is covered by the Indeterminate Sentence Law 45 which renders the next
lower penalty, namely, prision correccional in its medium period, as the minimum of the sentence. 46
The entirety of the sentence will be anywhere within the range of these maximum and minimum
penalties. Hence, petitioner's term of imprisonment should be modified to three (3) years, one (1)
month and eleven (11) days of prision correccional, as minimum, to four (4) years, nine (9) months and
eleven (11) days of prision correccional, as maximum.

The same range of penalty applies to all other persons found guilty of violating Article 315. Thus,
whether an estafa involves money or property worth P22,000 or P1 million, the minimum term of
imprisonment under Article 315 — prision correccional in its maximum period — will be imposed on the
accused. ASICDH

The penalty for the felony of syndicated estafa under Presidential Decree No. 1689 (PD 1689) is,
however, an altogether different matter. PD 1689 amended Article 315 of the Code by adding a new
mode of committing estafa 47 and imposing the penalty of "life imprisonment to death" or "reclusion
temporal to reclusion perpetua if the amount of the fraud exceeds P100,000." Unlike Article 315, PD
1689 does not calibrate the duration of the maximum range of imprisonment on a fixed time-to-peso
ratio (1 year for every P10,000 in excess of P22,000), but rather provides a straight maximum penalty of
death or reclusion perpetua. This places PD 1689 outside of the ambit of the proscription of the Cruel
Punishment Clause on the imposition of prison terms calibrated based on the value of the money or
property swindled, unadjusted to inflation.

Effect of Ruling on Convicts

Serving Time under Article 315

This opinion relieves petitioner of the harsh effect of the penalty for estafa under Article 315 by
lowering the entire range of imprisonment and monetary liability of petitioner or imposing only the
minimum range of imprisonment, respectively. It is akin to our 1956 ruling in People v. Hernandez 48
decriminalizing rebellion complexed with ordinary crimes to the benefit not only of the accused in that
case but also of those already serving time for rebellion complexed with other crimes. 49 Hernandez and
today's ruling amount to laws favoring convicts, which, under Article 22 of the Code, have retroactive
effect. 50 Convicts benefitting from such ruling and falling within the terms of Article 22 may invoke it in
their favor and, if proper, avail of remedies to secure their release from detention.

Conclusion not Precluded by Article 5 of the Code

Testing Article 315 against the Cruel Punishment Clause under the standards espoused in this opinion
does not make a dead letter law of the second paragraph of Article 5 of the Code. Such provision,
mandating courts to recommend executive clemency —

when a strict enforcement of the provisions of th[e] Code would result in the imposition of a clearly
excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.
(Emphasis supplied)
operates within the realm of criminal law, requiring fact-based judicial evaluation on the degree of
malice of the accused and the injury sustained by the victim or his heirs. The Cruel Punishment Clause,
on the other hand, is the constitutional yardstick against which penal statutes are measured using
relevant standards unrelated to questions of criminal malice and injury. Far from overlapping, the
conclusions yielded by analyses under these two rules are distinct — a penal statute may well avoid the
taint of unconstitutionality under the Clause but, applying such statute under peculiar set of facts, may
justify a recommendation for the grant of clemency. 51 HCTAEc

Legislative Review of Article 315 and Related Provisions Overdue

The constitutional infirmity not only of Article 315 but also of related provisions in the Code calls for a
comprehensive review by Congress of such 82-year old legislation. 52 Pending such congressional
review, this Court should decline to enforce the incremental penalty in Article 315 because such
continued enforcement of the incremental penalty violates the Cruel Punishment Clause.

Accordingly, I vote to (1) GRANT the petition in part by modifying the sentence imposed on petitioner
Lito Corpuz to three (3) years, one (1) month and eleven (11) days of prision correccional, as minimum,
to four (4) years, nine (9) months and eleven (11) days of prision correccional, as maximum; and (2)
DECLARE UNCONSTITUTIONAL that portion of the first paragraph of Article 315 of Act No. 3815, as
amended, mandating the imposition of maximum penalty based on the amount of the fraud exceeding
P22,000, for being violative of Section 19 (1), Article III of the 1987 Constitution.

BRION, J., concurring:

I agree with the ponencia's conclusion that Lito Corpuz is guilty of the crime of Estafa as the facts and
the evidence sufficiently established his guilt beyond reasonable doubt.

I also support the majority's decision not to "judicially interpret" the penalties imposed under Article
217 (Malversation of Public Funds or Property), Articles 299-303 (Robbery), Articles 308-309 (Simple
Theft), Article 310 (Qualified Theft), Articles 315-318 (Estafa and other forms of Swindling), Articles 320-
325 (Arson), and Articles 327-329 (Mischiefs) of the Revised Penal Code (RPC), by adjusting, for inflation,
the value of the money or property (subject of the crime) to its 1930 value.

My reasons for supporting the ponencia are as follows:

First, the Court has no jurisdiction to determine the propriety of imposing the penalties prescribed
under the other crimes in the RPC.

Second, modifying the penalties, as several of my esteemed colleagues have proposed, is not judicial
interpretation that simply looks at the letter and spirit of the law; it is judicial legislation that
unconstitutionally (and thus, illegally) breached the doctrine of separation of powers. IcDCaT

Third, the present day application of the 1930 values will not result in the denial of Corpuz's right to
equal protection of the law.
Fourth, the constitutionally and legally permissible solution to the perceived disparity between the
prescribed penalty and the crime in light of the present values of money and property is the grant, by
the President of the Philippines, of executive clemency through pardon or parole.

Fifth, the minority's position can, in effect, lead to repercussions that could potentially destabilize the
application of our penal laws and jurisprudence, as well as further clog the Court's already congested
dockets.

Lastly, I cannot agree with the expressed opinion that the incremental penalty imposed on estafa is
unconstitutional for being a cruel and unusual punishment; like the rest of the majority, I believe that no
such effect occurs under the present law and its application.

I. The Court has no jurisdiction to determine the propriety of imposing the penalties prescribed
under other crimes in the RPC.

The dissenting opinion of Justice Abad, as supported by several other justices, sought to adjust for
inflation the amounts involved in estafa; by so doing, he also sought to "judicially interpret" the subject
matter of the crimes of malversation, theft, qualified theft, arson and mischiefs.

In my view, what they propose to do involves an undue and unwarranted invocation of the Court's
judicial power — an act that cannot be done without violating the due process rights of the Republic.
Notably, the Republic focused solely and was heard only on the matter of estafa. In fact, the present
case is only about estafa, not any other crime. To touch these other crimes in the present case likewise
involves acts of policy determination on the substance of the law by the Judiciary — a violation of the
highest order of the limits imposed on us by the Constitution.

I am not unaware that an appeal in criminal cases throws the case wide open for review, and allows the
reviewing tribunal the power to correct errors or to reverse the trial court's decisions on the grounds
other than those raised by the parties as errors. 1 In reviewing criminal cases, we recognize our duty to
correct errors as may be found in the judgment appealed regardless of whether they had been made the
subject of assignments of error or not.

This discretion, however, is limited to situations where the Court intends to correct the trial court's
errors in applying the law and appreciating the facts. A quick survey of jurisprudence shows that this
includes re-evaluating factual questions presented before the trial court, 2 weighing the credibility of
witnesses and other pieces of evidence presented before the trial court, 3 or applying the proper
penalty. 4 CaEATI

Thus, at most, the Supreme Court's wide discretion in reviewing criminal cases allows it to motu proprio
provide a proper interpretation of the penal law being applied. This discretion, however, does not
extend to the power to adjust the penalty defined in the law, based on the monetary value of the
property involved in the crime of estafa.

More than this, the Court's discretion does not allow it to similarly adjust the penalties defined in other
crimes, similarly based on the monetary values of the property involved in these other crimes, as these
other crimes are not involved in the present case. These crimes and their penalties have neither been
adjudicated upon by the trial court nor by the CA; neither is the "judicial interpretation" of their
penalties necessary to determine whether Corpuz committed the crime of estafa in the present case.

Assuming, for the sake of argument, the validity of Justice Abad's arguments regarding the
disproportionality of the penalties defined in these crimes (as the intrinsic value of the money in
properties involved have significantly dropped), we still cannot ipso facto apply the adjustments he
seeks in the present estafa case, to the other crimes. The proportionality issue in estafa is different from
the proportionality issue in these other crimes, as each crime is different from another.

Let me point out that there are considerations in determining whether a penalty is proportional to
crimes other than the monetary value of the property involved. The perpetration of fraud, the key
element in estafa, is not present in theft or arson, while the abuse of public office is a unique key
element in malversation. We cannot make a uniform ruling adjusting the amounts involved in these
crimes simply based on inflation and without considering the other factors that Congress considered in
imposing the values of the property involved in these crimes. This conundrum again shows that the
judicial interpretation espoused by the minority is actually a judicial usurpation of Congress' prerogative
to define crimes and to determine their penalties.

II. The enduring constitutional and jurisprudential imperative upholding the separation of powers
completely abhors any unwarranted intrusion and impermissible usurpation of the authority and
functions of a co-equal branch

A characteristic and cardinal principle that governs our constitutional system is the separation of
powers. 5 The Constitution does not expressly provide for the principle of separation of powers. Instead,
it divides the governmental powers among the three branches — the legislative, the executive and the
judiciary. Under this framework, the Constitution confers on the Legislature the duty to make the law
(and/or alter and repeal it), on the Executive the duty to execute the law, and on the Judiciary the duty
to construe and apply the law. 6 IEHDAT

Underlying the doctrine of separation of powers is the general proposition that the whole power of one
department should not be exercised by the same hands that possess the whole power of the other
departments. 7 Within their respective spheres of influence, each department is supreme and the
exercise of its powers to the full extent cannot be questioned by another department. Outside of their
defined spheres of action, none of the great governmental departments has any power, and nor may
any of them validly exercise the powers conferred upon the others. 8

Section 1, paragraph 1, Article VIII of the Constitution states that "judicial power shall be vested in one
Supreme Court and such lower courts as may be established by law." Simply stated, what the
Constitution confers on the Court is only "judicial power" and it is this judicial power that serves as the
measure of the permissible reach of the Court's action. 9 In short, the Judiciary can neither make the law
nor execute it, as its power is strictly confined to the law's interpretation and application, i.e., to what is
aptly termed "judicial" power.
II.A. Judicial power; its scope and limitations

Section 1, paragraph 2, Article VIII of the Constitution states that judicial power "includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable," as well as to "determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government."

Traditionally, judicial power has been defined as "the right to determine actual controversies arising
between adverse litigants, duly instituted in courts of proper jurisdiction." 10 It is "the authority to settle
justiciable controversies or disputes involving rights that are enforceable and demandable before the
courts of justice or the redress of wrongs for violation of such rights." 11

In this light, no court can exercise judicial power unless real parties come before it for the settlement of
actual controversy and unless the controversy is of the nature that can be settled in a manner that binds
the parties through the application of existing laws. 12 This traditional concept of judicial power, as the
application of law to actual controversies, reflects the constitutional imperative of upholding the
principle of separation of powers, such that the Judiciary has no power to entertain litigations involving
the legality, wisdom, or the propriety of the conduct of the Executive; neither has it the power to
enlarge, alter or repeal laws or to question the wisdom, propriety, appropriateness, necessity, policy or
expediency of the laws. 13 ADaSET

While the Constitution has now extended the scope of judicial power beyond the mere application of
law and the settling of disputes (as it now includes the duty to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government), this expanded scope does not still permit any inquiry into the
conduct or act of either of the executive or the legislative branch other than to determine whether
either branch violated the Constitution or gravely abused its discretion in a manner amounting to lack or
excess of jurisdiction.

II.B. The power to define crimes and their

penalties lies in the legislature as an

imperative of the principle of separation of

powers

On the legislature's exclusive domain, through lawmaking, lies the authority to define what constitutes a
particular crime in this jurisdiction. It is the legislature, as representative of the sovereign people, that
determines which acts or combination of acts is criminal and what the ordained punishments shall be.
14 Judicial interpretation of penal laws should be aligned with the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. 15
As the Constitution vests the power to enact laws on the legislature, the courts cannot arrogate the
power to enlarge the scope of the crime, introduce matters that the legislature clearly did not intend,
redefine a crime in a manner that does not hew to the statutory language, 16 or modify the penalty to
conform to the courts' notion (out of the innumerable number of notions) of justice and fairness. A
becoming regard for the prerogative of Congress in defining crimes/felonies should prevent the Court
from making any broad interpretation of penal laws where a "narrow interpretation" is appropriate. 17
"The Court must take heed to language, legislative history and purpose, in order to strictly determine
the wrath and breath of the conduct the law forbids." 18

II.C. "Plain meaning rule" in statutory

construction should be applied in reading

Article 315 of the RPC

The cardinal canon in statutory construction — the plain meaning rule or verba legis — requires that
"the meaning of a statute should, in the first instance, be sought in the language in which the act is
framed; if the language is plain, the sole function of the courts is to enforce it according to its terms." 19
In interpreting any statute in the exercise of its judicial power of applying the law, the Court should
always turn to this cardinal canon before all others. "Courts should always presume that a legislature
says in a statute what it means and means in a statute what it says there," 20 and that the legislature
knows "the meaning of the words, to have used them advisedly, and to have expressed the intent by use
of such words as are found in the statute." 21 TCASIH

Thus, when the law is clear and free from any doubt or ambiguity, 22 and does not yield absurd and
unworkable results, 23 the duty of interpretation, more so of construction, does not arise; 24 the Court
should resort to the canons of statutory construction only when the statute is ambiguous. 25

Interpretation, as understood in the rules of statutory construction, refers to the art of finding out the
true sense of any form of words, or the sense which their author intended to convey. 26 Construction,
on the other hand, refers to the art of drawing conclusions from matters beyond the direct expressions
of text, from elements known from and given in the text, or conclusions that are in spirit, but not within
the text, 27 where the intention is rendered doubtful, among others, because the given case is not
explicitly provided for in the law 28 or because the words used are obscure or susceptible to numerous
interpretations. Both these two terms, however, have no place in the present case as the meaning of the
penalties imposed is clear and needs neither construction nor interpretation.

II.D. The "plain meaning rule" and the principle

of separation of powers prevent this Court

from modifying, by adjusting for inflation,

the penalties under Article 315 of the RPC

The language of the penalty clauses of Article 315 of the RPC is plain and clear; no reservation, condition
or qualification, particularly on the need for adjustment for inflation, can be read from the law, whether
by express provision or by implication. The clear legislative intention to penalize estafa according to the
"amount of fraud" as enumerated in the law, therefore, should be deemed complete — Article 315
embodies all that the legislature intended when the law was crafted.

As the words of Article 315 are clear, the Court cannot and should not add to or alter them to
accomplish a purpose that does not appear on the face of the law or from legislative history, 29 i.e., to
remedy the perceived grossly unfair practice of continuing to impose on persons found guilty of estafa
the penalties that the RPC Commission pegged on the value of money and property in 1930.

Notably, in his approach in the present case, Justice Abad labors under the presumption that the RPC
Commission intended that the penalties under Article 315 of the RPC should adopt and reflect the
values of money and property prevailing at the time of the commission of the crime; hence, his position
that the "amount of fraud" should be adjusted for inflation. aEcTDI

I find this approach and the resulting position manifestly flawed; Justice Abad effectively posits that the
"amount of fraud" as the basis of the penalty will significantly vary at each instance as this will depend
on such factors as the kind or type of the thing or property subject of the crime, and its corresponding
monetary value at the time of the commission of the crime. The monetary value, in turn, will depend on
several variables affecting the economy. To my mind, these are clearly matters of fact and policy
determination that are far beyond the scope of judicial power.

In fact, a review of several amendatory statutes of Article 315 of the RPC reveals a legislative intent
contrary to Justice Abad's proposition that the RPC Commission intended that the "amount of fraud" as
basis for the penalties should account for the inflation.

In point are the following: (1) Presidential Decree No. 818 (enacted in October 22, 1975) increased the
penalties in cases of estafa resulting from bouncing checks under Article 315 (2) (d); and (2) Presidential
Decree No. 1689 (enacted on April 6, 1980) increased the penalty for certain forms of estafa under
Articles 315 and 316. These statutes increased the penalties for estafa under certain conditions despite
the then already declining monetary value on account of inflation.

Arguably, the Court had in the past (as in the cases cited by Justice Abad) resorted to interpretation of
monetary values to cope with inflation. These instances, however, concerned awards of civil liability and
moral damages for death. 30 These cases involved civil damages awards that are in stark contrast with
the penalty issue that faces this Court in the present petition. In fact, the Historical Notes of the RPC
Commission 31 shows the law's concern for the heirs of the deceased (victim) as the force that impelled
the legislature to increase the civil indemnity by statute; 32 the Court simply took judicial notice of this
concern in interpreting the monetary values in the cited cases.

Moreover, Justice Abad's presumption patently deviates from the rule of progressive interpretation that
"extends by construction the application of a statute to all subjects or conditions within its general
purpose or scope that come into existence subsequent to its passage[.]" 33 The rule requires that "a
word of general signification employed in a statute should be construed, in the absence of legislative
intent to the contrary, to comprehend not only peculiar conditions obtaining at the time of its
enactment but those that may normally arise after its approval as well." 34 aEcHCD

Thus, Article 315 of the RPC should be understood as embracing all things and property that may be
subject of the crime of estafa regardless of the changes in their monetary value, and that the "amount
of fraud" as basis for the penalty (and as enumerated under Article 315) should be applied without
reference to these changes.

Then, too, Justice Abad's position departs from the theory of originalism that he used as supporting
argument.

Originalism is generally employed in relation with the Constitution and has its roots in the "original"
intent of the framers of the Constitution. It is a theory or a framework of principles used in interpreting
and understanding the texts of the Constitution. It is premised on the idea that the original meaning of
the Constitution is relatively fixed, and the originalist enterprise is fundamentally committed to
discerning the fixed meaning the framers gave to the Constitution. 35

Originalism, as a theory of constitutional interpretation, has so far evolved into numerous versions, the
more common of which are original understanding and original intent. 36

Originalism as original understanding seeks the meaning of the words themselves as understood at the
time, 37 or the meaning of the words to the society that adopted it — regardless of what the framers
might secretly have intended. 38 In contrast, originalism as original intent seeks the meaning of the
words according to what the framers had in mind 39 or the meaning that the framers attached to the
words that they employed in the Constitution. 40

As a theory of constitutional interpretation, I submit that originalism cannot properly be applied to

interpret and modify Article 315 of the RPC because this is a statute, not a constitutional provision to
which the theory of originalism generally applies.

Granting that originalism can be permissibly adopted to interpret statutes, the theory — whether
viewed as original understanding or original intent — commands that Article 315 be read and
interpreted according to its fixed and original meaning. Thus, in the same manner that the rule of
progressive interpretation bars reference to the changes in the monetary values of the things and
property subject of the crime, under the theory of originalism, the "amount of fraud" as basis for the
penalty (as enumerated under Article 315), should likewise be applied without reference to the changes
in the monetary values. DCcTHa

Accordingly, I find Justice Abad's proposition in this case to be improper and inappropriate because: (1)
the modification of the penalty transgressed the clear intent of the legislature as the adjustment for
inflation is not supported by the letter of Article 315 of the RPC nor by its intent; (2) in adjusting for
inflation the monetary values to modify the penalties under Article 315, the Court resorted to
construction that the law and the circumstances clearly did not require; and (3) in modifying the penalty
by construction, the Court manifestly usurped, by judicial legislation, the power that rightfully belongs
to the legislature.

III. The application of the penalties prescribed under Article 315 of the RPC, as written, would not
violate Corpuz's right to equal protection of the law

Section 1, Article III of the 1987 Constitution pertinently provides: "nor shall any person be denied the
equal protection of the laws." The equal protection clause means that no person or class of persons shall
be deprived of the same protection of laws enjoyed by other persons or other classes in the same place
in like circumstances. 41 It demands that all persons or things similarly situated should be treated alike,
both as to the rights conferred and responsibilities imposed. 42

The equal protection, however, does not demand absolute equality under all circumstances. The
protection recognizes that persons are not born equal and have varying handicaps that society has no
power to abolish. 43 Thus, the equal protection clause permits reasonable classifications provided that
the classification: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not
limited to existing conditions only; and (4) applies equally to all members of the same class. 44

The application of the penalties under Article 315 of the RPC, as written, to the present situation does
not violate Corpuz's right to the equal protection of the law. The circumstances prevailing when the RPC
Commission fixed the penalties for estafa in 1930, vis-a-vis the circumstances presently obtaining, hardly
differ, and the considerations that impelled the RPC Commission in fixing the mode and duration of
these penalties persist and continue to justify their application to the present conditions.

The key element in estafa is the fraudulent act committed that has caused harm to others. Estafa
penalizes the fraudulent act. I submit that there has been no change in the way the RPC defines fraud
and, hence, there should be no reason for a change in the way a fraudulent act is penalized. IEHSDA

A fraud committed in the 1930s should be punished in the same manner as a fraud committed in the
present day. That the consequences of the fraudulent act constituted the basis for determining the
gradation of penalties was a policy decision that Congress had the prerogative to make. This included
the value behind each threshold and its corresponding penalty. What was true then is still true today.

Thus, the disparity between the monetary values of things and property in the 1930s and the prevailing
monetary values of like things and property do not amount to distinctions so substantial that they would
require this Court to treat and classify Corpuz differently from persons who committed estafa in 1930.

In fact, the converse proposition, i.e., to treat Corpuz and others who will, from here on, commit the
crime of estafa differently from those who committed the same crime in the 1930s up to and prior to
the decision in this case, by modifying the penalty according to what it perceived as the correct inflation
rate, will inevitably violate the constitutional right of the latter group of persons to the equal protection
of the law.

This modification of the penalty effectively dictates a classification that does not rest on substantial
distinctions; is irrelevant to the purpose of the law punishing estafa, i.e., to punish and discourage
dishonesty and unfaithfulness in the administration or care of money, goods or other personal property
received for the purpose; 45 and applies only to those who commit the crime subsequent to the
decision.

IV. The grant, by the President of the Philippines, of executive clemency through pardon or parole,
when warranted, would sufficiently address the perceived disparity, in the context of the present values
of money and property, between the prescribed penalty and the crime committed

I further submit that the law, in its wisdom, already provides a constitutionally and legally permissible
solution to what Justice Abad perceived as the "grossly unfair practice of continuing to impose on
persons found guilty of certain crimes the penalties [that had been] pegged on the value of money and
property more than 80 years ago in 1930."

These solutions are the exercise, by the President of the Philippines of his clemency powers under
Section 19, Article VIII of the Constitution, 46 and the exercise by this Court of its recommending power
under Article 5, paragraph 2, of the RPC. aDECHI

Article 5, paragraph 2, of the RPC states that when the strict enforcement of the provisions of this Code
would result in the imposition of a clearly excessive penalty, considering the degree of malice and the
injury caused by the offense, "the [C]ourt shall submit to the Chief Executive, through the Department
of Justice, such statement as may be deemed proper[.]"

The factual and legal conditions that some members of this Court feel badly about can be addressed
through the exercise of this recommendatory power. This course of action may adequately address
whatever perceived disparity there might be, created by inflation, between the crime and the penalty
while preserving and upholding, at the same time, the cardinal principle of the separation of powers.
The Court is not likewise barred from calling the attention of Congress to the perceived disparity so that
any problem there can be addressed through legislation.

In sum, even granting arguendo that the penalty the CA imposed on Corpuz is "grossly unfair" from the
economic and pragmatic point of view (as Justice Abad has carefully crafted), the solution to this "gross
unfairness" is not for this Court, by itself, to provide. Article 315 of the RPC is plain and unambiguous
and Corpuz's case falls clearly within its provisions. Hence, under the circumstances and within the
context of this case, the Court's duty is simply to apply the law. Resorting to judicial legislation by
construction encroaches into the exclusive domain of the legislature — a course that clearly violated the
constitutional separation of powers principle.

V. The effect of Justice Abad's "judicial interpretation" could have destabilizing repercussions on
the application of our penal laws and jurisprudence. It will as well further clog the Court's already
congested dockets.

I believe that Justice Abad's proposition, while grounded on noble intentions, could destabilize the
application of our penal laws. I submit the following practical considerations against it:
First, Justice Abad's proposal, in effect, postulates that the monetary value of the money and property
subject of the crime should be kept at its value at the time the crime was legislated. This prompted his
demand to adjust the present day values of the amounts involved in distinguishing the penalties for
estafa, qualified theft, malversation, among others, to keep their values at the 1930's level. This
argument applies not just to the crimes it has enumerated, but to other crimes which use the value of
the property involved in the criminal act as an element of the crime, or as a standard for determining
the penalty of the crime. CaSHAc

Examples of these offenses include plunder 47 (which includes as an element of the crime the
acquisition of at least P50 million in ill-gotten wealth) and the failure by a covered institution to report
covered transactions as defined in the Anti-Money Laundering Act. 48

Should the amounts involved in these crimes be automatically adjusted now, to keep them within their
value at the time the crimes were defined and penalized? Both the crimes of plunder and money-
laundering, for instance, are of relatively recent enactment. The Act Defining the Crime of Plunder was
passed in 1991 and the Anti-Money Laundering Act in 2001.

When do we adjust the value of these amounts so that they would remain in keeping with the intent of
Congress at the time of its enactment? Do we adjust these for inflation every year, from the time of
enactment, or after ten, or twenty years when the value of the peso has significantly changed?

The lack of any specific answer to these questions reaffirms that the prerogative to value the money or
property involved in a crime lies with Congress and is not for the courts to make through "judicial
interpretation."

Second, the proposition would open the floodgates for habeas corpus petitions for the adjustment of
the penalties imposed on convicts now in prison for estafa. These petitions would be based on equal
protection grounds, swamping the courts with pleas for the reduction of sentences. Significantly, in
undertaking adjustments, it would be inaccurate to apply the 1:100 adjustment ratio that Justice Abad
uses as base because these convicts committed their respective crimes in different years. Effectively, all
these petitions would be resolved on a case-to-case basis as proper proportionality would have to be
determined based on inflation in these different years.

VI. The penalties in estafa do not violate the constitutional prohibition against cruel, degrading or
inhuman punishment

I cannot agree that the disproportionality in terms of the length of imprisonment and the amount
involved in the estafa is within the contemplation of the constitutional prohibition against cruel,
degrading or inhuman punishments.

First, I submit that the issue of a statute's constitutionality, including those of criminal statutes, should
be raised at the earliest possible opportunity. The ponencia's summation of the case's antecedents does
not show that the constitutionality of the estafa's penalty had been raised in the trial court, or in the CA,
and even in the present petition in the Supreme Court. HcaATE
As I earlier discussed, we have a wide latitude of discretion in reviewing criminal cases, especially in
comparison to our approach in reviewing the civil and labor cases appealed before us. But this wide
latitude, to my mind, does not authorize us to disregard the requirements of constitutional litigation.

Even assuming that the Court may, on its own, raise the issue of constitutionality of the penalty of
estafa, the principle of stare decisis bars us from relitigating an issue that has already been decided.

The Court has had, on two occasions, upheld the constitutionality of the penalty imposed on estafa. In
Lim v. People, 49 the Court en banc reiterated a prior ruling by the Court's Second Division in People v.
Tongko, 50 which ruled that the increase in the penalty for estafa, committed through bouncing checks
under Presidential Decree (PD) No. 818, does not violate the constitutional prohibition against cruel,
degrading or inhuman punishment.

The petitioners in Lim argued that PD No. 818 is a cruel, degrading, or inhuman punishment for the
following reasons: first, the penalty of reclusion perpetua under PD No. 818 for estafa involving the
amount of P365,750.00 is too disproportionate to the crime it punishes; and second, the penalties for
estafa through false pretenses or fraudulent acts (committed through bouncing checks) increased
without a corresponding increase in the original amounts for estafa defined in the RPC, when these
amounts have become negligible and insignificant compared to the present value of the peso.

The Court in Lim held that the increase in penalties provided by PD No. 818 is neither the cruel nor
degrading punishment that the Constitution contemplates. Affirming this ruling in Tongko, the Court
held that "the prohibition of cruel and unusual punishment is generally aimed at the form or character
of the punishment rather than its severity in respect of duration or amount[.]" 51

According to Lim v. People, 52 "It takes more than merely being harsh, excessive, out of proportion or
severe for a penalty to be obnoxious to the Constitution." The impugned penalty must be "flagrantly and
plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense
of the community." 53

The Court also noted that while PD No. 818 makes the penalties for estafa more severe, this severity
alone does not make it the cruel or degrading punishment that the Constitution prohibits. The Court
observed that the increase of the penalties is not without justification: the increase in penalty was
intended to repress the crime of swindling through bouncing checks, as it erodes the people's
confidence in using negotiable instruments and results in the "retardation of trade and commerce and
the undermining of the banking system of the country." 54 IDcHCS

The present case involves arguments similar to those the Lim petitioners presented, and I find that no
basis exists for the Court to deviate from its earlier ruling. Notably, the Court en banc arrived at this
ruling without any reservations or dissenting opinions.

I submit that the Court should respect and recognize the principle of stare decisis in this case, as Lim
stands as precedent against the arguments raised in the current case. They both involve the same issues
and arguments; the penalty imposed by PD No. 818, which was contested in Lim and Tongko, was even
higher than the penalties contested in the current case (which involves estafa without the qualifying
circumstance of having been committed through bouncing checks).

These considerations, to my mind, effectively refute the arguments regarding the severity and
disproportionality of the penalties under estafa presented in the current case. If we have twice
respected and recognized the legislative's prerogative to increase the penalty of estafa committed
through PD No. 818, why should we now deny them this prerogative and assert for ourselves the
authority to determine the penalty of estafa itself?

Neither is a perceived disproportionality in the penalties and its comparison with the penalties of other
crimes sufficient to establish the questioned penalty as cruel or degrading.

In Baylosis v. Hon. Chavez, Jr., 55 the Court en banc upheld the constitutionality of Section 1 of PD No.
1866, which penalizes with reclusion perpetua "any person who shall unlawfully manufacturer, deal in,
acquire, dispose, or possess any firearm," "in furtherance of, or incident to, or in connection with the
crimes of rebellion, insurrection or subversion." The petitioners in Baylosis questioned the
constitutionality of the penalty, pointing out, among other arguments, that the crime of possessing a
firearm in furtherance of rebellion is even more severe than the crime of rebellion itself.

The Court in Baylosis interestingly ruled that the difference in the penalty between PD No. 1866 and the
RPC does not necessarily establish that the heavier penalty under PD No. 1866 is excessive,
disproportionate, or cruel or unusual. The Court noted that it could be argued the other way around —
that the penalty of the crime of rebellion is too light; and that the remedy for this situation is through
law, and not judicial interpretation.

Thus, Baylosis established that in determining the severity and disproportionality of a penalty, the Court
should look only at the crime and penalty in question and avoid its comparison with other crimes. And in
determining whether a penalty is wholly disproportional to the crime it punishes (so that it shocks the
community's moral standards), we must examine whether the penalty imposed is justified by the evil
sought to be prevented by Congress in penalizing the crime. EHCaDS

In this case, the Solicitor General has adequately provided the reason for the penalties behind the
estafa, i.e., to protect and encourage the growth of commerce in the country and to protect the public
from fraud. This reason, to my mind, is sufficient to justify the penalties for estafa. That the amount
taken from the private injured party has grown negligible through inflation does not ipso facto make the
penalty wholly disproportional. In determining whether a penalty is cruel or unusual, we have
considered not just the amount taken from the private injured party, but also considered the crime's
impact on national policy and order. 56 It cannot be gainsaid that the perpetuation of fraud adversely
impacts on the public's confidence in our financial system and hinders as well the growth of commerce.

As a final point, I note that the 1987 Constitution has changed the language of the prohibition against
cruel and unusual punishments under the 1935 and 1973 Constitutions to "cruel, degrading or
inhuman." This change of wording is not without reason — it was designed to give Congress more
leeway in formulating the penalties it deems fit to the crimes that it may decide to penalize in the
future.

As explained by Constitutional Commissioner Fr. Joaquin Bernas S.J., who sponsored the draft Bill of
Rights, the word unusual was replaced with the words "degrading or inhuman" because Congress, in the
future, may create a penalty not yet known or imposed; and the fact of its novelty should not be a
ground to question its constitutionality. 57

I submit that we, as interpreters and enforcers of the Constitution, should not go against the general
spirit and intent of the Constitution to recognize the prerogative of Congress to create penalties.
Immediately equating disproportionality and severity to a cruel, degrading punishment unduly limits this
prerogative, as it would open the floodgates for the review of penalties on the mere contention or belief
that the imprisonment imposed is too long or that the fines assessed are too high. These, to me, are
policy questions that should be best addressed by the political branches of government, not by the
Supreme Court.

In these lights, I fully concur with and join the ponencia of Justice Peralta.

ABAD, J., dissenting:

The Court is apparently not prepared at this time to reexamine and change the existing practice of
imposing the penalty for estafa based on the amount of the fraud committed in terms of the 1930
values of money and properties. SHECcT

The Facts and the Case

On May 2, 1991 Danilo Tangcoy entrusted P98,000 worth of jewelry items to petitioner Lito Corpuz for
the latter to sell on commission. If sold, Corpuz was to turn over the proceeds to Tangcoy and, if not, he
was to return the items after 60 days. But Corpuz neither remitted the stated proceeds nor returned
what he got. Consequently, the Public Prosecutor of Olongapo charged him with estafa before the
Regional Trial Court (RTC) of that city. 1

On July 30, 2004 the RTC found Corpuz guilty as charged and sentenced him to suffer an indeterminate
penalty of imprisonment from 4 years and 2 months of prision correccional in its medium period, as
minimum, to 14 years and 8 months of reclusion temporal in its minimum period, as maximum. 2

On appeal, the Court of Appeals (CA) affirmed 3 Corpuz's conviction but modified the penalty to 4 years
and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus
incremental penalty of one year for each additional P10,000 for a total maximum of 15 years. 4 Corpuz
filed a motion for reconsideration of the appellate court's Decision but the CA denied the same, thus,
the present petition for review.

While the Court's Third Division was deliberating on the case, the question of the continued validity of
imposing on persons convicted of crimes involving property came up. The legislature apparently pegged
these penalties to the value of money and property in 1930 when it enacted the Revised Penal Code. 5
Since the members of the Division reached no unanimity on this question and since the issues are of first
impression, they decided to refer the case to the Court En Banc for consideration and resolution.

In view of the far reaching effects of any ruling in the case and the great number of accused who may be
affected by it, 6 the Court required the Office of the Solicitor General (OSG) and counsel for Corpuz to
file their comments on the issues that the Court raised. Further, it invited a number of amici curiae for
their views.

The following amici graciously submitted their papers: a) De La Salle University College of Law Dean and
head of the Free Legal Assistance Group, Jose Manuel L. Diokno; b) Ateneo de Manila School of Law
Dean, Sedfrey M. Candelaria; c) University of the Philippines Professor Alfredo F. Tadiar; d) the Senate
President; and e) the Speaker of the House of Representatives. 7 The Court heard the parties and the
amici on oral arguments on February 19, 2014, with Atty. Mario L. Bautista, entering his appearance as
counsel de officio for Corpuz, and arguing the case on the latter's behalf. 8 HESCcA

The Issues Presented

The issues may be summarized as follows:

1. Whether or not, procedurally, the Court may determine the constitutionality of the penalty that
the CA imposed on Corpuz even when he did not raise such question in his petition for review;

2. Whether or not the penalty of 4 years and 2 months to 15 years that the CA imposed on Corpuz
for a P98,000 fraud based on the penalty that the legislature pegged on the value of money or property
in 1930 violates his constitutional right to equal protection of the law;

3. Whether or not that portion of Article 315 of the Revised Penal Code that imposes on Corpuz in
addition to the basic penalty of 8 years and 1 day of imprisonment an additional incremental penalty of
1 year for each additional P10,000 of the amount of fraud in excess of P22,000 violates his constitutional
right against cruel, unusual, and degrading punishment; and

4. If the answers to the second or third issues are in the affirmative, whether or not, applying the
rules of statutory construction, the Court may, rather than declare the relevant statutory penalties
unconstitutional, determine the legislative intent with respect to them and, accordingly, adjust the
amount of the present fraud to its 1932 equivalent and impose the proper penalty.

Discussion

1. Issues Raised Motu Proprio

The OSG points out that it is not right for the Court to decide the issue of the correctness of the penalty
imposed on Corpuz since he did not raise such issue. 9

But the Court, like the CA, has always regarded it as a duty to the accused in every criminal case that
comes before it to review as a matter of course the correctness of the penalty imposed and rectify any
error even when no question has been raised regarding the same. 10 That the error may have a
constitutional dimension cannot thwart the Court from performing such duty.

Besides, as Dean Sedfrey M. Candelaria, one of the amici, noted in his comment, the Court has in
previous cases, when fundamental issues are involved, taken cognizance of the same despite lack of
jurisprudential requirements for judicial review. 11 Indeed, the Court said in People v. Hon. Judge Vera,
12 that "courts in the exercise of sound discretion, may determine the time when a question affecting
the constitutionality of a statute should be presented . . . [t]hus, in criminal cases, although there is a
very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage
of the proceedings, either in the trial court or on appeal." 13 DAEIHT

In Government Service Insurance System, Cebu City Branch v. Montesclaros, 14 while the respondent
manifested loss of interest in pursuing the case, the Court through Justice Antonio T. Carpio, said, that
"social justice and public interest demand that [. . .] the constitutionality of the proviso [be resolved]"
since "the issue involves not only the claim of [respondent] but also that of other surviving spouses who
are similarly situated and whose claims GSIS would also deny based on the proviso." 15 To the same
effect is the Court's ruling in Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas. 16
Here in Corpuz, the ruling of the Court will affect thousands of persons who are presently charged or in
the future may be charged with crimes the penalties for which are pegged to the value of the money or
property involved.

Moreover, the Court has itself raised these issues because of their importance and has heard the parties
both on written comments and on oral argument. The due process requirement for hearing and
adjudicating the issues now before the Court has been met.

Now to address the substantive issues:

2. Criminal Penalties and Inflation

As a general principle, crimes found in the Revised Penal Code carry with them the same penalties
whatever year the accused commits them. For example, one who mutilates a Philippine coin in 1932,
when the code took effect, would go to jail for 2 years and 4 months maximum, exactly the same
penalty that another who mutilates a coin in 2014 would get. The correspondence between the gravity
of the offense and the severity of the penalty does not change with the passage of time.

But, unwittingly, the penalties for crimes involving property under the Revised Penal Code are in breach
of that principle. Although these penalties are meant to be proportionate to the harm caused, they are
not described in specific and constant terms like the number of days of incapacity for work of the
offended party in physical injuries cases. aICcHA

Rather, the harm done in property crimes are made to depend on the "amount of the fraud" committed,
17 on the "value of the property taken," 18 on the "value of the thing or property stolen," 19 or on "the
value of the damage caused." 20 As it happens, money and property values are in a state of constant
change, and sways with the wind of economic change, primarily with the rate of inflation from year to
year. The objects of commerce like bread and fish do not change but their prices or monetary values
change in the course of time.

For instance, in 1932 when the Revised Penal Code took effect, rice was priced at an average of P4.50
per cavan. 21 If one steals a sack of rice in 1932, he would be imprisoned for 4 months maximum
corresponding to the value of what he stole. At present, that sack of rice is priced at about P1,800.00
per cavan. 22 If one steals a sack of rice today, he would be imprisoned for 4 years and 2 months
maximum. In other words, in a crime involving property the penalty depends on when it is committed.

Since the price of rice in 1932 (P4.50 per cavan) is a mere 0.25% of today's price (P1,800.00 per cavan),
does this mean that the P100 today is the equivalent of only P0.25 in 1932? It is uncertain since the
government did not yet conduct a statistical survey of the prices of key commodities in 1932 that would
provide empirical support for such a conclusion. 23 The first of such a statistical survey was made only in
1949, enabling the government after comparison with recent surveys to determine that the purchasing
power of P1 in 1949 is the equivalent of about P100 today — P1 is to P100. 24

For want of reliable 1930 economic data, it will be assumed for the purpose of this discussion that the
purchasing power of the peso then did not vary much from that of 1949 which, as already stated, has
been officially established. This assumption is based on the Court's own observation in the case of
People v. Pantoja 25 that the purchasing power of the peso in 1949 was "one-third of its pre-war
purchasing power," meaning P1 as against P3. This currency movement is minimal and may, for
convenience, be considered absorbed in the massive erosion of the purchasing power of the peso by
about 100 times from 1949 to the present. Consequently, this discussion will use this reference rate —
the P1 is to P100 — in comparing the prices of the past (1930-1949) with the present.

3. Escalation of Penalties

and the Equal Protection Clause

The Revised Penal Code of 1930 pegs the penalties for estafa to the amount of fraud committed as
follows: EHTIDA

Amount of the Fraud Penalty

1) P22,001 and above = 8 yrs. & 1 day plus 1 year for every
additional P10,000.00 (but not more
than 20 years)
2) P12,001 to P22,000 = 4 yrs., 2 mos. & 1 day to 8 yrs.
3) P6,001 to P12,000 = 6 mos. & 1 day to 4 yrs. & 2 mos.
4) P201 to P6,000 = 4 mos. & 1 day to 2 yrs. & 4 mos.
5) P0.01 to P200 = 4 mos. & 1 day to 6 mos.
Unmindful of the immense erosion of the purchasing power of the peso, courts have persisted in
literally applying the above table of penalties in fraud cases. As a result, they in effect mete out heavier
penalties from year to year for the commission of exactly the same offense.
For instance, if the accused defrauds another of 79 cavans of rice in 1930-1949, then valued at only
P1,422.00 (P18.00 per cavan), she would be imprisoned for 2 years and 4 months maximum. This would
cause her pain but tolerable pain. Yet, if another commits exactly the same fraud today when that 79
cavans of rice is now valued at P142,200.00 (P1,800.00 per cavan), she would be committed to prison
for 20 years maximum. She would leave prison an old woman, irreversibly deprived of the company of
her family for the greater part of her life. This is a gross denial of her right to equal protection since the
first offender got off after 2 years and 4 months whereas she got off after 20 years.

Her 20-year prison term is of course enormous because the penalty for fraud amounting to P22,000.00
is already 8 years and 1 day maximum but, since the amount of her fraud (P142,200.00) exceeds that
figure, she would suffer additional incremental imprisonment of 1 year for every P10,000.00 in excess of
the P22,000.00 for a total of 20 years.

This uneven treatment is true in Corpuz's case. The P98,000.00 jewelry items subject of his offense
would have a value of only P980 in 1932. Consequently, had he committed his crime that year, he would
have been imprisoned for only 2 years and 4 months maximum. But since he committed it 43 years later
in 1991 when the jewelry items are now valued at P98,000.00 due to inflation, he would be imprisoned
for 15 years maximum — the same crime, the same law, yet a shockingly higher penalty. This result
would undoubtedly deny Corpuz his constitutional right to equal protection of the law. CacEID

4. Incremental Penalty and the

Cruel, Unusual, and Degrading

Punishment Clause

Justice Antonio T. Carpio expressed the view, joined by Dean Diokno, 26 that insofar as Article 315
imposes on Corpuz in addition to the basic penalty of 8 years and 1 day an additional incremental
penalty of 1 year for each additional P10,000.00 of the amount of fraud in excess of P22,000.00, such
law violates his constitutional right against cruel, unusual, and degrading punishment. Putting a price of
P10,000.00, about the cost of five sacks of rice, for each additional year of imprisonment makes the
penalty grossly disproportionate to the wrong committed. This view would thus have the incremental
penalty voided. Professor Tadiar and Dean Diokno appear to be sympathetic to it. 27

The incremental penalty is of course grossly disproportionate to the wrong committed. But that penalty
would not have been regarded as such if the offense had been committed in 1932 when P10,000.00 was
a hefty sum. Indeed, if it were to be adjusted for inflation, that P10,000.00 would be the equivalent of
P1,000,000.00 today. An incremental penalty for each P1,000,000.00 would not have been that bad.
Anyway, the point is that it is the curse of inflation, not the idea of an incremental penalty, which is the
culprit.

If Justice Carpio's view is adopted, the Court would annul the incremental penalty but maintain the
validity of the basic penalties for fraud. But those penalties are just as disproportionate to the wrong
committed.
For instance, half a gallon of coconut cooking oil would cost about P2.03 in 1930-1949. If Alex gives Ben
P2.03 in 1949 to buy for him such half-gallon but Ben instead pockets the P2.03, he would be
imprisoned 6 months maximum for estafa. On the other hand, if Carlos gives Dante P203 today to buy
for him also a half-gallon of coconut cooking oil but Dante instead pockets the P203, he would be
imprisoned for 2 years and 4 months maximum. To be imprisoned and separated from family for 2 years
and 4 months for the taking of the price of a half-gallon cooking oil, what it will cost a hungry couple and
their child their meal, is just as cruel, unusual, and degrading. It is an outrage to a democratic society
even if no incremental penalty is involved. 28

The harshness of this antiquated 1930 scheme for punishing criminal offenders is doubly magnified in
qualified theft where the offender is a domestic helper or a trusted employee. Qualified theft is a
grievous offense since its penalty is automatically raised two degrees higher than that usually imposed
on simple theft. Thus, unadjusted for inflation, the domestic helper who steals from his employer would
be meted out a maximum of: ACIEaH

a) 6 years in prison for a toothbrush worth P5; 29

b) 12 years in prison for a lipstick worth P39; 30

c) 14 years and 8 months in prison for a pair of female slippers worth P150; 31

d) 20 years in prison for a wristwatch worth P19,000; 32 or

e) 30 years in prison for a branded lady's handbag worth P125,000. 33

Unless checked, courts will impose 12 years maximum on the housemaid who steals a P39 lipstick from
her employer. They will also impose on her 30 years maximum for stealing a pricy lady's handbag. This
of course is grossly obscene and unjust, even if the handbag is worth P125,000.00 since 30 years in
prison is already the penalty for treason, for raping and killing an 8-year-old girl, for kidnapping a grade
school student, for robbing a house and killing the entire family, and for a P50-million plunder.

It is not only the incremental penalty that violates the accused's right against cruel, unusual, and
degrading punishment. The axe casts its shadow across the board touching all property-related crimes.
This injustice and inhumanity will go on as it has gone on for decades unless the Court acts to rein it in.

5. Judicial Construction of Statutes

But annulling Article 315 of the Revised Penal Code or portions of it slaps the hand of the legislature that
enacted it in 1930 when the economy of the time warranted the amounts stated in those penalties.
Allowing courts to adhere to that law but construe it instead in a way that would attain its purpose, an
alternative based on long precedents, presents a more moderate remedy.

It may be assumed that those who enacted the Revised Penal Code in 1930 did not foresee the
onslaught of inflation in the second half of the century. They had an agricultural economy and,
presumably, the purchasing power of the peso at that time had not changed perceptibly in the years
that they had known. It would be imprudent to believe that, if those legislators had an inkling of the
shape and value of money and things would take down the years to 2014, they would have still pegged
those penalties to their 1930 economy. But they did. Clearly, they were uninformed and, therefore, their
intent must have been to match the penalties written in the law to the values of money and property as
they understood it at that time. SACTIH

As it turned out, the passage of time altered what the 1930 legislature intended respecting those
penalties. Time made those penalties toxic and this is exemplified in the case of Corpuz. On the one
hand, if the Court were to adjust the penalty imposed on him to compensate for inflation, using the
government's P1 to P100 equation, Corpuz should be deemed to have defrauded Tangcoy of only P980
rather than P98,000. He would then be meted out a penalty of only 2 years and 4 months maximum.
This is about the same penalty imposed for the crimes of offending religious feelings, 34 tumultuous
disturbance, 35 and slander, 36 which are correctional penalties.

On the other hand, if the amount of fraud is made to depend on the false assumption that the value of
P1 in 1930-1949 is the same as the value of P1 today, Corpuz would be liable for fraud amounting to
P98,000 and draw a penalty of 4 years and 2 months to 15 years maximum, an afflictive penalty. These
15 years would be within the range of the penalty for homicide 37 or for intentional abortion thru
violence against a pregnant woman, 38 which means meting out to Corpuz a penalty equivalent to the
taking of human life.

About seven years ago, a lawyer accused his houseboy, Reynaldo Bayon, of stealing from him watches
and jewelry worth P540,000.00. 39 For this, the trial court imposed on Bayon the penalty of
imprisonment for 30 years maximum. Ironically, the trial court meted out to Bayon the same penalty
that another trial court imposed on Ricardo Solangon and Apolonio Haniel who kidnapped Libertador
Vidal and demanded ransom from his tormented family. 40 After lengthy negotiations, they settled for
P50,000.00, got the money, and killed their victim. Since the police recovered only his bones, no one
knew just how much Libertador suffered before being killed.

Did Reynaldo, the houseboy, deserve the same severe penalty imposed on Ricardo and Apolonio for
their brutal crime? Reynaldo did not rape his employer's wife, torture his children, or murder any of
them. If the prosecution were to be believed, his employer merely lost some of his collection of watches
and jewelry. In the present case, the wealthy jeweler did not lose his life to Corpuz. All that he
supposedly lost to him were a few jewelry worth P98,000.00 today, the equivalent of but P980.00 in
1930-1949. Still, the Court would, literally applying the law, sentence Corpuz to a maximum of 15 years
in prison like he already killed the jeweler in an angry confrontation.

Again, the key to solving the problem that this case presents lies in ascertaining the will of the legislature
that enacted the Revised Penal Code in 1930 and give its language the construction that will honor that
will. Some, like the Office of the Solicitor General, the Senate President, and the Speaker of the House of
Representatives hold the view that adjusting the penalties to compensate for inflation will amount to
judicial legislation. 41 EIDaAH

But the Court need not rewrite the penalties that the law provides. Rather, the clear intent of the law
can be given by, to borrow a phrase from Atty. Mario L. Bautista, counsel for Corpuz, "harmonizing" the
law or "aligning the numerical figures" 42 to the economic realities of the present. To put it another
way, ascertaining the facts of the case in order to faithfully apply to it the law as the legislature intended
it is a judicial function. Dean Candelaria of Ateneo shares this position. 43

This would not have been the first time that the Court would have given a construction to the fixed
monetary values set by law to take into account the problems caused by inflation. When the Code
Commission drafted the Civil Code in 1949, it fixed the new minimum civil indemnity for death to
P3,000.00. 44 Article 2206 of the Code reads:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may have been mitigating circumstances. 45

The Civil Code sets the minimum compensation for death at only P3,000.00. Ordinarily, this legislative
judgment has to be obeyed no matter if it already becomes harsh or unfair to the victim's heirs as
inflation sets in. For the law is the law. Yet, following past precedents, the Court would, construing the
law in the light of the inflationary movement of money values, set a new minimum of P6,000 in 1964, 46
P12,000 in 1968, 47 P30,000 in 1983, 48 P50,000 in 1990, 49 and most recently, P75,000 in 2009. 50 It
regarded as inequitable on account of inflation the award of a measly P3,000 to the victim's heirs.

Justice Jose C. Vitug observed that the Court increases the minimum civil indemnity "to such amounts as
the peso value might actually command at given times and circumstances." 51 This is not judicial
legislation but taking judicial notice of the relentless rise in money and property values over the years
and construing the law in the light of such circumstances.

The Court emphasized in People v. Pantoja 52 that these judicial adjustments are dictated by: "the
difference between the value of the present currency and that at the time when the law fixing a
minimum indemnity" was passed. 53 Pantoja explained that, at its writing, "due to economic
circumstances beyond governmental control, the purchasing power of the Philippine peso has declined
further such that the rate of exchange now in the free market is U.S. $1.00 to P4.00 Philippine pesos."
54 aDcEIH

None of the justices of the Court, which included renowned Chief Justice Roberto Concepcion, Jose B.L.
Reyes, Arsenio P. Dizon, Querube C. Makalintal, Fred Ruiz Castro, and Enrique M. Fernando, regarded as
amounting to judicial legislation the decision interpreting the P3,000 minimum for death compensation
established by law in 1949 as P12,000 in the economy of the late 60s. There is no record of Congress
disagreeing with them. It makes no sense for the Court to refuse to use the same reasoning and not
employ it to the judicial construction of the penalty provisions in crimes involving property.

It is of course said that Article 2206 of the Civil Code merely sets the minimum civil liability for death at
P3,000, implying that courts are free to grant benefits to the victim's heirs upwards of that minimum.
This is true but the Court's decisions were not in the nature of mere suggestions regarding how the
courts below are to exercise their discretions when awarding such benefit. The Court has actually been
raising the minimum civil liability for death. Proof of this is that when the trial court or the CA orders the
payment of only P50,000 to the victim's heirs, an amount already well above the minimum of P3,000 set
by law, the Court would readily find the order erroneous and raise the award to P75,000.

Some would say that Article 2206 of the Civil Code merely governs civil indemnity whereas Article 315 of
the Revised Penal Code on penalties for estafa governs criminal liability, implying that the latter is quite
different. But the Civil Code stands on the same footing as the Revised Penal Code in terms of force and
effect. One is not superior to the other. The point is that prudent judicial construction works equally on
both codes.

In any event, the rule is that in case of doubt the provisions of the Revised Penal Code are to be
construed in favor of the accused. What has happened, however, is that the Court has beginning in 1964
construed the minimum amount set in Article 2206 as subject to adjustment to cope with inflation
although this worked against the accused in murder and homicide cases. The Court has not come
around to give the same construction to the inflation-affected penalty provisions of Article 315 of the
Revised Penal Code which would be favorable to him.

Incidentally, it is not the severity of the penalty written in the law that the Court has to adjust in order to
compensate for inflation but the amount of the fraud or the damage that was proved at the trial. For
instance, if an offender defrauds another of P20,000 worth of jewelry items today and he is found guilty,
the trial court could make a finding that he had committed fraud in that amount. During sentencing,
however, it would just determine, applying the P1 to P100 equation stated above, that such P20,000 is
the equivalent of P200 in the economy of the 1930 table of penalties. The court would then apply the
penalty provided by law for such reduced amount: 4 months and 1 day to 6 months. It would have been
that simple. TSacCH

It is pointed out that the Court's remedy in Corpuz's and similar cases lies in Article 5 of the Revised
Penal Code, the pertinent portion of which provides:

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such
statement as may be deemed proper, without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the imposition of clearly excessive penalty,
taking into consideration the degree of malice and injury caused by the offense. 55

But the above applies to a specific case before the court that tried it where, "taking into consideration
the degree of malice and injury caused by the offense," 56 the penalty to be imposed on the accused
appears to be excessive. This is best exemplified in a case where the trial court regarded as excessive the
lawful penalty it imposed on a father and his son who stole 10 tender coconut fruits from a plantation
solely for the family's consumption. 57

Here, however, the penalty has become excessive, not because of the unusual circumstances of Corpuz's
case but because the penalty has become grossly iniquitous through time, affecting not just Corpuz but
all those charged with crimes the penalties for which depend on the value of money or property
involved.
It is said that this decision would cause numerous difficulties one of which is that the Court does not
have the means for ascertaining the purchasing power of the peso at any given time.

But it has the means. The Philippine Statistical Authority (PSA), formerly the National Statistics Office is
the "highest policy making body on statistical matters." 58 It regularly gathers from the market place the
average prices of a basket of consumer items like rice, sugar, fish, meat, school supplies, and other
products. 59 The PSA then determines based on these the purchasing power of the peso in a given year
in relation to other years. "[O]nce the data generated by the PSA staff is approved and released by the
National Statistician, it is deemed official and controlling statistics of the government." 60 It is the PSA
that provided the official finding that the P1 in 1949 is the equivalent of about P100 in 2013. 61 This
information is used by government planners, international rating agencies, economists, researchers,
businessmen, academicians, and students. The rules allow the Court to take judicial notice of this fact.
62 ADHcTE

The OSG claims that there are many ways of determining the present value of money, not just through
its purchasing power as the PSA determines. This may be true but it is presumed that the legislature
intended the term "value" in reference to money based on how money is commonly understood, not on
how it might be understood by theoreticians or moralists. Everyone knows that the value of money of
any amount depends on what it can buy — its purchasing power. People do not earn and keep money
for its own sake.

Another concern is that if the Court adjusts the penalty to cope with inflation, such adjustments may
have unintended effects on other crimes where the penalties depend on the value of the damage
caused or the property unlawfully taken. Any adjustment of penalty in Corpuz would of course directly
affect most of these crimes. That is inevitable if justice is to be served in those other cases as well since
the same reasoning applies to them.

For instance, if a poor woman steals four small cans of corned beef from the supermarket worth P280,
which would be only P2.80 in 1932, she will be jailed for 4 years and 2 months maximum. If a poor
employee pockets P250 in government money entrusted to him, which would be only P2.50 in 1932, he
will be jailed for 10 years maximum. If one armed with a knife but commits no violence or intimidation
robs a public building by forcibly opening a window and stealing two brooms worth P300, which would
be only P3.00 in 1932, he will be jailed for a maximum of 20 years. The absurdity in the literal application
of the 1932 penalties equally applies to these crimes.

The uniform adjustment in the base amounts using the PSA formula of P1 to P100 will maintain uniform
levels of legislative indignation or outrage over the wrongs committed in these crimes. The harshness of
the incremental penalty of one year imprisonment for every P10,000.00 would be obviated since the
adjustment would make that one year imprisonment for every P1,000,000.00 illegally taken, which
would be quite reasonable already. For this reason, no distortion can ever result in the application of the
decision in similar cases.
To repeat, from this dissent's point of view, it is the amount of money or value of the thing defrauded,
taken, malversed, or damaged that undergoes adjustment or correction resulting from a realistic
appreciation of the facts of the case. The law is not amended or changed.

Finally, there is concern that if this dissent were to be adopted, the same would result in the lowering of
the penalties that courts have these past years been meting out for crimes involving property. It is
pointed out that the ruling fails to take into account its effect on the victims. HTcADC

But the dissent is not advocating the lowering of the penalties for those crimes; it merely seeks the
restoration of the correct penalties. The adjustments sought would merely compensate for inflation in
order to accomplice what the legislature intends regarding those crimes. The victims of crimes today are
not entitled to retributions that are harsher than what the law provides. They have no right to exact
more blood than the victims of yesterday.

For all the above reasons, I vote to AFFIRM Lito Corpuz's conviction with MODIFICATION of the
indeterminate penalty to 2 months of arresto mayor, as minimum, to 1 year and 8 months of prision
correccional, as maximum, entitling him to probation under the ruling laid down in Colinares v. People.
63

LEONEN, J., concurring and dissenting:

"Since we cannot change reality,

let us change the eyes which see reality."

Nikos Kazantzakis 1

I concur with the ponencia of Justice Diosdado M. Peralta in affirming the conviction of Lito Corpuz.
However, I dissent on the penalty imposed by the majority. I do not agree that it is judicial legislation for
us to reconsider the range of penalties created by Congress in 1932. The range of penalties for the crime
of estafa should be recomputed based on present value.

Our duty is to interpret the law. It is a duty reposed on us by the Constitution. We provide meaning to
law's language and make laws written in a different historical context relevant to present reality. 2

The meanings of the text of the law limited by the facts presented in the cases that come to us are not
arbitrarily determined. We arrive at such meanings as a collegial court aware that we should keep faith
in the spirit that the laws have been promulgated. Our ideal should be that we can reflect the political
consensus contained in the words approved by Congress and the President but always framed by the
fundamental principles and values of our Constitution. Political consensus is not independent of reality.
It is there to address that reality.

My sense of the law's spirit is that it is always motivated by what is relevant and what is just under the
circumstances. TEcHCA
Viewed in this way, I must dissent in the penalty imposed upon the accused. The pecuniary values that
provided the basis for the range of penalties for the crime of estafa (swindling) were the values in 1932.
It is clear that the gravity of a crime where someone was defrauded of fifty pesos (P50.00) of property in
1932 is not the same as the gravity of the same offense for property worth fifty pesos (P50.00) in 2014.
The purchasing power of the peso has significantly changed after eight decades, and it is time that we
interpret the law the way it should be: to reflect the relative range of values it had when it was
promulgated. In doing so, we are not rewriting the law, just construing what it actually means.

Of course, every interpretation we make on any provision of law occasioned by actual cases will have
their own share of difficulties when implemented. This is true when we declare law relied upon by many
as unconstitutional, or interpret the provisions of a tax code, or even when we clarify the requirements
prescribed by the General Accounting and Auditing Manual (GAAM). We have always, however,
proceeded with the right interpretation and dealt with the difficulties accordingly.

Definitely, an interpretation of a legal provision more beneficial to an accused or a person who is

convicted will have a retroactive effect. This should be because such interpretation is corrective in
nature. This should not present extremely debilitating difficulties, and we do not have to have special
rules. The convicted prisoner could simply file habeas corpus as a post-conviction remedy whenever he
or she would have served more than what would be required based on our new interpretations. It is also
possible for the Department of Justice's Bureau of Corrections and Parole and Probation Administration
to adopt its own guidelines on the release of prisoners. This difficulty is not insurmountable.

I disagree that it will be difficult to find the correct present value for the amounts involved. In Heirs of
the Spouses Tria v. Land Bank of the Philippines 3 and Secretary of the Department of Public Works and
Highways v. Spouses Tecson, 4 we identified the correct formula in our concurring and dissenting
opinions. The formula for present value is known and has been relied upon in the business community.
Inflation rates may be discovered using the latest statistics extrapolating for the years when there had
been no available values. I agree with the approach of Justice Roberto A. Abad in his dissenting opinion
in approximating the value already so that we do not need to get unnecessarily entangled in the niceties
of the science and art of determining inflation rates.

Even the inflation rate should not present an extraordinarily insurmountable problem even if it should
be computed from 1932. Inflation is only the change in price of the same index from one year to the
next. Price index is the "measure of the average level of prices," 5 while inflation is the "rise in the
general level of prices." 6 As long as there is a price index, inflation rate can be derived from comparing
one year's price index with another year's price index. AHSaTI

The most commonly used price index is the Consumer Price Index. The Philippines began recording the
Consumer Price Index in 1948, together with the creation of the Central Bank of the Philippines. 7

However, even before the creation of the Central Bank, the Philippines had been recording other price
indices that could be used to approximate inflation and give a more precise picture of the price level in
1930, the year the Revised Penal Code was approved. A sectoral price index can be used to substitute
the consumer price index. A dominant sector in the Philippines, agriculture, has a price index which pre-
dates World War I and covers the years 1902 until 1946. 8 Hence, even before the war, for as long as the
index compared with one from another is the same index, an inflation rate can be derived.

Law has never been a discipline too autonomous from the other disciplines. The points of view of those
that inhabit the world of economics and finance are not strange to lawyers. The eyes through which the
law views reality should not be too parochial and too narrow. Our understanding should instead be
open enough to allow us to see more by borrowing from other disciplines. Doing so enhances rather
than weakens judicial rigor.

I am not convinced that a ruling that will affect penalties in other crimes where the gravity is measured
in pesos will present difficulties too debilitating so as to amount to being unimplementable. I do not see
why courts of law cannot simply adopt the universally acceptable formula for present value.

An interpretative methodology for penalties is proposed because of the extraordinary lapse of time
from the date of promulgation of the law (1932) to the present. Definitely, we will not be recomputing
the penalties for all statutes. I am of the view that the approach for computing the penalties in this case
will only be applicable to statutes that have been promulgated and have not been amended for no less
than the past eight decades. The world was very different then. A world war intervened. Four different
Constitutions with their corresponding amendments were promulgated and took effect. There are now
more types of property than could have been imagined at that time.

I hesitate to agree with Justice Carpio's approach to declare the incremental penalties as
unconstitutional only because it violates the proscription against cruel and unusual punishments. The
approach creatively addresses the unjustness of the present situation but does not have the same
elegance of principle that is proposed in the dissent of Justice Abad. Both lead to pragmatic results, and I
think that between these two possibilities, we should lean on that which is more consistent with the
principle of reflecting the spirit of the law when it was promulgated. DcCHTa

A decision that re-computes penalties to account for present value should not be seen as a judgment of
the achievements of Congress. That this was not its priority is a matter that should not concern us.
Congress is an entirely separate and autonomous branch of government, and it would be violative of the
constitutional fiat of separation of powers for us to imply that updating penal statutes should have been
its priority.

Regardless, it is this actual case that confronts us. In my view, adjusting penalties to account for the
purchasing power of the peso is entirely within our power. It is not judicial legislation, it is merely
interpreting the word "peso" in these range of penalties. It is quintessentially a judicial activity to
interpret. We should not default on this duty. We cannot wait another century before a just outcome is
to be realized.

ACCORDINGLY, I vote to affirm the conviction of the accused. However, I vote that the penalty imposed
be two months of arresto mayor as minimum, to one year and eight months of prision correccional, as
maximum, in accordance with the computation proposed by Justice Roberto Abad in his dissenting
opinion. caDTSE
[G.R. Nos. L-32613-14. December 27, 1972.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON N. FERRER (in his capacity as Judge of the
Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S.
TAYAG alias Romy Reyes alias "Taba," respondents.

Solicitor General Felix Q. Antonio for petitioner.

Amelito R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

DECISION

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:

"That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously
became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and
illegal organization aimed to overthrow the Government of the Philippines by means of force, violence,
deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a
totalitarian regime and placing the government under the control and domination of an alien power, by
being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's
Army, the military arm of the said Communist Party of the Philippines.

"That in the commission of the above offense, the following aggravating circumstances are present, to
wit:

"(a) That the crime has been committed in contempt of or with insult to public authorities;

"(b) That the crime was committed by a band; and

"(c) With the aid of armed men or persons who insure or afford impunity."
Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.

Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, charging 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 officers and/or
ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act
No. 1700; that BENJAMIN BIE alias COMMANDER MELODY, in addition thereto, knowingly, willfully and
by overt 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 establish 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 denies 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 overbroad,
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 post facto law shall be
enacted." 2 A 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 stigmatize a 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 CPP 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" is used 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 specifies 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, lends
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. 731 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 set forth 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 has found, and the Court of Appeals has sustained its conclusion, that the
Communist Party, by virtue of the activities in which it now engages, comes within the terms of the Act.
If the Party should at any time choose to abandon these activities, after it is once registered pursuant to
sec. 7, the Act provides adequate means of relief. (367 US, at 137, 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 organizational guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that that is precisely the
nature of conspiracy, which has been referred to as a "dragnet 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 requires 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 engaged in subversive activities, 23
or which made it a crime for a member of the Communist Party to serve as an officer or employee of a
labor union, 24 have been invalidated as bills of attainder.

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be

"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to
make such determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every
secret, oath-bound society with a membership of at least twenty to register, and punishing any person
who joined or remained a member of such a society failing to register. While the statute did not specify
the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against
the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound
organizations like masonic societies and the Knights of Columbus, the United States Supreme Court
relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said:

"The courts below recognized the principle shown in the cases just cited and reached the conclusion
that the classification was justified by a difference between the two classes of associations shown by
experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make
the secrecy surrounding its purposes 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 gears. 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
membership 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 members 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."

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 facto features. This is the historic explanation for uniting the two
mischiefs in one clause — 'No Bill of Attainder or ex post facto law shall be passed.' . . . Therefore, if [a
statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons
that establish that it is not are persuasive that it cannot be a bill of attainder." 31

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter
of the City of Los Angeles which provided:

". . . [N]o person shall hold or retain or be eligible for any public office or employment in the service of
the City of Los Angeles, in any office or department thereof, either elective or appointive, who has
within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may,
after this section becomes effective, become a member of or affiliated with any group, society,
association, organization or party which advises, advocates or teaches or has within said period of five
(5) years advised, advocated, or taught the overthrow by force or violence of the Government of the
United States of America or of the State of California."

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner
therein, thus:

". . . Immaterial here is any opinion we might have as to the charter provision insofar as it purported to
apply restrospectively for a five-year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars from the city's public service
persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of
the Government or who are or become affiliated with any group doing so. The provisions operating thus
prospectively were a reasonable regulation to protect the municipal service by establishing an
employment qualification of loyalty to the State and the United States.

". . . Unlike the provisions of the charter and ordinance under which petitioners were removed, the
statute in the Lovett case did not declare general and prospectively operative standards of qualification
and eligibility for public employment. Rather, by its terms it prohibited any further payment of
compensation to named individuals or employees. Under these circumstances, viewed against the
legislative background, the statute was held to have imposed penalties without judicial trial."

Indeed, if one objection to the bill of attainder is that Congress thereby assumes judicial magistracy,
then it must be demonstrated that the statute claimed to be a bill of attainder reaches past conduct and
that the penalties it imposes are inescapable. As the U.S. Supreme Court observed with respect to the
U.S. Federal Subversive Activities Control Act of 1950:

"Nor is the statute made an act of 'outlawry' or of attainder by the fact that the conduct which it
regulates is described with such particularity that, in probability, few organizations will come within the
statutory terms. Legislatures may act to curb behaviour which they regard as harmful to the public
welfare, whether that conduct is found to be engaged in by many persons or by one. So long as the
incidence of legislation is such that the persons who engage in the regulated conduct, be they many or
few, can escape regulation merely by altering the course of their own present activities, there can be no
complaint of an attainder." 33

This statement, mutatis mutandis, be said of the Anti-Subversion Act. Section 4 thereof expressly states
that 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 the Philippines and/or its successors or of any subversive association" after June 20,
1957, are punished. Those who were members of the Party or of any other subversive association at the
time of the enactment of the law, were given the opportunity of purging themselves of liability by
renouncing in writing and under oath their membership in the Party. The law expressly provides that
such renunciation shall operate to exempt such persons from penal liability. 34 The penalties prescribed
by the Act are therefore not inescapable.

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of
the Philippines is an organized conspiracy for the overthrow of the Government is intended not to
provide the basis for a legislative finding of guilt of the members of the Party but rather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of association are so
fundamental that they are thought by some to occupy a "preferred position" in the hierarchy of
constitutional values. 35 Accordingly, any limitation on their exercise must be justified by the existence
of a substantive evil. This is the reason why before enacting the statute in question Congress conducted
careful investigations and then stated its findings in the preamble, thus:

". . . [T]he Communist Party of the Philippines although purportedly a political party, is in fact an
organized conspiracy to overthrow the Government of the Republic of the Philippines not only by force
and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in
the Philippines a totalitarian regime subject to alien domination and control;

". . . [T]he continued existence and activities of the Communist Party of the Philippines constitutes a
clear, present and grave danger to the security of the Philippines;

. . . [I]n the face of the organized, systematic and persistent subversion, 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 with this continuing menace to the freedom and security of
the country."

In truth, the constitutionality of the Act would be open to question if, instead of making these findings in
enacting the statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial court failed to take
proper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund
elucidates the crucial distinction, thus:

". . . A law forbidding the sale of beverages containing more than 3.2 per cent of alcohol would raise a
question of legislative fact, i.e., whether this standard has a reasonable relation to public health, morals,
and the enforcement problem. A law forbidding the sale of intoxicating beverages (assuming it is not so
vague as to require supplementation by rule-making) would raise a question of adjudicative fact, i.e.,
whether this or that beverage is intoxicating within the meaning of the statute and the limits on
governmental action imposed by the Constitution. Of course what we mean by fact in each case is itself
an ultimate conclusion founded on underlying facts and on criteria 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 rational basis for believing that
they exist, while adjudicative facts — those which tie the legislative enactment to the litigant — are to
be demonstrated and found according to the ordinary standards prevailing for judicial trials." 36

The test formulated in Nebbia vs. New York, 37 and adopted 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 findings in the U.S. Federal Subversive Activities
Control Act of 1950 (that "Communist-action organizations" are controlled by the foreign government
controlling the world Communist 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 these legislative findings and reject them . . . They
are the product of extensive investigation by Committees of Congress over more than a decade and a
half. Cf. Nebbia v. New York, 291 U. S. 502, 516, 530. We certainly cannot dismiss them as unfounded
irrational imaginings . . . And if we accept them, as we must, as a not unentertainable appraisal by
Congress of the threat which Communist organizations pose not only to existing government in the
United States, but to the United States as a Sovereign, independent Nation . . . we must recognize that
the power of Congress to regulate Communist organizations of this nature is extensive." 39

This statement, mutatis mutandis, may be said of the legislative findings articulated in the Anti-
Subversion Act.

That the Government has a right to protect itself against subversion is a proposition too plain to require
elaboration. Self-preservation is the "ultimate value" of society. It surpasses and transcends every other
value, "for if a society cannot protect its very structure from armed internal 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 argument that there is a 'right' to rebellion against
dictatorial governments is without force where the existing structure of government provides for
peaceful and orderly change. We reject any principle of governmental helplessness in the face of
preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No
one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow
the government by force and violence."

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in section 4
thereof), Congress reaffirmed its respect for the rule that "even though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing
membership, as distinguished from nominal membership, has been held as a sufficient basis for
penalizing membership in a subversive organization. 43 For, as has been stated:
"Membership in an organization renders aid and encouragement to the organization; and when
membership is accepted or retained with knowledge that the organization is engaged in an unlawful
purpose, the one accepting or retaining membership with such knowledge makes himself a party to the
unlawful enterprise in which it is engaged." 44

3. The argument that the Act is unconstitutionally overbroad 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 definitions of and the penalties prescribed for the different acts prescribed
are stated in section 4 which requires that membership in 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 that the overthrow contemplated is "overthrow not only by force and violence but also by
deceit, subversion and other illegal means." The absence of this qualification in section 2 appears to be
due more to an oversight rather than to deliberate omission.

Moreover, the word "overthrow" sufficiently connotes the use of violent and other illegal means. Only in
a metaphorical sense may one speak of peaceful overthrow of governments, and certainly the law does
not speak in metaphors. In the case of the Anti-Subversion Act, the use of the word "overthrow" in a
metaphorical sense is hardly consistent with the clearly delineated objective of the "overthrow,"
namely, "establishing in the Philippines a totalitarian regime and place [sic] the Government under the
control and domination of an alien power." What this Court once said in a prosecution for sedition is
apropos: "The language used by the appellant clearly imported an overthrow of the Government by
violence, and it should be interpreted in the plain and obvious sense in which it was evidently intended
to be understood. The word 'overthrow' could not have been intended as referring to an ordinary
change by the exercise of the elective franchise. The use of the whip [which the accused exhorted his
audience to use against the Constabulary], an instrument designed to leave marks on the sides of
adversaries, is inconsistent with the mild interpretation which the appellant would have us impute to
the language." 45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force,
violence or other illegal means. Whatever interest in freedom of speech and freedom of association is
infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is
so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations
of national security and the preservation of democratic institutions in this country.

The membership clause of the U.S. Federal Smith Act is similar in many respects to the membership
provision of the Anti-Subversion Act. The former provides:

"Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who
teach, advocate, or encourage the overthrow or destruction of any such government by force or
violence; or becomes or is a member of, or affiliated with, any such society, group or assembly of
persons, knowing the purpose thereof —
"Shall be fined not more than $20,000 or imprisoned not more than twenty years, or both, and shall be
ineligible for employment by the United States or any department or agency thereof, 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 are here concerned is not constitutionally
protected speech, and it was further established that a combination to promote such advocacy, albeit
under the aegis of what purports to be a political party, is not such association as is protected by the
first Amendment. We can discern no reason why membership, when it constitutes a purposeful form of
complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of
protection from the guarantees of that Amendment."

Moreover, as was held in another case, where the problems of accommodating the exigencies of self-
preservation and the values of liberty are as complex and intricate as in the situation described in the
legislative findings stated in the U.S. Federal Subversive Activities Control Act of 1950, the legislative
judgment as to how that threat may best be met consistently with the safeguards of personal freedoms
is not to be set aside merely because the judgment of judges would, in the first instance, have chosen
other methods. 48 For in truth, legislation, "whether it restrains freedom to hire or freedom to speak, is
itself an effort at compromise between the claims of the social order and individual freedom, and when
the legislative compromise in either case is brought to the judicial test the court stands one step
removed from the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional command that "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 the title of the Act is the last proviso of section 4
which reads:

"And provided, finally, That one who conspires with any other person to overthrow the Government of
the Republic of the Philippines, or the government of any of its political subdivisions by force, violence,
deceit, subversion or illegal means, for the purpose of placing such Government or political subdivision
under the control and domination of any lien power, shall be punished by prision correccional to prision
mayor with all the accessory penalties provided therefor in the same code."

It is argued that the said proviso, in reality, punishes not only membership in the Communist Party of
the Philippines or similar associations, but as well "any conspiracy by two persons to overthrow the
national or any local government by illegal means, even if their intent is not to establish a totalitarian
regime, but a democratic regime, even if their purpose is not to place the nation under an alien
communist power, but under an alien democratic power like the United States or England or Malaysia or
even an anti-communist power like Spain, Japan, Thailand or Taiwan or Indonesia."
The Act, in addition to its main title ("An Act to Outlaw the Communist Party of the Philippines and
Similar Associations, Penalizing Membership Therein, and for Other Purposes"), has a short title. Section
1 provides that "This Act shall be known as the Anti-Subversion Act." Together with the main title, the
short title of the statute unequivocally indicates that the subject-matter is subversion in general which
has for its fundamental purpose the substitution of a foreign totalitarian regime in place of the existing
Government and not merely subversion by Communist conspiracies.

The title of a bill need not be a catalogue or an index of its contents, and need not recite the details of
the Act. 51 It is a valid title if it indicates in broad but clear terms the nature, scope, and consequences
of the proposed law and its operation. 52 A narrow or technical construction is to be avoided, and the
statute will be read fairly and reasonably in order not to thwart the legislative intent. We hold that the
Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of the Anti-Subversion Act, we cannot overemphasize the
need for prudence and circumspection in its enforcement, operating as it does in the sensitive area of
freedom of expression and belief. Accordingly, we set the following basic guidelines to be observed in
any prosecution under the Act. The Government, in addition to proving such circumstances as may
affect liability, must establish the following elements of the crime of joining the Communist Party of the
Philippines or any other subversive association:

(1) In the case of subversive organizations other than the Communist Party of the Philippines, (a)
that the purpose of the organization is to overthrow the present Government of the Philippines and to
establish in this country a totalitarian regime under the domination of a foreign power; (b) that the
accused joined such organization; and (c) that he did so knowingly, willfully and by overt acts; and(2) In
the case of the Communist Party of the Philippines, (a) that the CPP continues to pursue the objectives
which led Congress in 1957 to declare it to be an organized conspiracy for the overthrow of the
Government by illegal means for the purpose of placing the country under the control of a foreign
power; (b) that the accused joined the CPP; and (c) that he did so willfully, knowingly and by overt acts.

We refrain from making any pronouncement as to the crime of remaining a member of the Communist
Party of the Philippines or of any other subversive association; we leave this matter to future
determination.

ACCORDINGLY, the questioned resolution of September 15, 1970 is set aside, and these two cases are
hereby remanded 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.

Fernando, J., dissents in a separate opinion.

Makasiar, J., took no part.

Antonio, J., did not take part.

Separate Opinions

FERNANDO, J., dissenting:

It is with regret that I find myself unable to join the rest of my brethren in the decision reached
upholding the validity of the Anti-Subversion Act. 1 It is to be admitted that the learned and scholarly
opinion of Justice Castro has the impress of conscientious and painstaking scrutiny of the constitutional
issues raised. What is more, the stress in the concluding portion thereof on basic guidelines that will
assure in the trial of those prosecuted under such Act respect for their constitutional rights is to be
commended. Nonetheless, my own reading of the decisions cited, interpreting the bill of attainder
clause 2 coupled with the fears, perhaps induced by a too-latitudinarian construction of the guarantees
of freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroads to
which they may be exposed, compels a different conclusion. Hence this dissent.

1. There is to be sure no thought on my part that the equally pressing concern of state safety and
security should be ignored. The political branches of the government would lay themselves open to a
justifiable indictment for negligence had they been remiss in their obligation to safeguard the nation
against its sworn enemies. In a simpler era, where the overthrow of the government was usually
through the rising up in arms, with weapons far less sophisticated than those now in existence, there
was no constitutional issue of the magnitude that now confronts us. Force has to be met with force. It
was as clear-cut as that. Advances in science as well as more subtle methods of inducing disloyalty and
weakening the sense of allegiance have introduced complexities in coping with such problems. There
must be then, and I am the first to recognize it, a greater understanding for the governmental response
to situations of that character. It is in that light that the validity of the Anti-Subversion Act is to be
appraised. From my standpoint, and I am not presumptuous enough to claim that it is the only
perspective or that is the most realistic, I feel that there was an insufficient appreciation of the
compulsion of the constitutional commands against bills of attainder and abridgment of free speech. I
am comforted by the thought that even had my view prevailed, all that it would mean is that a new
legislation, more in conformity to my way of thinking to what is ordained by the fundamental law, would
have to be enacted. No valid fear need be entertained then that a setback would be occasioned to
legitimate state efforts to stem the tide of subversive activities, in whatever form manifested.

2. The starting point in any inquiry as to the significance of the bill of attainder clause is the
meaning attached to 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 November 19, 1934 as
Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A bill of attainder is
a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4 Wall. 277,
18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried,
convicted and sentenced to death without a jury, without a hearing in court, without hearing the
witnesses against him and without regard to the rules of evidence. His blood was tainted or corrupted,
rendering him devoid of all heritable quality — of acquiring and disposing property by descent. (Ex parte
Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act was known as a
'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuart
oppression. Once, the name of Thomas Jefferson was included in a bill of attainder presented to
Parliament because of his reform activities." 5 Two American Supreme Court decisions 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 what their form, that apply either to named individuals or
easily ascertainable members of a group in such a way as to inflict on them punishment amounting to a
deprivation of any right, civil or political, without judicial trial are bills of attainder prohibited by the
Constitution. 8

Cummings v. Missouri 9 was a criminal prosecution of a Catholic priest for refusing to take the loyalty
oath required by the state Constitution of Missouri of 1865. Under such a provision, lawyers, doctors,
ministers, and other professionals must disavow that they had ever, "by act or word," manifested a
"desire" for the success of the nation's enemies or a sympathy" with the rebels of the American Civil
War. If they swore falsely, they were guilty of perjury. If they engaged in their professions without the
oath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of
attainder, identified as any legislative act inflicting punishment without judicial trial. The deprivation of
any right, civil or political, previously enjoyed, amounted to a punishment. Why such a conclusion was
unavoidable was explained in the opinion of Justice Field thus: "A bill of attainder is a legislative act,
which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed
a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of
pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises
the powers and office of judge; it assumes, in the language of the textbooks, judicial magistracy; it
pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the
sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it
fixes the degree of punishment in accordance with its own notions of the enormity of the offense . . . If
the clauses of the 2d article of the Constitution of Missouri, to which we have referred, had in terms
declared that Mr. Cummings was guilty, or should be held guilty, of having been in armed hostility to the
United States, or of having entered that state to avoid being enrolled or drafted into the military service
of the United States, and, therefore, should be deprived of the right to preach as a priest of the Catholic
church, or to teach in any institution of learning, there could be no question that the clauses would
constitute a bill of attainder within the meaning of the Federal Constitution. If these clauses, instead of
mentioning his name, had declared that all priests and clergymen within the state of Missouri were
guilty of these acts, or should be held guilty of them, and hence be subjected to the like deprivation, the
clauses would be equally open to objection. And further, if these clauses had declared that all such
priests and clergymen should be so held guilty, and be thus deprived, provided they did not, by a day
designated, do certain specified acts, they would be no less within the inhibition of the Federal
Constitution. In all these cases there would be the legislative enactment creating the deprivation,
without any of the ordinary forms and guards provided for the security of the citizen in the
administration of justice by the established tribunals." 10
On the very same day that the ruling in Cummings was handed down, Ex parte Garland 11 was also
decided. That was a motion for leave to practice as an attorney before the American Supreme Court.
Petitioner Garland was admitted to such bar at the December term of 1860. Under the previous rules of
such Court, all that was necessary was that the applicant have three years practice in the state courts to
which he belonged. In March 1865, the rule was changed by the addition of a clause requiring that an
oath be taken under the Congressional acts of 1862 and 1865 to the effect that such candidate for
admission to the bar had never voluntarily borne arms against the United States. Petitioner Garland
could not in conscience subscribe to such an oath, but he was able to show a presidential pardon
extended on July 15, 1865. With such act of clemency, he moved that he be allowed to continue in
practice contending that the test oath requirement was unconstitutional as a bill of attainder and that at
any rate, he was pardoned. The same ruling was announced by the Court again through Justice Field.
Thus: "In the exclusion which the statute adjudges, it imposes a punishment for some of the acts
specified which were not punishable at the time they were committed; and for other of the acts it adds
a new punishment to that before prescribed, and it is thus brought within the further inhibition of the
Constitution against the passage of an ex post facto law. In the case of Cummings v. Missouri, just
decided, . . . we have had occasion to consider at length the meaning of a bill of attainder and of an ex
post facto law in the clause of 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
against enactments of this kind by Congress; and the argument presented in that case against certain
clauses of the Constitution of Missouri is equally applicable to the act of Congress under consideration in
this case." 12

There was a reiteration of the Cummings and Garland doctrine 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 years working for the government. The government agencies, which had lawfully employed
them, were fully satisfied with the quality of their work and wished to keep them employed on their
jobs. Over their protest, Congress provided in Section 304 of the Urgent Deficiency Appropriation Act of
1943, by way of an amendment attached to the House Bill, that after November 15, 1943, no salary or
compensation should be paid respondent out of any money then or thereafter appropriated except for
services as jurors or members of the armed forces, unless they were prior to November 15, 1943, again
appointed to jobs by the President with the advice and consent of the Senate. Notwithstanding such
Congressional enactment, and the failure of the President to reappoint the respondents, the agencies
kept all the respondents at work on their jobs for varying periods after November 15, 1943, but their
compensation was discontinued after that date. Respondents brought this action in the Court of Claims
for the salaries to which they felt entitled. The American Supreme Court stated that its inquiry was thus
confined to whether the action in the light of proper construction of the Act presented a justiciable
controversy, and, if so, whether Section 304 is a bill of attainder insofar as the respondents were
concerned.

After holding that there was a justiciable view, the American Supreme Court in an opinion by Justice
Black categorically affirmed: "We hold that Section 304 falls precisely within the category of
Congressional actions which the Constitution barred by providing that 'No Bill of Attainder or ex post
facto Law shall be passed.' In Cummings v. State of Missouri, . . . this Court said, 'A bill of attainder is a
legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the
act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder
include bills of pains and penalties.' . . . On the same day the Cummings case was decided, the Court, in
Ex parte Garland, also held invalid on the same grounds an Act of Congress which required attorneys
practicing before this Court to take a similar oath. Neither of these cases has ever been overruled. They
stand for the proposition that legislative acts, no matter what their form, that apply 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 are bills of attainder prohibited by the Constitution. Adherence to this principle
requires invalidation of Section 304. We do adhere to it." 14

United States v. Brown 15 a 1965 decision was the first case to review a conviction under the Labor-
Management Reporting and Disclosure Act of 1959, making it a crime for a member of the Communist
Party to serve as an officer or, except in clerical or custodial positions, an employee of a labor union.
Respondent Brown, a longshoreman on the San Francisco docks, and an open and avowed Communist,
for more than a quarter of a century was elected to the Executive Board of Local 10 of the International
Longshoremen's and Warehousemen's Union for consecutive one-year terms in 1959, 1960, and 1961.
On May 24, 1961, respondent was charged in a one-count indictment returned in a district court of
California with serving as a member of an executive board of a labor organization while a member of the
Communist Party, in willful violation of the above provision. The question of its validity under the bill of
attainder clause was thus properly raised for adjudication. While convicted in the lower court, the Court
of Appeals for the Ninth Circuit reversed. It was sustained by the American Supreme Court. As noted in
the opinion by Chief Justice Warren, "the wide variation in form, purpose and effect of ante-Constitution
bills of attainder indicates that the proper scope of the Bill of Attainder Clause, and its relevance to
contemporary problems, must ultimately be sought by attempting to discern the reasons for its
inclusion in the Constitution, and the evils it was designed to eliminate. The best available evidence, the
writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was
intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an
implementation of the separation of powers, a general safeguard against legislative exercise of the
judicial function, or more simply — trial by legislature." 16 Then after referring to Cummings, Garland,
and Lovett, Chief Justice Warren continued: "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 such positions to bring about political strikes. In
Sec. 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 leave 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." 17
Even Communist Party v. Subversive Activities Control Board, 18 where the provision of the Subversive
Activities Control Act of 1950 requiring the Communist Party of the United States to register was
sustained, the opinion of Justice Frankfurter for the Court, speaking for a five-man majority, did indicate
adherence to the Cummings principle. 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 not to specified
organizations but to described activities in which an organization may or may not engage. The singling
out of an individual for legislatively prescribed punishment constitutes an attainder whether the
individual is called by name or described in terms of conduct which, because it is past conduct, operates
only as a designation of particular persons . . . The Subversive Activities Control Act is not of that kind. It
requires the registration only of organizations which, after the date of the Act, are found to be under the
direction, domination, or control of certain foreign powers and to operate primarily to advance certain
objectives. This finding must be made after full administrative hearing, subject to judicial review which
opens the record for the reviewing court's determination whether the administrative findings as to fact
are supported by the preponderance of the evidence. Present activity constitutes an operative element
to which the statute attaches legal consequences, not merely a point of reference for the ascertainment
of particular persons ineluctably designated by the legislature." 19

The teaching of the above cases, which I find highly persuasive considering what appeared to be in the
minds of the framers of the 1934 Constitutional Convention yields for me the conclusion that the Anti-
Subversion Act falls within the ban of the bill of attainder clause. It should be noted that three
subsequent cases upholding the Cummings and Garland doctrine were likewise cited in the opinion of
the Court. The interpretation accorded to them by my brethren is, of course, different but I am unable
to go along with them especially in the light of the categorical language appearing in Lovett. This is not
to lose sight of the qualification that for them could deprive such a holding of its explicit character as
shown by this excerpt from the opinion of the Court: "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 conviction and punishment. But the 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 objective i.e., to overthrow the existing Government by force,
deceit, and other illegal means and place it under the control and domination of a foreign power. 20
While not implausible, I find difficulty in yielding acceptance. In Cummings, there was a criminal
prosecution of the Catholic priest who refused to take the loyalty oath. Again in Brown, there was an
indictment of the labor leader who, judging by his membership in the Communist Party, did transgress
the statutory provision subsequently found offensive to the bill of attainder clause. If the construction I
would place on the oft-repeated pronouncement of the American Supreme Court is correct, then the
mere fact that a criminal case would have to be instituted would not save the statute. It does seem clear
to me that from the 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 taint of invalidity is
quite marked. Hence, my inability to concur in the judgment reached as the statute not suffering from
any fatal infirmity in view of the Constitutional prohibition against bills of attainder.
3. This brings me to the question of the alleged repugnancy of the Anti-Subversion Act to the
intellectual liberty safeguarded by the Constitution in terms of the free speech and free association
guarantees. 21 It is to be admitted that at the time of the enactment of Republic Act No. 1700, the
threat that Communism, the Russian brand then, did pose was a painful reality for Congressional leaders
and the then President. Its shadow fell squarely across the lives of all. Subversion then could neither be
denied nor disparaged. There was, in the expert opinion of those conversant with such matters, a
danger to our national existence of no mean character. Nonetheless, the remedies to ward off such
menace must not be repugnant to our Constitution. We are legally precluded from acting in any other
way. The apprehension justly felt is no warrant for throwing to the discard fundamental guarantees.
Vigilant we 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,
even object; one can express dissatisfaction with things as they are. There are times when one not only
can but must. Such dissent can take the form of the most critical and the most disparaging remarks.
They may give offense to those in authority, to those who wield power and influence. Nevertheless, they
are entitled to constitutional protection. Insofar as the content of such dissent is concerned, the limits
are hardly discernible. It cannot be confined to trivial matters or to such as are devoid of too much
significance. It can reach the heart of things. Such dissent may, for those not so adventurous in the
realm of ideas, possess a subversive tinge. Even those who oppose a democratic form of government
cannot be silenced. This is true especially in centers of learning where scholars competent in their line
may, as a result of their studies, assert that a future is bleak for the system of government now favored
by Western democracies. There may be doubts entertained by some as to the lawfulness of their
exercising this right to dissent to the point of advocacy of such a drastic change. Any citizen may do so
without fear that thereby he incurs the risk of a penal sanction. That is merely to affirm the truth of this
ringing declaration from Jefferson: "If there be any among us who would wish to dissolve this union or
to change its republican form, let them stand undisturbed as monuments of the safety with which error
of opinion may be tolerated where reason is left free to combat it." 22 As was so well put by the
philosopher, Sidney Hook: "Without holding the right to the expression of heresy at any time and place
to be absolute — for even the right to non-heretical speech cannot be absolute — it still seems wise to
tolerate the expression even of Communist, fascist and other heresies, lest in outlawing them we
include other kinds of heresies, and deprive ourselves of the opportunity to acquire possibly sounder
ideas than our own." 23

The line is to be drawn, however, where the words amount to an incitement to commit the crime of
sedition or rebellion. The stage has been reached, to follow the formulation of Cardozo, where thought
merges into action. Thus is loyalty shown to the freedom of speech or press ordained by the
Constitution. It does not bar the expression of views affecting the very life of the state, even if opposed
to its fundamental presuppositions. It allows, if it does not require as a matter of fact, that unorthodox
ideas be freely ventilated and fully heard. Dissent is not disloyalty.

Such an approach is reinforced by the well-settled constitutional principle "that even though the
governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. For precision of
regulation is the touchstone in an area so 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 not be achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms." 25 It is indispensable then that "an overbreadth" in the applicability of the statute
be avoided. If such be the case, then the line dividing the valid from the constitutionally infirm has been
crossed. That for me is the conclusion to be drawn from the wording of the Anti-Subversion Act.

There is to my mind support for the stand I take in the dissent of Justice Black in the Communist Party
case discussed above. What is to be kept in view is that a legislative measure certainly less drastic in its
treatment of the admittedly serious Communist problem was found in the opinion of this noted jurist
offensive to the First Amendment of the American Constitution safeguarding free speech. Thus: "If there
is one thing certain about the First Amendment it is that this Amendment was designed to guarantee
the freest interchange of ideas about all public matters and that, of course, means the interchange of all
ideas, however such ideas may be viewed in other countries and whatever change in the existing
structure of government it may be hoped that these ideas will bring about. Now, when this country is
trying to spread the high ideals of democracy all over the world — ideals that are revolutionary in many
countries — seems to be a particularly inappropriate time to stifle First Amendment freedoms in this
country. The same arguments that are used to justify the outlawry of Communist ideas here could be
used to justify an outlawry of the ideas of democracy in other countries." 26 Further he stated: "I believe
with the Framers of the First Amendment that the internal security of a nation like ours does not and
cannot be made to depend upon the use of force by Government to make all the beliefs and opinions of
the people fit into a common mold on any single subject. Such enforced conformity of thought would
tend only to deprive our people of the bold spirit of adventure and progress which has brought this
Nation to its present greatness. The creation of public opinion by groups, organizations, societies, clubs,
and parties has been and is a necessary part of our democratic society. Such groups, like the Sons of
Liberty and the American Corresponding Societies, played a large part in creating sentiment in this
country that led the people of the Colonies to want a nation of their own. The Father of the Constitution
— James Madison — said, in speaking of the Sedition Act aimed at crushing the Jefferson Party, that had
that law been in effect during the period before the Revolution, the United States might well have
continued to be 'miserable colonies, groaning under a foreign yoke.' In my judgment, this country's
internal security can better be served by depending upon the affection of the people than by attempting
to instill them with fear and dread of the power of Government. The Communist Party has never been
more than a small group in this country. And its numbers had been dwindling even before the
Government began its campaign to destroy the Party by force of law. This was because a vast majority of
the American people were against the Party's policies and overwhelmingly rejected its candidates year
after year. That is the true American way of securing this Nation against dangerous ideas. Of course that
is not the way to protect the Nation against actions of violence and treason. The Founders drew a
distinction in our Constitution which we would be wise to follow. They gave the Government the fullest
power to prosecute overt actions in violation of valid laws but withheld any power to punish people for
nothing more than advocacy of their views." 27
With the sentiments thus expressed uppermost in my mind and congenial to my way of thinking, I
cannot share the conclusion reached by my brethren as to the Anti-Subversion Act successfully meeting
the test of validity on free speech and freedom of association grounds.

4. It could be that this approach to the constitutional questions involved arises from an appraisal
of the challenged statute which for me is susceptible of an interpretation that it does represent a
defeatist attitude on the part of those of us, who are devotees at the shrine of a liberal-democratic
state. That certainly could not have been the thought of its framers; nonetheless, such an assumption is
not devoid of plausibility for why resort to this extreme measure susceptible as it is to what apparently
are not unfounded attacks on constitutional grounds? Is this not to ignore what previously was accepted
as an obvious truth, namely that the light of liberalism sends its shafts in many directions? It can
illuminate, and it can win the hearts and minds of men. It is difficult for me to accept the view then that
a resort to outlawry is indispensable, that suppression is the only answer to what is an admitted evil.
There could have been a greater exposure of the undesirability of the communist creed, its
contradictions and arbitrariness, its lack of fealty to reason, its inculcation of disloyalty, and its
subservience to centralized dictation that brooks no opposition. It is thus, in a realistic sense, a
manifestation of the fear of free thought and the will to suppress it. Far better, of course, is the
propaganda of the deed. What the communists promise, this government can fulfill. It is up to it then to
take remedial measures to alleviate the condition of our countrymen whose lives are in a condition of
destitution and misery. 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 economic pyramid is that they
are not denied the opportunity for a better life. If they, or at least their children, cannot even look
forward to that, then a constitutional regime is nothing but 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 ranks and outposts of ignorance, fanaticism and error. That for me would be more in
accordance with the basic proposition of our polity. This is not therefore to preach a doctrine of abject
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.
[G.R. No. 18208. February 14, 1922.]

THE UNITED STATES, plaintiff-appellee, vs. VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE,
defendants-appellants.

Araneta & Zaragoza for appellants.

Attorney-General Villareal for appellee.

SYLLABUS

1. CRIMINAL LAW; USURY; CONTRACT, LAWS VIOLATING TERMS OF. — The law is well established
that when a contract contains an obligation to pay interest, the interest thereby becomes part of the
principal and is included within the promise to pay. The obligation to pay interest on money due under a
contract is a part of the obligation of the contract. Laws adopted after the execution of a-contract,
changing or altering the rate of interest, cannot be made to apply to such contract without violating the
provisions of the constitution which prohibit the adoption of a law "impairing the obligation of
contract." The obligation of the contract is the law which binds the parties to perform their agreement if
it is not contrary to the law of the land, morals or public order. That law must govern and control the
contract in every aspect in which it is intended to bear upon it, whether it affect its validity, its
construction or discharge. Any law which enlarges, abridges or in any manner changes the intention of
the parties, necessarily impairs the contract itself. It is an elementary rule of contracts that the laws in
force at the time it was made must govern its interpretation and application. Laws must be construed
prospectively and not retrospectively. If a contract is legal in its inception, it cannot be rendered illegal
by any subsequent legislation. Ex post facto laws, unless they are favorable to the defendant, are
prohibited in this jurisdiction.

DECISION

JOHNSON, J p:

It appears from the record that on the 6th day of May, 1921, a complaint was presented in the Court of
First Instance of the city of Manila, charging the defendants with a violation of the Usury Law (Act No.
2655). Upon said complaint they were each arrested, arraigned, and pleaded not guilty. The cause was
finally brought on for trial on the 1st day of September, 1921. At the close of the trial, and after a
consideration of the evidence adduced, the Honorable M. V. del Rosario, judge, found that the
defendants were guilty of the crime charged in the complaint and sentenced each of them to pay a fine
of P120 and, in case of insolvency, to suffer subsidiary imprisonment in accordance with the provisions
of the law. From that sentence each of the defendants appealed to this court.

The appellants now contend: (a) That the contract upon which the alleged usurious interest was
collected was executed before Act No. 2655 was adopted; (b) that at the time said contract was made
(December 30, 1915), there was no usury law in force in the Philippine Islands; (c) that said Act No. 2655
did not become effective until the 1st day of May, 1916, or four months and a half after the contract in
question was executed; (d) that said law could have no retroactive effect or operation, and (e) that said
law impairs the obligation of a contract, and that for all of said reasons the judgment imposed by the
lower court should be revoked; that the complaint should be dismissed, and that they should each be
discharged from the custody of the law.

The essential facts constituting the basis of the criminal action are not in dispute, and may be stated as
follows: (1) That on the 30th day of December, 1915, the alleged offended persons Bartolome Oliveros
and Engracia Lianco executed and delivered to the defendants a contract (Exhibit B) evidencing the fact
that the former had borrowed from the latter the sum of P300, and (2) that, by virtue of the terms of
said contract, the said Bartolome Oliveros and Engracia Lianco obligated themselves to pay to the
defendants interest at the rate of five per cent (5%) per month, payable within the first ten days of each
and every month, the first payment to be made on the 10th day of January, 1916. There were other
terms in the contract which, however, are not important for the decision in the present case.

The lower court, in the course of its opinion, stated that at the time of the execution and delivery of said
contract (Exhibit B), there was no law in force in the Philippine Islands punishing usury; but, inasmuch as
the defendants had collected a usurious rate of interest after the adoption of the Usury Law in the
Philippine Islands (Act No. 2655), they were guilty of a violation of that law and should be punished in
accordance with its provisions.

The law, we think, is well established that when a contract contains an obligation to pay interest upon
the principal, the interest thereby becomes part of the principal and is included within the promise to
pay. In other words, the obligation to pay interest on money due under a contract, be it express or
implied, is a part of the obligation of the contract. Laws adopted after the execution of a contract,
changing or altering the rate of interest, cannot be made to apply to such contract without violating the
provisions of the constitution which prohibit the adoption of a law "impairing the obligation of
contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)

The obligation of the contract is the law which binds the parties to perform their agreement if it is not
contrary to the law of the land, morals or public order. That law must govern and control the contract in
every aspect in which it is intended to bear upon it, whether it affect its validity, construction, or
discharge. Any law which enlarges, abridges, or in any manner changes the intention of the parties,
necessarily impairs the contract itself. If a law impairs the obligation of a contract, it is prohibited by the
Jones Law, and is null and void. The laws in force in the Philippine Islands prior to any legislation by the
American sovereignty, prohibited the Legislature from giving to any penal law a retroactive effect unless
such law was favorable to the person accused. (Articles 21 and 22, Penal Code.)

A law imposing a new penalty, or a new liability or disability, or giving a new right of action, must not be
construed as having a retroactive effect. It is an elementary rule of contract that the laws in force at the
time the contract was made must govern its interpretation and application. Laws must be construed
prospectively and not retrospectively. If a contract is legal at its inception, it cannot be rendered illegal
by any subsequent legislation. If that were permitted then the obligations of a contract might be
impaired, which is prohibited by the organic law of the Philippine Islands. (U. S. vs. Constantino Tan
Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Villa, 40 Phil., 570.)
Ex post facto laws, unless they are favorable to the defendant, are prohibited in this jurisdiction. Every
law that makes an action, done before the passage of the law and which was innocent when done,
criminal, and punishes such action, is an ex post facto law. In the present case Act No. 2655 made an act
which had been done before the law was adopted, a criminal act, and to make said Act applicable to the
act complained of would be to give it an ex post facto operation. The Legislature is prohibited from
adopting a law which will make an act done before its adoption a crime. A law may be given a
retroactive effect in civil action, providing it is curative in character, but ex post facto laws are absolutely
prohibited unless its retroactive effect is favorable to the defendant.

For the reason, therefore, that the acts complained of in the present case were legal at the time of their
occurrence, they cannot be made criminal by any subsequent or ex post facto legislation. What the
courts may say, considering the provisions of article 1255 of the Civil Code, when a civil action is brought
upon said contract, cannot now be determined. A contract may be annulled by the courts when it is
shown that it is against morals or public order.

For all of the foregoing reasons, we are of the opinion, and so decide, that the acts complained of by the
defendants did not constitute a crime at the time they were committed, and therefore the sentence of
the lower court should be, and is hereby, revoked; and it is hereby ordered and decreed that the
complaint be dismissed, and that the defendants be discharged from the custody of the law, with costs
de oficio. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Ostrand, Johns and Romualdez, JJ., concur.
[G.R. No. L-1960. November 26, 1948.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENTINO ABILONG, defendant-appellant.

Carlos Perfecto for appellant.

Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel Tomacruz for appellee.

SYLLABUS

1. CRIMINAL LAW; EVASION OF SERVICE OF SENTENCE; REVISED PENAL CODE; ENGLISH AND
SPANISH TEXT OF ARTICLE 157, COMPARED. — Inasmuch as the Revised Penal Code was originally
approved and enacted in Spanish, the Spanish text governs. It is clear that the word "imprisonment"
used in the English text is a wrong or erroneous translation of the phrase "sufriendo privacion de
libertad" used in the Spanish text. It is equally clear that although the Solicitor General impliedly admits
destierro as not constituting imprisonment, it is a deprivation of liberty, though partial, is the sense that
as in the present case, the appellant by his sentence of destierro was deprived of the liberty to enter the
City of Manila.

2. ID.; ID.; HOW COMMITTED; CASE AT BAR. — One who, sentenced to destierro by virtue of final
judgment, and prohibited from entering the City of Manila, enters said city within the period of his
sentence, is guilty of evasion of sentence under article 157, Revised Penal Code (Spanish text).

DECISION

MONTEMAYOR, J p:

Florentino Abilong was charged in the Court of First Instance of Manila with evasion of service of
sentence under the following information:

"That on or about the 17th day of September, 1947, in the City of Manila, Philippines, the said accused,
being then a convict sentenced and ordered to serve two (2) years, four (4) months and one (1) day of
destierro during which he should not enter any place within the radius of 100 kilometers from the City
of Manila, by virtue of final judgment rendered by the municipal court on April 5, 1946, in criminal case
No. B-4795 for attempted robbery, did then and there wilfully, unlawfully and feloniously evade the
service of said sentence by going beyond the limits made against him and commit vagrancy.

"Contrary to law."

Upon arraignment he pleaded guilty and was sentenced to two (2) years, four (4) months and one (1)
day of prision correccional, with the accessory penalties of the law and to pay the costs. He is appealing
from that decision with the following assignment of error:

1. The lower court erred in imposing a penalty on the accused under article 157 of the Revised
Penal Code, which does not cover evasion of service of "destierro."
Counsel for the appellant contends that a person like the accused evading a sentence of destierro is not
criminally liable under the provisions of the Revised Penal Code, particularly article 157 of the said Code
for the reason that said article 157 refers only to persons who are imprisoned in a penal institution and
completely deprived of their liberty. He bases his contention on the word "imprisonment" used in the
English text of said article which in part reads as follows:

"Evasion of service of sentence. — The penalty of prision correccional in its medium and maximum
periods shall be imposed upon any convict who shall evade service of his sentence by escaping during
the term of his imprisonment by reason of final judgment."

The Solicitor General in his brief says that had the original text of the Revised Penal Code been in the
English language, then the theory of the appellant could be upheld. However, it is the Spanish text that
is controlling in case of doubt. The Spanish text of article 157 in part reads thus:

"ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en sus grados
medio maximo el sentenciado que quebrantare su condena, fugandose mientras estuviere sufriendo
privacion de libertad por sentencia firme; . . .."

We agree with the Solicitor General that inasmuch as the Revised Penal Code was originally approved
and enacted in Spanish, the Spanish text governs (People vs. Manaba, 58 Phil., 665, 668). It is clear that
the word "imprisonment" used in the English text is a wrong or erroneous translation of the phrase
"sufriendo privacion de libertad" used in the Spanish text. It is equally clear that although the Solicitor
General impliedly admits destierro as not constituting imprisonment, it is a deprivation of liberty,
though partial, in the sense that as in the present case, the appellant by his sentence of destierro was
deprived of the liberty to enter the City of Manila. This view has been adopted in the case of People vs.
Samonte, No. 36559 (July 26, 1932; 57 Phil, 968) wherein this Court held, as quoted in the brief of the
Solicitor General that "it is clear that a person under sentence of destierro is suffering deprivation of his
liberty and escapes from the restrictions of the penalty when he enters the prohibited area." Said ruling
in that case was ratified by this Court, though, indirectly in the case of People vs. Jose de Jesus, (45 Off.
Gaz. Supp. to No. 9, p. 370) 1 , where it was held that one evades the service of his sentence of destierro
when he enters the prohibited area specified in the judgment of conviction, and he cannot invoke the
provisions of the Indeterminate Sentence Law which provides that its provisions do not apply to those
who shall have escaped from confinement or evaded sentence.

In conclusion we find and hold that the appellant is guilty of evasion of service of sentence under article
157 of the Revised Penal Code (Spanish text), in that during the period of his sentence of destierro by
virtue of final judgment wherein he was prohibited from entering the City of Manila, he entered said
City.

Finding no reversible error in the decision appealed from, the same is hereby affirmed with costs against
the appellant. So ordered.

Moran, C.J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.
Separate Opinions

PERFECTO, J., dissenting:

The legal question raised in this case is whether or not appellant, for having violated his judgment of
destierro rendered by the Municipal Court of Manila, can be sentenced under article 157 of the Revised
Penal Code which reads as follows:

"Evasion of service of sentence. — The penalty of prision correccional in its medium and maximum
periods shall be imposed upon any convict who shall evade service of his sentence by escaping during
the term of his imprisonment by reason of final judgment. However, if such evasion or escape shall have
taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors, or by
using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with other
convicts or employees of the penal institution, the penalty shall be prision correccional in its maximum
period."

Appellant invokes in his favor the negative opinion of author Guillermo Guevara (Revised Penal Code,
1946, p. 322). This negative position is supported by another author, Ambrosio Padilla (Revised Penal
Code annotated, p. 474).

The prosecution invokes the decision of this Court in People vs. De Jesus, L-1414, 2 promulgated April
16, 1948, but said decision has no application because in said case the legal question involved in the
case at bar was not raised. The Supreme Court did not consider the question of interpretation of the
wording of article 157. Undoubtedly, there was occasion for considering the question, but the Court
nevertheless failed to do so. This failure to see the question, at the time, is only an evidence that the
tribunal is composed of human beings for whom infallibility is beyond reach.

The prosecution maintains that appellant's contention, supported by two authors who have considered
the question, although tenable under the English text of article 157, is not so under the Spanish text,
which is the one controlling because the Revised Penal Code was originally enacted by the Legislature in
Spanish.

There is no quarrel, therefore, that under the abovequoted English text, the appellant is entitled to
acquittal. The question now is whether or not the Spanish text conveys a thing different from that which
can be read in the English text. The Spanish text reads as follows:

"ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en sus grados
medio y maximo el sentenciado que quebrantare su condena, fugandose mientras estuviere sufriendo
privacion de libertad por sentencia firme; pero si la evasion o fuga se hubiere llevado a efecto con
escalamiento, fractura de puertas, ventanas, verjas, paredes, techos o suelos, o empleando ganzuas,
llaves falsas, disfraz, engaño, violencia o intimidacon, o poniendose de acuerdo con otros sentenciados o
dependientes del establecimiento donde a hallare recluido la pena sera prision correccional en su grado
maximo."
The question boils down to the words "fugandose mientras estuviere sufriendo privacion de libertad por
sentencia firme," which are translated into English "by escaping during the term of his imprisonment by
reason of final judgment." The prosecution contends that the words "privacion de libertad" in the
Spanish text is not the same as the word "imprisonment" in the English text, and that while
"imprisonment" cannot include destierro, "privacion de libertad" may include it.

The reason is, however, the result of a partial point of view, because it obliterates the grammatical,
logical, ideological function of the words "fugandose" and "by escaping" in the Spanish and English texts,
respectively. There should not be any question that, whatever meaning we may want to give to the
words "privacion de libertad," it has to be conditioned by the verb "fugandose," (by escaping).
"Privacion de libertad" cannot be considered independently of "fugandose."

There seems to be no question that the Spanish "fugandose" is correctly translated into the English "by
escaping." Now, is there any sense in escaping from destierro or banishment, where there is no
enclosure binding the hypothetical fugitive? "Fugandose" is one of the forms of the Spanish verb
"fugar," to escape. The specific idea of "evasion" or "escape" is reiterated by the use of said words after
the semi-colon in the Spanish text and after the first period in the English text. Either the verb "to
escape" or the substantive noun "escape" essentially presupposes some kind of imprisonment or
confinement, except figuratively, and Article 157 does not talk in metaphors or parables.

"To escape" means "to get away, as by flight or other conscious effort; to break away, get free, or get
clear, from or out of detention, danger, discomfort, or the like; as to escape from prison. To issue from
confinement or enclosure of any sort; as gas escapes from the mains." (Webster's New International
Dictionary.)

"Escape" means "act of escaping, or fact or having escaped; evasion of or deliverance from injury or any
evil; also the means of escape. The unlawful departure of a prisoner from the limits of his custody.
When the prisoner gets out of prison and unlawfully regains his liberty, it is an actual escape."
(Webster's New International Dictionary.) "Evasion" means "escape." (Webster's New International
Dictionary.)

The "destierro" imposed on appellant banished him from Manila alone, and he was free to stay in all the
remaining parts of the country, and to go and stay in any part of the globe outside the country. With
freedom to move all over the world, it is farfetched to allege that he is in any confinement from which
he could escape.

The words "privacion de libertad" have been correctly translated into the English "imprisonment," which
gives the idea exactly conveyed by "privacion de libertad" in the Spanish text. Undoubtedly, the drafters
of the latter could have had used a more precise Spanish word, but the literary error cannot be taken as
a pretext to give to the less precise words a broader meaning than is usually given to them.

"Privacion de libertad," literally meaning "deprivation of liberty or freedom," has always been used by
jurist using the Spanish language to mean "imprisonment." They have never given them the unbounded
philosophical scope that would lead to irretrievable absurdities.
Under that unlimited scope, no single individual in the more than two billion inhabitants of the world
can be considered free, as the freest citizen of the freest country is subject to many limitations or
deprivations of liberty. Under the prosecution's theory, should an accused, sentenced to pay a fine of
one peso, evade the payment of it, because the fine deprives him of liberty to dispose of his one peso,
he will be liable to be punished under article 157 of the Revised Penal Code to imprisonment of from
more than two years to six years. The iniquity and cruelty of such situation are too glaring and violent to
be entertained for a moment under our constitutional framework.

There is no gainsaying the proposition that to allow the violation of a sentence of destierro without
punishment is undesirable, but even without applying article 157 of the Revised Penal Code, the act of
the appellant cannot remain unpunished, because his violation of the sentence of destierro may be
punished as contempt of court, for which imprisonment up to six months is provided.

It is deplorable that article 157 should not provide for a situation presented in this case, but the gap
cannot be filled by this Court without encroaching upon the legislative powers of Congress.

Perhaps it is better that evasions of sentence be punished, as provided by the old Penal Code, by an
increase in the evaded penalty. This will be more reasonable than the penalties provided by article 157,
which appear to be disproportionate and arbitrary, because they place on equal footing the evader of a
sentence of one day of imprisonment and a life-termer, one who commits an insignificant offense and
one who perpetrates the most heinous crime. At any rate, this is a problem for Congress to solve. The
appealed decision should be set aside.

Briones, J., concurs.

[G.R. No. L-3246. November 29, 1950.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABELARDO FORMIGONES, defendant-appellant.

Luis Contreras, for appellant.

Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar, for appellee.

SYLLABUS

1. CRIMINAL LAW; PARRICIDE; IMBECILITY AS EXEMPTING CIRCUMSTANCES; REQUISITES. — In

order that a person could be regarded as an imbecile within the meaning of article 12 of the Revised
Penal Code so as to be exempt from criminal liability, he must be deprived completely of reason of
discernment and freedom of the will at the time of committing the crime.

2. ID.; ID.; ID.; ID. — A man who could feel the pangs of jealousy and take violent measures to the
extent of killing his wife whom he suspected of being unfaithful to him, in the belief that in doing so he
was vindicating his honor, could hardly be regarded as an imbecile.

3. ID.; ID.; FEEBLEMINDEDNESS AND ACT IN A FIT OF JEALOUSY AS MITIGATING CIRCUMSTANCES.

— Feeblemindedness of the accused warrants the finding in his favor of the mitigating circumstance
provided for in either paragraph 8 or paragraph 9 of article 13 of the Revised Penal Code and the fact
that the accused evidently killed his wife in a fit of jealousy, he is, likewise entitled to the mitigating
circumstance in paragraph 6 of the same article — that of having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation.

4. ID.; ID.; PENALTY. — The penalty applicable for parricide under article 246 of the Revised Penal
Code is composed only two indivisible penalties, to wit, reclusion perpetua to death. Altho the
commission of the act is attended by some mitigating circumstance without any aggravating
circumstance to offset them, article 63 of the said code is the one applicable and must be applied.

5. ID.; ID.; ATTENTION OF THE CHIEF EXECUTIVE INVITED TO THE CASE. — When the court believes
that the appellant is entitled to a lighter penalty the case should be brought to the attention of the Chief
Executive who, i his discretion may reduce the penalty to that next lower to reclusion perpetua to the
death or otherwise apply executive clemency in the manner he sees fit.

DECISION

MONTEMAYOR, J p:

This is an appeal from the decision of the Court of First Instance of Camarines Sur finding the appellant
guilty of parricide and sentencing him to reclusion perpetua, to indemnify the heirs of the deceased in
the amount of P2,000, and to pay the costs. The following facts are not disputed.

In the month of November, 1946, the defendant Abelardo Formigones was living on his farm in Bahao,
Libmanan, municipality of Sipocot, Camarines Sur, with his wife, Julia Agricola, and his five children.
From there they went to live in the house of his half-brother, Zacarias Formigones, in the barrio of
Binahian of the same municipality of Sipocot, to find employment as harvesters of palay. After about a
month's stay or rather on December 28, 1946, late in the afternoon, Julia Agricola was sitting at the
head of the stairs of the house. The accused, without any previous quarrel or provocation whatsoever,
took his bolo from the wall of the house and stabbed his wife, Julia, in the back, the blade penetrating
the right lung and causing a severe hemorrhage resulting in her death not long thereafter. The blow sent
Julia toppling down the stairs to the ground, immediately followed by her husband Abelardo who, taking
her up in his arms, carried her up the house, laid her on the floor of the living room and then lay down
beside her. In this position he was found by the people who came in response to the shouts for help
made by his eldest daughter, Irene Formigones, who witnessed and testified to the stabbing of her
mother by her father.

Investigated by the Constabulary, defendant Abelardo signed a written statement, Exhibit D, wherein he
admitted that he killed his wife. The motive was admittedly that of jealousy because according to his
statement he used to have quarrels with his wife for the reason that he often saw her in the company of
his brother Zacarias; that he suspected that the two were maintaining illicit relations because he noticed
that his wife had become indifferent to him (defendant).

During the preliminary investigation conducted by the justice of the peace of Sipocot, the accused
pleaded guilty, as shown by Exhibit E. At the trial of the case in the Court of First Instance, the defendant
entered a plea of not guilty, but did not testify. His counsel presented the testimony of two guards of
the provincial jail where Abelardo was confined to the effect that his conduct there was rather strange
and that he behaved like an insane person; that sometimes he would remove his clothes and go stark
naked in the presence of his fellow prisoners; that at times he would remain silent and indifferent to his
surroundings; that he would refuse to take a bath and wash his clothes until forced by the prison
authorities; and that sometimes he would sing in chorus with his fellow prisoners, or even alone by
himself without being asked; and that once when the door of his cell was opened, he suddenly darted
from inside into the prison compound apparently in an attempt to regain his liberty.

The appeal is based merely on the theory that the appellant is an imbecile and therefore exempt from
criminal liability under article 12 of the Revised Penal Code. The trial court rejected this same theory and
we are inclined to agree with the lower court. According to the very witness of the defendant, Dr.
Francisco Gomez, who examined him, it was his opinion that Abelardo was suffering only from
feeblemindedness and not imbecility and that he could distinguish right from wrong.

In order that a person could be regarded as an imbecile within the meaning of article 12 of the Revised
Penal Code so as to be exempt from criminal liability, he must be deprived completely of reason or
discernment and freedom of the will at the time of committing the crime. The provisions of article 12 of
the Revised Penal Code are copied from and based on paragraph 1, article 8, of the old Penal Code of
Spain. Consequently, the decisions of the Supreme Court of Spain interpreting and applying said
provisions are pertinent and applicable. We quote Judge Guillermo Guevara on his Commentaries on the
Revised Penal Code, 4th Edition, pages 42 to 43:
"The Supreme Court of Spain held that in order that this exempting circumstance may be taken into
account, it is necessary that there be a complete deprivation of intelligence in committing the act, that
is, that the accused be deprived of reason; that there be no responsibility for his own acts; that he acts
without the least discernment; 46 that there be a complete absence of the power to discern, or that
there be a total deprivation of freedom of the will. For this reason, it was held that the imbecility or
insanity at the time of the commission of the act should absolutely deprive a person of intelligence or
freedom of will, because mere abnormality of his mental faculties does not exclude imputability. 49

"The Supreme Court of Spain likewise held that deaf-muteness cannot be equalled to imbecility or
insanity.

"The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the
defendant had previously lost his reason or was demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that he was in a normal condition. Acts penalized by law
are always reputed to be voluntary, and it is improper to conclude that a person acted unconsciously, in
order to relieve him from liability, on the basis of his mental. condition, unless his insanity and absence
of will are proved."

As to the strange behaviour of the accused during his confinement, assuming that it was not feigned to
stimulate insanity, it may be attributed either to his being feebleminded or eccentric, or to a morbid
mental condition produced by remorse at having killed his wife. From the case of United States vs.
Vaquilar (27 Phil. 88), we quote the following syllabus:

"Testimony of eye-witnesses to a parricide, which goes no further than to indicate that the accused was
moved by a wayward or hysterical burst of anger or passion, and other testimony to the effect that,
while in confinement awaiting trial, defendant acted absentmindedly at times, is not sufficient to
establish the defense of insanity. The conduct of the defendant while in confinement appears to have
been due to a morbid mental condition produced by remorse."

After a careful study of the record, we are convinced that the appellant is not an imbecile. According to
the evidence, during his marriage of about 16 years, he has not done anything or conducted himself in
anyway so as to warrant an opinion that he was or is an imbecile. He regularly and dutifully cultivated
his farm, raised five children, and supported his family and even maintained in school his children of
school age, with the fruits of his work. Occasionally, as a side line he made copra. And a man who could
feel the pangs of jealousy and take violent measures to the extent of killing his wife whom he suspected
of being unfaithful to him, in the belief that in doing so he was vindicating his honor, could hardly be
regarded as an imbecile. Whether or not his suspicions were justified, is of little or no import. The fact is
that he believed her faithless.

But to show that his feeling of jealousy had some color of justification and was not a mere product of
hallucination and aberrations of a disordered mind as that an imbecile or a lunatic, there is evidence to
the following effect. In addition to the observations made by appellant in his written statement Exhibit
D, it is said that when he and his wife first went to live in the house of his half brother, Zacarias
Formigones, the latter was living with his grandmother, and his house was vacant. However, after the
family of Abelardo was settled in the house, Zacarias not only frequented said house but also used to
sleep there nights. All this may have aroused and even partly confirmed the suspicions of Abelardo, at
least to his way of thinking.

The appellant has all the sympathies of the Court. He seems to be one of those unfortunate beings,
simple and even feebleminded, whose faculties have not been fully developed. His action in picking up
the body of his wife after she fell down to the ground, dead, taking her upstairs, laying her on the floor,
and lying beside her for hours, shows his feeling of remorse at having killed his loved one though he
thought that she had betrayed him. Although he did not exactly surrender to the authorities, still he
made no effort to flee and compel the police to hunt him down and arrest him. In his written statement
he readily admitted that he killed his wife, and at the trial he made no effort to deny or repudiate said
written statement, thus saving the government all the trouble and expense of catching him, and insuring
his conviction.

Although the deceased was struck in the back, we are not prepared to find that the aggravating
circumstance of treachery attended the commission of the crime. It seems that the prosecution was not
intent on proving it. At least said aggravating circumstance was not alleged in the complaint either in the
justice of the peace court or in the Court of First Instance. We are inclined to give him the benefit of the
doubt and we therefore decline to find the existence of this aggravating circumstance. On the other
hand, the fact that the accused is feebleminded warrants the finding in his favor of the mitigating
circumstance provided for in either paragraph 8 or paragraph 9 of article 13 of the Revised Penal Code,
namely, that the accused is "suffering some physical defect which thus restricts his means of action,
defense or communication with his fellow beings," or such illness "as would diminish the exercise of his
will power." To this we may add the mitigating circumstance in paragraph 6 of the same article, — that
of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. The
accused evidently killed his wife in a fit of jealousy.

With the presence of two mitigating circumstances without any aggravating circumstance to offset
them, at first we thought of the possible applicability of the provisions of article 64, paragraph 5 of the
Revised Penal Code for the purpose of imposing the penalty next lower to that prescribed by article 246
for parricide, which is reclusion perpetua to death. It will be observed however, that article 64 refers to
the application of penalties which contain three periods whether it be a single divisible penalty or
composed of three different penalties, each one of which forms a period in accordance with the
provisions of articles 76 and 77, which is not true in the present case where the penalty applicable for
parricide is composed only of two indivisible penalties. On the other hand, article 63 of the same Code
refers to the application of indivisible penalties whether it be a single divisible penalty, or two indivisible
penalties like that of reclusion perpetua to death. It is therefore clear that article 63 is the one
applicable in the present case.

Paragraph 2, rule 3 of said article 63 provides that when the commission of the act is attended by some
mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied.
Interpreting a similar legal provision the Supreme Court in the case of United States vs. Guevara (10 Phil.
37), involving the crime of parricide, in applying article 80, paragraph 2 (rule 3 of the old Penal Code)
which corresponds to article 63, paragraph 2 (rule 3 of the present Revised Penal Code), thru Chief
Justice Arellano said the following:

"And even though this court should take into consideration the presence of two mitigating
circumstances of a qualifying nature, which it can not afford to overlook, without any aggravating one,
the penalty could not be reduced to the next lower to that imposed by law, because, according to a
ruling of the court of Spain, article 80 above-mentioned does not contain a precept similar to that
contained in Rule 5 of article 81 (now Rule 5, art. 64 of the Rev. Penal Code). (Decision of September 30,
1879.)

"Yet, in view of the excessive penalty imposed, the strict application of which is inevitable and which,
under the law, must be sustained, this court now resorts to the discretional power conferred by
paragraph 2 of article 2 of the Penal Code; and.

"Therefore, we affirm the judgment appealed from with costs, and hereby order that a proper petition
be filed with the executive branch of the Government in order that the latter, if it be deemed proper in
the exercise of the prerogative vested in it by the sovereign power, may reduce the penalty to that of
the next lower."

Then, in the case of People vs. Castañeda (60 Phil. 604), another parricide case, the Supreme Court in
affirming the judgment of conviction sentencing defendant to reclusion perpetua, said that
notwithstanding the numerous mitigating circumstances found to exist, inasmuch as the penalty for
parricide as fixed by article 246 of the Revised Penal Code is composed of two indivisible penalties,
namely, reclusion perpetua to death, paragraph 3 of article 63 of the said Code must be applied. The
Court further observed:

"We are likewise convinced that appellant did not have that malice nor has exhibited such moral
turpitude as requires life imprisonment, and therefore under the provisions of article 5 of the Revised
Penal Code, we respectfully invite the attention of the Chief Executive to the case with a view to
executive clemency after appellant has served an appreciable amount of confinement."

In conclusion, we find the appellant guilty of parricide and we hereby affirm the judgment of the lower
court with the modification that the appellant will be credited with one-half of any preventive
imprisonment he has undergone. Appellant will pay costs.

Following the attitude adopted and the action taken by this same court in the two cases above cited,
and believing that the appellant is entitled to a lighter penalty, this case should be brought to the
attention of the Chief Executive who, in his discretion may reduce the penalty to that next lower to
reclusion perpetua to death or otherwise apply executive clemency in the manner he sees fit.

Moran, C.J., Paras, Feria, Pablo, Bengzon, Tuason, Reyes and Jugo, JJ., concur.

Padilla, J., I concur in the result.

[G.R. No. 141066. February 17, 2005.]

EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

Singco & Cagara Law Offices for petitioner.

The Solicitor General for respondent.

SYLLABUS

1. CRIMINAL LAW; ARTICLE 10 OF REVISED PENAL CODE, CONSTRUED. — Article 10 of the RPC
reads as follows: ART. 10. Offenses not subject to the provisions of this Code. — Offenses which are or in
the future may be punishable under special laws are not subject to the provisions of this Code. This
Code shall be supplementary to such laws, unless the latter should specially provide the contrary. The
article is composed of two clauses. The first provides that offenses which in the future are made
punishable under special laws are not subject to the provisions of the RPC, while the second makes the
RPC supplementary to such laws. While it seems that the two clauses are contradictory, a sensible
interpretation will show that they can perfectly be reconciled. The first clause should be understood to
mean only that the special penal laws are controlling with regard to offenses therein specifically
punished. Said clause only restates the elemental rule of statutory construction that special legal
provisions prevail over general ones. Lex specialis derogant generali. In fact, the clause can be
considered as a superfluity, and could have been eliminated altogether. The second clause contains the
soul of the article. The main idea and purpose of the article is embodied in the provision that the "code
shall be supplementary" to special laws, unless the latter should specifically provide the contrary.
IHCacT

2. ID.; REVISED PENAL CODE, ABSENT CONTRARY PROVISIONS IN BATAS PAMBANSA BLG. 22, THE
GENERAL PROVISIONS OF THE REVISED PENAL CODE MAY BE APPLIED SUPPLETORILY. — The appellate
court's reliance on the cases of People vs. Parel, U.S. vs. Ponte, and U.S. vs. Bruhez rests on a firm basis.
These cases involved the suppletory application of principles under the then Penal Code to special laws.
People vs. Parel is concerned with the application of Article 22 of the Code to violations of Act No. 3030,
the Election Law, with reference to the retroactive effect of penal laws if they favor the accused. U.S. vs.
Ponte involved the application of Article 17 of the same Penal Code, with reference to the participation
of principals in the commission of the crime of misappropriation of public funds as defined and
penalized by Act No. 1740. U.S. vs. Bruhez covered Article 45 of the same Code, with reference to the
confiscation of the instruments used in violation of Act No. 1461, the Opium Law. B.P. Blg. 22 does not
expressly proscribe the suppletory application of the provisions of the RPC. Thus, in the absence of
contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are
necessarily applicable, may be applied suppletorily. Indeed, in the recent case of Yu vs. People, the Court
applied suppletorily the provisions on subsidiary imprisonment under Article 39 of the RPC to B.P. Blg.
22. The suppletory application of the principle of conspiracy in this case is analogous to the application
of the provision on principals under Article 17 in U.S. vs. Ponte. For once conspiracy or action in concert
to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise
extent or modality of participation of each of them becomes secondary, since all the conspirators are
principals.

3. ID.; CONSPIRACY; CO-PRINCIPAL BY REASON OF CONSPIRACY; ACCUSED MUST BE SHOWN TO

HAVE PERFORMED AN OVERT ACT IN PURSUANCE OR FURTHERANCE OF THE COMPLICITY; CASE AT BAR.
— Article 8 of the RPC provides that "a conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it". To be held guilty as a co-
principal by reason of conspiracy, the accused must be shown to have performed an overt act in
pursuance or furtherance of the complicity. The overt act or acts of the accused may consist of active
participation in the actual commission of the crime itself or may consist of moral assistance to his co-
conspirators by moving them to execute or implement the criminal plan. In the present case, the
prosecution failed to prove that petitioner performed any overt act in furtherance of the alleged
conspiracy. As testified to by the lone prosecution witness, complainant Alfredo Oculam, petitioner was
merely present when her husband, Adronico, signed the check subject of Criminal Case No. 7068. With
respect to Criminal Case Nos. 7069-7070, Oculam also did not describe the details of petitioner's
participation. He did not specify the nature of petitioner's involvement in the commission of the crime,
either by a direct act of participation, a direct inducement of her co-conspirator, or cooperating in the
commission of the offense by another act without which it would not have been accomplished.
Apparently, the only semblance of overt act that may be attributed to petitioner is that she was present
when the first check was issued. However, this inference cannot be stretched to mean concurrence with
the criminal design.

4. ID.; ID.; MERE PRESENCE AT THE SCENE OF THE CRIME DOES NOT IN ITSELF AMOUNT TO
CONSPIRACY. — Conspiracy must be established, not by conjectures, but by positive and conclusive
evidence. Conspiracy transcends mere companionship and mere presence at the scene of the crime
does not in itself amount to conspiracy. Even knowledge, acquiescence in 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. ITaCEc

DECISION

AUSTRIA-MARTINEZ, J p:

Petitioner Evangeline Ladonga seeks a review of the Decision, 1 dated May 17, 1999, of the Court of
Appeals in CA-G.R. CR No. 20443, affirming the Decision dated August 24, 1996, of the Regional Trial
Court (RTC), Branch 3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting her of violation of
B.P. Blg. 22, otherwise known as The Bouncing Checks Law. ACTIcS

The factual background of the case is as follows:

On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed with the RTC, docketed as
Criminal Case Nos. 7068-7070. The Information in Criminal Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring, confederating, and mutually helping with
one another, knowing fully well that they did not have sufficient funds deposited with the United
Coconut Planters Bank (UCPB), Tagbilaran Branch, did then and there willfully, unlawfully, and
feloniously, draw and issue UCPB Check No. 284743 postdated July 7, 1990 in the amount of NINE
THOUSAND SEVENTY-FIVE PESOS AND FIFTY-FIVE CENTAVOS (P9,075.55), payable to Alfredo Oculam,
and thereafter, without informing the latter that they did not have sufficient funds deposited with the
bank to cover up the amount of the check, did then and there willfully, unlawfully and feloniously pass
on, indorse, give and deliver the said check to Alfredo Oculam by way of rediscounting of the
aforementioned checks; however, upon presentation of the check to the drawee bank for encashment,
the same was dishonored for the reason that the account of the accused with the United Coconut
Planters Bank, Tagbilaran Branch, had already been closed, to the damage and prejudice of the said
Alfredo Oculam in the aforestated amount. CETIDH

Acts committed contrary to the provisions of Batas Pambansa Bilang 22. 2

The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070 are similarly worded,
except for the allegations concerning the number, date and amount of each check, that is:

(a) Criminal Case No. 7069 — UCPB Check No. 284744 dated July 22, 1990 in the amount of
P12,730.00; 3

(b) Criminal Case No. 7070 — UCPB Check No. 106136 dated July 22, 1990 in the amount of
P8,496.55. 4

The cases were consolidated and jointly tried. When arraigned on June 26, 1991, the two accused
pleaded not guilty to the crimes charged. 5

The prosecution presented as its lone witness complainant Alfredo Oculam. He testified that: in 1989,
spouses Adronico 6 and Evangeline Ladonga became his regular customers in his pawnshop business in
Tagbilaran City, Bohol; 7 sometime in May 1990, the Ladonga spouses obtained a P9,075.55 loan from
him, guaranteed by United Coconut Planters Bank (UCPB) Check No. 284743, post dated to dated July 7,
1990 issued by Adronico; 8 sometime in the last week of April 1990 and during the first week of May
1990, the Ladonga spouses obtained an additional loan of P12,730.00, guaranteed by UCPB Check No.
284744, post dated to dated July 26, 1990 issued by Adronico; 9 between May and June 1990, the
Ladonga spouses obtained a third loan in the amount of P8,496.55, guaranteed by UCPB Check No.
106136, post dated to July 22, 1990 issued by Adronico; 10 the three checks bounced upon presentment
for the reason "CLOSED ACCOUNT"; 11 when the Ladonga spouses failed to redeem the check, despite
repeated demands, he filed a criminal complaint against them. 12

While admitting that the checks issued by Adronico bounced because there was no sufficient deposit or
the account was closed, the Ladonga spouses claimed that the checks were issued only to guarantee the
obligation, with an agreement that Oculam should not encash the checks when they mature; 13 and,
that petitioner is not a signatory of the checks and had no participation in the issuance thereof. 14
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga spouses guilty beyond
reasonable doubt of violating B.P. Blg. 22, the dispositive portion of which reads:

Premises considered, this Court hereby renders judgment finding accused Adronico Ladonga, alias
Ronie, and Evangeline Ladonga guilty beyond reasonable doubt in the aforesaid three (3) criminal cases,
for which they stand charged before this Court, and accordingly, sentences them to imprisonment and
fine, as follows:

1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of them, and a fine
in the amount of P9,075.55, equivalent to the amount of UCPB Check No. 284743; ScAHTI

2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1) year and a fine
of P12,730.00, equivalent to the amount of UCPB Check No. 284744; and,

3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of them and a fine of
P8,496.55 equivalent to the amount of UCPB Check No. 106136;

4. That both accused are further ordered to jointly and solidarily pay and reimburse the
complainant, Mr. Alfredo Oculam, the sum of P15,000.00 representing actual expenses incurred in
prosecuting the instant cases; P10,000.00 as attorney's fee; and the amount of P30,302.10 which is the
total value of the three (3) subject checks which bounced; but without subsidiary imprisonment in case
of insolvency. jur2005cd

With Costs against the accused.

SO ORDERED. 15

Adronico applied for probation which was granted. 16 On the other hand, petitioner brought the case to
the Court of Appeals, arguing that the RTC erred in finding her criminally liable for conspiring with her
husband as the principle of conspiracy is inapplicable to B.P. Blg. 22 which is a special law; moreover,
she is not a signatory of the checks and had no participation in the issuance thereof. 17

On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner. 18 It held that the
provisions of the penal code were made applicable to special penal laws in the decisions of this Court in
People vs. Parel, 19 U.S. vs. Ponte, 20 and U.S. vs. Bruhez. 21 It noted that Article 10 of the Revised
Penal Code itself provides that its provisions shall be supplementary to special laws unless the latter
provide the contrary. The Court of Appeals stressed that since B.P. Blg. 22 does not prohibit the
applicability in a suppletory character of the provisions of the Revised Penal Code (RPC), the principle of
conspiracy may be applied to cases involving violations of B.P. Blg. 22. Lastly, it ruled that the fact that
petitioner did not make and issue or sign the checks did not exculpate her from criminal liability as it is
not indispensable that a co-conspirator takes a direct part in every act and knows the part which
everyone performed. The Court of Appeals underscored that in conspiracy the act of one conspirator
could be held to be the act of the other. CHcETA
Petitioner sought reconsideration of the decision but the Court of Appeals denied the same in a
Resolution dated November 16, 1999. 22

Hence, the present petition.

Petitioner presents to the Court the following issues for resolution:

1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR ISSUER OF THE THREE
CHECKS THAT BOUNCED BUT HER CO-ACCUSED HUSBAND UNDER THE LATTER'S ACCOUNT COULD BE
HELD LIABLE FOR VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR.

2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:

A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS OF BATAS PAMBANSA BILANG 22

BY INVOKING THE LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES:

Art. 10. Offenses not subject of the provisions of this Code. — Offenses which are or in the future may
be punished under special laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the contrary. DcAaSI

B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF APPEALS IN AFFIRMING IN
TOTO THE CONVICTION OF PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY CHARACTER OF
THE REVISED PENAL CODE TO SPECIAL LAWS LIKE B.P. BLG. 22 IS APPLICABLE. 23

Petitioner staunchly insists that she cannot be held criminally liable for violation of B.P. Blg. 22 because
she had no participation in the drawing and issuance of the three checks subject of the three criminal
cases, a fact proven by the checks themselves. She contends that the Court of Appeals gravely erred in
applying the principle of conspiracy, as defined under the RPC, to violations of B.P. Blg. 22. She posits
that the application of the principle of conspiracy would enlarge the scope of the statute and include
situations not provided for or intended by the lawmakers, such as penalizing a person, like petitioner,
who had no participation in the drawing or issuance of checks.

The Office of the Solicitor General disagrees with petitioner and echoes the declaration of the Court of
Appeals that some provisions of the Revised Penal Code, especially with the addition of the second
sentence in Article 10, are applicable to special laws. It submits that B.P. Blg. 22 does not provide any
prohibition regarding the applicability in a suppletory character of the provisions of the Revised Penal
Code to it.

Article 10 of the RPC reads as follows:

ART. 10. Offenses not subject to the provisions of this Code. — Offenses which are or in the
future may be punishable under special laws are not subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the latter should specially provide the contrary.

The article is composed of two clauses. The first provides that offenses which in the future are made
punishable under special laws are not subject to the provisions of the RPC, while the second makes the
RPC supplementary to such laws. While it seems that the two clauses are contradictory, a sensible
interpretation will show that they can perfectly be reconciled. cHATSI

The first clause should be understood to mean only that the special penal laws are controlling with
regard to offenses therein specifically punished. Said clause only restates the elemental rule of statutory
construction that special legal provisions prevail over general ones. 24 Lex specialis derogant generali. In
fact, the clause can be considered as a superfluity, and could have been eliminated altogether. The
second clause contains the soul of the article. The main idea and purpose of the article is embodied in
the provision that the "code shall be supplementary" to special laws, unless the latter should specifically
provide the contrary.

The appellate court's reliance on the cases of People vs. Parel, 25 U.S. vs. Ponte, 26 and U.S. vs. Bruhez
27 rests on a firm basis. These cases involved the suppletory application of principles under the then
Penal Code to special laws. People vs. Parel is concerned with the application of Article 22 28 of the
Code to violations of Act No. 3030, the Election Law, with reference to the retroactive effect of penal
laws if they favor the accused. U.S. vs. Ponte involved the application of Article 17 29 of the same Penal
Code, with reference to the participation of principals in the commission of the crime of
misappropriation of public funds as defined and penalized by Act No. 1740. U.S. vs. Bruhez covered
Article 45 30 of the same Code, with reference to the confiscation of the instruments used in violation of
Act No. 1461, the Opium Law. cDAITS

B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the RPC. Thus, in
the absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their
nature, are necessarily applicable, may be applied suppletorily. Indeed, in the recent case of Yu vs.
People, 31 the Court applied suppletorily the provisions on subsidiary imprisonment under Article 39 32
of the RPC to B.P. Blg. 22.

The suppletory application of the principle of conspiracy in this case is analogous to the application of
the provision on principals under Article 17 in U.S. vs. Ponte. For once conspiracy or action in concert to
achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise
extent or modality of participation of each of them becomes secondary, since all the conspirators are
principals. 33

All these notwithstanding, the conviction of the petitioner must be set aside.

Article 8 of the RPC provides that "a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it." To be held guilty as a co-principal by
reason of conspiracy, the accused must be shown to have performed an overt act in pursuance or
furtherance of the complicity. 34 The overt act or acts of the accused may consist of active participation
in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by
moving them to execute or implement the criminal plan. 35

In the present case, the prosecution failed to prove that petitioner performed any overt act in
furtherance of the alleged, conspiracy. As testified to by the lone prosecution witness, complainant
Alfredo Oculam, petitioner was merely present when her husband, Adronico, signed the check subject of
Criminal Case No. 7068. 36 With respect to Criminal Case Nos. 7069-7070, Oculam also did not describe
the details of petitioner's participation. He did not specify the nature of petitioner's involvement in the
commission of the crime, either by a direct act of participation, a direct inducement of her co-
conspirator, or cooperating in the commission of the offense by another act without which it would not
have been accomplished. Apparently, the only semblance of overt act that may be attributed to
petitioner is that she was present when the first check was issued. However, this inference cannot be
stretched to mean concurrence with the criminal design. HEDSCc

Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. 37
Conspiracy transcends mere companionship and mere presence at the scene of the crime does not in
itself amount to conspiracy. 38 Even knowledge, acquiescence in 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. 39

As the Court eloquently pronounced in a case of recent vintage, People vs. Mandao: 40

To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a
legal concept that imputes culpability under specific circumstances; as such, it must be established as
clearly as any element of the crime. Evidence to prove it must be positive and convincing, considering
that it is a convenient and simplistic device by which the accused may be ensnared and kept within the
penal fold.

Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of conviction
must always be founded on the strength of the prosecution's evidence. The Court ruled thus in People v.
Legaspi, from which we quote:

At most, the prosecution, realizing the weakness of its evidence against accused-appellant Franco,
merely relied and pegged the latter's criminal liability on its sweeping theory of conspiracy, which to us,
was not attendant in the commission of the crime.

The rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the
evidence for the prosecution and not on the weakness of the evidence for the defense. The proof
against him must survive the test of reason; the strongest suspicion must not be permitted to sway
judgment. The conscience must be satisfied that on the defense could be laid the responsibility for the
offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is
required then is moral certainty. SHDAEC

Verily, it is the role of the prosecution to prove the guilt of the appellant beyond reasonable doubt in
order to overcome the constitutional presumption of innocence.

In sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable
doubt of the crime charged. In criminal cases, moral certainty — not mere possibility — determines the
guilt or the innocence of the accused. Even when the evidence for the defense is weak, the accused
must be acquitted when the prosecution has not proven guilt with the requisite quantum of proof
required in all criminal cases. (Citations omitted) 41

All told, the prosecution failed to establish the guilt of the petitioner with moral certainty. Its evidence
falls short of the quantum of proof required for conviction. Accordingly, the constitutional presumption
of the petitioner's innocence must be upheld and she must be acquitted.

WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May 17, 1999, of the Court
of Appeals in CA-G.R. CR No. 20443 affirming the Decision, dated August 24, 1996, of the Regional Trial
Court (Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting the petitioner of violation
of B.P. Blg. 22 is hereby REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is ACQUITTED of the
charges against her under B.P. Blg. 22 for failure of the prosecution to prove her guilt beyond reasonable
doubt. No pronouncement as to costs. DaEATc

SO ORDERED.

Puno, Callejo, Sr., Tinga and Chico-Nazario, JJ., concur.

[G.R. No. 93028. July 29, 1994.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN SIMON y SUNGA, ** respondent.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESS; WHEN MADE POSITIVELY,

STRAIGHTFORWARD AND CORROBORATED, DESERVES GREATER WEIGHT; CASE AT BAR. — After an
assiduous review and calibration of the evidence adduced by both parties, we are morally certain that
appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution
was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags
of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took
place and his testimony was amply corroborated by his teammates. As between the straightforward,
positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant,
the former undeniably deserves greater weight and is more entitled to credence.

2. ID.; ID.; ID.; DISCREPANCY ON MINOR MATTER; NEITHER AFFECTS INTEGRITY OF THE EVIDENCE
NOT THAT OF THE WITNESS. — Appellant would want to make a capital of the alleged inconsistencies
and improbabilities in the testimonies of the prosecution witnesses. Foremost, according to him, is the
matter of who really confiscated the marijuana tea bags from him since, in open court, Pejoro asserted
that he had nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of
Property Seized/Confiscated," he signed it as the one who seized the same. Suffice it to say that whether
it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such is not an
element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana
was confiscated from the possession of appellant. even, assuming arguendo that the prosecution
committed an error on who actually seized the marijuana from appellant, such an error or discrepancy
refers only to a minor matter and, as such, neither impairs the essential integrity of the prosecution
evidence as a whole nor reflects on the witnesses' honesty. Besides, there was clearly a mere
imprecision of language since Pejoro obviously meant that he did not take part in the physical taking of
the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as
the investigator of their unit.

3. ID.; CRIMINAL PROCEDURE; ENTRAPMENT; WHEN MAY BE RELIED UPON BY THE COURT. — The
Court is aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is
susceptible to mistake, harassment, extortion and abuse. Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust
operation was effected. No ill motive was or could be attributed to them, aside from the fact that they
are presumed to have regularly performed their official duty. Such lack of dubious motive coupled with
the presumption of regularity in the performance of official duty, as well as the findings of the trial court
on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of
appellant of having been framed, erected as it is upon the mere shifting sands of an alibi. To top it all,
appellant was caught red-handed delivering prohibited drugs, and while there was a delimited chance
for him to controvert the charge, he does not appear to have plausibly done so.

4. ID.; ID.; WARRANTLESS ARREST AND SEIZURE, WHEN VALID; CASE AT BAR. — Appellant
contends that there was neither a relative of his nor any barangay official or civilian to witness the
seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not
reported to or booked in the custody of any barangay official or police authorities. These are absurd
disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a
relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the
contrary, the police enforcers having caught appellant in flagrante delicto, they were not only
authorized but were also under the obligation to effect a warrantless arrest and seizure.

5. ID.; EVIDENCE; WHEN OBTAINED IN VIOLATION OF THE RIGHT OF A PERSON UNDER CUSTODIAL
INVESTIGATION; INADMISSIBLE; CASE AT BAR. — Contrary to appellant's contention, there was an arrest
report prepared by the police in connection with his apprehension. Said Booking Sheet and Arrest
Report states, inter alia, that "suspect was arrested for selling two tea bags of suspected marijuana dried
leaves and the confiscation of another two tea bags of suspected marijuana dried leaves." Below these
remarks was affixed appellant's signature. In the same manner, the receipt for the seized property,
hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the
marked bills from him. However, we find and hereby declare the aforementioned exhibits inadmissible
in evidence. Appellant's conformance to these documents are declarations against interest and tacit
admissions of the crime charged. They were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the records to show that he was
assisted by counsel. Although appellant manifested during the custodial investigation that he waived his
right to counsel, the waiver was not made in writing and in the presence of counsel, hence whatever
incriminatory admission or confession may be extracted from him, either verbally or in writing, is not
allowable in evidence. Besides, the arrest report is self-serving and hearsay and can easily be concocted
to implicate a suspect.

6. ID.; ID.; CREDIBILITY OF WITNESS; RULE; APPLICATION IN CASE AT BAR. — The doctrine is now
too well embedded in our jurisprudence that for evidence to be believed, it must not only proceed from
the mouth of a credible witness but must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances. The evidence on record is
bereft of any support for appellants allegation of maltreatment. Two doctors, one for the prosecution
and the other for the defense, testified on the absence of any tell-tale sign or indication of bodily injury,
abrasions or contusions on the person of appellant. What is evident is that the cause of his abdominal
pain was his peptic ulcer from which he had been suffering even before his arrest. His own brother even
corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer. Furthermore, if it
is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not divulging the
same to his brother who went to see him at the camp after his arrest and during his detention there.
Significantly, he also did not even report the matter to the authorities nor file appropriate charges
against the alleged malefactors despite the opportunity to do so and with the legal services of counsel
being available to him. Such omissions funnel down to the conclusion that appellant's story is a pure
fabrication.

7. CRIMINAL LAW; VIOLATION OF DANGEROUS DRUGS ACT; ELEMENT; PRESENT IN CASE AT BAR.
— Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated
from his predicament from his predicament since his criminal participation in the illegal sale of
marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs
requires merely the consummation of the selling transaction which happens the moment the buyer
receives the drug from the seller. In the present case, and in light of the preceding discussion, this sale
has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is
improbable that he would sell marijuana to a total stranger. We take this opportunity to once again
reiterate the doctrinal rule that drug-pushing, when done on a small scale as in this case, belongs to that
class of crimes that may be committed at any time and in any place. It is not contrary to human
experience for a drug pusher to sell to a total stranger, for what matters is not an existing familiarity
between the buyer and seller but their agreement and the acts constituting the sale and delivery of the
marijuana leaves. While there may be instances where such sale could be improbable, taking into
consideration the diverse circumstances of person, time and place, as well as the incredibility of how the
accused supposedly acted on that occasion, we can safely say that those exceptional particulars are not
present in this case.

8. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS AMENDED BY REPUBLIC ACT NO. 7659; PENALTY;
CONSTRUED; CASE AT BAR. — Probably through oversight, an error on the matter of imposable
penalties appears to have been committed in the drafting of the aforesaid law, thereby calling for and
necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of
Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death
and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell,
administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That
penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750
grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall
range from prision correccional to reclusion perpetua depending upon the quantity. In other words,
there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its
dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and
also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error
has been committed with respect to the other prohibited and regulated drugs provided in said Section
20. To harmonize such conflicting provisions in order to give effect to the whole law, we hereby hold
that the penalty to be imposed where the quantity of the drugs involved is less than the quantities
stated in the first paragraph shall range from prision correccional to reclusion temporal, and not
reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts
should be construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the
dangerous drug is only 3.8 grams, hence covered by the imposable range of penalties under the second
paragraph of Section 20, as now modified, the law provides that the penalty shall be taken from said
range "depending upon the quantity" of the drugs involved in the case. The penalty in said second
paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional,
prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a
period, with the lightest of them being the minimum, the next as the medium, and the most severe as
the maximum period. Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating
circumstances determine which period of such complex penalty shall be imposed on the accused. The
peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that
the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction.
Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of
Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal
imposable penalty depending on the quantity of the drug involved. Thereby, the modifying
circumstances will not altogether be disregarded. Since each component penalty of the total complex
penalty will have to be imposed separately as determined by the quantity of the drug involved, then the
modifying circumstances can be used to fix the proper period of that component penalty, as shall
hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of
our aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the
quantities of the drugs enumerated in its second paragraph be divided into three, with the resulting
quotient, and double or treble the same, to be respectively quotient, and double or treble the same, to
be respectively the bases for allocating the penalty proportionately among the three aforesaid periods
according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be
imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams,
reclusion temporal. Parenthetically, fine is imposed as a conjuncture penalty only if the penalty is
reclusion perpetua to death. Now, considering the minimal quantity of the marijuana subject of the case
at bar, the penalty of prision correccional is consequently indicated but, again, another preliminary and
cognate issue has first to be resolved.

9. ID.; ID.; ID.; RULE FOR GRADUATING PENALTIES; APPLICATION IN SPECIAL LAWS, WHEN
ALLOWED; RATIONALE; CASE AT BAR. — Prision correccional has a duration of 6 months and 1 day to 6
years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated in
the table provided by Article 76 of the Code. The question is whether or not in determining the penalty
to be imposed, which is here to be taken from the penalty of prision correccional, the presence or
absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken
into account. The Court is not unaware of cases in the past wherein it was held that, in imposing the
penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the
Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said
cases, however, reveals that the reason therefor was because the special laws involved provided their
own specific penalties for the offenses punished thereunder, and which penalties were not taken from
or with reference to those in the Revised Penal Code. Since the penalties then provided by the special
laws concerned did not provide for the minimum, medium or maximum periods, it would consequently
be impossible to consider the aforestated modifying circumstances whose main function is to determine
the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale
for the holding in previous cases that the provisions of the Code on the graduation of penalties by
degrees could not be given supplementary application to special laws, since the penalties in the latter
were not components of or contemplated in the scale of penalties provided by Article 71 of the former.
The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former,
cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law
against, such supplementary application. The situation, however, is different where although the
offense is defined in and ostensibly punished under special law, the penalty therefor is actually taken
from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation
and legal effects under the system of penalties native to said Code. When, as in this case, the law
involved speaks of prision correccional, in its technical sense under the Code, it would consequently be
both illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in the
instant case the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659,
is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the
Revised Penal Code, there being no attendant mitigating or aggravating circumstance.

10. ID.; MODIFYING CIRCUMSTANCES; APPLICATION IN SPECIAL LAW, CONSTRUED; CASE AT BAR. —
While not squarely in issue in this case, but because this aspect is involved in the discussion on the role
of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances
should be considered and applied only if they affect the periods and the degrees of the penalties within
rational limits. Prefatorily, what ordinarily are involved in the graduation and consequently determine
the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale
of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of
the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating
circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the
presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the
penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not
apply in toto in the determination of the proper penalty under the aforestated second paragraph of
Section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been
contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a
penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts
shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or
two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of
as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and
since the complex penalty in this case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only the penalties of fine and public
censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by
degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower
than prision correccional. It is for this reason that the three component penalties in the second
paragraph of Section 20 shall each be considered as an independent principal penalty, and that the
lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of
drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be
adopted so that the law may continue to have efficiency rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly
addressed to Congress.

11. ID.; INDETERMINATE SENTENCE LAW; WHEN APPLICABLE. — The final query is whether or not
the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug
offenses are not included in nor has appellant committed any act which would put him within the
exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death,
provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. The
more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that
Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal
Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law
and the minimum shall not be less than the minimum term prescribed by the same" We hold that this
quoted portion of the section indubitably refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the
preceding illustrations, such that it may be said that the "offense is punished" under that law. There can
be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special
laws was necessary because of the nature of the former type of penalties under said laws which were
not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no
minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as
is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore
provided, this rule applied, and would still apply, only to the first and last examples. Furthermore,
considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified
under the rule of contemporanea expositio. Republic Act No. 6425, as now amended by Republic Act No.
7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms,
hence with their technical signification and effects. In fact, for purposes of determining the maximum of
said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision
correccional and Article 64 of the Code to impose the same in the medium period. Such offense,
although provided for in a special law, is now in the effect punished by and under the Revised Penal
Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1
which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term
of which shall be that which, in view of the attending circumstances, could be properly imposed under
the rules of said Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would
not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret
in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act No. 4103 by a
mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting
from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we
have held that what is considered is the penalty actually imposed and not the penalty imposable under
the law, and that reclusion perpetua is likewise embraced therein although what the law states is "life
imprisonment." What irresistibly emerges from the preceding disquisition, therefore, is that under the
concurrence of the principles of literal interpretation, which have been rationalized by comparative
decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and
related to contemporaneous legislation; and of structural interpretation, considering the interrelation of
the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to
that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of
Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation.

12. ID.; ID.; CONSTRUED; APPLICATION IN CASE AT BAR. — The Indeterminate Sentence Law is a
legal and social measure of compassion, and should be liberally interpreted in favor of the accused. The
"minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right,
the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. It
does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of
his sentence under set conditions. That minimum is only the period when the convict's eligibility for
parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy
thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum
sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the
benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through the application of Articles 61 and 71 of
the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6
months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which
could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the
judicial teapot.

DAVIDE, JR., J., concurring and dissenting:

1. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; CONSTRUED; CASE AT BAR. — The first view
is based on the proposition that since R.A. No. 7659 unqualifiedly adopted the penalties under the
Revised Penal Code in their technical terms, hence also their technical signification and effects, then
what should govern is the first part of Section 1 of the Indeterminate Sentence Law which directs that:
"in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense." Elsewise stated, by the adoption of the penalties provided for
in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as
amended, the latter offenses would now be considered as punished under the Revised Penal code for
purposes of the Indeterminate Sentence Law. Section 1 of the Indeterminate Sentence Law (Act No.
4103, as amended by Act No. 4225 and R.A. No. 4203) also provides that: "if the offense is punished by
any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum shall not be less than the
minimum prescribed by the same." (Emphasis supplied). There are, therefore, two categories of
offenses which should be taken into account in the application of the Indeterminate Sentence Law: (1)
offenses punished by the Revised Penal Code, and (2) offenses punished by other laws (or special laws).
The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof,
which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed
punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished
by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof. On
the other hand, an offense is considered punished under any other law (or special law) if it is not defined
and penalized by the Revised Penal Code but by such other law. It is thus clear that an offense is
punished by the Revised Penal Code if both its definition and the penalty therefor are found in the said
Code, and it is deemed punished by a special law if its definition and the penalty therefor are found in
the special law. That the latter imports or borrows from the Revised Penal Code its nomenclature of
penalties does not make an offense in the special law punished by or punishable under the Revised
Penal Code. The reason is quite simple. It is still the special law that defines the offense and imposes a
penalty therefor, although it adopts the Code's nomenclature of penalties. In short, the mere use by a
special law of a penalty found in the Revised Penal Code can by no means make an offense thereunder
an offense "punished or punishable" by the Revised Penal Code.

2. ID.; DANGEROUS DRUGS ACT; IMPOSABLE PENALTY; CASE AT BAR. — The majority opinion holds
the view that while the penalty provided for the Section 20 of the Dangerous Drugs Act is a complex one
composed of three distinct penalties, viz., prision correccional, prision mayor, and reclusion temporal,
and that pursuant to Article 77 of the Revised Penal Code, each should form a period, with the lightest
of them being the minimum, the next as the medium, and the most severe as the maximum, yet,
considering that under the said second paragraph of Section 20 the penalty depends on the quantity of
the drug subject of the criminal transaction, then by way of exception to Article 77 of the Revised Penal
Code and to subserve the purpose of Section 20, as amended, each of the aforesaid component
penalties shall be considered as a principal penalty depending on the quantity of the drug involved.
Thereafter, applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the
proper period of the component penalty shall then be fixed. To illustrate, if by the quantity of the drugs
involved (e.g., marijuana below 250 grams) the proper principal penalty should be prision correccional,
but there is one mitigating and no aggravating circumstance, then the penalty to be imposed should be
prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It
declares: "The Court rules, therefore, that while modifying circumstances may be appreciated to
determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case
should such graduation of penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in the second paragraph of Section
20 shall each be considered as an independent principal penalty, and that the lowest penalty should in
any event be prision correccional in order not to depreciate the seriousness of drug offenses." Simply
put, this rule would allow the reduction from reclusion temporal — if it is the penalty to be imposed on
the basis of the quantity of the drugs involved — by two degrees, or to prision correccional, if there are
two or more mitigating circumstances and no aggravating circumstance is present (paragraph 5, Article
64, Revised Penal code) or if there is a privileged mitigating circumstance of, say, minority (Article 68,
Revised Penal Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the
proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by two degrees is
proper, it should only be reduced by one degree because the rule does not allow a reduction beyond
prision correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at
all would be allowed. I find the justification for the rule to be arbitrary and unfair. It is arbitrary because
within the same second paragraph involving the same range of penalty, we both allow and disallow the
application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the
disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because
Section 20 of the Dangerous Drug Act, as amended by R.A. No. 7659, has in fact "depreciated" the
seriousness of drug offenses by providing quantity as basis for the determination of the proper penalty
and limiting fine only to cases punishable by reclusion perpetua to death. It is unfair because an accused
who is found guilty of possessing MORE dangerous drugs — say 500 to 749 grams of marijuana, in which
case the penalty to be imposed would be reclusion temporal — may only be sentenced to six (6) months
and one (1) day of prision correccional minimum because of privileged mitigating circumstances. Yet, an
accused who is found guilty of possession of only one (1) gram of marijuana — in which case the penalty
to be imposed is prision correccional — would not be entitled to a reduction thereof even if he has the
same number of privileged mitigating circumstances as the former has. Also, if the privileged mitigating
circumstance happens to be the minority of the accused, then he is entitled to the reduction of the
penalty as a matter of right pursuant to Article 68 of the Revised Penal Code, which reads: "ART. 68.
Penalty to be imposed upon a person under eighteen years of age. — When the offender is a minor
under eighteen years and his case is one coming under the provisions of the paragraph next to the last
of Article 80 of this Code, the following rules shall be observed: 1. Upon a person under fifteen but over
nine years of age, who is not exempted from Liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but always Lower by two degrees at
Least than that prescribed by Law for the crime which he committed. 2. Upon a person over fifteen and
under eighteen years of age the penalty next Lower than that prescribed by law shall be imposed, but
always in the proper period." I do not think that as to the second paragraph of Section 20 of the
Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the
Revised Penal Code in one aspect and not to apply it in another.

DECISION

REGALADO, J p:

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of
Section 4, Article II of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act
of 1972, under an indictment alleging that on or about October 22, 1988, at Barangay Sto. Cristo,
Guagua, Pampanga, he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-
buyer in consideration of the sum of P40.00, which tea bags, when subjected to laboratory examination,
were found positive for marijuana. 1

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his
escape from Camp Olivas, San Fernando, Pampanga where he was voluntarily detained, 2 he pleaded
not guilty. He voluntarily waived his right to a pre-trial conference, 3 after which trial on the merits
ensued and was duly concluded. LibLex

The evidence on record shows that a confidential informant, later identified as NARCOM operative,
informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a
certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding
Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt.
Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After
securing marked money from Bustamante, the team, together with their informant, proceeded to Sto.
Cristo after they had coordinated with the police authorities and barangay officers thereof. When they
reached the place, the confidential informer pointed out appellant to Lopez who consequently
approached appellant and asked him if he had marijuana. Appellant answered in the affirmative and
Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to
Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as payment.
Lopez then scratched his head as a pre-arranged signal to his companions who were stationed around
ten to fifteen meters away, and the team closed in on them. Thereupon, Villaruz, who was the head of
the back-up team, arrested appellant. The latter was then brought by the team to the 3rd Narcotics
Regional Unit at Camp Olivas on board a jeep and he was placed under custodial investigation, with Sgt.
Pejoro as the investigator. 4

Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between
Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and took
the marked money from appellant. 5

Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
stationed farthest from the rest of the other members, that is, around two hundred meters away from
his companions. He did not actually see the sale that transpired between Lopez and appellant but he
saw his teammates accosting appellant after the latter's arrest. He was likewise the one who conducted
the custodial investigation of appellant wherein the latter was apprised of his rights to remain silent, to
information and to counsel. Appellant, however, orally waived his right to counsel. 6

Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which
appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his
possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was
that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz
corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to
the correction since they were the ones who were personally and directly involved in the purchase of
the marijuana and the arrest of the appellant. 7

Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 P.M. of the day after
the latter's apprehension, and the results were practically normal except for his relatively high blood
pressure. The doctor also did not find any trace of physical injury on the person of the appellant. The
next day, he again examined appellant due to the latter's complaint of gastro-intestinal pain. In the
course of the examination, Dr. Calara discovered that appellant has a history of peptic ulcer, which
causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant
came back with the same complaint but, except for the gastro-intestinal pain, his physical condition
remained normal. 8

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in
question, at around 4:30 P.M., he was watching television with the members of his family in their house
when three persons, whom he had never met before suddenly arrived. Relying on the assurance that
they would just inquire about something from him at their detachment, appellant boarded a jeep with
them. He was told that they were going to Camp Olivas, but he later noticed that they were taking a
different route. While on board, he was told that he was a pusher so he attempted to alight from the
jeep but he was handcuffed instead. When they finally reached the camp, he was ordered to sign some
papers and, when he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was
then compelled to affix his signature and fingerprints on the documents presented to him. He denied
knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from
the pocket of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered
at the hands of Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so
since he could no longer endure the maltreatment to which he was being subjected. After escaping, he
proceeded to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at
around 6:30 or 7:30 P.M. There, he consulted a quack doctor and, later, he was accompanied by his
sister to the Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for
three days. 9

Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at
Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed
that appellant had been suffering from peptic ulcer even before the latter's arrest. 10 Also, Dr. Evelyn
Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that she treated
appellant for three days due to abdominal pain, but her examination revealed that the caused for this
ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external injury,
abrasion or contusion on his body. 11

On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment
convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and
sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to
pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in favor of
the Government. 12

Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending
in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up," (2) not
declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3)
convicting him of a violation of the Dangerous Drugs Act. 13
At the outset, it should be noted that while the People's real theory and evidence is to the effect that
appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were
merely confiscated subsequently from his possession, 14 the latter not being in any way connected with
the sale, the information alleges that he sold and delivered four tea bags of marijuana dried leaves. 15 In
view thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea
bags allegedly committed by appellant, and does not include the disparate and distinct issue of illegal
possession of the other two tea bags which separate offense is not charged herein. 16

To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established. 17 To sell means to give, whether for money or any other material consideration. 18 It
must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of
marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso
bills. LLpr

After an assiduous review and calibration of the evidence adduced by both parties, we are morally
certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The
prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell
two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the
sale took place and his testimony was amply corroborated by his teammates. As between the
straightforward, positive and corroborated testimony of Lopez and the bare denials and negative
testimony of appellant, the former undeniably deserves greater weight and is more entitled to
credence.

We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is
susceptible to mistake, harassment, extortion and abuse. 19 Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust
operation was effected. 20 No ill motive was or could be attributed to them, aside from the fact that
they are presumed to have regularly performed their official duty. 21 Such lack of dubious motive
coupled with the presumption of regularity in the performance of official duty, as well as the findings of
the trial court on the credibility of witnesses, should prevail over the self-serving and uncorroborated
claim of appellant of having been framed, 22 erected as it is upon the mere shifting sands of an alibi. To
top it all, appellant was caught red-handed delivering prohibited drugs, and while there was a delimited
chance for him to controvert the charge, he does not appear to have plausibly done so.

When the drug seized was submitted to the Crime Laboratory Service of the then Philippine
Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
Salangad, a forensic chemist therein, 23 confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and had a total weight of 3.8
grams of marijuana. 24 Thus, the corpus delicti of the crime had been fully proved with certainty and
conclusiveness. 25
Appellant would want to make a capital of the alleged inconsistencies and improbabilities in the
testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really
confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing
to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property
Seized/Confiscated," he signed it as the one who seized the same. 26

Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really
matter since such is not an element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was confiscated from the possession of appellant. even,
assuming arguendo that the prosecution committed an error on who actually seized the marijuana from
appellant, such an error or discrepancy refers only to a minor matter and, as such, neither impairs the
essential integrity of the prosecution evidence as a whole nor reflects on the witnesses' honesty. 27
Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that he did not
take part in the physical taking of the drug from the person of appellant, but he participated in the legal
seizure or confiscation thereof as the investigator of their unit.

Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were
not powdered for finger-printing purposes contrary to the normal procedure in buy-bust operation. 28
This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:

"Q: Is it the standard operating procedure of your unit that in conducting such operation you do not
anymore provide a powder (sic) on the object so as to determine the thumbmark or identity of the
persons taking hold of the object?

A: We were not able to put powder on these denominations because we are lacking that kind of
material in our office since that item can be purchased only in Manila and only few are producing that,
sir. Cdpr

xxx xxx xxx

Q: It is not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as the office of
NICA?

A: Our office is only adjacent to those offices but we cannot make a request for that powder
because they themselves, are using that in their own work, sir." 29

The foregoing explanation aside, we agree that the failure to mark that money bills used for entrapment
purposes can under no mode of rationalization be fatal to the case of the prosecution because the
Dangerous Drugs Act punishes "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." 30 The dusting of said bills with phosphorescent power is only an
evidentiary technique for identification purposes, which identification can be supplied by other species
of evidence.
Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to
witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover,
he was not reported to or booked in the custody of any barangay official or police authorities. 31 These
are absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be
witnessed by a relative, a barangay official or any other civilian, or be accompanied by the taking of
pictures. On the contrary, the police enforcers having caught appellant in flagrante delicto, they were
not only authorized but were also under the obligation to effect a warrantless arrest and seizure.

Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in
connection with his apprehension. Said Booking Sheet and Arrest Report 32 states, inter alia, that
"suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation
of another two tea bags of suspected marijuana dried leaves." Below these remarks was affixed
appellant's signature. In the same manner, the receipt for the seized property, hereinbefore mentioned,
was signed by appellant wherein he acknowledged the confiscation of the marked bills from him. 33

However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's
conformance to these documents are declarations against interest and tacit admissions of the crime
charged. They were obtained in violation of his right as a person under custodial investigation for the
commission of an offense, there being nothing in the records to show that he was assisted by counsel.
34 Although appellant manifested during the custodial investigation that he waived his right to counsel,
the waiver was not made in writing and in the presence of counsel, 35 hence whatever incriminatory
admission or confession may be extracted from him, either verbally or in writing, is not allowable in
evidence. 36 Besides, the arrest report is self-serving and hearsay and can easily be concocted to
implicate a suspect.

Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated
from his predicament from his predicament since his criminal participation in the illegal sale of
marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs
requires merely the consummation of the selling transaction 37 which happens the moment the buyer
receives the drug from the seller. 38 In the present case, and in light of the preceding discussion, this
sale has been ascertained beyond any peradventure of doubt. cdphil

Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 39 We
take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small
scale as in this case, belongs to that class of crimes that may be committed at any time and in any place.
40 It is not contrary to human experience for a drug pusher to sell to a total stranger, 41 for what
matters is not an existing familiarity between the buyer and seller but their agreement and the acts
constituting the sale and delivery of the marijuana leaves. 42 While there may be instances where such
sale could be improbable, taking into consideration the diverse circumstances of person, time and place,
as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that
those exceptional particulars are not present in this case.
Finally, appellant contends that he as subjected to physical and mental torture by the arresting officers
which caused him to escape from Camp Olivas the night he was placed under custody. 43 This he asserts
to support his explanation as to how his signatures on the documents earlier discussed were supposedly
obtained by force and coercion.

The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must
not only proceed from the mouth of a credible witness but must be credible in itself such as the
common experience and observation of mankind can approve as probable under the circumstances. 44
The evidence on record is bereft of any support for appellants allegation of maltreatment. Two doctors,
one for the prosecution 45 and the other for the defense, 46 testified on the absence of any tell-tale
sign or indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is
that the cause of his abdominal pain was hi peptic ulcer from which he had been suffering even before
his arrest. 47 His own brother even corroborated that fact, saying that appellant has had a history of
bleeding peptic ulcer. 48

Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for
not divulging the same to his brother who went to see him at the camp after his arrest and during his
detention there. 49 Significantly, he also did not even report the matter to the authorities nor file
appropriate charges against the alleged malefactors despite the opportunity to do so 50 and with the
legal services of counsel being available to him. Such omissions funnel down to the conclusion that
appellant's story is a pure fabrication.

These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and
premeditated for the NARCOM agents were determined to arrest him at all costs. 51 Premeditated or
not, appellant's arrest was only the culmination, the final act needed for his isolation from society and it
was providential that it came about after he was caught in the very act of illicit trade of prohibited
drugs. Accordingly, this opinion cold have concluded on a note of affirmance of the judgment of the trial
court. However, Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659
effective December 31, 1993, 52 which supervenience necessarily affects the original disposition of this
case and entails additional questions of law which we shall now resolve.

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to
this effect:

"SECTION 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, are hereby amended to read as follows:

xxx xxx xxx

'SECTION 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.'
xxx xxx xxx

"SECTION 17. Section 20, Article IV of Republic Act No. 6425, as amended as the Dangerous Drugs Act
of 1972, is hereby amended to read as follows:

'SECTION 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of
the Crime. — The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article Ii and Sections 14, 14-A,
15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the
following quantities:

xxx xxx xxx

5. 750 grams or more of indian hemp or marijuana.

xxx xxx xxx

'Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from
prision correccional to reclusion perpetua depending upon the quantity.'"

1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana
with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those
tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659
should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to
Article 22 of the Revised Penal Code. llcd

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
substitution of the previous Articles 190 to 194 of the Revised Penal Code, 53 it has long been settled
that by force of Article 10 of said Code the beneficent provisions of Article 22 thereof applies to and
shall be given retrospective effect to crimes punished by special laws. 54 The exception in said article
would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for
the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa or
falsification. 55

Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been
involved nor invoked in the present case, a corollary question would be whether this court, at the
present stage, can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed
on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante.,
thus:

". . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws
in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the
courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the
accused has applied for it, just as would also all provisions relating to the prescriptive of the crime and
the penalty."
If the judgment which could be affected and modified by the reduced penalties provided in Republic Act
No. 7659 has already become final and executory or the accused is serving sentence thereunder, then
practice, procedure and pragmatic considerations would warrant and necessitate the matter being
brought to the judicial authorities for relief under a writ of habeas corpus. 56

2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law, thereby calling for and necessitating judicial
reconciliation and craftsmanship.

As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes
the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon
any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or
transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall
be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the
quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua
depending upon the quantity.

In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua
by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than
750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more.
The same error has been committed with respect to the other prohibited and regulated drugs provided
in said Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, 57
we hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the
quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and
not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts
should be construed in a manner favorable to the accused.

3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by
the imposable range of penalties under the second paragraph of Section 20, as now modified, the law
provides that the penalty shall be taken from said range "depending upon the quantity" of the drugs
involved in the case. The penalty in said second paragraph constitutes a complex one composed of three
distinct penalties, that is, prision correccional, prision mayor, and reclusion temporal. In such a situation,
the Code provides that each one shall form a period, with the lightest of them being the minimum, the
next as the medium, and the most severe as the maximum period. 58

Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances
determine which period of such complex penalty shall be imposed on the accused. The peculiarity of the
second paragraph of Section 20, however, is its specific mandate, above quoted, that the penalty shall
instead depend upon the quantity of the drug subject of the criminal transaction. 59 Accordingly, by way
of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No.
7659, each of the aforesaid component penalties shall be considered as a principal imposable penalty
depending on the quantity of the drug involved. Thereby, the modifying circumstances will not
altogether be disregarded. Since each component penalty of the total complex penalty will have to be
imposed separately as determined by the quantity of the drug involved, then the modifying
circumstances can be used to fix the proper period of that component penalty, as shall hereafter be
explained.

It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid
disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs
enumerated in its second paragraph be divided into three, with the resulting quotient, and double or
treble the same, to be respectively quotient, and double or treble the same, to be respectively the bases
for allocating the penalty proportionately among the three aforesaid periods according to the severity
thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision
correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal.
Parenthetically, fine is imposed as a conjuncture penalty only if the penalty is reclusion perpetua to
death. 60

Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of
prision correccional is consequently indicated but, again, another preliminary and cognate issue has first
to be resolved.

4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it
consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of
the Code. The question is whether or not in determining the penalty to be imposed, which is here to be
taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating or
other circumstances modifying criminal liability should be taken into account. cdrep

The Court is not unaware of cases in the past wherein it was held that, in imposing the penalty for
offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised
Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the special laws involved provided their own
specific penalties for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws
concerned did not provide for the minimum, medium or maximum periods, it would consequently be
impossible to consider the aforestated modifying circumstances whose main function is to determine
the period of the penalty in accordance with the rules in Article 64 of the Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws, since
the penalties in the latter were not components of or contemplated in the scale of penalties provided by
Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in
Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a
prohibition in the special law against, such supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished
under special law, the penalty therefor is actually taken from the Revised Penal Code in its technical
nomenclature and, necessarily, with its duration, correlation and legal effects under the system of
penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in
its technical sense under the Code, it would consequently be both illogical and absurd to posit
otherwise. More on this later.

For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as
amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof
pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating
circumstance.

5. At this juncture, a clarificatory discussion of the developmental changes in the penalties

imposed for offenses under special laws would be necessary.

Originally, those special laws, just as was the conventional practice in the United States but differently
from the penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific
penalty or a range of penalties with definitive durations, such as imprisonment for one year or for one
to five years but without division into periods or any technical statutory cognomen. This is the special
law contemplated in and referred to at the time laws like the Indeterminate Sentence Law 61 were
passed during the American regime.

Subsequently, a different pattern emerged whereby a special law would direct that an offense
thereunder shall be punished under the Revised Penal Code and in the same manner provided therein.
Inceptively, for instance, Commonwealth Act No. 303 62 penalizing non-payment of salaries and wages
with the periodicity prescribed therein, provided:

"SECTION 4. Failure of the employer to pay his employee or laborer as required by section one of this
act, shall prima facie be considered a fraud committed by such employer against his employee or
laborer by means of false pretenses similar to those mentioned in article three hundred and fifteen,
paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the same
manner as therein provided." 63

Thereafter, special laws were enacted where the offenses defined therein were specifically punished by
the penalties as technically named and understood in the Revised Penal Code. These are exemplified by
Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto mayor to death;
64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor to
prision mayor; and Presidential Decree No. 1866 (illegal possession and other prohibited acts involving
firearms), the penalties wherefore may involve prision mayor, reclusion temporal, reclusion perpetua or
death.

Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of 1972) where the
penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4
months, when committed without violence or intimidation of persons or force upon things; not less than
17 years and 4 months and not more than 30 years, when committed with violence against or
intimidation of any person, or force upon things; and life imprisonment to death, when the owner,
driver or occupant of the carnapped vehicle is killed.
With respect to the first example, where the penalties under the special law are different from and are
without reference or relation to those under the Revised Penal Code, there can be no suppletory effect
of the rules for the application of penalties under said Code or by other relevant statutory provisions
based on or applicable only to said rules for felonies under the Code. In this type of special law, the
legislative intendment is clear.

The same exclusionary rule would apply to the last given example, Republic Act No. 5639. While it is true
that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the
duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code
is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the
qualifying circumstances stated in the law do not correspond to those in the Code. The rules on
penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of
the same formulation. cdrep

On the other hand, the rules for the application of penalties and the correlative effects thereof under
the Revised penal Code, as well as other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties under the former Republic act No. 1700
and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws,
the fact that the penalties for offenses thereunder are those provided for in the Revised Penal Code
lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the
Code the corresponding application to said special laws, in the absence of any express or implicit
proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial
truncation of an integrated system of penalties under the Code and its allied legislation, which could
never have been the intendment of Congress.

In People vs. Macatanda, 65 a prosecution under a special law (Presidential Decree No. 533, otherwise
known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64,
paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that —

"We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and
unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of the
classification and duration of penalties as prescribed in the Revised Penal Code, which is not for
penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be deemed
as an amendment of the Revised Penal Code, with respect to the offense of theft of large cattle (Art.
310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the Revised Penal
Code . . . Article 64 of the same Code should, likewise, applicable, . . ." (Emphasis supplied.)

More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal
Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent
pronouncement:

". . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be
'supplementary' to special laws, this Court held that where the special law expressly grants to the court
discretion in applying the penalty prescribed for the offense, there is no room for the application of the
provisions of the Code. . .

"The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of discretion
to the Court in the application of the penalty prescribed by the law. In such case, the court must be
guided by the rules prescribed by the Revised Penal Code concerning the application of penalties which
distill the 'deep legal though and centuries of experience in the administration of criminal laws.'"
(Emphasis ours.) 66

Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by
Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in
and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason
should the provisions of said Code on the appreciation and effects of all attendant modifying
circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and
the rules for graduating such penalties by degrees should have supplementary effect on Republic Act
No. 6425, except if they would result in absurdities as will now be explained.

While not squarely in issue in this case, but because this aspect is involved in the discussion on the role
of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances
should be considered and applied only if they affect the periods and the degrees of the penalties within
rational limits.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of
the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in
Article 71, are the stage of execution of the crime and the nature of the participation of the accused.
However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating
circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the
presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the
penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not
apply in toto in the determination of the proper penalty under the aforestated second paragraph of
Section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been
contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties
which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex
penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional,
prision mayor and reclusion temporal, then one degree lower would be arresto menor, destierro and
arresto mayor. There could, however, be no further reduction by still one or two degrees, which must
each likewise consist of three penalties, since only the penalties of fine and public censure remain in the
scale. LexLib
The Court rules, therefore, that while modifying circumstances may be appreciated to determine the
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such
graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for
this reason that the three component penalties in the second paragraph of Section 20 shall each be
considered as an independent principal penalty, and that the lowest penalty should in any event be
prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est
ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to
have efficiency rather than fail. A perfect judicial solution cannot be forged from an imperfect law,
which impasse should now be the concern of and is accordingly addressed to Congress.

6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. Apparently it does, since drug offenses are not included in nor has appellant committed any
act which would put him within the exceptions to said law and the penalty to be imposed does not
involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will
exceed one year of imprisonment. 68 The more important aspect, however, is how the indeterminate
sentence shall be ascertained.

It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the
Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the minimum term prescribed by the same" We hold
that this quoted portion of the section indubitably refers to an offense under a special law wherein the
penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in
the preceding illustrations, such that it may be said that the "offense is punished" under that law.

There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses
under special laws was necessary because of the nature of the former type of penalties under said laws
which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there
could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the
offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws
hereinbefore provided, this rule applied, and would still apply, only to the first and last examples.
Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application
and is justified under the rule of contemporanea expositio. 69

We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical
signification and effects. In fact, for purposes of determining the maximum of said sentence, we have
applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article
64 of the Code to impose the same in the medium period. Such offense, although provided for in a
special law, is now in the effect punished by and under the Revised Penal Code. Correlatively, to
determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in
imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under the rules of said Code,
and the minimum which shall be within the range of the penalty next lower to that prescribed by the
Code for the offense." (Emphasis ours.)

A divergent pedantic application would not only be out of context but also an admission of the
hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only
skin-deep in its construction of Act No. 4103 by a mere literal appreciation of its provisions. Thus, with
regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses
punished with death penalty or life imprisonment," we have held that what is considered is the penalty
actually imposed and not the penalty imposable under the law, 70 and that reclusion perpetua is
likewise embraced therein although what the law states is "life imprisonment."

What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of
the principles of literal interpretation, which have been rationalized by comparative decisions of this
Court; of historical interpretation, as explicated by the antecedents of the law and related to
contemporaneous legislation; and of structural interpretation, considering the interrelation of the
penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows
that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that
prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act
No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. 71

The Indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally
interpreted in favor of the accused. 72 The "minimum" sentence is merely a period at which, and not
before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of
his sentence outside of his confinement. 73 It does not constitute the totality of the penalty since
thereafter he still has to continue serving the rest of his sentence under set conditions. That minimum is
only the period when the convict's eligibility for parole may be considered. In fact, his release on parole
may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal
grounds, even if he has served the minimum sentence.

It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of
a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional
which is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised
Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto
mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even
involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot.

ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a
quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he
should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto
mayor, as the minimum, to six (6) months of arresto mayor, as the minimum, to six (6) years of prision
correccional, as the maximum thereof. LibLex

SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Bellosillo, J., is on leave.

Davide, Jr., see separate opinion.

Separate Opinions

DAVIDE, JR., J ., dissenting:

I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed
would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as
amended by Section 16 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate
Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the
penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances
not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce
the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the
dangerous drugs involved, would be prision correccional. cdphil

The first view is based on the proposition that since R.A. No. 7659 unqualifiedly adopted the penalties
under the Revised Penal Code in their technical terms, hence also their technical signification and
effects, then what should govern is the first part of Section 1 of the Indeterminate Sentence Law which
directs that:

"in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense."

Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the offenses
penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now
be considered as punished under the Revised Penal code for purposes of the Indeterminate Sentence
Law.

Section 1 of the Indeterminate Sentence Law (Act No. 4103, as amended by Act No. 4225 and R.A. No.
4203) also provides that:

"if the offense is punished by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum prescribed by the same." (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into account in the application of
the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2) offenses
punished by other laws (or special laws).

The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof,
which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed
punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished
by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof.

On the other hand, an offense is considered punished under any other law (or special law) if it is not
defined and penalized by the Revised Penal Code but by such other law.

It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition
and the penalty therefor are found in the special law. That the latter imports or borrows from the
Revised Penal Code its nomenclature of penalties does not make an offense in the special law punished
by or punishable under the Revised Penal Code. The reason is quite simple. It is still the special law that
defines the offense and imposes a penalty therefor, although it adopts the Code's nomenclature of
penalties. In short, the mere use by a special law of a penalty found in the Revised Penal Code can by no
means make an offense thereunder an offense "punished or punishable" by the Revised Penal Code.
LexLib

Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed by
the Revised Penal Code in drug cases, offenses related to drugs should now be considered as punished
under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to declare that such
offenses are mala in se and to apply the Articles of the Revised Penal Code regarding the stages of a
felony (Article 6), the nature of participation (Article 16), accessory penalties (Articles 40-45), application
of penalties to principals, accomplices, and accessories (Article 46 et seq.), complex crimes (Article 48),
and graduation of penalties (Article 61), among others. We cannot do otherwise without being drawn to
an inconsistent posture which is extremely hard to justify.

I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the Revised
Penal Code does not make an offense under the Dangerous Drugs Act an offense punished by the
Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20 of the
Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law, the
indeterminate sentence to be meted on the accused should be that whose minimum should not be less
than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower than six (6)
months and one (1) day of prision correccional.

II

The majority opinion holds the view that while the penalty provided for the Section 20 of the Dangerous
Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision
mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each should
form a period, with the lightest of them being the minimum, the next as the medium, and the most
severe as the maximum, yet, considering that under the said second paragraph of Section 20 the penalty
depends on the quantity of the drug subject of the criminal transaction, then by way of exception to
Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the
aforesaid component penalties shall be considered as a principal penalty depending on the quantity of
the drug involved. Thereafter, applying the modifying circumstances pursuant to Article 64 of the
Revised Penal Code, the proper period of the component penalty shall then be fixed.

To illustrate, if by the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
circumstance, then the penalty to be imposed should be prision correccional in its minimum period. Yet,
the majority opinion puts a limit to such a rule. It declares:

"The Court rules, therefore, that while modifying circumstances may be appreciated to determine the
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such
graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for
this reason that the three component penalties in the second paragraph of Section 20 shall each be
considered as an independent principal penalty, and that the lowest penalty should in any event be
prision correccional in order not to depreciate the seriousness of drug offenses."

Simply put, this rule would allow the reduction from reclusion temporal — if it is the penalty to be
imposed on the basis of the quantity of the drugs involved — by two degrees, or to prision correccional,
if there are two or more mitigating circumstances and no aggravating circumstance is present
(paragraph 5, Article 64, Revised Penal code) or if there is a privileged mitigating circumstance of, say,
minority (Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the Revised
Penal Code. Yet, if the proper penalty to be imposed is prision mayor, regardless of the fact that a
reduction by two degrees is proper, it should only be reduced by one degree because the rule does not
allow a reduction beyond prision correccional. Finally, if the proper penalty to be imposed is prision
correccional, no reduction at all would be allowed.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same
second paragraph involving the same range of penalty, we both allow and disallow the application of
Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance, viz.,
in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20 of the
Dangerous Drug Act, as amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug
offenses by providing quantity as basis for the determination of the proper penalty and limiting fine only
to cases punishable by reclusion perpetua to death. It is unfair because an accused who is found guilty
of possessing MORE dangerous drugs — say 500 to 749 grams of marijuana, in which case the penalty to
be imposed would be reclusion temporal — may only be sentenced to six (6) months and one (1) day of
prision correccional minimum because of privileged mitigating circumstances. Yet, an accused who is
found guilty of possession of only one (1) gram of marijuana — in which case the penalty to be imposed
is prision correccional — would not be entitled to a reduction thereof even if he has the same number of
privileged mitigating circumstances as the former has. prLL
Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is
entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal
Code, which reads:

"ARTICLE 68. Penalty to be imposed upon a person under eighteen years of age. — When the
offender is a minor under eighteen years and his case is one coming under the provisions of the
paragraph next to the last of Article 80 of this Code, the following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not exempted from Liability by
reason of the court having declared that he acted with discernment, a discretionary penalty shall be
imposed, but always Lower by two degrees at Least than that prescribed by Law for the crime which he
committed.

2. Upon a person over fifteen and under eighteen years of age the penalty next Lower than that
prescribed by law shall be imposed, but always in the proper period."

I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended by
Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not
to apply it in another.

Feliciano and Quiason, JJ ., dissent.

[G.R. No. 35748. December 14, 1931.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. ROMANA SILVESTRE AND MARTIN
ATIENZA, defendants-appellants.

Teofilo Mendoza, for appellants.

Attorney-General Jaranilla, for appellee.

SYLLABUS

1. CRIMINAL LAW; MERE PRESENCE AT COMMISSION OF CRIME. — Mere passive presence at the
scene of another's crime, mere silence and failure to give the alarm, without evidence of agreement or
conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for complicity in
the commission of the crime witnessed passively, or with regard to which one has kept silent.

2. ID.; ARSON; CRIMINAL LIABILITY. — Any one desiring to burn the houses in a barrio, without
knowing whether there are people in them or not, sets fire to one known to be vacant at the time,
which results in destroying the rest, commits the crime of arson, defined and penalized in article 550,
paragraph 2, Penal Code.

DECISION

VILLA-REAL, J p:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First
Instance of Bulacan convicting them upon the information of the crime of arson as follows: The former
as principal by direct participation, sentenced to fourteen years, eight months, and one day of cadena
temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as accomplice,
sentenced to six years and one day of presidio mayor; and both are further sentenced to the accessories
of the law, and to pay each of the persons whose houses were destroyed by the fire, jointly and
severally, the amount set forth in the information, with costs.

Counsel appointed by the court to defend the accused-appellants de oficio, after delivering his
argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza,
and makes the following assignments of error with reference to Romana Silvestre, to wit:

"1. The lower court erred in convicting Romana Silvestre as accomplice of the crime charged in the
information.

"2. Finally, the court erred in not acquitting said defendant from the information upon the ground
of insufficient evidence, or at the least, of reasonable doubt."

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant
Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong,
Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice
of the peace for that municipality, a sworn complaint for adultery, supported by affidavits of Gerardo
Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were
arrested on a warrant issued by said justice of the peace. On the 20th of that month, they were released
on bail, each giving a personal bond of P6,000. Pending the preliminary investigation of the case, the
two defendants begged the municipal president of Paombong, Francisco Suerte Felipe, to speak to the
complainant, Domingo Joaquin, urging him to withdraw the complaint, the two accused binding
themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin
Atienza voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants'
petition to the complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May
20, 1930, filed a motion for the dismissal of his complaint. In consideration of this petition, the justice of
the peace of Paombong dismissed the adultery case commenced against the accused, and cancelled the
bonds given by them, with the costs against the complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same
municipality of Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas
de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa leaves, followed
him home to the village of Masocol, and remained there. The accused, Martin Atienza, who had
continued to cohabit with said Romana Silvestre, followed her and lived in the home of Nicolas de la
Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were
gathered together with the appellants herein after supper, Martin Atienza told said coupled to take their
furniture out of the house because he was going to set fire to it. Upon being asked by Nicolas and
Antonia why he wanted to set fire to the house, he answered that that was the only way he could be
revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him
and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one
dared say anything to him, not even Romana Silvestre, who was about a meter away from her
codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once to
communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin
Atienza say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!"
Turning back they saw their home in flames, and ran back to it; but seeing that the fire had assumed
considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her arms,
while Nicolas went to the home of his parents-in-law, took up the furniture he had deposited their, and
carried it to the schoolhouse. The fire destroyed about forty- eight houses. Thomas Santiago coming
from the barrio artesian well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe
Clemente, an old man 61 years of age, coming from their homes, to the house on fire, saw Martin
Atienza going away from the house where the fire started, and Romana Silvestre leaving it.

As stated in the beginning, counsel appointed by this court to defend the accused-appellants de oficio,
prays for the affirmance of the judgment appealed from with reference to defendant Martin Atienza.
The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of
the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of arson as
charged, as principal by direct participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are:
That, being married, she lived adulterously with her codefendant Martin Atienza, a married man; that
both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband; that in
view of the petition of the accused, who promised to discontinue their life together, and to leave the
barrio of Masocol, and through the good offices of the municipal president of Paombong, the
complaining husband asked for the dismissal of the complaint; that in pursuance of their promise, both
of the accused went to live in the barrio of Santo Niño, in the same municipality; that under pretext of
asking for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to
the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of Masocol on
November 23, 1930, and remained there; that her codefendant, Martin Atienza followed her, and
stayed with his coaccused in the same house; that on the night of November 25, 1930, at about 8
o'clock, while all were gathered together at home after supper, Martin Atienza expressed his intention
of burning the house as the only means of taking his revenge on the Masocol residents, who had
instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to
leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising a
protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these
facts, the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one
who does not take a direct part in the commission of the act, who does not force or induce other to
commit it, nor cooperates in the commission of the act by another act without which it would not have
been accomplished, yet cooperates in the execution of the act by previous or simultaneous actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson
committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la
Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their house
as the only means of revenging himself on the barrio residents, her passive presence when Martin
Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and her failure to
give the alarm when the house was already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through
advice, encouragement, or agreement, or material, through external acts. In the case of the accused-
appellant Romana Silvestre, there is no evidence of moral or material cooperation, and none of an
agreement to commit the crime in question. Here mere presence and silence while they are
simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or nerved
Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that being a
subsequent act it does not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in
article 550, paragraph 2, of the Penal Code, which reads as follows:
"Art. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

"2. Any person who shall set fire to any inhabited house or any building in which people are
accustomed to meet together, without knowing whether or not such building or house was occupied at
the time, or any freight train in motion, if the damage cause in such cases shall exceed six thousand two
hundred and fifty pesetes."

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there
was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely of
arson less serious than what the trial court sentenced him for, inasmuch as that house was the means of
destroying the others, and he did not know whether these were occupied at the time or not. If the
greater seriousness of setting fire to an inhabited house, when the incendiary does not know whether
there are people in it at the time, depends upon the danger to which the inmates are exposed, not less
serious is the arson committed by setting fire to inhabited houses by means of another inhabited house
which the firebrand knew to be empty at the moment of committing the act, if he did not know whether
there were people or not in the others, inasmuch as the same danger exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been
convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal Code,
if the information had alleged that at the time of setting fire to the house, the defendant knew that the
other houses were occupied, taking into account that barrio residents are accustomed to retire at the
tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence
at the scene of another's crime, mere silence and failure to give the alarm, without evidence of
agreement or conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for
complicity in the commission of the crime witnessed passively, or with regard to which one has kept
silent; and (2) he who desiring to burn the houses in a barrio, without knowing whether there are
people in them or not, sets fire to one known to be vacant at the time, which results in destroying the
rest, commits the crime of arson, defined and penalized in article 550, paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to
the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant Romana
Silvestre, who is hereby acquitted with one-half of the costs de oficio. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez and Imperial, JJ., concur.
[G.R. No. L-32126. July 6, 1978.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NEMESIO TALINGDAN, MAGELLAN TOBIAS,
AUGUSTO BERRAS, PEDRO BIDES and TERESA DOMOGMA, accused-appellants.

SYNOPSIS

Armed with long guns, the four male accused gunned down Bernardo from below the "batalan" of his
house as he was sitting by the supper table and his twelve-year old daughter Corazon was watching him
nearby. The accused then climbed the stairs and seeing Bernardo still alive, accused Talingdan and
Tobias fired at him again. Corazon tried to call for help but Bides threatened to kill her. The assailants
then fled. Corazon recognized and knew the four as they were residents of their barrio, but her mother,
Teresa, who came out of their "silid" after the shooting, warned Corazon not to tell anyone that she
recognized her father's killers threatening to kill her if she did. When peace officers repaired to their
house to investigate what happened, Teresa claimed that she had no suspects in mind.

Teresa was known to have illicit relations with Talingdan and prior to this incident had been seen by her
daughter Corazon meeting with the other accused on two occasions. The first time was in a hut near
where the child was washing clothes on which occasion she overheard one of them ask "Can he elude a
bullet?" This was after a violent quarrel between Teresa and the deceased. The second time was on the
very night of the killing when Corazon saw and heard them talking in subdued tones about 3 or 4 meters
away from the "batalan" where she was cooking supper.

The trial court found all the accused guilty of murder and sentenced each of them to life imprisonment.
On appeal, they claimed that the lone testimony of Corazon suffered from vital contradictions and
badges of falsehood because of patently unnatural circumstances alleged by her.

The Supreme Court found Corazon's testimony consistent, sincere, and truthful considering that she was
hardly thirteen years old when she testified, an age when "a child is, as a rule, but little influenced by
the suggestion of others", no cogent explanation having been offered why she would attribute the
assault on her father to three other men, aside from Talingdan whom she knew had relations with her
mother, where she was merely making-up her account of how he was shot, no motive for her to do so
having been shown.

Judgment affirmed except that the four male appellants were sentenced to death and appellant Teresa
was convicted only as an accessory to the crime.

SYLLABUS

1. CRIMINAL LAW; PARRICIDE; SUPPOSED WIFE CANNOT BE CHARGED OF PARRICIDE FOR LACK OF
PROOF OF MARRIAGE. — The supposed wife of a murder victim cannot be charged with parricide where
there is no certificate or any other proof of their marriage.

2. EVIDENCE; TESTIMONY OF A CHILD; CREDIBILITY. — The consistent testimony of a child who is

thirteen years old relating to the circumstances surrounding the killing of her father by the four accused
whom she recognized and knew as they were residents of their barrio, is undoubtedly sincere and
truthful considering that at that age, a child is, as a rule, "but little influenced by the suggestion of
others", and no cogent explanation had been offered why she would attribute the assault on her father
to three other men, aside from the one whom she knew had illicit relations with her mother, where she
was merely making-up her account of how he was shot, no motive for her to do so having been shown.

MAKASIAR, J., dissenting:

1. CRIMINAL LAW; PARRICIDE; CERTIFICATE OF MARRIAGE NOT INDISPENSABLE TO ESTABLISH THE

FACT OF MARRIAGE. — A marriage certificate is not indispensable to establish the fact of marriage in
order to charge a wife of parricide because the presumption that two persons are married subsists by
reason of the fact that they had been living together for about thirteen years as evidenced by the birth
of their eldest child and that they had other children thereafter.

2. ID.; CIRCUMSTANCES SHOWING CONSPIRACY. — The active cooperation of the wife in the
conspiracy against the life of the her husband is clearly demonstrated in the categorical testimony of her
13-year old daughter who declared that she saw her mother meeting with her other co-accused in a hut
on which occasion she overheard one of them ask "Could he elude a bullet?"; that when her mother
noticed her presence, she shoved her away saying, "You tell your father that we will kill him"; that in the
evening of her father's death while she was cooking supper she saw her mother go down the stairs and
meet the other accused who were armed with long guns in their yard about 3 to 4 meters away from
where she was and that she heard them conversing in subdued tones; and, that after her father was
shot and her mother knew that she recognized and could identify her father's assailants her mother
warned her not to tell anyone threatening to kill her if she did.

DECISION

PER CURIAM p:

Appeal from the conviction for the crime of murder and the sentence of life imprisonment, with
indemnity to the offended party, the heirs of the deceased Bernardo Bagabag, in the amount of
P12,000, rendered by the Court of First Instance of Abra in its Criminal Case No. 686, of all the accused
therein, namely, Nemesio Talingdan, Magellan Tobias, Augusto Berras, Pedro Bides and Teresa
Domogma, the last being the supposed wife of the deceased, who, because no certificate nor any other
proof of their marriage could be presented by the prosecution, could not be charged with parricide.

Prior to the violent death of Bernardo Bagabag on the night of June 24, 1967, he and appellant Teresa
Domogma and their children, lived together in their house at Sobosob, Salapadan, Abra, some 100
meters distant from the municipal building of the place. For sometime, however, their relationship had
been strained and beset with troubles, for Teresa had deserted their family home a couple of times and
each time Bernardo took time out to look for her. On two (2) different occasions, appellant Nemesio
Talingdan had visited Teresa in their house while Bernardo was out at work, and during those visits
Teresa had made Corazon, their then 12-year old daughter living with them, go down the house and
leave them. Somehow, Bernardo had gotten wind that illicit relationship was going on between
Talingdan and Teresa, and during a quarrel between him and Teresa, he directly charged the latter that
should she get pregnant, the child would not be his. About a month or so before Bernardo was killed,
Teresa had again left their house and did not come back for a period of more than three (3) weeks, and
Bernardo came to know later that she and Talingdan were seen together in the town of Tayum, Abra
during that time; then on Thursday night, just two (2) days before he was gunned down, Bernardo and
Teresa had a violent quarrel; Bernardo slapped Teresa several times; the latter went down the house
and sought the help of the police, and shortly thereafter, accused Talingdan came to the vicinity of
Bernardo's house and called him to come down; but Bernardo ignored him, for accused Talingdan was a
policeman at the time and was armed, so the latter left the place, but not without warning Bernardo
that someday he would kill him. Between 10:00 and 11:00 o'clock the following Friday morning,
Bernardo's daughter, Corazon, who was then in a creek to wash clothes saw her mother, Teresa,
meeting with Talingdan and their co-appellants Magellan Tobias, Augusto Berras and Pedro Bides in a
small hut owned by Bernardo, some 300 to 400 meters away from the latter's house; as she approached
them, she heard one of them say "Could he elude a bullet"; and when accused Teresa Domogma noticed
the presence of her daughter, she shoved her away saying "You tell your father that we will kill him".

Shortly after the sun had set on the following day, a Saturday, June 24, 1967, while the same 12-year old
daughter of Bernardo was cooking food for supper in the kitchen of their house, she saw her mother go
down the house through the stairs and go to the yard where she again met with the other appellants. As
they were barely 3-4 meters from the place where the child was in the "batalan", she heard them
conversing in subdued tones, although she could not discern what they were saying. She was able to
recognize all of them through the light coming from the lamp in the kitchen through the open "batalan"
and she knows them well for they are all residents of Sobosob and she used to see them almost
everytime. She noted that the appellants had long guns at the time. Their meeting did not last long;
after about two (2) minutes Teresa came up the house and proceeded to her room, while the other
appellants went under an avocado tree nearby. As supper was then ready, the child called her parents
to eat; Bernardo who was in the room adjoining the kitchen did not heed his daughter's call to supper
but continued working on a plow, while Teresa also excused herself by saying she would first put her
small baby to sleep. So Corazon ate supper alone, and as soon as she was through she again called her
parents to eat. This time, she informed her father about the presence of persons downstairs, but
Bernardo paid no heed to what she said. He proceeded to the kitchen and sat himself on the floor near
the door. Corazon stayed nearby watching him. At that moment, he was suddenly fired upon from
below the stairs of the "batalan". The four accused then climbed the stairs of the "batalan" carrying
their long guns and seeing that Bernardo was still alive, Talingdan and Tobias fired at him again. Bides
and Berras did not fire their guns at that precise time, but when Corazon tried to call for help Bides
warned her, saying "You call for help and I will kill you", so she kept silent. The assailants then fled from
the scene, going towards the east.

The first to come to the aid of the family was Corazon's male teacher who lived nearby. Teresa came out
of her "silid" later; she pulled Corazon aside and questioned her, and when Corazon informed her that
she recognized the killers of her father to be her co-appellants herein, she warned her not to reveal the
matter to anyone, threatening to kill her if she ever did so. Still later on, other persons arrived and
helped fix and dress the lifeless body of the victim, Bernardo, autopsy on which was performed in his
own house by the Municipal Health Officer of the place on June 26, 1967, about 36 hours after death;
burial took place on the same day. The victim's brother who came from Manila arrived one day after the
burial, followed by their mother who came from La Paz, Abra where she resides. Corazon, who had not
earlier revealed the identities of the killers of her father because she was afraid of her own mother, was
somehow able to reveal the circumstances surrounding his killing to these immediate relatives of hers,
and the sworn statement she thereafter executed on August 5, 1967 (Exh. B) finally led to the filing of
the information for murder against the herein five (5) appellants.

On the other hand, according to the evidence for the defense: Teresa prior to her marriage with
Bernardo, was a resident of the town of Manabo, Abra. She has a sister in Manila and two (2) brothers in
America who love her dearly, that is why said brothers of hers had been continuously and regularly
sending her monthly $100.00 in checks, starting from the time she was still single up to the time of her
husband's violent death on June 24, 1967, and thereafter. After their marriage, they moved to and
resided in her husband's place in Sallapadan, Abra, bringing with them three (3) carabaos and two (2)
horses, which Bernardo and she used in tilling a parcel of land in said place, separate and distinct from
the parcel of land worked on by Bernardo's parents and their other children. She and Bernardo lived in
their own house which was about 4-5 meters away from the house of her parents-in-law. She loved
Bernardo dearly, they never quarreled, and her husband never maltreated her; although sometimes she
had to talk to Bernardo when he quarrels with his own mother who wanted that Bernardo's earnings be
given to her, (the mother) which Bernardo never did, and at those times, Bernardo would admonish
Teresa "You leave me alone". Her in-laws also hated her because her mother-in-law could not get the
earnings of Bernardo for the support of her other son, Juanito, in his schooling. On his part, Juanito also
disliked her because she did not give him any of the carpentry tools which her brothers in America were
sending over to her. She never left their conjugal home for any long period of time as charged by her
mother-in-law, and if she ever did leave the house to go to other places they were only during those
times when she had to go to Bangued to cash her dollar checks with the PNB branch there, and even on
said trips, she was sometimes accompanied by Bernardo, or if she had to go alone and leaves Sallapadan
in the morning, she rode in a weapons carrier along with merchants going to Bangued in the morning
and always rode back with them to Sallapadan in the afternoon of the same day because the weapons
carrier is owned by a resident of Sallapadan who waits for them. Teresa came to know Talingdan only
when the latter became a policeman in Sallapadan, as whenever any of the carabaos and horses they
brought from Manabo to Sallapadan got lost, she and Bernardo would go and report the matter to the
Mayor who would then refer the matter to his policemen, one of whom is Talingdan, so that they may
help locate the lost animals; Teresa knew Talingdan well because they are neighbors, the latter's home
being only about 250-300 meters away from theirs, But illicit relationship had never existed between
them. cdll

Early in the evening of June 24, 1967, Teresa was in the kitchen of their house cooking their food for
supper. Two of the children, Corazon and Judit, were with her. Her husband, Bernardo, was then in the
adjoining room making a plow. He had to make the plow at that time of the night because at daytime he
worked as a carpenter in the convent. As soon as the food was ready, she and the children moved over
to the adjoining room where Bernardo was to call him for supper, and he then proceeded to the kitchen
to eat. Teresa and the two children were about to follow him to the kitchen when suddenly they heard
more than five (5) or six (6) successive gun shots coming from near their "batalan". They were all so
terrified that they immediately cried for help, albeit she did not know yet at that precise time that her
husband was shot, as she and the children were still in the other room on their way to the kitchen,
about three (3) meters away from Bernardo. But soon Teresa heard her husband crying in pain, and as
soon as she reached him, she took Bernardo into her arms. She did not see the killers of her husband, as
the night was then very dark and it was raining. Bernardo was in her arms when the first group of people
who responded to their cry for help arrived. Among them were the chief of police, some members of
the municipal council and appellant Tobias who even advised Teresa not to carry the lifeless body of
Bernardo to avoid abortion as she was then six (6) months pregnant. The chief of police then conducted
an investigation of the surroundings and he found some empty shells and foot prints on the ground
some meters away from the "batalan". He also found some bullet holes on the southern walls of said
"batalan" and on the northern wallings of the kitchen. Later, Teresa requested some persons to relay
the information about the death of her husband to her relatives in Manabo, Abra, and they in turn
passed on the news to Bernardo's mother and her family in La Paz, Abra, where they were then residing,
as they have left their house in Sallapadan about two (2) months previous after they lost the land they
used to till there in a case with the natives called Tingians. Two (2) PC soldiers arrived in the afternoon
of June 26, 1967, and after Bernardo's remains was autopsied and he was buried under their house,
they conducted an investigation, but she did not give them any information relative to the identity of
the persons who shot her husband because she did not really see them. Her mother-in-law and a
brother-in-law, Juanito Bagabag, arrived later, the former from the town of La Paz, Abra, and the latter
from Manila, and after the usual nine (9) days mourning was over, they left Sallapadan, taking Teresa's
children under their custody. Teresa suspects that since her mother-in-law and her brother-in-law have
axes to grind against her and they have her daughter, Corazon, under their custody, they had forced the
said child to testify against her. She further declared that her late husband, Bernardo, had enemies
during his lifetime, as he had quarrels with some people over the land they work on.

Furthermore, the defense presented evidence to the effect that: Talingdan was not in Sallapadan at the
time of the killing of Bernardo on June 24, 1967; being a policeman of the place at the time, he was one
of the two (2) policemen who escorted and acted as bodyguard of the Mayor, when the latter attended
the cursillo in Bangued, all of them leaving Sallapadan on June 22 and returning thereto four (4) days
later on June 26, hence, he could not have anything to do with the said killing. On the other hand, Tobias
claimed to be in the house of one Mrs. Bayongan in Sallapadan on the date of said killing, but he was
one of the persons who was called upon by the chief of police of the place to accompany him in answer
to the call for help of the wife of the victim. The other two appellants Bides and Berras also alleged that
they were in the same house of Mrs. Bayongan on that date; they are tillers of the land of said Mrs.
Bayongan and had been staying in her house for a long time. They were sleeping when the chief of
police came that evening and asked Tobias, who was then municipal secretary, to accompany him to the
place of the shooting. They did not join them, but continued sleeping. They never left the said house of
Mrs. Bayongan, which is about 250-300 meters away from the place of the killing, that evening of June
24, 1967.
After carefully weighing the foregoing conflicting evidence of the prosecution and defense, We have no
doubt in Our mind that in that fatal evening of June 24, 1967, appellants Nemesio Talingdan, Magellan
Tobias, Augusto Berras and Pedro Bides, all armed with long firearms and acting in-conspiracy with each
other gunned down Bernardo as the latter was sitting by the supper table in their house at Sobosob,
Sallapadan, Abra. They were actually seen committing the offense by the witness Corazon. She was the
one who prepared the food and was watching her father nearby. They were all known to her, for they
were all residents of Sobosob and she used to see them often before that night. Although only Talingdan
and Tobias continued firing at her father after they had climbed the stairs of the "batalan", it was Bides
who threatened her that he would kill her if she called for help. Berras did not fire any shot then. But
even before the four appellants went up the "batalan", they already fired shots from downstairs.

We also fully believe Corazon's testimony that two nights before, or on Thursday, June 22, 1967, the
deceased Bernardo and appellant Teresa had a violent quarrel during which he slapped her several
times, She went to seek the help of the police, and it was appellant Talingdan, a policeman of their
town, who went to the vicinity of their house and challenged her father to come down, but the latter
refused because the former was a policeman and was armed. And so, Talingdan left after shouting to
her father that "If I will find you someday, I will kill you."

We likewise accept as truthful, Corazon's declaration regarding the amorous relationship between her
mother and appellant Talingdan, as already related earlier above. So also her testimony that in the
morning following the quarrel between her father and her mother and the threat made by Talingdan to
the former, between 10:00 and 11:00 o'clock, she saw all the herein four male accused-appellants
meeting with her mother in a small hut some 300 or 400 meters away from their house, near where she
was then washing clothes, and that on said occasion she overheard one of them ask "Could (sic) he
elude a bullet?", We have our doubts, however, as to whether or not her mother did say to her in
shoving her away upon seeing her approach, "You tell your father we will kill him," If it were true that
there was really such a message, it is to be wondered why she never relayed the same to her father,
specially when she again saw the said appellants on the very night in question shortly before the
shooting talking together in subdued tones with her mother and holding long arms. Moreover, it is quite
unnatural that such a warning could have been done in such a manner.

Accordingly, it is Our conclusion from the evidence related above and which We have carefully reviewed
that appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides are guilty of
murder qualified by treachery, as charged, and that they committed the said offense in conspiracy with
each other, with evident premeditation and in the dwelling of the offended party. In other words, two
aggravating circumstances attended the commission of the offense, namely, evident premeditation and
that it was committed in the dwelling of the victim. No mitigating circumstance has been proven.

Appellants insist in their brief that the lone testimony of Corazon suffered from vital contradictions and
inconsistencies and badges of falsehood because of patently unnatural circumstances alleged by her.
We do not agree. As the Solicitor General has well pointed out, the fact that the witness varied on cross-
examination the exact time of some of the occurrences she witnessed, such as, (1) whether it was
before or after Bernardo had began eating when he was shot; (2) whether it was before or after seeing
her mother's meeting with her co-accused in the morning of Friday, June 23, 1967, that she went to
wash clothes; and (3) whether or not the accused were already upstairs or still downstairs when they
first fired their guns, cannot alter the veracity of her having seen appellants in the act of mercilessly and
cold bloodedly shooting her father to death.

Contrary to the contention of appellants, there was nothing inherently unnatural in the circumstances
related by her. We agree with the following rebuttal of the Solicitor General:

"Appellants also attempt to buttress their attack against the credibility of Corazon Bagabag by pointing
out five supposed unnatural declarations in her testimony; First, she said that her father appeared
unconcerned when she informed him of the presence of people downstairs. But as correctly observed
by the prosecuting fiscal the witness does not know then "the mentality of her father" (p. 62, t.s.n.,
hearing of March 29, 1968). Second, Corazon also declared that the accused conversed that Saturday
night preceding the day the crime charged was committed in a lighted place although there was a place
which was unlighted in the same premises. But this only proves that the accused were too engrossed in
their conversation, unmindful of whether the place where they were talking was lighted or not, and
unmindful even of the risk of recognition. Third, witness declared that Pedro Bides and Augusto Berras
did not fire their guns. Even if these accused did withhold their fire, however, since they were privies to
the same criminal design, would this alter their culpability? Should the witness Corazon Bagabag be
discredited for merely stating an observation on her part which is not inherently unnatural? Fourth
Corazon also declared that only three bullets from the guns of the four male accused found their mark
on the body of her father. But would this not merely prove that not all the accused were good shots?
And fifth, the witness declared that her father was still able to talk after he was shot, yet Dr. Jose Dalisan
declared that his death was instantaneous. It is respectfully submitted, however, that the doctor's
opinion could yield to the positive testimony of Corazon Bagabag in this regard without in the least
affecting the findings of said doctor as regards the cause of the death of the deceased. As thus viewed,
there are no evident badges of falsehood in the whole breadth and length of Corazon Bagabag's
testimony. (Pp. 9-10, People's Brief.)

Why and how Corazon could have concocted her version of the killing of her father, if it were not
basically true, is hardly conceivable, considering she was hardly thirteen (13) years old when she
testified, an age when according to Moore, a child "is, as a rule, but little influenced by the suggestion of
others" because "he has already got some principles, lying is distasteful to him, because he thinks it is
mean, he is no stranger to the sentiment of self-respect, and he never loses an opportunity of being
right in what he affirms." (II Moore on Facts, pp. 1055-1056.) No cogent explanation has been offered
why she would attribute the assault on her father to three other men, aside from Talingdan whom she
knew had relations with her mother, were she merely making-up her account of how he was shot, no
motive for her to do so having been shown.

Demolishing the theory of the accused that such testimony was taught to her by her uncle, His Honor
pointed out that said "testimony, both direct and cross, would show that she was constant, firm and
steady in her answers to questions directed to her." We have Ourselves read said testimony and We are
convinced of the sincerity and truthfulness of the witness. We cannot, therefore, share appellants'
apprehension in their Seventh Assignment of Error that the grave imputation of a mother's infidelity and
her suggested participation in the killing of her husband, would if consistently impressed in the mind of
their child, constitute a vicious poison enough to make the child, right or wrong, a willing instrument in
any scheme to get even with her wicked mother. We feel Corazon was too young to be affected by the
infidelity of her mother in the manner the defense suggests. We are convinced from a reading of her
whole testimony that it could not have been a fabrication. On the whole, it is too consistent for a child
of thirteen years to be able to substantially maintain throughout her stay on the witness stand without
any fatal flaw, in the face of severe and long cross-interrogations, if she had not actually witnessed the
event she had described. We reject the possibility of her having been "brainwashed or coached" to
testify as she did. cdphil

The second to the sixth assignments of error in the appeal brief do not merit serious consideration.
Anent these alleged errors, suffice it to say that the following refutations of the Solicitor General are
well taken:

"Appellants also decry that the trial court allegedly failed to consider the testimony of Dr. Dalisan that
the distance between the assailants and the deceased could have been 4 to 5 meters when the shots
were fired. But the appellants overlook the testimony of Corazon Bagabag that when the first shot was
fired, the gunman was about 3-1/2 meters from her father (p. 60, t.s.n., hearing of March 29, 1968),
which disproves the theory of the defense that the killers fired from a stonepile under an avocado tree
some 4 to s meters away from the deceased's house Appellants also insist that the Court a quo ignored
the testimonies of defense witness Cpl. Bonifacio Hall and Chief of Police Rafael Berras on their having
found bullet marks on the southern walling of the house of the deceased, as well as empty cal. 30
carbine shells under the aforementioned avocado tree. The trial court, however, made the following apt
observations on the testimony of defense witness Cpl. Bonifacio Hall:

'This witness stated that we went to the house of the deceased to investigate the crime after the
deceased had already been buried; that he investigated the widow as well as the surroundings of the
house where the deceased was shot. He found empty shells of carbine under the avocado tree. He
stated that the 'batalan' of the house of the deceased has a siding of about 1-1/2 meters high and that
he saw bullet holes on the top portion of the wall directly pointing to the open door of the 'batalan' of
the house of the deceased. When the court asked the witness what could have been the position of the
assailant in shooting the deceased, he stated that the assailant might have been standing. The assailant
could not have made a bullet hole on the top portion of the sidings of the 'batalan' because the 'batalan'
is only 1-1/2 meters high, and further, when asked as to the level of the ground in relation to the top
sidings of the 'batalan,' he answered that it is in the same level with the ground. If this is true, it is
impossible for the assailant to make a bullet hole at the top portion sidings of the 'batalan,' hence, the
testimony of this witness who is a PC corporal is of no consequence and without merit. The court is
puzzled to find a PC corporal testifying for the defense in this case, which case was filed by another PC
sergeant belonging to the same unit and assigned in the same province of Abra' (pp. 324-325, rec.).

"As regards the empty shells also found in the vicinity of the shooting, suffice it to state that no
testimony has been presented, expert or otherwise, linking said shells to the bullets that were fired
during the shooting incident. Surmises in this respect surely would not overcome the positive testimony
of Corazon Bagabag that the accused shot her father as they came up the 'batalan' of their house." (Pp.
11-12, People's Brief.)

At the trial, the four male appellants tried to prove that they were not at the scene of the crime when it
happened. This defense of alibi was duly considered by the trial court, but it was properly brushed aside
as untenable. In their brief, no mention thereof is made, which goes to show that in the mind of the
defense itself, it cannot be successfully maintained and they do not, therefore, insist on it. Nonetheless,
it would do well for this Court to specifically affirm the apt pertinent ratiocination of His Honor in
reference thereto thus:

"This defense, therefore, is alibi which, in the opinion of the court, can not stand firmly in the face of a
positive and unwavering testimony of the prosecution witness who pointed out to the accused as the
authors of the crime. This is so because, first, according to the three accused — Bides, Tobias and Berras
— they were sleeping at 8:00 o'clock that night in the house of Mrs. Bayongan which is only 250 meters
away from the scene of the crime. Granting, for the sake of argument, but without admitting, that they
were already sleeping at 8:00 o'clock in the house of Mrs. Bayongan, Corazon Bagabag clearly stated
that her father was gunned down at sunset which is approximately between 6:00 and 6:30 in the
evening, hence, the accused Tobias, Berras and Bides could have committed the crime and went home
to sleep in the house of Mrs. Bayongan after the commission of the crime. According to Pedro Bides, the
house of Mrs. Bayongan is only 250 meters away from the house of the victim. Second, the three
accused have failed miserably to present the testimony of Mrs. Bayongan, the owner of the house
where they slept that night to corroborate or bolster their defense of alibi." (Pp. 27A-28A, Annex of
Appellants' Brief.)

xxx xxx xxx

"Nemesio Talingdan, alias Oming, the last of the accused, also in his defense of alibi, stated that on June
22, 1967, he accompanied Mayor Gregorio Banawa of Sallapadan to Bangued, together with policeman
Cresencio Martinez for the purpose of attending a cursillo in Bangued. They started in Sallapadan in the
early morning of June 22, 1967 and arrived in Bangued the same day. According to him, he went to
accompany the mayor to the cursillo house near the Bangued Cathedral and after conducting the mayor
to the cursillo house, he went to board in the house of the cousin of Mayor Banawa near the Filoil
Station at Bangued, Abra. From that time, he never saw the mayor until after they went home to
Sallapadan on June 26th.

"This kind of alibi could not gain much weight because he could have returned anytime on the evening
of June 22 or anytime before the commission of the offense to Sallapadan and commit the crime on the
24th at sunset, then returned to Bangued, Abra to fetch the mayor and bring him back to Sallapadan on
the 26th.

"The irony of this defense of alibi is that the mayor who was alleged to have been accompanied by
witness-accused is still living and very much alive. As a matter of fact, Mayor Gregorio Banawa is still the
mayor of Sallapadan, Abra, and also policeman Cresencio Martinez another policeman who
accompanied the mayor to Bangued, is also still living and still a policeman of Sallapadan. Why were not
the mayor and the policeman presented to corroborate or deny the testimony of Nemesio Talingdan?

"Conrado B. Venus, Municipal Judge of Penarrubia, Abra, and a member of the Cursillo Movement, was
presented as rebuttal witness for the prosecution. On the witness stand, he stated that he belongs to
Cursillo No. 3 of the Parish of Bangued, Abra, and said cursillo was held on October 20 to 23, 1966, at
the St. Joseph Seminary in Galicia, Pidigan, Abra, and not on June 23 to 26, 1967. As a matter of fact,
Mayor Banawa of Sallapadan also attended the cursillo held on October 20 to 23, 1966, as could be seen
in his 'Guide Book' where the signature of Gregorio Banawa appears because they both attended
Cursillo No. 3 of the Parish of Bangued.

"(To) this testimony of the rebuttal witness belies partly, if not in full, the testimony of accused Nemesio
Talingdan." (Pp. 29A-30A, Annex of Appellants' Brief.)

Coming now to the particular case of appellant Teresa Domogma, as to whom the Solicitor General has
submitted a recommendation of acquittal, We find that she is not as wholly innocent in law as she
appears to the Counsel of the People. It is contended that there is no evidence proving that she actually
joined in the conspiracy to kill her husband because there is no showing of "actual cooperation" on her
part with her co-appellants in their culpable acts that led to his death. If at all, what is apparent, it is
claimed, is "mere cognizance, acquiescence or approval" thereof on her part, which it is argued is than
what is required for her conviction as a co-conspirator per People vs. Mahlon, 99 Phil. 1068. We do not
see it exactly that way. LexLib

True it is that the proof of her direct participation in the conspiracy is not beyond reasonable doubt, for
which reason, she cannot have the same liability as her co-appellants. Indeed, she had no hand at all in
the actual shooting of her husband. Neither is it clear that she helped directly in the planning and
preparation thereof, albeit We are convinced that she knew it was going to be done and did not object.
(U.S. vs. Romulo, 15 Phil. 408, 411-414.) It is not definitely shown that she masterminded it either by
herself alone or together with her co-appellant Talingdan. At best, such conclusion could be plain
surmise, suspicion and conjecture, not really ineludible. After all, she had been having her own
unworthy ways with him for quite a long time, seemingly without any need of his complete elimination.
Why go to so much trouble for something she was already enjoying, and not even very surreptitiously?
In fact, the only remark Bernardo had occasion to make to Teresa one time was "If you become
pregnant, the one in your womb is not my child." The worst he did to her for all her faults was just to
slap her.

But this is not saying that she is entirely free from criminal liability. There is in the record morally
convincing proof that she is at the very least an accessory to the offense committed by her co-accused.
She was inside the room when her husband was shot. As she came out after the shooting, she inquired
from Corazon if she was able to recognize the assailants of her father. When Corazon identified
appellants Talingdan, Tobias, Berras and Bides as the culprits, Teresa did not only enjoin her daughter
not to reveal what she knew to anyone, she went to the extent of warning her, "Don't tell it to anyone. I
will kill you if you tell this to somebody." Later, when the peace officers who repaired to their house to
investigate what happened, instead of helping them with the information given to her by Corazon, she
claimed she had no suspects in mind. In other words, whereas, before the actual shooting of her
husband, she was more or less passive in her attitude regarding her co-appellants' conspiracy, known to
her, to do away with him, after Bernardo was killed, she became active in her cooperation with them.
These subsequent acts of her constitute "concealing or assisting in the escape of the principal in the
crime" which makes her liable as an accessory after the fact under paragraph 3 of Article 19 of the
Revised Penal Code.

As already indicated earlier, the offense committed by appellants was murder qualified by treachery. It
being obvious that appellants deliberately chose nighttime to suddenly and without warning assault
their victim, taking advantage of their number and arms, it is manifest that they employed treachery to
insure success in attaining their malevolent objective. In addition, it is indisputable that appellants acted
with evident premeditation. Talingdan made the threat to kill Bernardo Thursday night, then he met
with his co-accused to work out their conspiracy Friday and again on Saturday evening just before the
actual shooting. In other words, they had motive — Talingdan's taking up the cudgels for his paramour,
Teresa — and enough time to meditate, and desist, if they were not resolved to proceed with their
objective. Finally, they committed the offense in the dwelling of the offended party.

In these premises, the crime committed by the male appellants being murder, qualified by treachery,
and attended by the generic aggravating circumstances of evident premeditation and that the offense
was committed in the dwelling of the offended party, the Court has no alternative under the law but to
impose upon them the capital penalty. However, as to appellant Teresa, she is hereby found guilty only
as an accessory to the same murder.

WHEREFORE, with the above finding of guilt beyond reasonable doubt of the appellants Nemesio
Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides of the crime of murder with two
aggravating circumstances, without any mitigating circumstance to offset them, they are each hereby
sentenced to DEATH to be executed in accordance with law. Guilty beyond reasonable doubt as
accessory to the same murder, appellant Teresa Domogma is hereby sentenced to suffer the
indeterminate penalty of five (5) years of prision correccional as minimum to eight (8) years of prision
mayor as maximum, with the accessory penalties of the law. In all other respects, the judgment of the
trial court is affirmed, with costs against appellants.

Barredo, Muñoz Palma Aquino, Concepcion Jr., Santos, Fernandez and Guerrero, JJ., concur.

Fernando and Antonio, JJ., took no part.

Separate Opinions

CASTRO, C.J., concurring:

Concurs, with the observations, however, that the evidence points to the appellant Teresa Domogma as
a co-principal and that she should therefore also be held guilty of murder and sentenced to death.

TEEHANKEE, J., concurring:

Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as the penal liability of the accused
Teresa Domogma is concerned.

MAKASIAR, J., dissenting:

I dissent insofar as the liability of the accused Teresa Domogma who should be convicted, not merely as
an accessory, but of parricide as principal and meted the death penalty, is concerned. A marriage
certificate is not indispensable to establish the fact of marriage; because the presumption that the
deceased and the accused Teresa were married subsists by reason of the fact that they had been living
together for about thirteen (13) years as evidenced by the birth of the child-witness Corazon, who was
12 years old at the time her father was killed on June 24, 1967 by the accused-appellants, and who was
13 years of age when she testified. They have other children aside from Corazon. LLjur

That appellant Teresa is a co-conspirator, not merely an accessory after the fact has been clearly
demonstrated by the testimony of her own daughter, Corazon, who declared categorically that she
plotted with her co-appellants the assassination of her own husband whom she betrayed time and time
again by her repeated illicit relations with her co-accused Nemesio Talingdan, a town policeman and
their neighbor. The record is abundant with evidence that Teresa, without a feeling for shame and
unnaturally lacking any concern for her minor children of tender age, deserted several times their family
home to live with and continue with her immoral relations with appellant Talingdan with whom at one
time she cohabited for more than three (3) weeks. Her patient husband had to look for her and to beg
her to return each time she left the family abode for the embrace of her lover.

We should believe Corazon's statement that between 10 and 11 o'clock Friday morning, she saw her
mother, appellant Teresa, meeting with her other co-appellants in a small hut owned by her father some
300 to 400 meters away from the latter's house near the creek where she was then washing clothes;
that she heard one of the conspirators say "Could he elude a bullet?"; that when her mother noticed her
presence, her mother shoved her away saying, "You tell your father that we will kill him"; that in the
evening of the following day, Saturday, June 24, 1967, while she was cooking supper in their house, she
saw her mother go down the stairs and meet the other appellants in the yard about 3 to 4 meters from
where she was in the "batalan"; that she heard them conversing in subdued tones; that she was able to
recognize all of them by the light coming from the kitchen lamp through the open "batalan"; that she
knows all of them very well as they are all residents of their barrio and she used to see them almost
everyday; that she noted that appellants were armed with long guns; that their meeting did not last
long; that after about 2 minutes her mother, appellant Teresa, came up the house and proceed to her
room while the other appellants hid under an avocado tree nearby; that when supper was ready she
called her parents to eat; that her father did not heed her call but continued working on a plow while
her mother excused herself by saying she would first put her small baby to sleep; that she (Corazon) ate
alone after which she again called her parents to eat; that about this time she informed her father about
the presence of persons downstairs but her father paid no heed to what she said; that her father
proceeded to the kitchen and sat on the floor near the door while Corazon stayed nearby watching him;
that at the that moment her father was shot from below the stairs of the "batalan"; that the four
accused then went up the stairs of the "batalan" with their long guns and, upon seeing that her father
was still alive, appellants Talingdan and Tobias fired at him again; that when she (Corazon) tried to call
for help, appellant Bides warned her saying "You call for help and I will kill you"; and that thereafter, the
assailants fled towards the east.

The foregoing testimony of 13-year old Corazon should be accorded belief in the same way that
credence was given to her statement that, upon her mother's inquiry immediately after the shooting as
to whether she recognized the assailants of her father, she (Corazon) readily told her mother that she
identified appellants Talingdan, Tobias, Berras and Bides as the culprits; for which reason her mother
warned her "Don't tell it to anyone. I will kill you if you tell this to somebody."

On Thursday or two days before Bernardo was shot, he and Teresa had a quarrel during which Bernardo
slapped Teresa several times by reason of which Teresa left the house and sought the help of the police.
Shortly thereafter appellant Talingdan came and called Bernardo to come down. When Bernardo
ignored him because Talingdan was a policeman and was then armed, appellant Talingdan left after
warning Bernardo that someday he would kill him.

Can there be a clearer demonstration of the active cooperation of Teresa in the conspiracy against the
life of her husband? The majority opinion admits that Teresa was a paramour of appellant Talingdan;
hence, she wanted freedom from her husband, the victim, so that she could enjoy the company of her
lover, appellant Talingdan. LibLex

From the evidence on record, appellant Teresa had no moral compunction in deserting her family and
her children for the company of her lover. As heretofore stated, she did this several times and continued
to do so until the violent death of her husband even as she was carrying a six-month old baby in her
womb, the paternity of which her husband denied.
[G.R. No. 165842. November 29, 2005.]

EDUARDO P. MANUEL, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

Albert M. Rasalan for petitioner.

The Solicitor General for respondent.

SYLLABUS

1. CRIMINAL LAW; BIGAMY; JUSTIFICATION; JUDICIAL DECLARATION OF PRESUMPTIVE DEATH;

DISCUSSED. — Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads: Art.
349. Bigamy. — The penalty of prision mayor shall be imposed upon any person who shall contract a
second or subsequent marriage before the former marriage has been legally dissolved, or before the
absent spouse has been declared presumptively dead by means of a judgment rendered in the proper
proceedings. The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of
marriage established by law. The phrase "or before the absent spouse had been declared presumptively
dead by means of a judgment rendered in the proper proceedings" was incorporated in the Revised
Penal Code because the drafters of the law were of the impression that "in consonance with the civil law
which provides for the presumption of death after an absence of a number of years, the judicial
declaration of presumed death like annulment of marriage should be a justification for bigamy." The
phrase "or before the absent spouse has been declared presumptively dead by means of a judgment
rendered on the proceedings" in Article 349 of the Revised Penal Code was not an aggroupment of
empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse
is for the benefit of the spouse present, as protection from the pains and the consequences of a second
marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good
faith based on mere testimony is found incredible. The requirement of judicial declaration is also for the
benefit of the State. Under Article II, Section 12 of the Constitution, the "State shall protect and
strengthen the family as a basic autonomous social institution." Marriage is a social institution of the
highest importance. Public policy, good morals and the interest of society require that the marital
relation should be surrounded with every safeguard and its severance only in the manner prescribed
and the causes specified by law. The laws regulating civil marriages are necessary to serve the interest,
safety, good order, comfort or general welfare of the community and the parties can waive nothing
essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging
stable relationships over transient ones; it enhances the welfare of the community. IaEHSD

2. ID.; ID.; ID.; ID.; ELABORATED FURTHER. — In a real sense, there are three parties to every civil
marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to
each other and the State touching nearly on every aspect of life and death. The consequences of an
invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well
take means calculated to ensure the procurement of the most positive evidence of death of the first
spouse or of the presumptive death of the absent spouse after the lapse of the period provided for
under the law. One such means is the requirement of the declaration by a competent court of the
presumptive death of an absent spouse as proof that the present spouse contracts a subsequent
marriage on a well-grounded belief of the death of the first spouse. Indeed, "men readily believe what
they wish to be true," is a maxim of the old jurists. To sustain a second marriage and to vacate a first
because one of the parties believed the other to be dead would make the existence of the marital
relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof,
but by the subjective condition of individuals. Only with such proof can marriage be treated as so
dissolved as to permit second marriages. Thus, Article 349 of the Revised Penal Code has made the
dissolution of marriage dependent not only upon the personal belief of parties, but upon certain
objective facts easily capable of accurate judicial cognizance, namely, a judgment of the presumptive
death of the absent spouse.

3. ID.; ID.; ELEMENTS; DISCUSSED. — For the accused to be held guilty of bigamy, the prosecution
is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a
subsequent marriage without the former marriage having been lawfully dissolved. The felony is
consummated on the celebration of the second marriage or subsequent marriage. It is essential in the
prosecution for bigamy that the alleged second marriage, having all the essential requirements, would
be valid were it not for the subsistence of the first marriage. Viada avers that a third element of the
crime is that the second marriage must be entered into with fraudulent intent (intention fraudulente)
which is an essential element of a felony by dolo. On the other hand, Cuello Calon is of the view that
there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully
dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is
void or voidable because such marriages have juridical effects until lawfully dissolved by a court of
competent jurisdiction. As the Court ruled in Domingo v. Court of Appeals and Mercado v. Tan, under
the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense.
In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that
there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3)
fraudulent intention constituting the felony of the act. He explained that: . . . This last element is not
stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and,
constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no
crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and
this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to
constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded
belief that his first wife is dead, because of the many years that have elapsed since he has had any news
of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of
bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.
DACaTI

4. ID.; ID.; DECEIT; ELUCIDATED. — Petitioner is charged with bigamy, a felony by dolo (deceit).
Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed
with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as
an intentional felony, it is deemed voluntary. Although the words "with malice" do not appear in Article
3 of the Revised Penal Code, such phrase is included in the word "voluntary." Malice is a mental state or
condition prompting the doing of an overt act without legal excuse or justification from which another
suffers injury. When the act or omission defined by law as a felony is proved to have been done or
committed by the accused, the law presumes it to have been intentional. Indeed, it is a legal
presumption of law that every man intends the natural or probable consequence of his voluntary act in
the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt
exists from a consideration of the whole evidence. For one to be criminally liable for a felony by dolo,
there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.

5. ID.; ID.; ID.; PRESENT AS HUSBAND'S EARLIER MARRIAGE STILL SUBSISTING WHEN SECOND
MARRIAGE WAS CONTRACTED. — In the present case, the prosecution proved that the petitioner was
married to Gaña in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is
presumed to subsist. The prosecution also proved that the petitioner married the private complainant in
1996, long after the effectivity of the Family Code. The petitioner is presumed to have acted with malice
or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith
of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or
criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know
the law. Ignorantia legis neminem excusat. It was the burden of the petitioner to prove his defense that
when he married the private complainant in 1996, he was of the well-grounded belief that his first wife
was already dead, as he had not heard from her for more than 20 years since 1975. He should have
adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as
required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such
judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate
criminal intent on his part when he married the private complainant and, as a consequence, he could
not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden.

6. CIVIL LAW; FAMILY CODE; RULE ON PRESUMPTION OF DEATH IN PERSONS AND FAMILY
RELATIONS, AMENDED; CONTRACTING SECOND MARRIAGE REQUIRES DECLARATION OF PRESUMPTIVE
DEATH OF ABSENTEE SPOUSE. — The petitioner's sole reliance on Article 390 of the Civil Code as basis
for his acquittal for bigamy is misplaced. Articles 390 and 391 of the Civil Code provide — Art. 390. After
an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be
presumed dead for all purposes, except for those of succession. The absentee shall not be presumed
dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may
be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the
estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person
in the armed forces who has taken part in war, and has been missing for four years; (3) A person who
has been in danger of death under other circumstances and his existence has not been known for four
years. The presumption of death of the spouse who had been absent for seven years, it being unknown
whether or not the absentee still lives, is created by law and arises without any necessity of judicial
declaration. However, Article 41 of the Family Code, which amended the foregoing rules on presumptive
death, reads: Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the spouse present had a well-founded belief
that the absent spouse was already dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only
two years shall be sufficient. For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court
for the declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. With the effectivity of the Family Code, the period of seven years
under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus,
before the spouse present may contract a subsequent marriage, he or she must institute summary
proceedings for the declaration of the presumptive death of the absentee spouse, without prejudice to
the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:
In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the
contracting party must have been absent for four consecutive years, or two years where there is danger
of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b)
the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is,
unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the
spouse present can institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial intervention in subsequent
marriages as so provided in Article 41, in relation to Article 40, of the Family Code. Under Article 238 of
the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article
41 of the Family Code may be filed under Articles 239 to 247 of the same Code. HSacEI

7. CIVIL LAW; DAMAGES; MORAL DAMAGES; ELUCIDATED. — Moral damages include physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of the defendant's wrongful act or omission.
An award for moral damages requires the confluence of the following conditions: first, there must be an
injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must
be culpable act or omission factually established; third, the wrongful act or omission of the defendant is
the proximate cause of the injury sustained by the claimant; and fourth, the award of damages is
predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code. Moral damages
may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219,
paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.: Art. 2219. Moral damages may be
recovered in the following and analogous cases. (1) A criminal offense resulting in physical injuries; (2)
Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4)
Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or
any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in Article 309; (10) Acts
and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. The parents of the female
seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral
damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action
mentioned in No. 9 of this article in the order named. Thus, the law does not intend that moral damages
should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral
anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury
arising out of an act or omission of another, otherwise, there would not have been any reason for the
inclusion of specific acts in Article 2219 and analogous cases (which refer to those cases bearing analogy
or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion,
relation, etc.).

8. CRIMINAL LAW; BIGAMY; MORAL DAMAGES; PROPRIETY THEREOF IN CASE AT BAR UNDER
ARTICLE 2219 IN RELATION TO ARTICLES 19, 20 AND 21 OF THE CIVIL CODE. — Bigamy is not one of
those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to
pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to
the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the
Civil Code. According to Article 19, "every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and observe honesty and good faith."
This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain
standards which must be observed not only in the exercise of one's rights but also in the performance of
one's duties. The standards are the following: act with justice; give everyone his due; and observe
honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b)
exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another. Article 20 speaks of
the general sanctions of all other provisions of law which do not especially provide for its own sanction.
When a right is exercised in a manner which does not conform to the standards set forth in the said
provision and results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible. If the provision does not provide a remedy for its violation, an action
for damages under either Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides
that "every person who, contrary to law, willfully or negligently causes damage to another shall
indemnify the latter for the same." On the other hand, Article 21 provides that "any person who willfully
causes loss or injury to another in a manner that is contrary to morals, good customs or public policy
shall compensate the latter for damages." The latter provision is adopted to remedy "the countless gaps
in the statutes which leave so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of
moral wrongs which it is impossible for human foresight to prove for specifically in the statutes."
Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20
or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of
each case. In the present case, the petitioner courted the private complainant and proposed to marry
her. He assured her that he was single. He even brought his parents to the house of the private
complainant where he and his parents made the same assurance — that he was single. Thus, the private
complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was
single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while
that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the
private complainant had no inkling that he was already married to another before they were married.
Thus, the private complainant was an innocent victim of the petitioner's chicanery and heartless
deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he
maintained the appearance of being a lawful husband to the private complainant, who changed her
status from a single woman to a married woman, lost the consortium, attributes and support of a single
man she could have married lawfully and endured mental pain and humiliation, being bound to a man
who it turned out was not her lawful husband. The Court rules that the petitioner's collective acts of
fraud and deceit before, during and after his marriage with the private complainant were willful,
deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries
is not a bar to an award for moral damages. The Court thus declares that the petitioner's acts are against
public policy as they undermine and subvert the family as a social institution, good morals and the
interest and general welfare of society. Because the private complainant was an innocent victim of the
petitioner's perfidy, she is not barred from claiming moral damages. Besides, even considerations of
public policy would not prevent her from recovery. cSIACD

DECISION

CALLEJO, SR., J p:

Before us is a petition for review on certiorari of the Decision 1 of the Court of Appeals (CA) in CA-G.R.
CR No. 26877, affirming the Decision 2 of the Regional Trial Court (RTC) of Baguio City, Branch 3,
convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R. ASIETa

Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion
of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then
previously and legally married to RUBYLUS [GAÑA] and without the said marriage having been legally
dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA
GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of
said EDUARDO P. MANUEL to Rubylus [Gaña].

CONTRARY TO LAW. 3

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaña before
Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal. 4 He met
the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in
Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer
Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her.
Eventually, as one thing led to another, they went to a motel where, despite Tina's resistance, Eduardo
succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her
that he was single. Eduardo even brought his parents to Baguio City to meet Tina's parents, and was
assured by them that their son was still single.
Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on
April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61. 5
It appeared in their marriage contract that Eduardo was "single."

The couple was happy during the first three years of their married life. Through their joint efforts, they
were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel
started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and
whenever she asked money from Eduardo, he would slap her. 6 Sometime in January 2001, Eduardo
took all his clothes, left, and did not return. Worse, he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office
(NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-
certified copy of the marriage contract. 7 She was so embarrassed and humiliated when she learned
that Eduardo was in fact already married when they exchanged their own vows. 8

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest
Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous
marriage to Rubylus Gaña, but she nevertheless agreed to marry him. Their marital relationship was in
order until this one time when he noticed that she had a "love-bite" on her neck. He then abandoned
her. Eduardo further testified that he declared he was "single" in his marriage contract with Tina
because he believed in good faith that his first marriage was invalid. He did not know that he had to go
to court to seek for the nullification of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife because she threatened to
commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He
visited her in jail after three months and never saw her again. He insisted that he married Tina believing
that his first marriage was no longer valid because he had not heard from Rubylus for more than 20
years. HICEca

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt
of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as
minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina
Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit. 9

The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements
of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardo's belief, that his first
marriage had been dissolved because of his first wife's 20-year absence, even if true, did not exculpate
him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu, 10 the trial court further
ruled that even if the private complainant had known that Eduardo had been previously married, the
latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy
because when he married the private complainant, he did so in good faith and without any malicious
intent. He maintained that at the time that he married the private complainant, he was of the honest
belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised
Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by
malice in marrying the private complainant because he did so only out of his overwhelming desire to
have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the
New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v.
Peñalosa 11 and Manahan, Jr. v. Court of Appeals. 12

The Office of the Solicitor General (OSG) averred that Eduardo's defense of good faith and reliance on
the Court's ruling in United States v. Enriquez 13 were misplaced; what is applicable is Article 41 of the
Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v.
Nolasco, 14 the OSG further posited that as provided in Article 41 of the Family Code, there is a need for
a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry.
Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for
themselves the nullity of the marriage; the matter should be submitted to the proper court for
resolution. Moreover, the OSG maintained, the private complainant's knowledge of the first marriage
would not afford any relief since bigamy is an offense against the State and not just against the private
complainant.

However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous
and sought the affirmance of the decision appealed from with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to
the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy.
Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel
could lawfully marry the private complainant, there should have been a judicial declaration of Gaña's
presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado
v. Tan 15 and Domingo v. Court of Appeals 16 to support its ruling. The dispositive portion of the
decision reads:

WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby
MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate
penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten
(10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects. TAcSCH

SO ORDERED. 17

Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONER'S
FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE
WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE
FAMILY CODE.
II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF
PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW. 18

The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that
the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could
not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaña
had been "absent" for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead
as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who
has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all
purposes except for succession, while the second paragraph refers to the rule on legal presumption of
death with respect to succession.

The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon
the satisfaction of two requirements: the specified period and the present spouse's reasonable belief
that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife
since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence,
under Article 41 of the Family Code, the presumptive death of Gaña had arisen by operation of law, as
the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he
should thus be acquitted of the crime of bigamy.

The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code,
the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the
Civil Code does it require that there must first be a judicial declaration of death before the rule on
presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate
courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family
Code is only a requirement for the validity of the subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor
of the private complainant. The private complainant was a "GRO" before he married her, and even knew
that he was already married. He genuinely loved and took care of her and gave her financial support. He
also pointed out that she had an illicit relationship with a lover whom she brought to their house.

In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioner's
conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the
OSG cited the ruling of this Court in Republic v. Nolasco. 19

The petition is denied for lack of merit. TcEaDS

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:

Art. 349. Bigamy. — The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by means of a judgment rendered in
the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente disuelto el anterior, será
castigado con la pena de prision mayor. . . .

The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage
established by law. 20 The phrase "or before the absent spouse had been declared presumptively dead
by means of a judgment rendered in the proper proceedings" was incorporated in the Revised Penal
Code because the drafters of the law were of the impression that "in consonance with the civil law
which provides for the presumption of death after an absence of a number of years, the judicial
declaration of presumed death like annulment of marriage should be a justification for bigamy." 21

For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she
has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage
having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or
subsequent marriage. 22 It is essential in the prosecution for bigamy that the alleged second marriage,
having all the essential requirements, would be valid were it not for the subsistence of the first
marriage. 23 Viada avers that a third element of the crime is that the second marriage must be entered
into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo. 24
On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the
existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second
marriage. It does not matter whether the first marriage is void or voidable because such marriages have
juridical effects until lawfully dissolved by a court of competent jurisdiction. 25 As the Court ruled in
Domingo v. Court of Appeals 26 and Mercado v. Tan, 27 under the Family Code of the Philippines, the
judicial declaration of nullity of a previous marriage is a defense.

In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that
there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3)
fraudulent intention constituting the felony of the act. 28 He explained that:

. . . This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle
antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no
willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has
been dissolved; and this must be supported by very strong evidence, and if this be produced, the act
shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the
reasonable and well-founded belief that his first wife is dead, because of the many years that have
elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be
deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential
elements of the crime. 29
As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo
(deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is
performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is
classified as an intentional felony, it is deemed voluntary. 30 Although the words "with malice" do not
appear in Article 3 of the Revised Penal Code, such phrase is included in the word "voluntary." 31

Malice is a mental state or condition prompting the doing of an overt act without legal excuse or
justification from which another suffers injury. 32 When the act or omission defined by law as a felony is
proved to have been done or committed by the accused, the law presumes it to have been intentional.
33 Indeed, it is a legal presumption of law that every man intends the natural or probable consequence
of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a
reasonable doubt exists from a consideration of the whole evidence. 34

For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an
evil intent. Actus non facit reum, nisi mens sit rea. 35

In the present case, the prosecution proved that the petitioner was married to Gaña in 1975, and such
marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist. 36 The
prosecution also proved that the petitioner married the private complainant in 1996, long after the
effectivity of the Family Code. THCASc

The petitioner is presumed to have acted with malice or evil intent when he married the private
complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a
prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of
the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem
excusat.

It was the burden of the petitioner to prove his defense that when he married the private complainant
in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard
from her for more than 20 years since 1975. He should have adduced in evidence a decision of a
competent court declaring the presumptive death of his first wife as required by Article 349 of the
Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes
proof that the petitioner acted in good faith, and would negate criminal intent on his part when he
married the private complainant and, as a consequence, he could not be held guilty of bigamy in such
case. The petitioner, however, failed to discharge his burden.

The phrase "or before the absent spouse has been declared presumptively dead by means of a judgment
rendered on the proceedings" in Article 349 of the Revised Penal Code was not an aggroupment of
empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse
is for the benefit of the spouse present, as protection from the pains and the consequences of a second
marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good
faith based on mere testimony is found incredible.
The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of
the Constitution, the "State shall protect and strengthen the family as a basic autonomous social
institution." Marriage is a social institution of the highest importance. Public policy, good morals and the
interest of society require that the marital relation should be surrounded with every safeguard and its
severance only in the manner prescribed and the causes specified by law. 37 The laws regulating civil
marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the
community and the parties can waive nothing essential to the validity of the proceedings. A civil
marriage anchors an ordered society by encouraging stable relationships over transient ones; it
enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving
State. On marriage, the parties assume new relations to each other and the State touching nearly on
every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent
parties and to society, are so serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first spouse or of the presumptive death of
the absent spouse 38 after the lapse of the period provided for under the law. One such means is the
requirement of the declaration by a competent court of the presumptive death of an absent spouse as
proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death
of the first spouse. Indeed, "men readily believe what they wish to be true," is a maxim of the old jurists.
To sustain a second marriage and to vacate a first because one of the parties believed the other to be
dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily
capable of forensic ascertainment and proof, but by the subjective condition of individuals. 39 Only with
such proof can marriage be treated as so dissolved as to permit second marriages. 40 Thus, Article 349
of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal
belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance, 41
namely, a judgment of the presumptive death of the absent spouse. CHDAaS

The petitioner's sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is
misplaced.

Articles 390 and 391 of the Civil Code provide —

Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the division of the
estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four years.

The presumption of death of the spouse who had been absent for seven years, it being unknown
whether or not the absentee still lives, is created by law and arises without any necessity of judicial
declaration. 42 However, Article 41 of the Family Code, which amended the foregoing rules on
presumptive death, reads:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent
for four consecutive years and the spouse present had a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of death under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Court for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse. 43

With the effectivity of the Family Code, 44 the period of seven years under the first paragraph of Article
390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may
contract a subsequent marriage, he or she must institute summary proceedings for the declaration of
the presumptive death of the absentee spouse, 45 without prejudice to the effect of the reappearance
of the absentee spouse. As explained by this Court in Armas v. Calisterio: 46

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the
contracting party must have been absent for four consecutive years, or two years where there is danger
of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b)
the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is,
unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the
spouse present can institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial intervention in subsequent
marriages as so provided in Article 41, in relation to Article 40, of the Family Code. TCHcAE

The Court rejects petitioner's contention that the requirement of instituting a petition for declaration of
presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present
to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision
was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the
confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law.
As early as March 6, 1937, this Court ruled in Jones v. Hortiguela 47 that, for purposes of the marriage
law, it is not necessary to have the former spouse judicially declared an absentee before the spouse
present may contract a subsequent marriage. It held that the declaration of absence made in
accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary
precautions for the administration of the estate of the absentee. For the celebration of civil marriage,
however, the law only requires that the former spouse had been absent for seven consecutive years at
the time of the second marriage, that the spouse present does not know his or her former spouse to be
living, that such former spouse is generally reputed to be dead and the spouse present so believes at the
time of the celebration of the marriage. 48 In In Re Szatraw, 49 the Court declared that a judicial
declaration that a person is presumptively dead, because he or she had been unheard from in seven
years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of
finality or become final; and that proof of actual death of the person presumed dead being unheard
from in seven years, would have to be made in another proceeding to have such particular fact finally
determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he
or she had not been heard from in seven years cannot become final and executory even after the lapse
of the reglementary period within which an appeal may be taken, for such presumption is still disputable
and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary,
superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable
time and be made to perform a superfluous and meaningless act. 50 The Court also took note that a
petition for a declaration of the presumptive death of an absent spouse may even be made in collusion
with the other spouse.

In Lukban v. Republic of the Philippines, 51 the Court declared that the words "proper proceedings" in
Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and
391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person.
In Gue v. Republic of the Philippines, 52 the Court rejected the contention of the petitioner therein that,
under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a
person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones.

Former Chief Justice Ramon C. Aquino was of the view that "the provision of Article 349 or "before the
absent spouse has been declared presumptively dead by means of a judgment reached in the proper
proceedings" is erroneous and should be considered as not written. He opined that such provision
presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not
been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous.
He maintains that the supposition is not true. 53 A second marriage is bigamous only when the
circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present. 54 Former Senator
Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of
dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith
will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should
not give rise to bigamy. 55 Former Justice Luis B. Reyes, on the other hand, was of the view that in the
case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse
present cannot be charged and convicted of bigamy in case he/she contracts a second marriage. 56
The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of
the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is
absent for the requisite period, the present spouse may contract a subsequent marriage only after
securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and
convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief
that the absent spouse was already dead. 57 Such judgment is proof of the good faith of the present
spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with
bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by former
Justice Alicia Sempio-Diy:

. . . Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present
spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be
guilty of bigamy in case he or she marries again. THSaEC

The above Article of the Family Code now clearly provides that for the purpose of the present spouse
contracting a second marriage, he or she must file a summary proceeding as provided in the Code for
the declaration of the presumptive death of the absentee, without prejudice to the latter's
reappearance. This provision is intended to protect the present spouse from a criminal prosecution for
bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing
spouse is presumptively dead, the good faith of the present spouse in contracting a second marriage is
already established. 58

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that
things are now clarified. He says judicial declaration of presumptive death is now authorized for
purposes of remarriage. The present spouse must institute a summary proceeding for declaration of
presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed.
Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary
for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without
prejudice to the effect of reappearance of the said absentee.

Dean Pineda further states that before, the weight of authority is that the clause "before the absent
spouse has been declared presumptively dead . . ." should be disregarded because of Article 83,
paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for
the declaration of the presumptive death of the absentee, otherwise, there is bigamy. 59

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law,
in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of
presumptive death, which could then be made only in the proceedings for the settlement of his estate.
60 Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done
in good faith. 61 Justice Regalado opined that there were contrary views because of the ruling in Jones
and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by
Article 41 of the Family Code, "which requires a summary hearing for the declaration of presumptive
death of the absent spouse before the other spouse can remarry."
Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent
spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code. 62

On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral
damages in favor of the private complainant. The petitioner maintains that moral damages may be
awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of
them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc, 63
where an award of moral damages for bigamy was disallowed. In any case, the petitioner maintains, the
private complainant failed to adduce evidence to prove moral damages.

The appellate court awarded moral damages to the private complainant on its finding that she adduced
evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases
enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against
the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc:

. . . Pero si en dichos asuntos se adjudicaron daños, ello se debió indedublamente porque el articulo
2219 del Código Civil de Filipinas autoriza la adjudicación de daños morales en los delitos de estupro,
rapto, violación, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeración el delito
de bigamia. No existe, por consiguiente, base legal para adjudicar aquí los daños de P5,000.00 arriba
mencionados. 64

The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG,
likewise, avers that the CA was not bound by its ruling in People v. Rodeo. aDSTIC

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are the proximate result of the
defendant's wrongful act or omission. 65 An award for moral damages requires the confluence of the
following conditions: first, there must be an injury, whether physical, mental or psychological, clearly
sustained by the claimant; second, there must be culpable act or omission factually established; third,
the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the
claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or
Article 2220 of the Civil Code. 66

Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in
Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.:

Art. 2219. Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may
also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9
of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved
party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings,
moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise,
there would not have been any reason for the inclusion of specific acts in Article 2219 67 and analogous
cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or
resembling, in other respects, as in form, proportion, relation, etc.) 68

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the
offender may be ordered to pay moral damages to the private complainant/offended party.
Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in
relation to Articles 19, 20 and 21 of the Civil Code. SHaATC

According to Article 19, "every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith." This provision
contains what is commonly referred to as the principle of abuse of rights, and sets certain standards
which must be observed not only in the exercise of one's rights but also in the performance of one's
duties. The standards are the following: act with justice; give everyone his due; and observe honesty and
good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad
faith; and (c) for the sole intent of prejudicing or injuring another. 69

Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide
for its own sanction. When a right is exercised in a manner which does not conform to the standards set
forth in the said provision and results in damage to another, a legal wrong is thereby committed for
which the wrongdoer must be responsible. 70 If the provision does not provide a remedy for its
violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper.
Article 20 provides that "every person who, contrary to law, willfully or negligently causes damage to
another shall indemnify the latter for the same." On the other hand, Article 21 provides that "any
person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for damages." The latter provision is adopted to
remedy "the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even
though they have actually suffered material and moral injury should vouchsafe adequate legal remedy
for that untold number of moral wrongs which it is impossible for human foresight to prove for
specifically in the statutes." Whether or not the principle of abuse of rights has been violated resulting in
damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends
upon the circumstances of each case. 71

In the present case, the petitioner courted the private complainant and proposed to marry her. He
assured her that he was single. He even brought his parents to the house of the private complainant
where he and his parents made the same assurance — that he was single. Thus, the private complainant
agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She
lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he
was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private
complainant had no inkling that he was already married to another before they were married.

Thus, the private complainant was an innocent victim of the petitioner's chicanery and heartless
deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he
maintained the appearance of being a lawful husband to the private complainant, who changed her
status from a single woman to a married woman, lost the consortium, attributes and support of a single
man she could have married lawfully and endured mental pain and humiliation, being bound to a man
who it turned out was not her lawful husband. 72

The Court rules that the petitioner's collective acts of fraud and deceit before, during and after his
marriage with the private complainant were willful, deliberate and with malice and caused injury to the
latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed,
in Morris v. Macnab, 73 the New Jersey Supreme Court ruled:

. . . The defendant cites authorities which indicate that, absent physical injuries, damages for shame,
humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser,
supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the
wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate
consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v. Evergreen
Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27
N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendant's conduct
was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame,
humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became
entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co.,
supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, "Exemplary Damages in the Law of
Torts," 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendant's bigamous
marriage to her and the attendant publicity she not only was embarrassed and "ashamed to go out" but
"couldn't sleep" but "couldn't eat," had terrific headaches" and "lost quite a lot of weight." No just basis
appears for judicial interference with the jury's reasonable allowance of $1,000 punitive damages on the
first count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div. 74 1955). DCASEc

The Court thus declares that the petitioner's acts are against public policy as they undermine and
subvert the family as a social institution, good morals and the interest and general welfare of society.

Because the private complainant was an innocent victim of the petitioner's perfidy, she is not barred
from claiming moral damages. Besides, even considerations of public policy would not prevent her from
recovery. As held in Jekshewitz v. Groswald: 75

Where a person is induced by the fraudulent representation of another to do an act which, in

consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in
fact a criminal offense, he has a right of action against the person so inducing him for damages sustained
by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v.
Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the
defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him,
gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had
unintentionally violated the law or innocently committed a crime by cohabiting with him would be no
bar to the action, but rather that it might be a ground for enhancing her damages. The injury to the
plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to
one who was not her husband and to assume and act in a relation and condition that proved to be false
and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102
Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336.

Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of
the law by herself but upon the defendant's misrepresentation. The criminal relations which followed,
innocently on her part, were but one of the incidental results of the defendant's fraud for which
damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have
been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.)
819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747;
Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent
recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that
her illegal action was induced solely by the defendant's misrepresentation, and that she does not base
her cause of action upon any transgression of the law by herself. Such considerations distinguish this
case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on
its face or to one who has consciously and voluntarily become a party to an illegal act upon which the
cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958. 76
Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for
moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is
AFFIRMED. Costs against the petitioner. cHESAD

SO ORDERED.

Puno, Austria-Martinez and Tinga, JJ., concur.

Chico-Nazario, J., is on leave.

[G.R. No. 97471. February 17, 1993.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISABELO PUNO y GUEVARRA, alias "Beloy," and
ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castañeda for accused-appellants.

SYLLABUS

1. CRIMINAL LAW; MOTIVE AND INTENT; INVALUABLE AIDS IN DETERMINING THE LIABILITY OF THE
ACCUSED. — It is worth recalling an accepted tenet in criminal law that in the determination of the
crime for which the accused should be held liable in those instances where his acts partake of the nature
of variant offenses, and the same holds true with regard to the modifying or qualifying circumstances
thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in
arriving at a correct appreciation and accurate conclusion thereon.

2. ID.; KIDNAPPING; INTENT TO DEPRIVE THE OFFENDED PARTY OF HER LIBERTY; NOT PRESENT IN
CASE AT BAR. — In the case at bar, there is no showing whatsoever that appellants had any motive,
nurtured prior to or at the time they committed the wrongful acts against complainant, other than the
extortion of money from her under the compulsion of threats or intimidation. This much is admitted by
both appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as
already stated, candidly laid the blame for his predicament on his need for funds for, in his own
testimony, "(w)hile we were along the way 'Mam (sic) Corina was telling me 'Beloy, I know your family
very well and I know that your (sic) not (a) bad person, why are you doing this?' I told her 'Mam (sic),
because I need money and I had an ulcer and that I have been getting an (sic) advances from our office
but they refused to give me any bale (sic) . . . ." With respect to the specific intent of appellants vis-a-vis
the charge that they had kidnapped the victim, we can rely on the proverbial rule of ancient
respectability that for this crime to exist, there must be indubitable proof that the actual intent of the
malefactors was to deprive the offended party of her liberty, and not where such restraint of her
freedom of action was merely an incident in the commission of another offense primarily intended by
the offenders. Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it has
been held that the detention and/or forcible taking away of the victims by the accused, even for an
appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders
liable for taking their lives or such other offenses they committed in relation thereto, but the incidental
deprivation of the victims liberty does not constitute kidnapping or serious illegal detention. That
appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her
personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno.

3. ID.; ID.; "RANSOM"; DEFINED; APPLICATION IN CASE AT BAR. — Neither can we consider the
amounts given to appellants as equivalent to or in the nature of ransom, considering the immediacy of
their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the
money, price or consideration paid or demanded for redemption of a captured person or persons, a
payment that releases from captivity. It can hardly be assumed that when complainant readily gave the
cash and checks demanded from her at gunpoint, what she gave under the circumstances of this case
can be equated with or was in the concept of ransom in the law of kidnappings. These were merely
amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was
summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as
defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same
constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532.

4. ID.; "HIGHWAY ROBBERY" (P.D. NO. 532); MODIFIES ARTS. 306 AND 307 OF THE REVISED PENAL
CODE; CONSTRUED. — Presidential Decree No. 532 is not a modification of Article 267 of the Revised
Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage. This
is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably
uses this term in the alternative and synonymously with brigandage, that is, as "highway
robbery/brigandage." This is but in line with our previous ruling, and which still holds sway in criminal
law, that highway robbers (ladrones) and brigands are synonymous. Presidential Decree No 532 did
introduce amendments to Articles 306 and 307 of the Revised Penal Code by increasing the penalties,
albeit limiting its applicability to the offenses stated therein when committed on the highways and
without prejudice to the liability for such acts if committed. Furthermore, the decree does not require
that there be at least four armed persons forming a band of robbers; and the presumption in the Code
that said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But,
and this we broadly underline, the essence of brigandage under the Code as a crime of depredation
wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but
against any and all prospective victims anywhere on the highway and whosoever they may potentially
be, is the same as the concept of brigandage which is maintained in Presidential Decree No. 532, in the
same manner as it was under its aforementioned precursor in the Code and, for that matter, under the
old Brigandage Law. Erroneous advertence is nevertheless made by the court below to the fact that the
crime of robbery committed by appellants should be covered by the said amendatory decree just
because it was committed on a highway. Aside from what has already been stressed regarding the
absence of the requisite elements which thereby necessarily puts the offense charged outside the
purview and intendment of that presidential issuance, it would be absurd to adopt a literal
interpretation that any unlawful taking of property committed on our highways would be covered
thereby. It is an elementary rule of statutory construction that the spirit or intent of the law should not
be subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary
caveat that he who considers merely the letter of an instrument goes but skin deep into its meaning,
and the fundamental rule that criminal justice inclines in favor of the milder form of liability in case of
doubt.

5. ID.; ID.; BRIGANDAGE AND ROBBERY, DISTINGUISHED. — The following salient distinctions
between brigandage and robbery are succinctly explained in a treatise on the subject and are of
continuing validity: "The main object of the Brigandage Law is to prevent the formation of bands of
robbers. The heart of the offense consists in the formation of a band by more than three armed persons
for the purpose indicated in art 306. Such formation is sufficient to constitute a violation of art. 306. It
would not be necessary to show, in a prosecution under it, that a member or members of the band
actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime
is proven when the organization and purpose of the band are shown to be such as are contemplated by
art. 306. On the other hand, if robbery is committed by a band, whose members were not primarily
organized for the purpose of committing robbery or kidnapping, etc., the crime would not be
brigandage, but only robbery. Simply because robbery was committed by a band of more than three
armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of
art. 306, it is required that the band 'sala a los campos para dedicarse a robar.'" In fine, the purpose of
brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the
crime is only robbery, or robbery in band if there are at least four armed participants. The martial law
legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced
therein, could not have been unaware of that distinction and is presumed to have adopted the same,
there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous
construction, since it is one drawn from the time when and the circumstances under which the decree
to be construed originated. Contemporaneous exposition or construction is the best and strongest in the
law. Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of
robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways
as defined therein, and not acts of robbery committed against only a predetermined or particular victim.
Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the
accused as their specific victim could be considered as committed on the "innocent and defenseless
inhabitants who travel from one place to another," and which single act of depredation would be
capable of "stunting the economic and social progress of the people" as to be considered "among the
highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly
constitute an obstacle "to the economic, social, educational and community progress of the people,"
such that said isolated act would constitute the highway robbery or brigandage contemplated and
punished in said decree. This would be an exaggeration bordering on the ridiculous.

6. REMEDIAL LAW; CRIMINAL PROCEDURE; CONVICTION; NO PROCEDURAL OBSTACLE THEREON

WHEN THE ELEMENTS OF THE OFFENSE PROVED IS NECESSARILY INCLUDED IN THE OFFENSE CHARGED;
CASE AT BAR. — We further hold that there is no procedural obstacle to the conviction of appellants of
the crime of simple robbery upon an information charging them with kidnapping for ransom, since the
former offense which has been proved is necessarily included in the latter offense with which they are
charged. For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain,
of personal property through intimidation of the owner or possessor thereof shall be, as it has been,
proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information
where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender
of the things subject of the robbery. These foregoing elements are necessarily included in the
information filed against appellants which, as formulated, allege that they wilfully, unlawfully and
feloniously kidnapped and extorted ransom from the complainant. Such allegations, if not expressly but
at the very least by necessary implication, clearly convey that the taking of complainant's money and
checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It
cannot be logically argued that such a charge of kidnapping for ransom does not include but could
negate the presence of any of the elements of robbery through intimidation of persons.

DECISION

REGALADO, J p:

The primal issue for resolution in this case is whether accused-appellants committed the felony of
kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a
violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as
contended by the Solicitor General and found by the trial court; or the offense of simple robbery
punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch
103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom
allegedly committed in the following manner:

"That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of
this Honorable Court, the said accused, being then private individuals, conspiring together,
confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and
feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC ** for the purpose
of extorting ransom, to the damage and prejudice of the said offended party in such amount as may be
awarded to her under the provisions of the Civil Code." 1

On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a
judgment promulgated on September 26, 1990 finding them guilty of robbery with extortion committed
on a highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:

"ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE
AMURAO GUILTY as principals of robbery with extortion committed on a highway and, in accordance
with P.D. 532, they are both sentenced to a jail term of reclusion perpetua. LLphil

"The two accused are likewise ordered to pay jointly and severally the offended private victim Ma.
Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages."
3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under
Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying
Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not
the offense proved and cannot rightly be used as the offense proved which is necessarily included in the
offense charged. 4

For the material antecedents of this case, we quote with approval the following counter-statement of
facts in the People's brief 5 which adopted the established findings of the court a quo, documenting the
same with page references to the transcripts of the proceedings, and which we note are without any
substantial divergence in the version proffered by the defense.

"This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused
(tsn, Jan. 8, 1990, p. 7).

"Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika
Cakes and Pastries She has a driver of her own just as her husband does (Ibid., pp. 4-6).

"At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal
driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local
election there) arrived at the bakeshop. He told Mrs. Socorro that her driver Fred had to go to
Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place
(Id., pp. 8-9).

"Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of
her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta
Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-
10).

"Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma.
Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10).

"Isabelo, who had earlier told her that Enrique is his nephew announced, 'ma'm, you know, I want to get
money from you.' She said she has money inside her bag and they may get it just so they will let her go.
The bag contained P7,000 00 and was taken (Id., pp. 11-14).

"Further on, the two told her they wanted P100,000.00 more Ma. Socorro agreed to give them that but
would they drop her at her gas station in Kamagong St., Makati where the money is? The car went about
the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed Enrique's gun was
menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said he is an NPA and
threatened her (Id., p. 15). cdrep

"The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma.
Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations
of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she
refused (Id., pp. 17-23).

"Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car
again towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the
other side of the superhighway and, after some vehicles ignored her, she was finally able to flag down a
fish vendor's van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground
and was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).

"On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).
"Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's
P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13)" 6

As observed by the court below, the defense does not dispute said narrative of complainant, except
that, according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant
to step out of the car. He even slowed the car down as he drove away, until he saw that his employer
had gotten a ride, and he claimed that she fell down when she stubbed her toe while running across the
highway. 7

Appellants further testified that they brought the Mercedes Benz car to Dolores, San Fernando,
Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and
divided their loot. 8 Much later, when he took the stand at the trial of this case, appellant Puno tried to
mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers. 9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been
advanced as to what crime was committed by appellants. The trial court cohered with the submission of
the defense that the crime could not be kidnapping for ransom as charged in the information. We
likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime
for which the accused should be held liable in those instances where his acts partake of the nature of
variant offenses, and the same holds true with regard to the modifying or qualifying circumstances
thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in
arriving at a correct appreciation and accurate conclusion thereon. LibLex

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the
specific nature of the crime as, for instance, whether a murder was committed in the furtherance of
rebellion in which case the latter absorbs the former, or whether the accused had his own personal
motives for committing the murder independent of his membership in the rebellious movement in
which case rebellion and murder would constitute separate offenses. 10 Also, where injuries were
inflicted on a person in authority who was not then in the actual performance of his official duties, the
motive of the offender assumes importance because if the attack was by reason of the previous
performance of official duties by the person in authority, the crime would be direct assault; otherwise, it
would only be physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or
at the time they committed the wrongful acts against complainant, other than the extortion of money
from her under the compulsion of threats or intimidation. This much is admitted by both appellants,
without any other esoteric qualification or dubious justification. Appellant Puno, as already stated,
candidly laid the blame for his predicament on his need for funds for, in his own testimony, "(w)hile we
were along the way `Mam (sic) Corina was telling me 'Beloy, I know your family very well and I know
that your (sic) not (a) bad person, why are you doing this?' I told her `Mam (sic), because I need money
and I had an ulcer and that I have been getting an (sic) advances from our office but they refused to give
me any bale (sic) . . . ." 12
With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim,
we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be
indubitable proof that the actual intent of the malefactors was to deprive the offended party of her
liberty, 13 and not where such restraint of her freedom of action was merely an incident in the
commission of another offense primarily intended by the offenders. Hence, as early as United States vs.
Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the detention and/or
forcible taking away of the victims by the accused, even for an appreciable period of time but for the
primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such
other offenses they committed in relation thereto, but the incidental deprivation of the victims liberty
does not constitute kidnapping or serious illegal detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her
personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:

"Q — At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew?

A — Santo Domingo Exit.

Q — And how about the checks, where were you already when the checks was (sic) being handed to
you?

A — Also at the Sto. Domingo exit when she signed the checks.

Q — If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto.
Domingo, after all you already received the money and the checks?

A — Because we had an agreement with her that when she signed the checks we will take her to her
house at Villa (sic) Verde.

Q — And why did you not bring her back to her house at Valle Verde when she is (sic) already given you
the checks?

A — Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or
some other place along the way we might be apprehended by the police. So when we reached Santa
Rita exit I told her `Mam (sic) we will already stop and allow you to get out of the car.'" 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom,
considering the immediacy of their obtention thereof from the complainant personally. Ransom, in
municipal criminal law, is the money, price or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that
when complainant readily gave the cash and checks demanded from her at gunpoint, what she gave
under the circumstances of this case can be equated with or was in the concept of ransom in the law of
kidnappings. These were merely amounts involuntarily surrendered by the victim upon the occasion of a
robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the
crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the
trial court that the same constitutes the highway robbery contemplated in and punished by Presidential
Decree No. 532. LexLib

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in the information that
the victim was carried away and extorted for more money. The accused admitted that the robbery was
carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the
way they intimidated Ma. Socorro to produce more money that she had with her at the time for which
reason Ma. Socorro, not having more cash, drew out three checks. . . .

"In view of the foregoing the court is of the opinion that the crimes committed is that punishable under
P.D. 53Z (Anti-Piracy and Anti-Highway Robbery Law of 1974) under which where robbery on the
highway is accompanied by extortion the penalty is reclusion perpetua." 18

The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of
said decree, "P.D. No. 532 is a modification of the provisions of the Revised Penal Code, particularly
Article 267 which are inconsistent with it." 19 Such opinion and complementary submission
consequently necessitate an evaluation of the correct interplay between and the legal effects of
Presidential Decree No. 532 on the pertinent provisions of the Revised Penal Code, on which matter we
are not aware that any definitive pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of
Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306
and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of
"highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that
is, as "highway robbery/brigandage." This is but in line with our previous ruling, and which still holds
sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. 20

Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion
thereon in the proper context and perspective, we find that a band of brigands, also known as
highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter
reveals that during the early part of the American occupation of our country, roving bands were
organized for robbery and pillage and since the then existing law against robbery was inadequate to
cope with such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly explained in a treatise
on the subject and are of continuing validity:

"The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of
the offense consists in the formation of a band by more than three armed persons for the purpose
indicated in art 306. Such formation is sufficient to constitute a violation of art. 306. It would not be
necessary to show, in a prosecution under it, that a member or members of the band actually
committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven
when the organization and purpose of the band are shown to be such as are contemplated by art. 306.
On the other hand, if robbery is committed by a band, whose members were not primarily organized for
the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only
robbery. Simply because robbery was committed by a band of more than three armed persons, it would
not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that
the band 'sala a los campos para dedicarse a robar.'" 22 (Emphasis ours.)

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a
particular robbery, the crime is only robbery, or robbery in band if there are at least four armed
participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for
the objectives announced therein, could not have been unaware of that distinction and is presumed to
have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the
rule on contemporaneous construction, since it is one drawn from the time when and the circumstances
under which the decree to be construed originated. Contemporaneous exposition or construction is the
best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of
robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways
as defined therein, and not acts of robbery committed against only a predetermined or particular victim,
is evident from the preambular clauses thereof, to wit:

"WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing
acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel
from one place to another, thereby disturbing the peace, order and tranquility of the nation and
stunting the economic and social progress of the people;

"WHEREAS, such acts or depredations constitute . . . highway robbery/brigandage which are among the
highest forms of lawlessness condemned by the penal statutes of all countries;

"WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of
depredations by imposing heavy penalty on the offenders, with the end in view of eliminating all
obstacles to the economic, social, educational and community progress of the people;" (Emphasis
supplied.)

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the
accused as their specific victim could be considered as committed on the "innocent and defenseless
inhabitants who travel from one place to another," and which single act of depredation would be
capable of "stunting the economic and social progress of the people" as to be considered "among the
highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly
constitute an obstacle "to the economic, social, educational and community progress of the people,"
such that said isolated act would constitute the highway robbery or brigandage contemplated and
punished in said decree. This would be an exaggeration bordering on the ridiculous. prcd
True, Presidential Decree No 532 did introduce amendments to Articles 306 and 307 of the Revised
Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein
when committed on the highways and without prejudice to the liability for such acts if committed.
Furthermore, the decree does not require that there be at least four armed persons forming a band of
robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms
no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage
under the Code as a crime of depredation wherein the unlawful acts are directed not only against
specific, intended or preconceived victims, but against any and all prospective victims anywhere on the
highway and whosoever they may potentially be, is the same as the concept of brigandage which is
maintained in Presidential Decree No. 532, in the same manner as it was under its aforementioned
precursor in the Code and, for that matter, under the old Brigandage Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery
committed by appellants should be covered by the said amendatory decree just because it was
committed on a highway. Aside from what has already been stressed regarding the absence of the
requisite elements which thereby necessarily puts the offense charged outside the purview and
intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any
unlawful taking of properly committed on our highways would be covered thereby. It is an elementary
rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter
thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers
merely the letter of an instrument goes but skin deep into its meaning, 26 and the fundamental rule that
criminal justice inclines in favor of the milder form of liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for the
application of Presidential Decree No. 532, it would not be far-fetched to expect mischievous, if not
absurd, effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad
absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls
far short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For,
if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gunpoint by the accused
who happened to take a fancy thereto, would the location of the vehicle at` the time of the unlawful
taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering
nugatory the categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one
where the subject matter of the unlawful asportation is large cattle which are incidentally being herded
along and traversing the same highway and are impulsively set upon by the accused, should we apply
Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle
Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case
was committed inside a car which, in the natural course of things, was casually operating on a highway,
is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that
particular provision precisely defines "highway robbery/brigandage" and, as we have amply
demonstrated, the single act of robbery conceived and committed by appellants in this case does not
constitute highway robbery or brigandage. prcd
Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293
and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its
maximum period to prision mayor in its medium period. Appellants have indisputably acted in
conspiracy as shown by their concerted acts evidentiary of a unity of thought and community of
purpose. In the determination of their respective liabilities, the aggravating circumstances of craft 29
shall be appreciated against both appellants and that of abuse of confidence shall be further applied
against appellant Puno, with no mitigating circumstance in favor of either of them. At any rate, the
intimidation having been made with the use of a firearm, the penalty shall be imposed in the maximum
period as decreed by Article 295 of the Code.

We further hold that there is no procedural obstacle to the conviction of appellants of the crime of
simple robbery upon an information charging them with kidnapping for ransom, since the former
offense which has been proved is necessarily included in the latter offense with which they are charged.
30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain, of
personal property through intimidation of the owner or possessor thereof shall be, as it has been,
proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information
where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender
of the things subject of the robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which, as
formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from
the complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly
convey that the taking of complainant's money and checks (inaccurately termed as ransom) was
unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge
of kidnapping for ransom does not include but could negate the presence of any of the elements of
robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered
CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as
punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and
IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision
correccional, as minimum, to ten (10) years of prision mayor, as maximum, and to jointly and severally
pay the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages
and P20,000.00 as moral damages, with costs. LexLib

SO ORDERED.

Narvasa, C .J ., Feliciano, Nocon and Campos, Jr., JJ ., concur.

[G.R. No. 142773. January 28, 2003.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON DELIM, LEON DELIM, MANUEL DELIM alias
"BONG" (At Large), ROBERT DELIM (At Large), and RONALD DELIM alias "BONG", accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Accused-appellants were found guilty by the trial court of the crime of murder for the killing of Modesto
Delim. It was established during trial that the malefactors abducted the victim from his house. After
several days, the victim was found dead by his relatives under the thick bushes in a grassy area in the
housing project in Paldit, Sison, Pangasinan. In convicting appellants of the crime of murder, the trial
court relied on circumstantial evidence. Consequently, appellants were sentenced to suffer the supreme
penalty of death. Hence, this automatic review of the case. TAECSD

The Supreme Court ruled that it is evident on the face of the Information that the specific intent of the
malefactors in barging into the house of the victim was to kill him and that he was seized precisely to kill
him. The act of the malefactors of abducting the victim was merely incidental to their primary purpose
of killing him. Moreover, there is no specific allegation in the Information that the primary intent of the
malefactors was to deprive the victim of his freedom or liberty and that killing him was merely incidental
to kidnapping. Therefore, the crime charged in the Information is murder, and not kidnapping.

The Court further ruled that in the present case, the prosecution mustered the requisite quantum of
circumstantial evidence to prove that appellants, in confabulation with their co-accused, conspired to
kill and did kill the victim. Circumstantial evidence consists of proof of collateral facts and circumstances
from which the existence of the main fact may be inferred according to reason and common experience.

The Supreme Court, however, found accused-appellants guilty only of homicide because of the absence
of any qualifying circumstance that attended the commission of the crime.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; INFORMATION; WHERE

THE SPECIFIC INTENT OF ACCUSED IS DETERMINATIVE OF THE CRIME CHARGED, SUCH SPECIFIC INTENT
MUST BE ALLEGED THEREIN AND PROVED BY PROSECUTION. — [I]n determining what crime is charged
in an information, the material inculpatory facts recited therein describing the crime charged in relation
to the penal law violated are controlling. Where the specific intent of the malefactor is determinative of
the crime charged such specific intent must be alleged in the information and proved by the
prosecution.

2. ID.; EVIDENCE; SPECIFIC INTENT IN KIDNAPPING AND MURDER, DISTINGUISHED. — [T]his Court
held in People v. Isabelo Puno, et al., that for kidnapping to exist, there must be indubitable proof that
the actual specific intent of the malefactor is to deprive the offended party of his liberty and not where
such restraint of his freedom of action is merely an incident in the commission of another offense
primarily intended by the malefactor. . . . If the primary and ultimate purpose of the accused is to kill the
victim, the incidental deprivation of the victim's liberty does not constitute the felony of kidnapping but
is merely a preparatory act to the killing, and hence, is merged into, or absorbed by, the killing of the
victim. The crime committed would either be homicide or murder. What is primordial then is the specific
intent of the malefactors as disclosed in the information or criminal complaint that is determinative of
what crime the accused is charged with — that of murder or kidnapping.

3. ID.; SPECIFIC INTENT AND MOTIVE, DISTINGUISHED. — Specific intent is used to describe a state
of mind which exists where circumstances indicate that an offender actively desired certain criminal
consequences or objectively desired a specific result to follow his act or failure to act. Specific intent
involves a state of the mind. It is the particular purpose or specific intention in doing the prohibited act.
Specific intent must be alleged in the Information and proved by the state in a prosecution for a crime
requiring specific intent. Kidnapping and murder are specific intent crimes. . . . Specific intent is not
synonymous with motive. Motive generally is referred to as the reason which prompts the accused to
engage in a particular criminal activity. Motive is not an essential element of a crime and hence the
prosecution need not prove the same. As a general rule, proof of motive for the commission of the
offense charged does not show guilt and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder. The history of crimes shows that murders
are generally committed from motives comparatively trivial. Crime is rarely rational. In murder, the
specific intent is to kill the victim. In kidnapping, the specific intent is to deprive the victim of his/her
liberty. If there is no motive for the crime, the accused cannot be convicted for kidnapping. In
kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge the death of a
loved one, the motive is revenge. aTcESI

4. ID.; ID.; SPECIFIC INTENT; MAY BE PROVED BY DIRECT EVIDENCE OR BY CIRCUMSTANTIAL

EVIDENCE. — Specific intent may be proved by direct evidence or by circumstantial evidence. It may be
inferred from the circumstances of the actions of the accused as established by the evidence on record.

5. ID.; ID.; CORPUS DELICTI; IN HOMICIDE AND MURDER CASES, THE PROSECUTION IS BURDENED
TO PROVE CORPUS DELICTI BEYOND REASONABLE DOUBT EITHER BY DIRECT EVIDENCE OR BY
CIRCUMSTANTIAL EVIDENCE. — In the case at bar, the prosecution was burdened to prove the corpus
delicti which consists of two things: first, the criminal act and second, defendant's agency in the
commission of the act. Wharton says that corpus delicti includes two things: first, the objective; second,
the subjective element of crimes. In homicide (by dolo) and in murder cases, the prosecution is
burdened to prove: (a) the death of the party alleged to be dead; (b) that the death was produced by
the criminal act of some other than the deceased and was not the result of accident, natural cause or
suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for
the act which produced the death. To prove the felony of homicide or murder, there must be
incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice);
in other words, that there was intent to kill. Such evidence may consist inter alia in the use of weapons
by the malefactors, the nature, location and number of wounds sustained by the victim and the words
uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim
dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed. The
prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by
circumstantial or presumptive evidence.

6. ID.; ID.; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT TO CONVICT ACCUSED. —

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence
of the main fact may be inferred according to reason and common experience. What was once a rule of
account respectability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence which
states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is
sufficient as anchor for a judgment of conviction if the following requisites concur: ". . . if (a) there is
more than one circumstance; (b) the facts from which the inferences are derived have been established;
and (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond
reasonable doubt."

7. ID.; ID.; FLIGHT, AN INDICATION OF GUILT; CASE AT BAR. — The sudden disappearance of
Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is strong circumstantial evidence of
their guilt for the death of Modesto. Although flight after the commission of an offense does not create
a legal presumption of guilt, nevertheless, the same is admissible in evidence against them and if not
satisfactorily explained in a manner consistent with their innocence, will tend to show that they, in fact,
killed Modesto.

8. CRIMINAL LAW; CONSPIRACY; SUFFICIENTLY ESTABLISHED IF, AT THE TIME OF THE COMMISSION
OF THE CRIME, THE ACCUSED HAD THE SAME PURPOSE AND WERE UNITED IN ITS EXECUTION. — There
is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy
must be proven with the same quantum of evidence as the felony itself, more specifically by proof
beyond reasonable doubt. Conspiracy is not presumed. It may be proved by direct evidence or by
circumstantial evidence. Conspiracy is deducible from the acts of the malefactors before, during and
after the commission of the crime which are indicative of a joint purpose, concerted action and
concurrence of sentiment. To establish conspiracy, it is not essential that there be proof as to the
existence of a previous agreement to commit a crime. It is sufficient if, at the time of the commission of
the crime, the accused had the same purpose and were united in its execution. If conspiracy is
established, the act of one is deemed the act of all. It matters not who among the accused actually shot
and killed the victim. DEcTCa

9. ID.; PERSONS CRIMINALLY LIABLE FOR FELONIES; PRINCIPALS; IF PART OF CRIME HAS BEEN
COMMITTED IN ONE PLACE AND PART IN ANOTHER, EACH PERSON CONCERNED IN THE COMMISSION
OF EITHER PART IS LIABLE AS PRINCIPAL. — If part of a crime has been committed in one place and part
in another, each person concerned in the commission of either part is liable as principal. No matter how
wide may be the separation of the conspirators, if they are all engaged in a common plan for the
execution of a felony and all take their part in furtherance of the common design, all are liable as
principals. Actual presence is not necessary if there is a direct connection between the actor and the
crime.
10. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF TRIAL COURT
AND ITS CALIBRATION OF TESTIMONIES OF WITNESSES, GENERALLY ACCORDED GREAT RESPECT ON
APPEAL. — [T]he findings of facts of the trial court, its calibration of the collective testimonies of
witnesses and its assessment of the probative weight thereof and its conclusions culled from its findings
are accorded by the appellate court great respect, if not conclusive effect, because of its unique
advantage of observing at close range the demeanor, deportment and conduct of the witnesses as they
give their testimonies before the court.

11. ID.; ID.; ID.; NOT ADVERSELY AFFECTED BY INCONSISTENCIES IN THE TESTIMONY OF WITNESSES
ON MINOR AND TRIVIAL MATTERS; CASE AT BAR. — The inconsistencies in the testimonies of Rita and
Randy do not render them incredible or their testimonies barren of probative weight. It must be borne
in mind that human memory is not as unerring as a photograph and a person's sense of observation is
impaired by many factors including the shocking effect of a crime. A truth-telling witness is not always
expected to give an error-free testimony considering the lapse of time and the treachery of human
memory. What is primordial is that the mass of testimony jibes on material points, the slight clashing of
statements dilute neither the witnesses' credibility nor the veracity of his testimony. Variations on the
testimony of witnesses on the same side with respect to minor, collateral or incidental matters do not
impair the weight of their united testimony to the prominent facts. Inconsistencies on minor and trivial
matters only serve to strengthen rather than weaken the credibility of witnesses for they erase the
suspicion of rehearsed testimony.

12. ID.; ID.; ALIBI; TO PROSPER, ACCUSED MUST PROVE THAT HE WAS IN A PLACE OTHER THAN THE
SITUS CRIMINIS AT THE TIME OF COMMISSION OF CRIME AND THAT IT WAS PHYSICALLY IMPOSSIBLE
FOR HIM TO HAVE COMMITTED THE SAME CRIME. — [T]he defense of alibi is one of the weakest of
defenses in criminal prosecution because the same is easy to concoct between relatives, friends and
even those not related to the offender. It is hard for the prosecution to disprove. For alibi to merit
approbation by the trial court and this Court, Marlon, Ronald and Leon are burdened to prove with clear
and convincing evidence that they were in a place other than the situs criminis at the time of the
commission of the crime; that it was physically impossible for them to have committed the said crime.
They failed to discharge their burden.

13. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; MUST BE ALLEGED AND PROVED CLEARLY AND
CONCLUSIVELY AS THE CRIME ITSELF. — Qualifying circumstances such as treachery and abuse of
superior strength must be alleged and proved clearly and conclusively as the crime itself. Mere
conjectures, suppositions or presumptions are utterly insufficient and cannot produce the effect of
qualifying the crime. As this Court held: "No matter how truthful these suppositions or presumptions
may seem, they must not and cannot produce the effect of aggravating the condition of defendant."
TIaCAc

14. ID.; ID.; TREACHERY; ELEMENTS. — For treachery to be appreciated as a qualifying circumstance,
the prosecution is burdened to prove the following elements: (a) the employment of means of
execution which gives the person attacked no opportunity to defend himself or retaliate; (b) the means
of execution is deliberately or consciously adopted.
15. ID.; ID.; ID.; CANNOT BE APPRECIATED IF THERE IS NO EVIDENCE AS TO THE PARTICULARS OF
HOW THE VICTIM WAS ASSAULTED AND KILLED ALTHOUGH HE MAY HAVE BEEN DEFENSELESS AT THE
TIME HE WAS SEIZED; CASE AT BAR. — Although the victim may have been defenseless at the time he
was seized but there is no evidence as to the particulars of how he was assaulted and killed, treachery
cannot be appreciated against the accused. In this case, the victim was defenseless when seized by
Marlon and Ronald. However, the prosecution failed to present any witness or conclusive evidence that
Modesto was defenseless immediately before and when he was attacked and killed. It cannot be
presumed that although he was defenseless when he was seized the victim was in the same situation
when he was attacked, shot and stabbed by the malefactors.

16. ID.; AGGRAVATING CIRCUMSTANCES; TAKING ADVANTAGE OF SUPERIOR STRENGTH; WHEN

PRESENT. — To take advantage of superior strength means to purposely use force that is out of
proportion to the means of defense available to the person attacked. What is primordial, this Court held
in People v. Rogelio Francisco is that the assailants deliberately took advantage of their combined
strength in order to consummate the crime. It is necessary to show that the malefactors cooperated in
such a way as to secure advantage from their superiority in strength.

Vitug, J., separate opinion:

1. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT BE EXPECTED TO WITHSTAND THE POSITIVE

IDENTIFICATION MADE BY CREDIBLE WITNESSES. — Between the positive identification made by the
eyewitnesses and the bare denial of appellants, there is scarcely any serious doubt but that decisive
weight must be given to the positive testimony of Randy Manalo Bantas and Rita Manalo Bantas. The
defense of alibi, being one that can easily be fabricated, is inherently weak and cannot be expected to
withstand the positive identification made by credible witnesses.

2. ID.; ID.; ID.; TO BE BELIEVED, IT MUST INVARIABLY PLACE ACCUSED AT SUCH LOCATION AS TO
RENDER IT PHYSICALLY IMPOSSIBLE FOR HIM TO BEAT THE PLACE OF CRIME AND TO COMMIT THE
SAME. — Alibi to be believed, must invariably place the accused at such location as to render it
physically impossible for him to be at the place of the crime and, let alone, to commit the same.

3. ID.; ID.; MOTIVE; WHILE MOTIVE OF ACCUSED IN CRIMINAL CASE IS GENERALLY IMMATERIAL
NOT BEING AN ELEMENT OF THE CRIME, MOTIVE IS IMPORTANT WHEN EVIDENCE ON THE
COMMISSION OF THE CRIME IS SHORT OF MORAL CERTAINTY. — While the motive of an accused in a
criminal case might generally be immaterial, not being an element of the crime, motive could be
important and consequential when the evidence on the commission of the crime would be short of
moral certainty.

4. ID.; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; COMPLAINT OR INFORMATION;

CRIMINAL CHARGE IS DETERMINED BY THE ACTUAL RECITAL OF FACTS THEREIN. — The fact that the
Information went further to charge the accused with the killing of the victim should be of no moment,
the real nature of the criminal charge being determined not from the caption or the preamble of the
Information nor from the specification of the law alleged to have been violated — these being
conclusions of law — but by the actual recital of facts in the complaint or information. ASDTEa
5. CRIMINAL LAW; KIDNAPPING; FALLS WITHIN THE CLASSIFICATION OF CRIMES AGAINST LIBERTY
AND IS AGGRAVATED NEITHER BY TREACHERY NOR SUPERIOR STRENGTH. — The crime of kidnapping,
falling as it does within the classification of crimes against liberty, is aggravated neither by treachery nor
superior strength.

6. ID.; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; WHEN APPRECIATED. — The

aggravating circumstance of evident premeditation can be appreciated when it is shown that the culprits
have previously reflected on the crime, or that they have prepared appropriate means to execute it,
coolly taking into account its consequences.

7. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; COMPLAINT OR

INFORMATION; MUST ALLEGE AGGRAVATING CIRCUMSTANCES, WHETHER ORDINARY OR QUALIFYING.
— The aggravating circumstances of nighttime, dwelling and use of unlicensed firearms, not having been
alleged in the Information, cannot be considered. The Revised Rules of Criminal Procedure, rendered
effective on 01 December 2000, requires aggravating circumstances, whether ordinary or qualifying, to
be specified in the complaint or information.

8. ID.; EVIDENCE; QUANTUM OF PROOF IN CRIMINAL CASES; CONVICTION IS PRONOUNCED ONLY

UPON PROOF BEYOND REASONABLE DOUBT. — The law places abundant protective shields in order to
ensure that no man shall be made to account for a crime he might not have committed or be adjudged
guilty and meted a punishment without him having first been afforded a full opportunity to defend his
cause. Thus, a conviction is pronounced only upon proof beyond reasonable doubt, preceded by an
arraignment where he pleads on the basis of a complaint or information that specifies the gravamen of
the offense and the circumstances that are said to aggravate it and then the trial where evidence is
adduced by the parties.

9. ID.; ID.; QUANTUM OF PROOF IN CIVIL CASES; DAMAGES ARE ACCORDED TO AGGRIEVED PARTY
UPON A MERE PREPONDERANCE OF EVIDENCE. — For purposes of the civil liability, as well as its extent,
civil law principles, however, are applied, and damages might be accorded to the aggrieved party upon a
mere preponderance of evidence. EASCDH

DECISION

CALLEJO, SR., J p:

Before the Court on automatic review is the Decision, 1 dated January 14, 2000, of the Regional Trial
Court, Branch 46, Urdaneta City, finding accused appellants Marlon Delim, Leon Delim and Ronald Delim
guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the supreme
penalty of death. The court also ordered accused-appellants to pay, jointly and severally, the heirs of the
victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary damages. ESDHCa

Accused-appellants Marlon, Ronald and Leon, together with Manuel alias "Bong" and Robert, all
surnamed Delim, were indicted for murder under an Information dated May 4, 1999 which reads:
"That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with short firearms barged-in and
entered the house of Modesto Delim and once inside with intent to kill, treachery, evident
premedidation (sic), conspiring with one another, did then and there, wilfully, unlawfully and feloniously
grab, hold, hogtie, gag with a piece of cloth, brought out and abduct Modesto Delim, accused Leon
Delim and Manuel Delim stayed in the house guarded and prevented the wife and son of Modesto Delim
from helping the latter, thereafter with abuse of superior strength stabbed and killed said Modesto
Delim, to the damage and prejudice of his heirs.

CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659." 2

Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were apprehended.
Accused Robert and Manuel remain at-large.

At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not guilty
to the charge.

At the trial, the prosecution established the following relevant facts 3 —

Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald Delim.
Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname Delim after he
was "adopted" by the father of Marlon, Manuel and Robert. However, Modesto's wife, Rita, an illiterate,
and their 16-year old son, Randy, continued using Manalo Bantas as their surname. Modesto, Rita and
Randy considered Marlon, Robert, Ronald, Manuel and Leon as their relatives. Manuel and Leon were
the neighbors of Modesto. Marlon, Robert and Ronald used to visit Modesto and his family. Modesto
and his family and the Delim kins resided in Barangay Bila, Sison, Pangasinan.

On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to have
their supper in their home. Joining them were Modesto and Rita's two young grandchildren, aged 5 and
7 years old. They were about to eat their dinner when Marlon, Robert and Ronald suddenly barged into
the house and closed the door. Each of the three intruders was armed with a short handgun. Marlon
poked his gun at Modesto while Robert and Ronald simultaneously grabbed and hog-tied the victim. A
piece of cloth was placed in the mouth of Modesto. 4 Marlon, Robert and Ronald herded Modesto out
of the house on their way towards the direction of Paldit, Sison, Pangasinan. Rita and Randy were
warned by the intruders not to leave the house. Leon and Manuel, who were also armed with short
handguns, stayed put by the door to the house of Modesto and ordered Rita and Randy to stay where
they were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the following day,
January 24, 1999.

As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Niño, at Sitio
Labayog, informed the latter of the incident the night before and sought his help for the retrieval of
Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to
first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail.
They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modesto's house, to locate
Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to the
housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there. On
January 26, 1999, Randy reported the incident to the police authorities.

At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida Pucal,
Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit, Sison,
Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was already dead.
The cadaver was bloated and in the state of decomposition. It exuded a bad odor. Tiny white worms
swarmed over and feasted on the cadaver. Randy and his relatives immediately rushed to the police
station to report the incident and to seek assistance. CHcTIA

When informed of the discovery of Modesto's cadaver, the local chief of police and SPO2 Jovencio
Fajarito and other policemen rushed to the scene and saw the cadaver under the thick bushes. Pictures
were taken of the cadaver. 5 Rita and Randy divulged to the police investigators the names and
addresses of Marlon, Ronald, Robert, Leon and Manuel, whom they claimed were responsible for the
death of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto and killed
him. Rita and Randy gave their respective sworn statements to the police investigators. 6 Police
authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but failed to find them in
their respective houses. The police officers scoured the mountainous parts of Barangays Immalog and
Labayog to no avail.

The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which
reads:

"SIGNIFICANT EXTERNAL FINDINGS:

- Body - both upper extremities are flexed

- both lower extremities are flexed

- (+) body decomposition

- (+) worms coming out from injuries

- 10 x 10 ml. GSW, pre-auricular area, right

- 20 x 20 ml. GSW, mandibular areas, right

- 10 x 10 ml. GSW, maxillary area, right

- 10 x 10 ml. GSW, below middle nose, directed upward (POE)

- 30 x 40 ml. GSW, mid parieto — occipital area (POEx)

- 2 x 1 cms. lacerated wound, right cheek

- 1 x 1 cm. stabbed wound, axillary area, left

- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm

- 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm

- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm

- 1 x 1 cm. stabbed wound medial aspect D/3rd, left arm

- #3; 1 x 1 cm. in line with each other, stabbed would, medial aspect, M/3rd, left forearm

- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm

- 10 x 6 cms. Inflamed scrotum

- penis inflamed

SIGNIFICANT INTERNAL FINDINGS:

- no significant internal findings

CAUSE OF DEATH:

GUN SHOT WOUND, HEAD." 7

The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The police
investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no licenses for
their firearms. 8

Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had
pending cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and
for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court in
Urdaneta, Pangasinan. 9

To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi. 10

Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and sisters
were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from Modesto's house.

He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing him.
He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier who
allegedly had a quarrel with him concerning politics.

Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita Estabillo
at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after leaving Asan Norte,
Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a hollow-block factory in that
city where he was a stay-in worker.
Sally Asuncion corroborated Leon's alibi. She testified that Leon Delim never went home to his
hometown in Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred that on
January 23, 1999, his brother was at her house to give her his laundry. She claimed that the distance
between Laoag City and Bila, Sison, Pangasinan can be traversed in six hours by bus. Leon presented a
Barangay Certificate to prove that he was a resident of Laoag City from January 1998 up to February
1999. 11

Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January 29,
1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila on
January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting foot in
Bila, Sison, Pangasinan after his sojourn in Dumaguete City.

The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive portion
of the trial court's decision reads:

"WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby rendered against Ronald
Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an offense defined
and penalized under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and the Court
sentences Marlon Delim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be
implemented in the manner as provided for by law; the Court likewise orders the accused, jointly and
solidarily, to indemnify the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus the
amount of P25,000.00 as exemplary damages. DAEcIS

The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable
Supreme Court, and to prepare the mittimus fifteen (15) days from date of promulgation.

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta City is
hereby ordered to transmit the persons of Marlon, Ronald and Leon, all surnamed Delim to the New
Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this decision.

SO ORDERED." 12

The trial court appreciated treachery as a qualifying circumstance and of taking advantage of superior
strength, nighttime and use of unlicensed firearms as separate of aggravating circumstances in the
commission of the crime. Marlon, Ronald and Leon, in their appeal brief, assail the decision alleging
that:

"I

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR.
III

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANTS'
DEFENSE OF ALIBI." 13

Before resolving the merits of the case at bar, we first resolve the matter of whether the crime charged
in the Information is murder or kidnapping. During the deliberation, some distinguished members of the
Court opined that under the Information, Marlon, Ronald and Leon are charged with kidnapping under
Article 267 of the Revised Penal Code and not with murder in its aggravated form in light of the
allegation therein that the accused "willfully, unlawfully and feloniously grab(bed), h(e)ld, hog-tie(d),
gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while) Leon Delim and
Manuel Delim stayed in the house (and) guarded and prevented the wife and son of Modesto Delim
from helping the latter." They submit that the foregoing allegation constitutes the act of deprivation of
liberty of the victim, the gravamen in the crime of kidnapping. They contend that the fact that the
Information went further to charge accused with the killing of the victim should be of no moment, the
real nature of the criminal charge being determined not from the caption or the preamble of the
Information nor from the specification of the law alleged to have been violated — these being
conclusions of law — but by the actual recital of facts in the complaint or information. They further
submit that since the prosecution failed to prove motive on the part of Marlon, Ronald and Leon to kill
Modesto, they are not criminally liable for the death of the victim but only for kidnapping the victim.

It bears stressing that in determining what crime is charged in an information, the material inculpatory
facts recited therein describing the crime charged in relation to the penal law violated are controlling.
Where the specific intent of the malefactor is determinative of the crime charged such specific intent
must be alleged in the information and proved by the prosecution. A decade ago, this Court held in
People v. Isabelo Puno, et al., 14 that for kidnapping to exist, there must be indubitable proof that the
actual specific intent of the malefactor is to deprive the offended party of his liberty and not where such
restraint of his freedom of action is merely an incident in the commission of another offense primarily
intended by the malefactor. This Court further held:

". . .. Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it has been
held that the detention and/or forcible taking away of the victims by the accused, even for an
appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders
liable for taking their lives or such other offenses they committed in relation thereto, but the incidental
deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention." 15

If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of the
victim's liberty does not constitute the felony of kidnapping but is merely a preparatory act to the killing,
and hence, is merged into, or absorbed by, the killing of the victim. 16 The crime committed would
either be homicide or murder.

What is primordial then is the specific intent of the malefactors as disclosed in the information or
criminal complaint that is determinative of what crime the accused is charged with — that of murder or
kidnapping.
Philippine and American penal laws have a common thread on the concept of specific intent as an
essential element of specific intent crimes. Specific intent is used to describe a state of mind which
exists where circumstances indicate that an offender actively desired certain criminal consequences or
objectively desired a specific result to follow his act or failure to act. 17 Specific intent involves a state of
the mind. It is the particular purpose or specific intention in doing the prohibited act. Specific intent
must be alleged in the Information and proved by the state in a prosecution for a crime requiring
specific intent. 18 Kidnapping and murder are specific intent crimes. IDETCA

Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred from
the circumstances of the actions of the accused as established by the evidence on record. 19

Specific intent is not synonymous with motive. Motive generally is referred to as the reason which
prompts the accused to engage in a particular criminal activity. Motive is not an essential element of a
crime and hence the prosecution need not prove the same. As a general rule, proof of motive for the
commission of the offense charged does not show guilt and absence of proof of such motive does not
establish the innocence of accused for the crime charged such as murder. 20 The history of crimes
shows that murders are generally committed from motives comparatively trivial. 21 Crime is rarely
rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to deprive
the victim of his/her liberty. If there is no motive for the crime, the accused cannot be convicted for
kidnapping. 22 In kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge
the death of a loved one, the motive is revenge.

In this case, it is evident on the face of the Information that the specific intent of the malefactors in
barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the
attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely
incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the
information that the primary intent of the malefactors was to deprive Modesto of his freedom or liberty
and that killing him was merely incidental to kidnapping. 23 Irrefragably then, the crime charged in the
Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under Article 268
thereof.

The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite
quantum of evidence to prove that Marlon, Ronald and Leon are guilty of murder.

In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil of
doubt. The prosecution must rely on the strength of its own evidence and not on the weakness of the
evidence of the accused. The proof against the accused must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. 24

In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two
things: first, the criminal act and second, defendant's agency in the commission of the act. 25 Wharton
says that corpus delicti includes two things: first, the objective; second, the subjective element of
crimes. 26 In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the
death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other
than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant
committed the criminal act or was in some way criminally responsible for the act which produced the
death. 27 To prove the felony of homicide or murder, there must be incontrovertible evidence, direct or
circumstantial, that the victim was deliberately killed (with malice); in other words, that there was intent
to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature,
location and number of wounds sustained by the victim and the words uttered by the malefactors
before, at the time or immediately after the killing of the victim. If the victim dies because of a
deliberate act of the malefactor, intent to kill is conclusively presumed.

The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence
or by circumstantial or presumptive evidence. 28

In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto
sustained five (5) gunshot wounds. He also sustained seven (7) stab wounds, 29 defensive in nature. The
use by the malefactors of deadly weapons, more specifically handguns and knives, in the killing of the
victim as well as the nature, number and location of the wounds sustained by said victim are evidence of
the intent by the malefactors to kill the victim with all the consequences flowing therefrom. 30 As the
State Supreme Court of Wisconsin held in Cupps v. State: 31

"This rule, that every person is presumed to contemplate the ordinary and natural consequences of his
own acts, is applied even in capital cases. Because men generally act deliberately and by the
determination of their own will, and not from the impulse of blind passion, the law presumes that every
man always thus acts, until the contrary appears. Therefore, when one man is found to have killed
another, if the circumstances of the homicide do not of themselves show that it was not intended, but
was accidental, it is presumed that the death of the deceased was designed by the slayer; and the
burden of proof is on him to show that it was otherwise."

The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It relied
on circumstantial evidence to discharge its burden of proving the guilt of accused-appellants of murder.
Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence
of the main fact may be inferred according to reason and common experience. 32 What was once a rule
of account respectability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence which
states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is
sufficient as anchor for a judgment of conviction if the following requisites concur:

". . . if (a) there is more than one circumstance; (b) the facts from which the inferences are derived have
been established; and (c) the combination of all the circumstances is such as to warrant a finding of guilt
beyond reasonable doubt." 33

The prosecution is burdened to prove the essential events which constitute a compact mass of
circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all
without exception leading by mutual support to but one conclusion: the guilt of accused for the offense
charged. 34 For circumstantial evidence to be sufficient to support a conviction, all the circumstances
must be consistent with each other, consistent with the hypothesis that 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. 35 If the prosecution adduced the requisite circumstantial evidence to prove the
guilt of accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert
the evidence of the prosecution. EICSTa

In the present case, the prosecution mustered the requisite quantum of circumstantial evidence to
prove that accused-appellants, in confabulation with their co-accused, conspired to kill and did kill
Modesto:

1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed
with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then seized
Modesto and herded him out of his house:

"FISCAL TOMBOC:

What were you doing then at that time in your house?

A We were eating, sir.

Q You said we, who were your companions eating then at that time?

A My father, my mother and the two children and myself, sir.

Q While taking your supper that time, do you recall if there was anything unusual that happened
at that time?

A When we were about to start to eat three armed men entered our house.

Q Do you know these three armed men who entered your house?

A Yes, sir.

Q Who are they, name them one by one?

A Marlon Delim, Robert Delim and Ronald Delim.

Q Are these three persons inside the courtroom now?

A Two of them, sir.

Q Who are these two who are inside the courtroom?

A Marlon and Ronald, sir.

Q Will you please stand up and point to them?

A (Witness is pointing to a person seated on the bench inside the courtroom, who, when his name
was asked answered Marlon Delim. Likewise, witness is pointing unto a person seated on the bench
inside the courtroom, who, when his name was asked he answered Ronald Delim).

Q You said that these two armed persons entered your house, what kind of arm were they
carrying at that time?

A Short handgun, sir.

Q When these three armed persons whom you have mentioned, armed with short firearms, what
did they do then when they entered your house?

A They took my father, sir.

Q Who took your father?

A Marlon Delim, Robert Delim and Ronald Delim, sir.

Q When these three persons took your father, what did you do then?

A None, sir.

COURT:

How did they get your father?

A They poked a gun and brought him outside the house, sir.

FISCAL TOMBOC:

Who poked a gun?

A Marlon Delim, sir.

Q Again, Mr. Witness, will you point to the person who poked a gun?

A (Witness is pointing to Malon (sic) Delim, one of the accused).

Q After bringing your father out from your house, what transpired next?

A Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

COURT:

You said your father was taken out, who?

A Marlon, Robert and Ronald, sir.

FISCAL TOMBOC:
 Where did these three persons bring your father?

A I do not know where they brought my father, sir. CIAHDT

COURT:

Was your father taken inside your house or outside?

A Inside our house, sir.

Q You said that Marlon poked a gun at your father, is that correct?

A Yes, sir.

Q What did Ronald and Robert do while Marlon was poking his gun to your father?

A Ronald and Robert were the ones who pulled my father out, sir." 36

Randy's account of the incident was corroborated by his mother, Rita, who testified:

"PROSECUTION TOMBOC:

You said during the last hearing that on January 23, 1999 at around 6:30 in the evening while
preparing for your supper three (3) armed men entered inside your house, who were these three (3)
men who entered your house?

A I know, Marlon, Bongbong and Robert, sir.

ATTY. FLORENDO:

We just make of record that the witness is taking her time to answer, Your Honor.

PROSECUTOR TOMBOC:

You said that Marlon Delim, Robert Delim and Bongbong entered your house, are these three
(3) persons who entered your house in Court now?

A They are here except the other one, sir.

Q Will you please step down and point to the persons who entered your house?

A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is Ronald Delim.

Q After these three (3) armed men entered your house, what happened then?

A My husband was brought out, sir.

Q What is the name of your husband?

A Modesto Delim, sir." 37

2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun,
acted as a lookout when he stood guard by the door of the house of Modesto and remained thereat
until 7:00 a.m. of the next day:

"FISCAL TOMBOC:

When your father was pulled out from your house by these three persons, what did you and
your mother do while these three persons were taking out of your house?

A We did not do anything because Manuel and Leon Delim guarded us.

COURT:

Where, in your house?

A Yes, sir.

FISCAL TOMBOC:

From that very time that your father was pulled out by these three persons Marlon, Robert and
Ronal (sic), where were Leon and Manuel then?

A They were at the door, sir.

COURT:

Why do you know that they were guarding you?

A Because they were at the door, sir.

FISCAL TOMBOC:

What was their appearance that time when these two persons were guarding you, these Leon
and Manuel?

A They were armed, sir.

Q What do you mean by armed?

A They have gun, sir.

Q What kind of firearm?

A Short firearm, sir.

Q By the way, where are these Leon and Manuel now, if you know?

A Leon is here, sir.

Q About Manuel?

A None, sir.

Q Will you please stand up and point at Leon, Mr. Witness?

A (Witness pointed to a person seated on the bench inside the courtroom, who when his name
was asked, answered, Leon Delim)." 38

3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the
house with Modesto in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24,
1999 to prevent them from seeking help from their relatives and police authorities.

4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto
was found under the thick bushes in a grassy area in the housing project located about 200 meters away
from the house of Modesto. The cadaver exuded bad odor and was already in the state of
decomposition: SCDaHc

"Q So what did you do then on January 27, where did you look for your father?

A The same place and at 3:00 o'clock P.M., we were able to find my father.

COURT:

Where?

A At the housing project at Paldit, Sison, Pangasinan, sir.

FISCAL TOMBOC:

Do you have companions at that time when you were able to look for your father on January 27,
1999 at 3:00 o'clock P.M.?

A Yes, sir.

Q Who?

A My Aunt, sir.

Q What is the name of your Aunt?

A Nida Pucal, sir.

Q Who else?

A Pepito Pucal, Bernard Osias and Daniel Delim, sir.

COURT:
 When you found your father, what was his condition?

A He was dead, sir.

COURT:

Go ahead.

FISCAL TOMBOC:

You said that he was already dead, what was his appearance then when you saw him dead?

A He has bad odor, sir, in the state of decompsition (sic)." 39

The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of Modesto
was in a state of decomposition, with tiny white worms crawling from his wounds, and that his penis
and scrotum were inflamed. The victim sustained five gunshot wounds and defensive wounds on the left
arm and forearm:

"PROS. TOMBOC:

Q Will you please tell the Honorable Court your findings, Doctora?

WITNESS:

A First finding: Upon seeing the cadaver, this is the position of the body, both upper extremities
are flexed and both lower extremities are flexed (Nakakukot).

Q How many days had already elapsed when you autopsied the cadaver of the victim, Doctora?

A Four (4) days upon the recovery of the body, sir.

Q And what was your findings Doctora?

A The body was already under the state of decomposition, sir, with foul odor and there were so
many worms coming out from the injuries, there were tiny white worms, sir.

Q What else did you observe Doctora?

A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the victim was an
igorot (sic) and they have tradition that they will bury immediately. Whether they like it or not I should
do it, sir.

Q What else Doctora?

A And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.

And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also 20
ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit.
Q So there were two (2) gunshot wounds (GSW) Doctora?

A Yes sir.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW,
below middle nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid parieto-occipital
area (POEx).

Q How many all in all are the gunshot wound?

A Five (5) sir.

And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed wound, axillary
area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral
aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1 cm. stabbed
wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in line with each other, stabbed wound, medial
aspect, M/3rd, left forearm.

Q How many stabbed wound are there Doctora?

A There were seven (7) stabbed wounds, sir.

Q Those stabbed wounds were defensive wounds, Doctora?

A Yes sir." 40

The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and the
distention of his scrotum and penis are evidence that the cadaver was in the stage of putrefaction and
that the victim had been dead for a period ranging from three to six days. 41 Admittedly, there are
variant factors determinative of the exact death of the victim. An equally persuasive authority states:
TCIHSa

"Chronological Sequence of Putrefactive Changes Occurring in Tropical Region:

Time Since Death Condition of the Body

48 hours Ova of flies seen.

Trunk bloated. Face discolored and swollen. Blisters present. Moving maggots seen.

72 hours Whole body grossly swollen and disfigured. Hair and nails loose. Tissues soft and
discolored." 42

The lapse of two or three to four days from the seizure of the victim in the evening of January 23, 1999
to the discovery of his cadaver which was already in the state of putrefaction in the afternoon of January
27, 1999, about 200 meters away from his house, is consistent with and confirmatory of the contention
of the prosecution that the victim was killed precisely by the very malefactors who seized him on
January 23, 1999.

5. When police authorities went to the residences of all the malefactors, the latter had flown the
coop and were nowhere to be found:

"COURT:

In connection with this case, you investigated the wife and son of Modesto Delim?

A Yes, sir.

Q In the course of the investigation did you come to know who were the suspects?

A Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his brothers,
sir.

Q What are the names of the brothers?

A Manuel Delim, Leon Delim I cannot remember the others, sir.

Q By reason of that information were you able to apprehend any of them for investigation?

A No, sir.

Q Why?

A Because when we were dispatched by the Chief of Police no Delim brothers could be found,
they all left the place, sir.

Q In what place did you look for the brothers Delim?

A Within the vicinity, sir.

Q In what place?

A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place where the
cadaver was found in Paldit, sir.

Q Where did you look for the Delim brothers?

A Nearby barangays, Immalog, sir.

Q Wherelse (sic)?

A Labayog, Sison, sir.

Q Wherelse?
A In mountainous part of Immalog, part of Tuba Benguet, sir.

Q What was the result?

A Negative result, sir." 43

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of
Modesto and Rita:

"COURT:

These Leon and Manuel Delim are they known to you prior to that day, January 23, 1999?

A Yes, sir, I know them.

Q Why do you know Manuel and Leon prior to January 23, 1999?

A They are my neighbors, sir.

Q How about Marlon, Robert and Bongbong do you know them before January 23, 1999?

A I know them, sir.

Q Why do you know them?

A They used to go to our house, sir.

Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your husband's
name is Modesto Delim are they related with each other? IcTEaC

A Yes, sir." 44

The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is
strong circumstantial evidence of their guilt for the death of Modesto. Although flight after the
commission of an offense does not create a legal presumption of guilt, nevertheless, the same is
admissible in evidence against them and if not satisfactorily explained in a manner consistent with their
innocence, will tend to show that they, in fact, killed Modesto. 45

It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill
Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or grudge
between Modesto on the one hand and Marlon, Ronald and Leon and their co-accused on the other
before the incident, or any motivation on the part of the three malefactors to cause harm to Modesto.
Nonetheless, it cannot thereby be concluded that a person or persons other than Marlon, Ronald and
Leon were criminally responsible for the death of the victim. It is a matter of judicial notice that
nowadays persons have killed or committed serious crimes for no reason at all. 46 In this case, the
inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun, forcibly took
Modesto from his house at the gunpoint, hog-tied, put a piece of cloth in his mouth and after Ronald
and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so and the cadaver of
Modesto was found concealed under the bushes and already in a state of putrefaction in the afternoon
of January 27, 1999. Modesto sustained several gunshot wounds and died because of a gunshot wound
on the head. The criminal acts and the connection of Marlon, Ronald and Leon with said acts having
been proved by the prosecution beyond reasonable doubt, the act itself furnishes the evidence, that to
its perpetration there was some causes or influences moving the mind. 47 The remarkable tapestry
intricately woven by the prosecution should not be trashed simply because the malefactors had no
motive to kill Modesto.

Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald and
Leon to rebut the same and explain what happened to the victim after taking him from his house in the
evening of January 23, 1999. They may have freed the victim shortly after taking him, or the victim may
have been able to escape and that thereafter a person or some other persons may have killed him.
However, Marlon, Ronald and Leon failed to give any explanation. Instead, they merely denied having
seized and killed the victim and interposed alibi as their defense.

Leon is equally guilty for the death of Modesto because the evidence on record shows that he conspired
with accused-appellants Marlon and Ronald and accused Robert and Manuel in killing the victim.

There is conspiracy when two or more persons agree to commit a felony and decide to commit it. 48
Conspiracy must be proven with the same quantum of evidence as the felony itself, more specifically by
proof beyond reasonable doubt. Conspiracy is not presumed. It may be proved by direct evidence or by
circumstantial evidence. Conspiracy is deducible from the acts of the malefactors before, during and
after the commission of the crime which are indicative of a joint purpose, concerted action and
concurrence of sentiment. 49 To establish conspiracy, it is not essential that there be proof as to the
existence of a previous agreement to commit a crime. 50 It is sufficient if, at the time of the commission
of the crime, the accused had the same purpose and were united in its execution. If conspiracy is
established, the act of one is deemed the act of all. It matters not who among the accused actually shot
and killed the victim. 51 This is based on the theory of a joint or mutual agency ad hoc for the
prosecution of the common plan:

". . . The acts and declarations of an agent, within the scope of his authority, are considered and treated
as the acts and declarations of his principal. 'What is so done by an agent, is done by the principal,
through him, as his mere instrument.' Franklin Bank of Baltimore v. Pennsylvania D. & M. Steam
Navigation Co., 11 G. & J. 28, 33 (1839). 'If the conspiracy be proved to have existed, or rather if
evidence be given to the jury of its existence, the acts of one in furtherance of the common design are
the acts of all; and whatever one does in furtherance of the common design, he does as the agent of the
co-conspirators.' R. v. O'Connell, 5 St. Tr. (N.S.) 1, 710." 52

In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice, they
wield one arm and the law says that the acts, words and declaration of each, while in the pursuit of the
common design, are the acts, words and declarations of all. 53
In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed with
a handgun. Marlon and Ronald barged into said house while Leon stood guard by the door thereof. After
Marlon and Ronald had left with Modesto in tow, Leon stood by the door and warned Randy and Rita
not to leave the house. Leon stood guard by the door of the house until 7:00 a.m. of January 24, 1999
when he left the house. The overt acts of all the malefactors were so synchronized and executed with
precision evincing a preconceived plan or design of all the malefactors to achieve a common purpose,
namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the commission of the crime
were — (a) to act as a lookout; (b) to ensure that Rita and Randy remain in their house to prevent them
from seeking assistance from police authorities and their relatives before their mission to kill Modesto
shall have been a fait accompli as well as the escape of Marlon and Ronald. 54 Patently, Leon, a lookout
for the group, is guilty of the killing of Modesto. 55 Leon may not have been at the situs criminis when
Modesto was killed by Marlon and Ronald nevertheless he is a principal by direct participation. 56 If part
of a crime has been committed in one place and part in another, each person concerned in the
commission of either part is liable as principal. No matter how wide may be the separation of the
conspirators, if they are all engaged in a common plan for the execution of a felony and all take their
part in furtherance of the common design, all are liable as principals. Actual presence is not necessary if
there is a direct connection between the actor and the crime. 57

Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same were
marred by inconsistencies. aDIHTE

1. Randy initially stated that he did not know where the assailants brought his father. Later
however, Randy claimed that the malefactors proceeded to the direction of Paldit, Sison, Pangasinan;

2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their
house. She later changed her testimony and declared that it was Robert, together with Marlon and
Ronald who barged into the house;

3. Rita likewise testified that two men stood outside the house guarding them. Later, she testified
that after the three men brought out the victim, the two other accused entered the house and guarded
them there;

4. Rita claimed that she went out to look for her husband the next day, or on January 25, 1999, and
she was accompanied by her son Randy. However, Randy testified that he was alone when he looked for
his father from January 24 to 26, 1999. 58

We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial
court, its calibration of the collective testimonies of witnesses and its assessment of the probative
weight thereof and its conclusions culled from its findings are accorded by the appellate court great
respect, if not conclusive effect, because of its unique advantage of observing at close range the
demeanor, deportment and conduct of the witnesses as they give their testimonies before the court. In
the present case, the trial court gave credence and full probative weight to the testimonies of the
witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were
moved by any improper or ill motive in testifying against the malefactors and the other accused; hence,
their testimonies must be given full credit and probative weight. 59 The inconsistencies in the
testimonies of Rita and Randy do not render them incredible or their testimonies barren of probative
weight. It must be borne in mind that human memory is not as unerring as a photograph and a person's
sense of observation is impaired by many factors including the shocking effect of a crime. A truth-telling
witness is not always expected to give an error-free testimony considering the lapse of time and the
treachery of human memory. What is primordial is that the mass of testimony jibes on material points,
the slight clashing of statements dilute neither the witnesses' credibility nor the veracity of his
testimony. 60 Variations on the testimony of witnesses on the same side with respect to minor,
collateral or incidental matters do not impair the weight of their united testimony to the prominent
facts. 61 Inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the
credibility of witnesses for they erase the suspicion of rehearsed testimony. 62

Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms and
the true meaning of answers to isolated questions propounded to a witness is to be ascertained by due
consideration of all the questions propounded to the witness and his answers thereto. 63

Randy's testimony that he did know where the malefactors brought his father is not inconsistent with
his testimony that Ronald and Marlon brought his father towards the direction of Paldit, Sison,
Pangasinan. Randy may not have known the destination of accused-appellants but he saw the direction
to which they went. While it may be true that when asked to identify the three who barged into their
house, Rita pointed to Leon as one of them, however, Rita had been consistent throughout her
testimony that those who barged into their house were Ronald and Marlon. Leon's counsel never cross-
examined Rita and impeached her testimony on her identification of Leon as one of those who barged
into their house to give her an opportunity to explain her perceived inconsistency conformably with Rule
132, Section 13, of the Revised Rules of Evidence which reads:

"Before a witness can be impeached by evidence that he has made at other times statements
inconsistent with his present testimony, the statements must be related to him, with the circumstances
of the times and places and the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in writing they must be shown to
the witness before any question is put to him concerning them." 64

Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired
impeachment of her. 65 As to whether Rita and Randy were together in looking for Modesto or Leon
merely stood guard by the door of the house or entered the house are inconsequential. The fact is that
Leon stood guard throughout the night to prevent Rita and Randy from seeking assistance for the
seizure and killing of Modesto.

This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita bear the
earmarks of truth and sincerity. Despite intense and grueling cross-examination, they responded with
consistency upon material details that could only come from a firsthand knowledge of the shocking
events which unfolded before their eyes. The Court thus finds no cogent reason to disregard the findings
of the trial court regarding their credibility. DIEACH
Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving
credence and probative weight to their evidence to prove their defense of alibi. They aver that their
collective evidence to prove their defense is strong.

We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in criminal
prosecution because the same is easy to concoct between relatives, friends and even those not related
to the offender. 66 It is hard for the prosecution to disprove. For alibi to merit approbation by the trial
court and this Court, Marlon, Ronald and Leon are burdened to prove with clear and convincing
evidence that they were in a place other than the situs criminis at the time of the commission of the
crime; that it was physically impossible for them to have committed the said crime. 67 They failed to
discharge their burden. Moreover, Rita and Randy positively and spontaneously identified Marlon,
Ronald and Leon as the culprits. The house of Ronald, where he claimed he was when the crime was
committed, was only two kilometers away from the house of Modesto and can be negotiated by a
tricycle. Leon failed to adduce any documentary evidence to prove his employment by Sally Asuncion.
The barefaced fact that he was a resident of Laoag City does not constitute proof that he was in Laoag
City on the day of the commission of the crime. With respect to Marlon, he failed to adduce evidence
aside from his self-serving testimony that he resided in, left Dumaguete City and arrived in Manila on
January 29, 1999.

The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circumstance of
treachery in the killing of Modesto. The trial court likewise appreciated nighttime and abuse of superior
strength and the use of unlicensed firearms as separate aggravating circumstances. The Office of the
Solicitor General contends that indeed treachery was attendant in the killing of Modesto. Hence,
Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article 248 of the Revised
Penal Code.

The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and
penalized by Article 248 of the Revised Penal Code.

Qualifying circumstances such as treachery and abuse of superior strength must be alleged and proved
clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions are utterly
insufficient and cannot produce the effect of qualifying the crime. 68 As this Court held: "No matter how
truthful these suppositions or presumptions may seem, they must not and cannot produce the effect of
aggravating the condition of defendant." 69 Article 14, paragraph 16 of the Revised Penal Code provides
that there is treachery when the offender commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which tend directly and especially to insure its
execution, without risk to himself arising from the defense which the offended party might make. For
treachery to be appreciated as a qualifying circumstance, the prosecution is burdened to prove the
following elements: (a) the employment of means of execution which gives the person attacked no
opportunity to defend himself or retaliate; (b) the means of execution is deliberately or consciously
adopted. 70 Although the victim may have been defenseless at the time he was seized but there is no
evidence as to the particulars of how he was assaulted and killed, treachery cannot be appreciated
against the accused. 71 In this case, the victim was defenseless when seized by Marlon and Ronald.
However, the prosecution failed to present any witness or conclusive evidence that Modesto was
defenseless immediately before and when he was attacked and killed. It cannot be presumed that
although he was defenseless when he was seized the victim was in the same situation when he was
attacked, shot and stabbed by the malefactors. To take advantage of superior strength means to
purposely use force that is out of proportion to the means of defense available to the person attacked.
72 What is primordial, this Court held in People v. Rogelio Francisco 73 is that the assailants deliberately
took advantage of their combined strength in order to consummate the crime. It is necessary to show
that the malefactors cooperated in such a way as to secure advantage from their superiority in strength.
74 In this case, the prosecution failed to adduce evidence that Marlon and Ronald deliberately took
advantage of their numerical superiority when Modesto was killed. The barefaced facts that the
malefactors outnumbered Modesto and were armed while Modesto was not does not constitute proof
that the three took advantage of their numerical superiority and their handguns when Modesto was
shot and stabbed. 75

In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and
penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period.

Although the special aggravating circumstance of the use of unlicensed firearms was proven during the
trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to possess
the firearm. Lack of license to possess a firearm is an essential element of the crime of violation of PD
1866 as amended by Republic Act No. 8294, or as a special aggravating circumstance in the felony of
homicide or murder. 76 Neither can dwelling, although proven, aggravate the crime because said
circumstance was not alleged in the Information as required by Rule 110, Section 8, of the Revised Rules
of Court. 77 Although this rule took effect on December 1, 2000, after the commission of the offense in
this case, nonetheless it had been given retroactive effect considering that the rule is favorable to the
accused. 78

There being no modifying circumstances in the commission of homicide, Marlon, Ronald and Leon
should be meted an indeterminate penalty, the minimum of which shall be taken from the entirety of
prision mayor, ranging from 6 years and one day to 12 years and the maximum period of which shall be
taken from the medium period of reclusion temporal, ranging from 14 years, 8 months and one day to
17 years and 4 months. DHaEAS

Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum of
P75,000.00 awarded as moral damages should be reduced to P50,000.00 in accordance with prevailing
jurisprudence. 79 The amount of P25,000.00 as exemplary damages is in order. 80 In addition, civil
indemnity in the amount of P50,000.00 should be awarded without need of proof, likewise in
consonance with prevailing jurisprudence. 81

IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with MODIFICATION.
Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found guilty beyond
reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of the Revised Penal
Code. There being no modifying circumstances in the commission of the crime, each of accused-
appellants is hereby meted an indeterminate penalty of from ten (10) years and one (1) day of prision
mayor in its maximum period as minimum to fourteen (14) years, eight (8) months and one (1) day of
reclusion temporal in its medium period as maximum. Accused-appellants are hereby ordered to pay,
jointly and severally, to the heirs of the victim the amount of P50,000.00 by way of civil indemnity, the
amount of P50,000.00 by way of moral damages and the amount of P25,000.00 by way of exemplary
damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona,
Carpio-Morales and Azcuna, JJ., concur.

Vitug, J., see separate opinion.

Ynares-Santiago, and Gutierrez, JJ., join the dissenting opinion of J. Vitug.

Separate Opinions

VITUG, J.:

Circumstantial evidence has been defined as that which relates to a series of facts other than the fact in
issue which, by experience, are found to be so associated with such fact that, in relation of cause and
effect, they lead to a veritable conclusion. There should, for circumstantial evidence to warrant a
criminal conviction, be a) more than one circumstance; b) proof of the facts from which the inference is
derived; and c) a clear showing that the combination of all the circumstances can aptly support a
conviction beyond reasonable doubt. 1 The use of circumstantial evidence in criminal cases, prompted
by sheer necessity, has long been an accepted, practice but with one important caveat — it must be
used with utmost care and, when its exacting standards are not met, it is correctly ignored.

On 04 May 1999, the following Information was filed against Marlon, Leon, Manuel, Robert and Ronald,
all surnamed Delim; viz:

"That on or about January 23, 1999 in the evening at Brgy. Bila, Sison, Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused armed with short firearms barged in and
entered the house of Modesto Delim and once inside with intent to kill, treachery, evident
premeditation, conspiring with one another, did then and there, willfully, unlawfully and feloniously
grab, hold, hog-tie, gag with a piece of cloth, brought out and abduct Modesto Delim, (while) accused
Leon and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of Modesto
Delim from helping the latter, thereafter with abuse of superior strength stabbed and killed said
Modesto Delim, to the damage and prejudice of his heirs.

"Contrary to Article 248, Revised Penal Code, as amended by Republic Act No. 7659." 2
The evidence would show that Modesto Delim was forcibly abducted from his residence by appellants,
all armed, on the night of 23 January 1999. But to say that the same group was also responsible for his
death, days later, or that his violent end was the consequence of the abduction, and nothing more,
would be to unduly put to risk our standard of moral certainty required for all convictions.

It was approximately six-thirty on the evening of 23 January 1999. Three armed men suddenly barged
into the house of Modesto Delim in Brgy. Bila, Sison, Pangasinan. Modesto, who was then about to take
his supper with his wife Rita Manalo Bantas, his teen-age son Randy Manalo Bantas, and his two
grandchildren, was suddenly seized by the intruders. Randy identified the malefactors to be their
neighbors — Marlon, Robert, and Ronald, all surnamed Delim. Without any word, the trio went straight
for Modesto. Randy saw Marlon poke a gun at his father while Ronald and Robert held back his arms
and brought him outside the house. Two more armed cohorts, namely, Manuel and Leon, both also
surnamed Delim, stood guard by the door. No words were uttered to interrupt the heavy silence except
when one of the two men told the stunned family members to stay where they were. All through the
night, both Manuel and Leon Delim kept watch outside the door and only left at around seven o'clock in
the morning of the next day.

Soon after Manuel Delim and Leon Delim had left, Randy immediately sought the help of his Uncle
Darwin Niño who forthwith told him to bring the matter to the authorities. But it was only two days later
that, in the company of his Uncle Melchor, Randy finally reported the incident to the police. In the
meantime, the distressed son scoured the vicinity of Paldit, Pangasinan, to look for his father. He was
nowhere to be found. Days passed. Then, one day, he stumbled upon the decomposing body of his
father at a thick grassy portion of a housing project in Paldit, Sison, Pangasinan, some 200 meters from
their house. Dr. Ma. Fe Lagmay de Guzman, who conducted the autopsy, found the corpse riddled with
five fatal gunshot wounds, seven stab wounds and several "defensive" wounds.

The victim's surviving spouse Rita Manalo Bantas and son Randy Manalo Bantas could not understand
why anyone would want Modesto killed. The family was completely unaware of any possible motive for
the nabbing and killing of Modesto Delim or of any bad blood between Modesto and the five indictees.

On 14 January 2000, the Regional Trial Court of Urdaneta City, Branch 46, rejecting the defense of alibi,
convicted Ronald, Marlon, and Leon for murder; it held: EHITaS

"WHEREFORE, judgment of conviction beyond reasonable doubt is hereby rendered against Ronald
Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an offense defined
and penalized under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and the Court
sentences Marlon Delim, Ronald Delim and Leon Delim to suffer the penalty of death, to be
implemented in the manner as provided for by law; the Court likewise ordered the accused, jointly and
solidarily, to indemnify the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus the
amount of P25,000.00 as exemplary damages." 3

In assailing the finding of guilt beyond reasonable doubt by the court a quo, appellants stress on what
they claim to be inconsistencies in the testimony of Randy Manalo Bantas and that of Rita Manalo
Bantas. I agree with my colleagues that the trial court has not erred in regarding the so-called
inconsistencies as being minor and trivial that hardly can affect the credibility of the witnesses. The
narration given by Randy Manalo Bantas and Rita Manalo Bantas at the witness stand, identifying each
of the appellants and detailing their individual participation in the incident, could not have been more
spontaneous and straightforward; thus —

Testimony of Randy Manalo Bantas

"Q. While taking your supper that time, do you recall if there was anything unusual that happened
at that time?

"A. When we were about to start to eat, three armed men entered our house.

"Q. Do you know these three armed men who entered your house?

"A. Yes, sir.

"Q. Who were they, name them one by one.

"A. Marlon Delim, Robert Delim and Ronald Delim.

"Q. Are these three persons inside the courtroom now?

"A. Two of them, sir.

"Q. Who are these two who are inside the courtroom?

"A. Marlon and Ronald, sir.

xxx xxx xxx

"Q. You said that these two armed persons entered your house; what kind of arms were they
carrying at that time?

"A. Short handguns, sir.

"Q. When these three armed persons whom you have mentioned, armed with short firearms, what
did they do when they entered your house?

"A. They took my father, sir.

"Q. Who took your father?

"A. Marlon Delim, Robert Delim and Ronald Delim, sir.

"Q. When these three persons took your father, what did you do then?

"A. None, sir.

"COURT:
 How did they get your father?

"A. They poked a gun and brought him outside the house, sir.

"FISCAL TOMBOC:

Who poked a gun?

"A. Marlon Delim, sir.

"xxx xxx xxx

"Q. After bringing your father out from your house, what transpired next?

"A. Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

"COURT:

You said your father was taken out, who?

"A. Marlon, Robert and Ronald, sir.

"FISCAL TOMBOC:

Where did these three persons bring your father?

"A. I do not know where they brought my father, sir.

"COURT:

Was your father taken inside your house or outside?

"A. Inside our house, sir.

"Q. You said that Marlon poked a gun at your father, is that correct?

"A. Yes, sir.

"Q. What did Ronald and Robert do while Marlon was poking his gun at your father?

"A. Ronald and Robert were the ones who pulled my father out, sir.

"FISCAL TOMBOC:

When your father was pulled out from your house by these three persons, what did you and
your mother do while these three persons were taking your father out of your house?

"A. We did not do anything because Manuel and Leon Delim guarded us.

"xxx xxx xxx

"FISCAL TOMBOC:

What was their appearance that time when these two persons were guarding you, these Leon
and Manuel?

"A. They were armed, sir.

"Q. What do you mean by armed?

"A. They have [a] gun, sir.

"Q. What kind of firearm?

"A. Short firearm, sir.

"xxx xxx xxx

"FISCAL TOMBOC:

You said that you were guarded by Leon and Manuel, how long did these two persons guard you
in your house?

"A. Up to the morning, sir.

"Q. You know what time?

"A. Yes, sir, [seven o'clock].

"xxx xxx xxx

"Q. When [seven o'clock] arrived, you said that they guarded you up to [seven o'clock], what did
these two, Leon and Manuel, do then?

"A. They left, sir.

"Q. Do you know where they went?

"A. No, sir." 4

Testimony of Rita Manalo Bantas

"PROSECUTOR TOMBOC

You said during the last hearing that on January 23, 1999 at around 6:30 in the evening while
preparing for your supper three (3) armed men entered inside your house, who were these three (3)
men who entered your house?

"A I know, Marlon, Bongbong and Robert, sir.

"xxx xxx xxx

"PROSECUTOR TOMBOC

You said that Marlon Delim, Robert Delim and Bongbong entered your house, are these three
(3) persons who entered your house in Court now?

"A They are here except the other one, sir.

"Q Will you please step down and point to the persons who entered your house?

"A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is Ronald Delim.

"Q. After these three (3) armed men entered your house, what happened then?

"A My husband was brought out, sir.

"xxx xxx xxx

"PROSECUTOR TOMBOC

Who brought your husband out of your house on January 23, 1999 at 6:30 in the evening?

"A Marion Delim, Bongbong and Robert Delim, sir.

"Q Then after Marlon Delim, Bongbong and Robert Delim brought your husband out what
transpired next?

"A The two (2) stayed at the door of our house to guard us, sir.

"Q Who were these two (2) persons who guarded you?

"A Leon and Manuel, sir.

"xxx xxx xxx

"COURT

You said the two (2) Leon and Manuel stayed at the door guarding you, is that correct?`

"A Yes, sir.

"Q What made you say that you are guarded by them?

"A Because they have guns with them, sir.

"PROSECUTOR TOMBOC

Do you know what kind of firearm were they holding?

"A I don't know, sir.

"Q. But you can describe whether long or short firearm?

"A Short firearms, sir.

"Q. What did you do then when these two (2) armed persons guarded you in your house?

"A We did not do anything because we were afraid, sir.

"COURT

These Leon and Manuel Delim are they known to you prior to that day, January 23, 1999?

"A Yes, sir, I know them.

"Q Why do you know Manuel and Leon prior to January 23, 1999?

"A They are my neighbors, sir.

"Q How about Marlon, Robert and Bongbong do you know them before January 23, 1999?

"A I know them, sir.

"Q Why do you know them?

"A They used to go to our house, sir.

"xxx xxx xxx

"Q You said that Leon and Manuel Delim guarded the door of your house, how long did they stay
there?

"A The whole night up to [seven] o'clock the following morning when they left the house, sir.

"Q You said they left, do you know where they proceeded?

"A I don't know where they [went], sir.

"Q How about you, what did you do then when the two persons left your house?

"A I stayed at home because I [was] afraid, sir.

"COURT

When the 3 persons brought your husband out did Modesto Delim go with them voluntarily?

"A No, sir.

"Q Why do you say [that] he did not go voluntarily?

"A Because they held his hand and brought him outside, sir.

"PROSECUTOR TOMBOC

You said they held the hand of your husband, will you please demonstrate how he was brought
outside?

"A They held the 2 hands placed at the back and they brought outside my husband, sir.

"Q Who among the 3 men held the hands of your husband?

"A Marlon, Bongbong and Robert, Sir.

"COURT

Did your husband resist when they held the hand?

"A He did not resist, Sir." 5

Between the positive identification made by the eyewitnesses and the bare denial of appellants, there is
scarcely any serious doubt but that decisive weight must be given to the positive testimony of Randy
Manalo Bantas and Rita Manalo Bantas. 6 The defense of alibi, being one that can easily be fabricated, is
inherently weak and cannot be expected to withstand the positive identification made by credible
witnesses.

Randy Manalo Bantas, who was in the house when the five intruders entered their abode and took his
father away, could not have been mistaken in identifying the malefactors who not only were neighbors
but also had family ties with them as well. According to Randy and Rita Manalo Bantas, it was appellant
Leon Delim, together with Manuel Delim (at large), who stood guard at their house after the others,
appellant Marlon Delim, Robert Delim (at large) and appellant Ronald Delim, took Modesto away on the
early evening of 23 January 1999. Leon and Manuel stayed well into the night and left only at seven
o'clock in the morning of the next day. The certificate of residency issued by the barangay captain of
Salet, Laoag City, only confirmed that Leon Delim was a co-resident of the barangay but it did not
establish with any degree of certainty that Leon Delim had not left Laoag City on the day of the incident.
Appellant Ronald Delim, in his case, said that he was home at Asan Norte with his family when the
abduction and the brutal slaying of Modesto Delim occurred. Ronald himself confirmed, however, that
Asan Norte was a mere ten-minute bicycle ride from the victim's house at Paldit, Pangasinan. Alibi, to be
believed, must invariably place the accused at such location as to render it physically impossible for him
to be at the place of the crime and, let alone, to commit the same. The claim, upon the other hand, of
appellant Marlon Delim that he was at Dumaguete City during the fateful day of 23 to 24 January 1999
remained to be just a bare assertion; it was not corroborated even by his sister in Dumaguete whom, he
said, he worked for. ASCTac

The evidence would indeed point out that Marlon, Ronald and Robert seized Modesto Delim from his
house while Leon and Manuel stood guard and stayed at the door of the victim's house. Randy Manalo
Bantas and Rita Manalo Bantas, however, could only testify on the participation of each of the
malefactors in the abduction of Modesto Delim but not on what might have happened to him
thereafter. In arriving at its verdict convicting appellants for "aggravated murder," the trial court
considered the act of the accused of forcibly taking Modesto Delim from his house as being likewise
enough to substantiate the killing by them of the victim. The conclusion could rightly be assailed. The
accounts of Randy and his mother Rita would indicate that the forcible taking of Modesto was carried
out in absolute silence, with not one of the five intruders uttering any word which could give a clue on
the reason for the abduction and, more particularly, whether the same was carried out for the purpose
of killing Modesto. The two witnesses were unaware of any existing grudge between the malefactors
and the victim that could have prompted them to violently snuff out the life of the latter. While the
motive of an accused in a criminal case might generally be immaterial, not being an element of the
crime, motive could be important and consequential when the evidence on the commission of the crime
would be short of moral certainty. 7

In sustaining the conclusion of the trial court that the five accused also snuffed out the life of Modesto
Delim, the ponencia relied on circumstantial evidence testified to by Randy Bantas. He recounted that,
on the early evening of 23 January 1999, Marlon and Ronald barged into the house of Modesto, each
armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then
seized Modesto and herded him out of the house. Leon, armed with a handgun, acted as a lookout by
standing guard by the door of the house of Modesto until seven o'clock in the morning of the next day.
Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house with
Modesto in tow. On the afternoon of 27 January 1999, the cadaver of Modesto was found under the
thick bushes in a grassy area in the housing project located about 200 meters away from the house of
Modesto, exuding bad odor and in a state of decomposition.

The above recitals all point to only one established fact, i.e., that the accused forcibly took Modesto
Delim from his residence to an unknown destination on the night of 23 January 1999, would be scanty to
support a conclusion that the five, aside from abducting the victim, likewise killed him. There was an
unexplained gap in what ought to have been a continuous chain of events. The body bore several
defensive wounds, which could give rise to the not too unlikely scenario that Modesto might have
ultimately been released by his abductors sometime before he was killed.

Recognizing that circumstantial evidence is as strong as the weakest link, this Court is bound not to
ignore all other possibilities. 8 It would seem to me that what has instead been shown and established
beyond reasonable doubt is the guilt of appellants for the crime of kidnapping and serious illegal
detention, the whereabouts of the victim — the immediate consequence of the abduction — for "more
than three days" from the time of his abduction not having been accounted for. The allegation in the
Information that the accused "willfully, unlawfully and feloniously grab(bed), h(e)ld, hog-tie(d), gag(ged),
with a piece of cloth, brought out and abduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim
stayed in the house (and) guarded and prevented the wife and son of Modesto Delim from helping the
latter," constitutes the act of deprivation of liberty and the gravamen in the crime of kidnapping. Article
267 of the Revised Penal Code, as amended by Republic Act No. 7659, provides:
"Article 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or
detain another, or in any manner deprive him of his liberty, shall suffer the penalty of reclusion
perpetua to death:

"1. If the kidnapping or detention shall have lasted more than three days.

"2. If it shall have been committed simulating public authority.

"3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained;
or if threats to kill him shall have been made.

"4. If the person kidnapped or detained shall be a minor, except when the accused is any of the
parents, a female or a public officer.

"The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances
abovementioned were present in the commission of the offense.

"When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed."

The fact that the Information went further to charge the accused with the killing of the victim should be
of no moment, the real nature of the criminal charge being determined not from the caption or the
preamble of the Information nor from the specification of the law alleged to have been violated — these
being conclusions of law — but by the actual recital of facts in the complaint or information. 9

In meting upon appellants the supreme penalty of death, the trial court has appreciated five aggravating
circumstances of treachery, abuse of superior strength, nighttime, dwelling, and use of unlicensed
firearms. The Information specifies treachery, abuse of superior strength and evident premeditation as
being the aggravating circumstances in the commission of the crime. Treachery and superior strength,
however, only pertain to crimes against persons. The crime of kidnapping, falling as it does within the
classification of crimes against liberty, is aggravated neither by treachery nor superior strength. The
aggravating circumstance of evident premeditation can be appreciated when it is shown that the culprits
have previously reflected on the crime, or that they have prepared appropriate means to execute it,
coolly taking into account its consequences. The evidence is deficient in this respect. The aggravating
circumstances of nighttime, dwelling and use of unlicensed firearms, not having been alleged in the
Information, cannot be considered. The Revised Rules of Criminal Procedure, rendered effective on 01
December 2000, 10 requires aggravating circumstances, whether ordinary or qualifying, to be specified
in the complaint or information. aIHCSA

The crime of kidnapping is punishable by reclusion perpetua to death. There being neither aggravating
nor mitigating circumstance that can be appreciated, the punishment that should be imposed is the
lesser penalty of reclusion perpetua than the penalty of death. 11
Now, on the civil aspect of the case. The law places abundant protective shields in order to ensure that
no man shall be made to account for a crime he might not have committed or be adjudged guilty and
meted a punishment without him having first been afforded a full opportunity to defend his cause. Thus,
a conviction is pronounced only upon proof beyond reasonable doubt, preceded by an arraignment
where he pleads on the basis of a complaint or information that specifies the gravamen of the offense
and the circumstances that are said to aggravate it and then the trial where evidence is adduced by the
parties. For purposes of the civil liability, as well as its extent, civil law principles, however, are applied,
and damages might be accorded to the aggrieved party upon a mere preponderance of evidence. There
is, I believe, enough justification, albeit inadequate for purposes of a criminal conviction, to hold
appellants responsible and civilly liable for the death of Modesto Delim whose body was found riddled
with bullets a few days after being forcibly abducted by appellants.

Consonantly, appellants should be held liable, jointly and severally, for civil indemnity of P50,000.00 for
the death of the victim, moral damages in an equal amount for the mental anguish suffered by his heirs
and P25,000.00 exemplary damages because of the attendance of aggravating circumstances that were
established albeit not allowed to be considered in meting out the sentence for the crime. Thus, in
People vs. Catubig, 12 the Court has said:

"The term 'aggravating circumstances' used by the Civil Code, the law not having specified otherwise, is
to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect,
one on the public as it breaches the social order and the other upon the private victim as it causes
personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment
for the accused and by an award of additional damages to the victim. The increase of the penalty or a
shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating
circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is
basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the
offended party who suffers thereby. It would make little sense for an award of exemplary damages to be
due the private offended party when the aggravating circumstance is ordinary but to be withheld when
it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction
that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In
fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary damages within the unbridled meaning of
Article 2230 of the Civil Code.

"Relevantly, the Revised Rules on Criminal Procedure, made effective on 01 December 2000, requires
aggravating circumstances, whether ordinary or qualifying, to be stated in the complaint or information.

"xxx xxx xxx

"A court would thus be precluded from considering in its judgment the attendance of 'qualifying or
aggravating circumstances' if the complaint or information is bereft of any allegation on the presence of
such circumstances.
"The retroactive application of procedural rules, nevertheless, cannot adversely affect the rights of the
private offended party that have become vested prior to the effectivity of said rules. Thus, in the case at
bar, although relationship has not been alleged in the information, the offense having been committed,
however, prior to the effectivity of the new rules, the civil liability already incurred by appellant remains
unaffected thereby."

WHEREFORE, I vote for the modification of the decision of the Regional Trial Court, Branch 46, of
Urdaneta City by instead holding appellants Ronald Delim, Marlon Delim and Leon Delim guilty beyond
reasonable doubt of the crime of Kidnapping and Serious Illegal Detention, defined and penalized by
Article 267 of the Revised Penal Code, and imposing on each of them the penalty of reclusion perpetua,
as well as by ordering said appellants to pay, jointly and severally, the heirs of Modesto Delim the
amounts of P50,000.00 civil indemnity, P50,000.00 moral damages and P25,000.00 exemplary damages,
with costs de officio. ECaAHS
US vs. Ah Chong, 15 Phil 488
THE UNITED STATES, plaintiff-appellee, vs. AH CHONG, defendant-appellant.
[G.R. No. 5272. March 19, 1910.]
Gibb & Gale, for appellant. Attorney-General Villamor, for appellee.
SYLLABUS
JUSTIFICATION HOMICIDE; SELF-DEFENSE; MISTAKE OF FACTS. — Defendant was a cook and the
deceased was a house boy, and both were employed in the same place and usually slept in the same
room. One night, after the defendant had gone to bed, he was awakened by some one trying to open
the door, and called out twice, "who is there?" He received no answer, and fearing that the intruder was
a robber, leaped from the bed and again called out: "If you enter the room I will kill you." At that
moment he was struck by a chair which had been placed against the door. Believing that he was being
attacked, he seized a kitchen knife and struck and fatally wounded the intruder, who turned out to be
his roommate. Thereupon he called to his employers and rushed back into the room to secure bandages
to bind up the wound. Defendant was charged with murder. While there can be no doubt of defendant's
exemption from liability if the intruder had really been a robber, the question presented is whether, in
this jurisdiction, a person can be held criminally responsible when, by reason of a mistake of facts, he
does an act for which he would be exempt if the facts were as he supposed them to be, but would
constitute murder if he had known the true state of facts at the time.

Held, That, under such circumstances, there is no criminal liability, provided that the ignorance or
mistake of fact was not due to negligence or bad faith. In other words, if such ignorance or mistake of
facts is sufficient to negative a particular intent which, under the law, is a necessary ingredient of the
offense charged it destroys the presumption of intent and works an acquittal; except in those cases
where the circumstances demand a conviction under the penal provisions governing negligence, and in
cases where, under the provisions of article 1 of the Penal Code, a person voluntarily committing an act
incurs criminal liability even though the act be different from that which he intended to commit.

DECISION
CARSON, J p:
The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances surrounding
the incident upon which these proceedings rest, no other evidence as to these facts was available either
to the prosecution or to the defense. We think however, that, giving the accused the benefit of the
doubt as to the weight of the evidence touching those details of the incident as to which there can be
said to be any doubt, the following statement of the material facts disclosed by the record may be taken
to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort McKinley, Rizal
Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or
muchacho. "Officers' quarters No. 27" is a detached house situated some 40 meters from the nearest
building, and in August, 1908, was occupied solely as an officers' mess or club. No one slept in the house
except the two servants, who jointly occupied a small room toward the rear of the building, the door of
which opened upon a narrow porch running along the side of the building, by which communication was
had with the other part of the house. This porch was covered by a heavy growth of vines for its entire
length and height. The door of the room was not furnished with a permanent bolt or lock, and the
occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and
were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it
a chair. In the room there was but one shall window, which, like the door, opened on the porch. Aside
from the door and window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had retired for the night, was
suddenly awakened by someone trying to force open the door of the room. He sat up in bed and called
out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was
being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of
vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder
was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At the
moment he was struck just above the knew by the edge of the chair which had been placed against the
door. In the darkness and confusion the defendant thought that the blow had been inflicted by the
person who had forced the door open, whom he supposed to be a burglar, though in the light of after
events, it is probable that the chair was merely thrown back into the room by the sudden opening of the
door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the
defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition,
followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to
secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his
personal protection.

The deceased and the accused, who roomed together and who appear to have been or friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night, he
should knock at the door and acquaint his companion with his identity. Pascual had left the house early
in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants
employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their
walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on
to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for
assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the
stomach whereupon one of them ran back to No. 28 and called Lieutenants Jacobs and Healy, who
immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under
the impression that Pascual was "a ladron" because he forced open the door of their sleeping room,
despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascual suggests itself, unless it be
that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frighten
him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah
Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where
he died from the effect of the wound of the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of
simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio
mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self defense.

Article 8 of the Penal Code provides that —

"The following are not delinquent and are therefore exempt from criminal liability:
"4. He who acts in defense of his person or rights, provided there are the following
attendant circumstances:
xxx xxx xxx
"(1) Illegal aggression.
"(2) Reasonable necessity of the means employed to prevent or repel it.
"(3) Lack of sufficient provocation on the part of the person defending himself."

Under these provisions we think that there can be no doubt that defendant would be entitled to
complete exemption from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant
believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist
and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's
thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his
attempt, it will not be questioned that in the darkness of the night, in a small questioned that in the
darkness of the night, in a small room, with no means of escape, with the thief advancing upon him
despite his warning, defendant would have been wholly justified in using any available weapon to
defend himself from such an assault, and in striking promptly, without waiting for the thief to discover
his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for
the use of knife to defend his person or his property or the property under his charge.
The question then squarely presents itself, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from
criminal liability if the facts were as he supposed them to be, but which would constitute the crime of
homicide or assassination if the actor had known the true state of the facts at the time when he
committed the act. To this question we think there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that the alleged ignorance or mistake of fact
was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged (e. g.,
in larceny, animus furendi; in murder, malice; in crimes and misdemeanors generally some degree of
criminal intent) "cancels the presumption of intent," and works an acquittal; except in those cases
where the circumstances demand a conviction under the penal provisions touching criminal negligence;
and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a
crime or misdemeanor incurs criminal liability for any wrongful act committed by him, even though it be
different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited;
McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap.; 240; Commonwealth vs. Power, 7
Met., 596; Yates vs. People, 32 N. Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7
Met., 500)

The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice of criminal intent is an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offenses therein defined, do not
specifically and expressly declare the acts constituting the crime or offense must be committed with
malice or with criminal intent in order that the actor may be held criminally liable, the commission of
the acts set out in the various definitions subjects the actor to the penalties described therein, unless it
appears that he is exempted from liability under one or other of the express provisions of article 8 of the
code, which treats of exemptions. But while it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code
rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of
the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or
criminal intent in some form, is an essential requisite of all crimes and offenses therein defined, in the
absence of express provisions modifying the general rule, such as are those touching liability resulting
from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or
misdemeanor, where the act committed is different from that which he intended to commit. And it is to
be observed that even these exceptions are more apparent than real, for "There is a little distinction,
except in degree, between a will to do a wrongful thing and indifference whether it is done or not.
Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent"
(Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little deference between a disposition
to do a great harm and a disposition to do harm that one of them may very well be looked upon as the
measures of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which
the criminal shows by committing it, and since this disposition is greater or less in proportion to the
harm which is done by the crime the consequence is that the guilt of the crime follows the same
proportion; it is greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated the
thing done, having proceeded from a corrupt mind, is to be viewed the same whether the corruption
was of one particular form or another.

Article 1 of the Penal Code is as follows:

"Crimes or misdemeanors are voluntary acts and omissions punished by law.
"Acts and omissions punished by law are always presumed to be voluntary unless the contrary
shall appear.
"Any person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit."

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this
article, says that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the word
"voluntary" implies and includes the words "con malicia." which were expressly set out in the definition
of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists,
their use in the former code was redundant, being implied and included in the word "voluntary."
(Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said exempt from
criminal responsibility when the act which was actually intended to be done was in itself a lawful one,
and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of
the provisions of this article of the code that in general without intention there can be no crime. (Viada,
vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent
than real.

Silvela, in discussing the doctrine herein laid down, says:

"In fact, it is sufficient to remember the first article, which declares that where there is no
intention there is no crime . . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury." (Vol. 2, The Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:

"It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from
the operation of the will and an intent to cause the injury which may be the object of the crime."

"And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the
parochial church, there can be no crime because of the lack of the necessary elements or criminal
intention, which characterizes every action or omission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:
". . . Considering that the moral element of the crime that is intent or malice or their absence in
the commission of an act defined and punished by law as criminal, is not a necessary question of
fact submitted to the exclusive judgment and decision of the trial court."

That the author of the Penal Code deemed criminal intent or malice to be an essential element
of the various crimes and misdemeanors therein defined becomes clear also from an
examination of the provisions of article 568, which are as follows:

"He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degree, and with arresto mayor in its minimum
and medium degrees if it shall constitute a less grave crime.

"He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

"In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.

"The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts
shall apply the next one thereto in the degree which they may consider proper."

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein, in
the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the
word "willful" as used in English and American statutes to designate a form of criminal intent. It has
been said that while the word "willful" sometimes means little more than intentionally or designedly,
yet it is more frequently understood to extend a little further and approximate the idea of the milder
kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to
mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it
means "not merely 'voluntarily' but with a bad purpose; in other words, corruptly." In English and the
American statutes defining crimes "malice," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or "willfully," but "the difference between them is
not great;" the word "malice" not often being understood to require general malevolence toward a
particular individual, and signifying rather the intent from which flows any unlawful and injurious act
committed without legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases
cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime
that it be committed "voluntarily," willfully," "maliciously," "with malice aforethought," or in one of the
various modes generally construed to imply a criminal intent, we think that reasoning from general
principles it will always be found that, with the rare exceptions hereinafter mentioned, to constitute a
crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous
citations from the decided cases, thus forcefully presents this doctrine:

"In no one thing does criminal jurisprudence differ more from civil that in the rule as to intent. In
controversies between private parties the quo animo with which a thing was done is sometimes
important, not always; but crime proceeds only from a criminal mind. So that —

"There can be no crime, large or small, without an evil mind. In other words, punishment is the
sequence of wickedness, without which it can not be. And neither in philosophical speculation nor in
religious or moral sentiment would any people in any age allow that a man should be deemed guilty
unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other,
that the essence of an offense is the wrongful intent, without which it can not exist. We find this
doctrine confirmed by —

"Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It
consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, 'the act itself
does not make a man guilty unless his intention were so;' Actus me invito factus non est meus actus, 'an
act done by me against my will is not my act;' and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also —

"Moral science and moral sentiment teach the same thing. 'By reference to the intention, we inculpate
or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let
the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the
same ground, we hold him innocent.' The calm judgment of mankind keeps this doctrine among its
jewels. In times of excitement, when vengeance takes the place of justice, every guard around the
innocent is cast down. But with the return of reason the public voice that were the mind is pure, he who
differs in act from his neighbors does not offend. And —

"In the spontaneous judgment which springs from the nature given by God to man, no one deems
another to deserve punishment for what he did from an upright mind, destitute of every form of evil.
And whenever a person is made to suffer a punishment which the community deems not his due, so far
from its placing an evil mark upon him it elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with
the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts
are only the voice of nature uttering one of her immutable truths. It is, then the doctrine of the law,
superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is
to be punished as a criminal unless his intent is wrong." (Bishop's New Criminal Law, vol. 1, secs. 286 to
290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice results from the adoption of the arbitrary rule that Ignorantia juris non excusat
("Ignorance of the law excuses no man"), without which justice could not be administered in our
tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power
of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer. Without discussing these exceptional
cases at length, it is sufficient here to say that the courts have always held that the intention of the
lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is
clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes
76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real
departure from the law's fundamental principle that crime exists only where the mind is at fault,
because "the evil purpose need not be to break the law, and it suffices if it is simply to do thing which
the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefor, requiring
mistake in fact to be dealt with otherwise than in strict accord with the principles of abstract justice. On
the contrary the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all
cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows
the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from
criminal liability, provided always there is no fault or negligence on his part; and as laid down by Baron
Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs.
Thurborn, 1 Den. C. C., 387; P. vs. Anderson, 44 Cal., 65; P. vs. Lamb, 54 Barb., 342; Yates vs P., 32 N.Y.,
509; Patterson vs. P., 46 Barb., 625; Reg. vs Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley
vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and
without fault or negligence fell into the mistake is to be determined by the circumstances as they
appeared to him at the time when the mistake was made, and the effect which the surrounding
circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or
otherwise upon which he acted.

"If in language not uncommon in the cases, one has reasonable cause to believe the existence of facts
which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is
founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide;
though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In
order words, and with reference to the right of self-defense and the not quite harmonious authorities, it
is the doctrine of reason, and sufficiently sustained in adjudication, that notwithstanding some decisions
apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If without fault or carelessness, he is misled concerning them, and defends himself
correctly according to what he thus supposes the facts to be, the law will not punish him though they
are in truth otherwise, and he has really no occasion for the extreme measure." (Bishop's New Criminal
Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case
where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friend in
a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under
the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his
life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the
facts were such as the slayer believed them to be he would be innocent of the commission of any crime
and wholly exempt from criminal liability, although if he knew the real state of the facts when he took
the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under
such circumstances, proof of his innocent mistake or criminal intent, and (since malice or criminal intent
is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes
at the same time the presumption established in article 1 of the code, that the "act punished by law"
was committed "voluntarily."

Parsons, C. J., in the Massachusetts court, once said:

"If the party killing had a felonious design against him, and under that supposition killed him,
although it should afterwards appear that there was no such design, it will not be murder, but it
will be either manslaughter or excusable homicide, according to the degree of caution used and
the probable grounds of such belief." (Charge to the grand jury in Selfridge's case, Whart. Hom.,
417, 418, Lloyd's report of the case, p. 7.)

In this case, Parker, J., charging the petit, jury, enforced the doctrine as follows:
"A in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arm and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his hand,
strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies.
It turns out the pistol was loaded with powder only, and that the real design of B was only to
terrify A. Will any reasonable man say that A is more criminal than he would have been if there
had been a bullet in the pistol? Those who hold such doctrine must require that a man so
attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a
doctrine which would entirely take away the essential right of self-defense. And when it is
considered that the jury who try the cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be supposed to flow from this
principle." (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which
are here set out in full because the facts are somewhat analogous to those in the case at bar.

"QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of
his wife, without other light than that reflected from the fire, and that the man with his back to the door
was attending to the fire, there suddenly entered a person whom he did not see or know, who struck
him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the
person and took from him the stick with which he had undoubtedly been struck, and gave the unknown
person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving
the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-
law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days
in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts,
had always sustained pleasant relations with his father-in-law, whom he visited during his sickness,
demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility,
as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal
Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without
sufficient provocation, and that there did not exist rational necessity for the employment of the force
used, and in accordance with articles 419 and 87 of forced used, and in accordance with articles 419 and
87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and
costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following
sentence: 'Considering, from the facts found by the sentence to have been proven, that the accused was
surprised from behind, at night, in his house beside his wife, who was nursing her child, was attacked,
struck, and eaten, without being able to distinguish the person or persons attacking, nor the instruments
with which they might have executed their criminal intent, because of the fact that the attack was made
from behind and because there was no other than fire light in the room, and considering that in such a
situation and when the acts executed demonstrated that they might endanger his existence, and
possibly that of his wife and child, more especially because his assailant was unknown, he should have
defended himself, and in doing so with the same stick with which he was attacked, he did not exceed
the limits of self-defense, nor did he use means which were not rationally necessary, particularly
because the instrument with which he killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house and the consternation which naturally
resulted from such strong aggression, it was not given him to know or distinguish whether there was
one or more assailants, nor the arms which they might bear, nor that which they might accomplish, and
considering that the lower court did not find from the accepted facts that there existed rational
necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it
erred, etc.' (Sentence of supreme court of Spain, February 28, 1876.)" (Viada, Vol. I, p. 266.)

"QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the
city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8
paces, saying: 'Face down, hand over your money!' because of which , and almost at the same moment ,
he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had
before stimulated a different voice) saying, 'Oh! they have killed me,' and hastening to his assistance,
finding the body lying upon the ground, he cried, 'Miguel, Miguel, speak, for God's sake, or I am ruined,'
realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend
was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the
author of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but
only found in favor of the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and therefore, condemned the accused to
eight years and one day of prision mayor, etc. The supreme court acquitted the accused on his appeal
from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact
as to the identity of the person calling to him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme
court, March 17, 1885.)" (Viada, Vol. I, p. 136.)

"Question VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone
thrown against his window — at this, he puts his head out of the window and inquires what is wanted,
and is answered 'the delivery of all his money, otherwise his house would be burned' — because of
which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one of the men, who, on the next morning was found dead on the same
spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense
with all of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there
existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility,
but not that of reasonable necessity for the means, employed, and condemned the accused to twelve
months of prision correccional for the homicide committed. Upon appeal, the supreme court acquitted
the condemned, finding that the accused, in finding at the malefactors, who attacked his mill at night in
a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877)." (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at the bar convinces us that the defendant
Chinaman struck the fatal below alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was an imminent peril,
both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in good
faith, without malice, or criminal intent, in the belief that he was doing no more than exercising hid
legitimate right of self-defense; that had the facts been as he believed them to be he would have been
wholly exempt from criminal liability on account of his act; and that he can not be said to have been
guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in
the means adopted by him to defend himself from the imminent danger which he believed threatened
his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and he is bail bond exonerated, with the
costs of both instances de oficio. So ordered.
Johnson, Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.

Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court, believes that, according to the
merits of the case, the crime of homicide by reckless negligence, is defined and punished in article 568
of the Penal Code, was committed, inasmuch as the victim was willfully (voluntariamente) killed, and
while the act was done without malice or criminal intent it was, executed with real negligence, for the
acts committed by the deceased could not warrant the aggression by the defendant under the
erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the
defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to
enter said room, without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the undersigned the accused should
be sentenced to the penalty of one year and one month of prision correccional, to suffer the accessory
penalties provided in article 61, and to pay an indemnity of P1,000 to the heirs of the deceased, with the
costs of both instances, thereby reversing the judgment appealed from.
People vs. Oanis, 74 Phil. 257
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO Z. OANIS and ALBERTO GALANTA,
defendants-appellants. [G.R. No. 47722. July 27, 1943.]
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

SYLLABUS
1. CRIMINAL LAW; MURDER. — Appellants Corporal Galanta and Chief of Police Oanis were under
instructions to arrest one, Balagtas, a notorious criminal and an escaped convict, and, if overpowered, to
get him dead or alive. Proceeding to the suspected house, appellants went into a room and on seeing a
man sleeping with his back towards the door, simultaneously or successively fired at him with their .32
and .45 caliber revolvers, without first making any reasonable inquiry as to his identity. The victim
turned out to be an innocent man, Tecson, and not the wanted criminal. Held: That under the
circumstances, the crime committed by appellants is murder though specially mitigated by
circumstances presently to be mentioned.

2. ID.; ID.; CASE AT BAR DISTINGUISHED FROM UNITED STATES vs. AH CHONG (15 Phil., 488). — In
support of the theory of non-liability by reason of honest mistake of fact, appellants rely on the case of
United States vs. Ah Chong (15 Phil., 488). The maxim is ignorantia facti excusat, but this applies only
when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein
after having gone to bed was awakened by someone trying to open the door. He called out twice, "who
is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and
called out again, "if you enter the room I will kill you." But at that precise moment, he was struck by a
chair which had been placed against the door and believing that he was then being attacked, he seized a
kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A
common illustration of innocent mistake of fact is the case of a man who was masked as a footpad at
night and in a lonely road held up a friend in a spirit of mischief, and with leveled pistol demanded his
money or life. He was killed by his friend under the mistaken belief that the attack was real, that the
pistol leveled at his head was loaded and that his life and property were in imminent danger at the
hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any
fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and
being pressed by circumstances to act immediately, had no alternative but to take the facts as they then
appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the
accused in the instances cited, found no circumstances whatsoever which would press them to
immediate action. The person in the room being then asleep, appellants had ample time and
opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless
arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to one
eyewitness. This, indeed, is the only legitimate course of action for appellants to follow even if the
victim was really Balagtas, as they were instructed not to kill Balagtas, at sight, but to arrest him, and to
get him dead or alive only if resistance or aggression is offered by him.
3. ID.; ID.; FORCE WHICH A PEACE OFFICER MAY USE IN MAKING ARREST. — Although an officer in
making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the
offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself
from bodily harm (People vs. Delima, 46 Phil., 738), yet he is never justified in using unnecessary force or
in treating him wanton violence, or in resorting to dangerous means when the arrest could be effected
otherwise (6 C. J. S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No
unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not
be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a
peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in
making an arrest. (5 C. J., p. 753; U. S. vs. Mendoza, 2 Phil., 109). It may be true that Balagtas was a
notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community,
but these facts alone constitute no justification for killing him when, in effecting his arrest, he offers no
resistance, or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle
laid down, although upon different facts, in United States vs. Donoso (3 Phil., 234, 242).

4. ID.; ID.; ID.; ARREST OF A NOTORIOUS CRIMINAL. — It is suggested that a notorious criminal
"must be taken by storm" without regard to his right to life which he has by such notoriety already
forfeited. This Court may approve of this standard of official conduct where the criminal offers
resistance or does something which places his captors in danger of imminent attack. Otherwise, this
court cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a
mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official
alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here,
the precipitate action of the appellants has cost an innocent life and there exist no circumstances
whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation
— not condonation — should be the rule; otherwise this Court would offer a premium to crime in the
shelter of official actuation.

5. ID.; ID.; KILLING AT BAR IS INTENTIONAL AND NOT MERELY ACCIDENTAL. — The crime
committed by appellants is not merely criminal negligence, the killing being intentional and not
accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply
the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of
Viada, "para que se califique un hecho de imprudencia es preciso que no haya mediado en el malicia ni
intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del delito que ha
producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el
que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed., pag. 7.) And, as once held by this
court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless
imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful
act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless
imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.

6. ID.; ID.; TREACHERY; JUSTIFYING CIRCUMSTANCE DEFINED IN ARTICLE 11, NO. 5, OF THE
REVISED PENAL CODE. — As the deceased was killed while asleep, the crime committed is murder with
the qualifying circumstance of alevosia. There is, however, a mitigating circumstance of weight
consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal
Code. According to such legal provision, a person incurs no criminal liability when he acts in the
fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that
the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a
duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary
consequence of the due performance of such duty or the lawful exercise of such right or office. In the
instant case, only the first requisite is present — appellants have acted in the performance of a duty.
The second requisite is wanting for the crime by them committed be the necessary consequence of a
due performance of their duty. Their duty was to arrest Balagtas, or to get him dead or alive if resistance
is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to
take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they
believed to be Balagtas without any resistance from him and without making any previous inquiry as to
his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees
than that prescribed by law shall, in such case, be imposed.
DECISION
MORAN, J p:
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto
Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively were,
after due trial, found guilty by the lower court of homicide through reckless imprudence and were
sentenced each to an indeterminate penalty of from one year and six months to two years and two
months of prision correccional and to indemnify jointly and severally the heirs of the deceased in the
amount of P1,000. Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938, Captain Godofredo Monsod, Constabulary Provincial Inspector
at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information
received escaped convict Anselmo Balagtas with bailarina named Irene in Cabanatuan get him dead or
alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men.
Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez,
upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a
copy of the abovequoted telegram and a newspaper clipping containing a picture of Balagtas. They were
instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram.
The same instruction was given to the chief of police Oanis who was likewise called by the Provincial
Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that
he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of
police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas'
whereabouts, and failing to see anyone of them he voluntered to go with the party. The Provincial
Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez
taking the route to Rizal street leading to the house where Irene was supposedly living. When this group
arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks,
and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said
that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room
which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went
to the room of Irene, and on seeing a man sleeping with his back towards the door where they were,
simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the
gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she
saw the defendants still firing at him. Shocked by the entire scene, Irene fainted; it turned out later that
the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent
citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing,
repaired to the scene and when he asked as to who killed the deceased, Galanta, referring to himself
and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and
upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber
revolvers were found on Tecson's body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to
Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida
where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of
Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus
indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up."
Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis
fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is
Balagtas." Galanta then fired at Tecson.

On the other hand, Oanis testified that, after he had opened the curtain covering the door and after
having said, "if you are Balagtas stand up," Galanta at once fired at Tecson, the supposed Balagtas, while
the latter was still lying on bed, and continued firing until he had exhausted his bullets; that it was only
thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then
apparently watching and picking up something from the floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only
because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they
are materially contradictory. Oanis averred that he fired at Tecson when the latter was apparently
watching somebody in an attitude of picking up something from the floor; on the other hand, Galanta
testified that Oanis shot Tecson while the latter was about to sit up in bed immediately after he was
awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter
was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It
is apparent from these contradictions that when each of the appellants tries to exculpate himself of the
crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with,
and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to
Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a
certain extent, is confirmed by both appellants themselves in their mutual recriminations. According to
Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by
a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus
corroborated, and considering that the trial court had the opportunity to observe her demeanor on the
stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting
the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's
testimony will show not only that her version of the tragedy is not concocted but that it contains all
indicia of veracity. In her cross- examination, even misleading questions had been put which were
unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these
circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial
court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards
the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be
Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the
question is whether or not they may, upon such fact, be held responsible for the death thus caused to
Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance
of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability.
Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide
through reckless imprudence. We are of the opinion, however, that, under the circumstances of the
case, the crime committed by appellants is murder though specially mitigated by circumstances to be
mentioned below.

In support of the theory of non-liability by reason of honest mistake of fact, appellants rely on the case
of U. S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the
mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after
having gone to bed was awakened by someone trying to open the door. He called out twice, "who is
there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and
called out again, "if you enter the room I will kill you." But at that precise moment, he was struck by a
chair which had been placed against the door and believing that he was then being attacked, he seized a
kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A
common illustration of innocent mistake of fact is the case of a man who was masked as a footpad at
night and in a lonely road held up a friend in a spirit of mischief, and with leveled pistol demanded his
money or life. He was killed by his friend under the mistaken belief that the attack was real, that the
pistol leveled at his head was loaded and that his life and property were in imminent danger at the
hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any
fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and
being pressed by circumstances to act immediately, had no alternative but to take the facts as they then
appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the
accused in the instances cited, found no circumstances whatsoever which would press them to
immediate action. The person in the room being then asleep, appellants had ample time and
opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless
arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to
Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the
victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to
get him dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to
secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil., 738), yet he is never justified
in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means
when the arrest could be effected otherwise (6 C. J. S., par. 13, p. 612). The doctrine is restated in the
new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and
the person arrested shall not be subject to any greater restraint than is necessary for his detention."
(Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses
unnecessary force or violence in making an arrest. (5 C. J., p. 753; U. S. vs. Mendoza, 2 Phil., 109). It may
be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a
menace to the peace of the community, but these facts alone constitute no justification for killing him
when, in effecting his arrest, he offers no resistance, or in fact no resistance can be offered, as when he
is asleep. This, in effect, is the principle laid down, although upon different facts, in U. S. vs. Donoso (3
Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right
to life which he has by such notoriety already forfeited. We may approve of this standard of official
conduct where the criminal offers resistance or does something which places his captors in danger of
imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can
make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies
a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of
human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there
exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably
prudent man, condemnation — not condonation — should be the rule; otherwise we would offer a
premium to crime in the shelter of official actuation.

The crime committed by appellants is not merely criminal negligence, the killing being intentional and
not accidental. In criminal negligence, the injury caused to another should be unintentional, it being
simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se califique un hecho de imprudencia es preciso que no haya mediado en el
malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del delito que
ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad
como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by
this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless
imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful
act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless
imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying
circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to
such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in
the lawful exercise of a right or office. There are two requisites in order that the circumstance may be
taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful
exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the
due performance of such duty or the lawful exercise of such right or office. In the instant case, only the
first requisite is present — appellants have acted in the performance of a duty. The second requisite is
wanting for the crime by them committed is not the necessary consequence of a due performance of
their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him
and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances,
they have exceeded in the fulfillment of such duty by killing the person whom they believed to be
Balagtas without any resistance from him and without making any previous inquiry as to his identity.
According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that
prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with
the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty
of from five (5) years of prision correccional to fifteen (15) years of reclusion temporal, with the
accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an
indemnity of P2,000, with costs.

Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee from Manila to the
provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva
Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by
telegram dispatched on December 24, 1938, to get Balagtas "dead or alive". Among those assigned to
the task of carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto
Galanta, a Constabulary corporal, to whom the telegram received by the Provincial Inspector and a
newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told
by the Provincial Inspector to gather information about Balagtas, "to arrest him and, if overpowered, to
follow the instructions contained in the telegram," proceeded to the place where the house of Irene was
located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks
in the yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked
by Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was
sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the former had shouted
"Stand up, if you are Balagtas," started shooting the man who was found by them lying down beside a
woman. The man was thereby killed, but Balagtas was still alive, for it turned out that the person shot by
Oanis and Galanta was one Serapio Tecson.

Consequently, Oanis and Galanta were charged with having committed murder. The Court of First
Instance of Nueva Ecija, however, convicted them only of homicide through reckless imprudence and
sentenced them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2
months of prision correccional, to jointly and severally indemnify the heirs of Serapio Tecson in the
amount of P1,000, and to pay the costs. Oanis and Galanta have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order
issued by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get
Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter
became a fugitive criminal, with revolvers in his possession and a record that made him extremely
dangerous and a public terror, the Constabulary authorities were justified in ordering his arrest, whether
dead or alive. In view of said order and the danger faced by the appellants in carrying it out, they cannot
be said to have acted feloniously in shooting the person honestly believed by them to be the wanted
man. Conscious of the fact that Balagtas would rather kill than be captured, the appellants did not want
to take chances and should not be penalized for such prudence. On the contrary, they should be
commended for their bravery and courage bordering on recklessness because, without knowing or
ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without
hesitation and thereby exposed their lives to danger.

The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only
after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the express order given by the Constabulary authorities in
Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for the
appellants or, for that matter, any agent of the authority to have waited until they have been
overpowered before trying to put out such a character as Balagtas. In the third place, it is immaterial
whether or not the instruction given by the Provincial Inspector was legitimate and proper, because the
facts exist that the appellants acted in conformity with the express order of superior Constabulary
authorities, the legality or propriety of which is not herein questioned.

The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental,
in view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while
he was deeply asleep." Anybody's heart will be profoundly grieved by the tragedy, but in time will be
consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will
always serve as a loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in
due time the duly constituted authorities will, upon proper order, enforce the summary forfeiture of his
life.

In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact
Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an
order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They
also cannot be held criminally liable even if the person killed by them was not Anselmo Balagtas, but
Serapio Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith.
(U. S. vs. Ah Chong, 15 Phil., 488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person
committing a felony although the wrongful act done be different from that which he intended; but said
article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as
already stated, not wrongful or felonious.

The case of U. S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as
the defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed
another by mistake, would not be exempted from criminal liability if he actually injured or killed Hilario
Lauigan, there being a malicious design on his part. The other case invoked by the prosecution is U. S. vs.
Donoso (3 Phil., 234). This is also not in point, as it appears that the defendants therein killed one Pedro
Almasan after he had already surrendered and allowed himself to be bound and that the said
defendants did not have lawful instructions from superior authorities to capture Almasan dead or alive.

The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto
Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must
be taken by storm without regard to his life which he has, by his conduct, already forfeited," whenever
said criminal offers resistance or does something which places his captors in danger of imminent attack.
Precisely, the situation which confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta
in the afternoon of December 24, 1938, was very similar to this. It must be remembered that both
officers received instructions to get Balagtas "dead or alive", and according to the attitude of not only
the said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija, it may be
assumed that said instructions gave more emphasis to the first part; namely, to take him dead. It
appears in the record that after the shooting, and having been informed of the case, Capt. Monsod
stated that Oanis and Galanta might be decorated for what they had done. That was when all parties
concerned honestly believed that the dead person was Balagtas himself, a dangerous criminal who had
escaped from his guards and was supposedly armed with a .45 caliber pistol. Brigida Mallari, the person
whom the appellants met upon arriving at the house of Irene Requinea, supposed mistress of Balagtas,
informed them that said Balagtas was upstairs. Appellants found there asleep a man closely resembling
the wanted criminal. Oanis said: "If you are Balagtas stand up." But the supposed criminal showed his
intention to attack the appellants, a conduct easily explained by the fact that he should have felt
offended by the intrusion of persons in the room where he was peacefully lying down with his mistress.
In such predicament, it was nothing but human on the part of the appellants to employ force and to
make use of their weapons in order to repel the imminent attack by a person who, according to their
belief, was Balagtas. It was unfortunate, however, that an innocent man was actually killed. But taking
into consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the
doctrine laid down in the case of U. S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the
case supra, an innocent mistake of fact committed without any fault or carelessness on the part of the
accused, who, having no time to make a further inquiry, had no alternative but to take the facts as they
appeared to them and act immediately.

The decision of the majority, in recognition of the special circumstances of this case which favored the
accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be
invoked, and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should
be one which is lower by one or two degrees than that prescribed by law. This incomplete justifying
circumstance is that defined in Article 11, No. 5, of the Revised Penal Code, in favor of "a person who
acts in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that the application
of this circumstance is not proper. Article 69 of the Revised Penal Code provides as follows:

"ART. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A
penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is
not wholly excusable by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12,
provided that the majority of such conditions be present. The courts shall impose the penalty in
the period which may be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking."

This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines,
and which was also taken from Article 87 of the Spanish Penal Code of 1870.

Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No.
94 of the Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69,
said that the justifying circumstances and circumstances exempting from liability which are the subject
matter of this article are the following: self-defense, defense of relatives, defense of strangers, state of
necessity and injury caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11
dealing with the fulfillment of a duty or the lawful exercise of a right, calling or office, cannot be placed
within its scope.

The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal
Code of 1870 which is the source of Article 69 of our Code, says:
"Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado
por una fuerza irresistible o impulsado por miedo insuperable de un mal igual o mayor, o en
cumplimiento de un deber, o en el ejercicio legítimo de un derecho, oficio o cargo, o en virtud
de obediencia debida, ni del que incurre en alguna omision hallandose impedido por causa
legítima o insuperable, puede tener aplicacion al articulo que comentamos. Y la razon es obvia.
En ninguna de estas exenciones hay pluralidad de requisitos. La irresponsabilidad depende de
una sola condicion. Hay o no perturbacion de la razon; el autor del hecho es o no menor de
nueve años; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que
respectivamente hay que examinar y resolver para declarar la culpabilidad o inculpabilidad. Es,
por lo tanto, imposible que acontezca lo que el texto que va al frente de estas lineas requiere,
para que se imponga al autor del hecho la penalidad excepcional que establece; esto es, que
falten algunos requisitos de los que la ley exige para eximir de responsabilidad, y que concurran
el mayor número de ellos, toda vez que, en los casos referidos, la ley no exige multiples
condiciones."
It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees
than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of
some of the conditions required by the law to justify the same or exempt from criminal liability. The
word "conditions" should not be confused with the word "requisites". In dealing with justifying
circumstance No. 5, Judge Guevara states: "There are two requisites in order that this circumstance may
be taken into account: (a) That the offender acted in the performance of his duty or in the lawful
exercise of a right; and (b) That the injury or offense committed be the necessary consequence of the
performance of a duty or the lawful exercise of a right or office." It is evident that these two requisites
concur in the present case if we consider the intimate connection between the order given to the
appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas who was
with a bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari and giving a
warning to the supposed criminal when both found him with Irene, and the statement made by Capt.
Monsod after the shooting.

If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in
favor of the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this
accused ever hit Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45
caliber revolver (Exhibit L). He so testified and was corroborated by the unchallenged testimony of his
superior officer Sgt. Valeriano Serafica. According to this witness, since Galanta was made a corporal of
the Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This
gun had been constantly used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied
said accused when he took it from his trunk in the barracks on the night of December 24, 1938, upon
order of Captain Monsod, it was the same revolver which was given to the witness with five .45 caliber
bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by Sergeant
Serafica, thus completing his regular equipment of twenty bullets which he had on the morning of
December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in the possession
of the non-commissioned officers and privates of the constabulary post at Cabanatuan. Galanta stated
that he had fired only one shot and missed. This testimony is corroborated by that of a ballistic expert
who testified that bullets exhibits F and O, — the first being extracted from the head of the deceased,
causing wound No. 3 of autopsy report Exhibit C and the second found at the place of the shooting, —
had not been fired from revolver Exhibit L nor from any other revolver of the constabulary station in
Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver because when
Exhibit L was taken from him nobody in the barracks doubted that the deceased was none other than
Balagtas. Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta
should carry along another gun, according to the natural course of things. On the other hand, aside from
wound No. 3 as above stated, no other wound may be said to have been caused by a .45 caliber revolver
bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45
caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should
be .32 and not .45, because according to the medico-legal expert who testified in this case, a bullet of a
.45 caliber will produce a wound entrance with either 11 mm. or 12 mm. diameter. All other wounds
found by the surgeon who performed the autopsy appeared to have been caused by bullets of a lesser
caliber. In consequence, it can be stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson
and therefore there is no reason why he should be declared criminally responsible for said death.
[A.C. No. 3086. February 23, 1988.]

ALEXANDER PADILLA, complainant, vs. THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional
Trial Court of Pasay City, Branch 113, respondent.

SYLLABUS

1. ADMINISTRATIVE SUPERVISION OVER COURTS AND COURT PERSONNEL; COMPLAINT AGAINST A

JUDGE; GROSS IGNORANCE OF THE LAW AND GROSS INCOMPETENCE; MANIFEST IN CASE AT BAR. —
The respondent judge has shown gross incompetence or gross ignorance of the law in holding that to
convict the accused for violation of Central Bank Circular No. 960, the prosecution must establish that
the accused had the criminal intent to violate the law. The respondent ought to know that proof of
malice or deliberate intent (mens rea) is not essential in offenses punished by special laws, which are
mala prohibita. In requiring proof of malice, the respondent has by his gross ignorance allowed the
accused to go scot free. The accused at the time of his apprehension at the Manila International Airport
had in his possession the amount of US$355,349.57 in assorted foreign currencies and foreign exchange
instruments (380 pieces), without any specific authority from the Central Bank as required by law.

2. ID.; ID.; ID.; BOLSTERED BY RELEASE OF US$3,000 TO ACCUSED DESPITE FORFEITURE

PROCEEDINGS INITIATED BY THE BUREAU OF CUSTOMS. — He not only acquitted the accused Lo Chi Fai,
but directed in his decision the release to the accused of at least the amount of US$3,000.00, allowed,
according to respondent, under Central Bank Circular No. 960. This, in spite of the fact that forfeiture
proceedings had already been instituted by the Bureau of Customs over the currency listed in the
information, which according to the respondent should be respected since the Bureau of Customs "has
the exclusive jurisdiction in the matter of seizure and forfeiture of the property involved in the alleged
infringements of the aforesaid Central Bank Circular." In invoking the provisions of CB Circular No. 960 to
justify the release of US$3,000.00 to the accused, the respondent judge again displayed gross
incompetence and gross ignorance of the law. There is nothing in the said CB Circular which could be
taken as authority for the trial court to release the said amount of U.S. Currency to the accused.
According to the above-cited CB Circular, tourists may take out or send out from the Philippines foreign
exchange in amounts not exceeding such amounts of foreign exchange brought in by them; for the
purpose of establishing such amount, tourists or non-resident temporary visitors bringing with them
more than US$3,000.00 or its equivalent in other foreign currencies must declare their foreign exchange
at points of entries upon arrival in the Philippines.

3. ID.; ID.; ID.; PENALTY. — The Court finds the respondent Regional Trial Court Judge, Baltazar R.
Dizon, guilty of gross incompetence, gross ignorance of the law and grave and serious misconduct
affecting his integrity and efficiency, and consistent with the responsibility of this Court for the just and
proper administration of justice and for the attainment of the objective of maintaining the people's faith
in the judiciary (People vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent Judge
be dismissed from the service. All leave and retirement benefits and privileges to which he may be
entitled are hereby forfeited with prejudice to his being reinstated in any branch of government service,
including government-owned and/or controlled agencies or corporations.
RESOLUTION

PER CURIAM, p:

This is an administrative complaint, dated August 6, 1987, filed by the then Commissioner of Customs,
Alexander Padilla, against respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering
a manifestly erroneous decision due, at the very least, to gross incompetence and gross ignorance of the
law, in Criminal Case No. 86-10126-P, entitled "People of the Philippines vs. Lo Chi Fai", acquitting said
accused of the offense charged, i.e., smuggling of foreign currency out of the country.

Required by the Court to answer the complaint, the respondent judge filed an Answer, dated October 6,
1987, reciting his "commendable record as a fearless prosecutor" since his appointment as Assistant City
Fiscal of Manila on December 4, 1962, until his appointment eventually as RTC Judge on February 18,
1983; that in the reorganization of the judiciary after the February 26, 1986 revolution, he was
reappointed to his present position; that his length of service as prosecutor and judge is "tangible proof
that would negate the allegations of the petitioner" (should be complainant), whereas the latter did not
last long in the service for reasons only known to him; that the decision involved in the complaint was
promulgated by respondent on September 29, 1986, but the complaint against him was filed only on
August 6, 1987, a clear indication of malice and ill-will of the complainant to subject respondent to
harassment, humiliation and vindictiveness; that his decision, of which he submits a copy (Annex A) as
part of his Answer, is based on "fundamental principles and the foundation of rights and justice" and
that if there are mistakes or errors in the questioned decision, they are committed in good faith.
Accordingly, respondent prays for the dismissal of the petition (should be complaint).

The issue before the Court is whether or not the respondent judge is guilty of gross incompetence or
gross ignorance of the law in rendering the decision in question. A judge can not be held to account or
answer, criminally, civilly or administratively, for an erroneous decision rendered by him in good faith.

The case in which the respondent rendered a decision of acquittal involved a tourist, Lo Chi Fai, who was
caught by a Customs guard at the Manila International Airport while attempting to smuggle foreign
currency and foreign exchange instruments out of the country. Lo Chi Fai was apprehended by a
customs guard and two PAFSECOM officers on July 9, 1986, while on board Flight PR 300 of the
Philippine Air Lines bound for Hongkong. At the time of his apprehension, he was found carrying with
him foreign currency and foreign exchange instruments (380 pieces) amounting to US$355,349.57, in
various currency denominations, to wit: Japanese Yen, Swiss Franc, Australian Dollar, Singapore Dollar,
HFL Guilder, French Franc, U.S. Dollar, English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar
and Hongkong Dollar, without any authority as provided by law. At the time the accused was
apprehended, he was able to exhibit two currency declarations which he was supposed to have
accomplished upon his arrival in Manila in previous trips, namely, CB Currency Declaration No. 05048,
dated May 4, 1986 for US$39,600.00 and Japanese Yen 4,000,000.00, and CB Currency Declaration No.
06346, dated June 29, 1986 for Japanese Yen 6,600,000.00.

An information was filed against Lo Chi Fai with the RTC of Pasay City for violation of Sec. 6, Central Bank
Circular No. 960, as follows:
"That on or about the 9th day of July, 1986, in the City of Pasay, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, Mr. LO CHI FAI, did then and there
wilfully, unlawfully and feloniously attempt to take out of the Philippines through the Manila
International Airport the following foreign currencies in cash and in checks:

Japanese Yen Y32,800,000.00

Swiss Franc SW. FR 6,9000.00

Australian Dollar A$ 17,425.00

Singapore Dollar S$ 9,945.00

Deutsche Marck DM 18,595.00

Canadian Dollar C$ 13,330.00

Hongkong Dollar HK$ 15,630.00

HFL Guilder HFL 430.00

French Franc F/ 6,860.00

US Dollar US$ 73,950.00

English Pound L5,318.00

Malaysian Dollar M$ 14,760.00

in checks)

Australian Dollar A$ 7,750.00

British Pound L700.00

US Dollar US$ 17,630.00

Canadian Dollar C$ 990.00

without authority from the Central Bank.

Contrary to Law."

The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently raffled to Branch 113,
presided by herein respondent Judge Baltazar A. Dizon.

Section 6 of Circular No. 960 of the Central Bank provides as follows:

"Sec. 6. Export, import of foreign exchange; exceptions. — No person shall take out or transmit or
attempt to take out or transmit foreign exchange in any form, out of the Philippines directly, through
other persons, through the mails or through international carriers except when specifically authorized
by the Central Bank or allowed under existing international agreements or Central Bank regulations.

Tourists and non-resident visitors may take out or send out from the Philippine foreign exchange in
amounts not exceeding such amounts of foreign exchange brought in by them. For purposes of
establishing the amount of foreign exchange brought in or out of the Philippines, tourists and non-
resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other foreign
currencies shall declare their foreign exchange in the form prescribed by the Central Bank at points of
entries upon arrival in the Philippines."

The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:

"Section 1. Blackmarketing of Foreign Exchange. — That any person who shall engage in the trading
or purchase and sale of foreign currency in violation of existing laws or rules and regulations of the
Central Bank shall be guilty of the crime of blackmarketing of foreign exchange and shall suffer the
penalty of reclusion temporal, (minimum of 12 years and 1 day and maximum of 20 years) and a fine of
no less than fifty thousand (P50,000.00) Pesos."

At the trial, the accused tried to establish that he was a businessman from Kowloon, Hongkong, engaged
in the garment business, in which he had invested 4 to 5 million Hongkong Dollars; that he had come to
the Philippines 9 to 10 times, although the only dates he could remember were April 2, 1986, May 4,
1986, June 28, 1986, and July 8, 1986; that the reason for his coming to the Philippines was to invest in
business in the Philippines and also to play in the casino; that he had a group of business associates who
decided to invest in business with him, namely: Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee
Chin and Cze Kai Kwan, who had their own businesses in Japan and Hongkong; that when he came to the
Philippines on April 2, 1986, he brought US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to
declare but the Central Bank representative refused to accept his declaration, until he could get a
confirmation as to the source of the money, for which reason he contacted his bank in Hongkong and a
telex was sent to him on April 3, 1986 (Exh. 4). He also brought in with him US$39,000.00 and
4,000,000.00 Japanese Yen when he arrived on May 4, 1986 which he declared (Exh. 1). Again, he
declared 8,600,000.00 Japanese Yen when he arrived on June 28, 1986 (Exh. 2). He also testified that his
business associates, as per their agreement to invest in some business with him in the Philippines,
started putting their money for this purpose in a common fund, hence, every time anyone of them came
to the Philippines, they would declare the money they were bringing in, and all declarations were
handed to and kept by him; these currency declarations were presented at the trial as exhibits for the
defense. When asked by the court why he did not present all of these declarations when he was
apprehended at the airport, his answer was that he was not asked to present the declaration papers of
his associates, and besides, he does not understand English and he was not told to do so. He also
testified on cross-examination that the reason he was going back to Hongkong bringing with him all the
money intended to be invested in the Philippines was because of the fear of his group that the
"revolution" taking place in Manila might become widespread. It was because of this fear that he was
urged by his associates to come to Manila on July 8, 1986 to bring the money out of the Philippines.

The respondent judge, in his decision acquitting the accused, stated:

"The factual issue for this Court to determine is whether or not the accused wilfully violated Section 6 of
Circular No. 960. The fact that the accused had in his possession the foreign currencies when he was
about to depart from the Philippines did not by that act alone make him liable for Violation of Section 6.

What is imperative is the purpose for which the act of bringing foreign currencies out of the country was
done — the very intention. It is that which qualifies the act as criminal or not. There must be that clear
intention to violate and benefit from the act done. Intent is a mental state, the existence of which is
shown by overt acts of a person."

The respondent proceeded to analyze the evidence which, according to him, tended to show that the
accused had no wilfull intention to violate the law. According to the respondent in his decision:

". . . this Court is persuaded to accept the explanation of the defense that the currencies confiscated
and/or seized from the accused belong to him and his business associates abovenamed. And from the
unwavering and unequivocal testimonies of Mr. Templo and all of the Central Bank employees the
currencies in question came from abroad and not from the local source which is what is being prohibited
by the government. Yes, simply reading the provisions of said circular will, readily show that the
currency declaration is required for the purpose of establishing the amount of currency being brought
by tourist or temporary non-resident visitors into the country. The currency declarations, therefore, is
already (sic) intended to serve as a guideline for the Customs authorities to determine the amounts
actually brought in by them to correspond to the amounts that could be allowed to be taken out.
Indeed, this Court is amazed and really has its misgivings in the manner currency declarations were
made as testified to by the Central Bank employees. Why the Bureau of Customs representative never
took part in all these declarations testified to by no less than five (5) Central Bank employees?
Seemingly, these employees are the favorites of these travellers. It is the hope of this Court that the
authorities must do something to remedy the evident flaw in the system for effective implementation of
the questioned Central Bank Circular No. 960.

But even with a doubtful mind this Court would not be able to pin criminal responsibility on the accused.
This is due to its steadfast adherence and devotion to the rule of law — a factor in restoring the almost
lost faith and erosion of confidence of the people in the administration of justice. Courts of Justice are
guided only by the rule of evidence."

The respondent judge has shown gross incompetence or gross ignorance of the law in holding that to
convict the accused for violation of Central Bank Circular No. 960, the prosecution must establish that
the accused had the criminal intent to violate the law. The respondent ought to know that proof of
malice or deliberate intent (mens rea) is not essential in offenses punished by special laws, which are
mala prohibita. In requiring proof of malice, the respondent has by his gross ignorance allowed the
accused to go scot free. The accused at the time of his apprehension at the Manila International Airport
had in his possession the amount of US$355,349.57 in assorted foreign currencies and foreign exchange
instruments (380 pieces), without any specific authority from the Central Bank as required by law. At the
time of his apprehension, he was able to exhibit only two foreign currency declarations in his
possession. These were old declarations made by him on the occasion of his previous trips to the
Philippines.

Although lack of malice or wilfull intent is not a valid defense in a case for violation of Central Bank
Circular No. 960, the respondent nonetheless chose to exonerate the accused based on his defense that
the foreign currency he was bringing out of the country at the time he was apprehended by the customs
authorities were brought into the Philippines by him and his alleged business associates on several
previous occasions when they came to the Philippines, supposedly to be used for the purpose of
investing in some unspecified or undetermined business ventures; that this money was kept in the
Philippines and he precisely came to the Philippines to take the money out as he and his alleged
business associates were afraid that the "attempted revolution" which occurred on July 6, 1986 might
spread. Such fantastic tale, although totally irrelevant to the matter of the criminal liability of the
accused under the information, was swallowed by the respondent judge "hook, line and sinker." It did
not matter to the respondent that the foreign currency and foreign currency instruments found in the
possession of the accused when he was apprehended at the airport — 380 pieces in all — and the
amounts of such foreign exchange did not correspond to the foreign currency declarations presented by
the accused at the trial. It did not matter to the respondent that the accused by his own story admitted,
in effect, that he was a "carrier" of foreign currency for other people. The respondent closed his eyes to
the fact that the very substantial amounts of foreign exchange found in the possession of the accused at
the time of his apprehension consisted of personal checks of other people, as well as cash in various
currency denominations (12 kinds of currency in all), which clearly belied the claim of the accused that
they were part of the funds which he and his supposed associates had brought in and kept in the
Philippines for the purpose of investing in some business ventures. The respondent ignored the fact that
most of the CB Currency declarations presented by the defense at the trial were declarations belonging
to other people which could not be utilized by the accused to justify his having the foreign exchange in
his possession. Although contrary to ordinary human experience and behavior, the respondent judge
chose to give credence to the fantastic tale of the accused that he and his alleged business associates
had brought in from time to time and accumulated and kept in the Philippines foreign exchange (of very
substantial amounts in cash and checks in various foreign currency denominations) for the purpose of
investing in business even before they knew and had come to an agreement as to the specific business
venture in which they were going to invest. These and other circumstances which make the story
concocted by the accused so palpably unbelievable as to render the findings of the respondent judge
obviously contrived to favor the acquittal of the accused, thereby clearly negating his claim that he
rendered the decision "in good faith." His actuations in this case amount to grave misconduct prejudicial
to the interest of sound and fair administration of justice.

He not only acquitted the accused Lo Chi Fai, but directed in his decision the release to the accused of at
least the amount of US$3,000.00, allowed, according to respondent, under Central Bank Circular No.
960. This, in spite of the fact that forfeiture proceedings had already been instituted by the Bureau of
Customs over the currency listed in the information, which according to the respondent should be
respected since the Bureau of Customs "has the exclusive jurisdiction in the matter of seizure and
forfeiture of the property involved in the alleged infringements of the aforesaid Central Bank Circular."
In invoking the provisions of CB Circular No. 960 to justify the release of US$3,000.00 to the accused, the
respondent judge again displayed gross incompetence and gross ignorance of the law. There is nothing
in the said CB Circular which could be taken as authority for the trial court to release the said amount of
U.S. Currency to the accused. According to the above-cited CB Circular, tourists may take out or send out
from the Philippines foreign exchange in amounts not exceeding such amounts of foreign exchange
brought in by them; for the purpose of establishing such amount, tourists or non-resident temporary
visitors bringing with them more than US$3,000.00 or its equivalent in other foreign currencies must
declare their foreign exchange at points of entries upon arrival in the Philippines. In other words, CB
Circular No. 960 merely provides that for the purpose of establishing the amount of foreign currency
brought in or out of the Philippines, a tourist upon arrival is required to declare any foreign exchange he
is bringing in at the time of his arrival, if the same exceeds the amount of US$3,000.00 or its equivalent
in other foreign currencies. There is nothing in said circular that would justify returning to him the
amount of at least US$3,000.00, if he is caught attempting to bring out foreign exchange in excess of
said amount without specific authority from the Central Bank.

Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon, guilty of gross
incompetence, gross ignorance of the law and grave and serious misconduct affecting his integrity and
efficiency, and consistent with the responsibility of this Court for the just and proper administration of
justice and for the attainment of the objective of maintaining the people's faith in the judiciary (People
vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent Judge be DISMISSED from the
service. All leave and retirement benefits and privileges to which he may be entitled are hereby forfeited
with prejudice to his being reinstated in any branch of government service, including government-
owned and/or controlled agencies or corporations.

This resolution is immediately executory.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin,
Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Narvasa, J., no part: did not participate in deliberations.

Padilla, J., no part — related to petitioner.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.
G.R. No. 74517 February 23, 1988

People v. Dy

SECOND DIVISION

[G.R. No. 74517. February 23, 1988.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENNY DY, accused-appellant.

DECISION

MELENCIO-HERRERA, J p:

At around midnight of 7 May 1984, death cast its shadow over Boracay Island, an internationally known
tourist spot famous for its powdery white sand beach. The Island is accessible by land from Kalibo,
Aklan, after a one-and-a-half hour trip. It can also be reached in twenty (20) minutes by pumpboat from
Barangay Caticlan, the loading point for tourists going to the Island. Caticlan has a small airfield which
can service small planes. Felled by a gunshot wound on the neck, which caused his death approximately,
six (6) hours later, was Christian Langel y Philippe a Swiss tourist who was vacationing on the Island
together with his sister and some friends.

The following day, 8 May 1984, the following police report was entered as Entry No. 3904 in the police
blotter of the Malay Police Sub-station, Malay, Aklan:

"That on or about 0700H 8 May 1984, Pat. Padilla RR reported (to) this sub-station with the living body
of one Benny Dy, with caliber .38 Danao made, as suspect to the shooting incident at Sitio Angol,
Manoc-Manoc, Malay, Aklan, which cause(d) the untimely death of one Christian Langel Philippe,
tourist, 24 years old and a Swiss nationale. Pat. Salibio rushed to the hospital at Caticlan to obtain ante-
mortem but the victim died at about 0600H in the morning. Suspect Benny Dy voluntarily surrendered
to the sub-station commander with his caliber 38 with serial number 33169 Smith and Wesson (US),
[Exhibit 'G']."

Acting on the report, Chief of Police Tambong, also on 8 May 1984, prepared a Complaint (Exhibits "H"
and "H-1") charging the Accused, Benny Dy, the owner of "Benny's Bar," situated on the Island, with the
crime of "Murder With the Use of Unlicensed Firearms" (ibid., p. 2, Original Record). The Complaint was
subscribed and sworn to before Judge Jaime R. Tonel of the 5th Municipal Circuit Trial Court of
Buruanga, Aklan, on 17 May 1984 (Exhibit "H-2") and docketed as Criminal Case No. 1776 of that Court
on the same day (Exhibit "H-3", Order, p. 4, Original Record).

The witnesses listed in that Complaint, namely, Bernadette Langel of Chatelaine Geneve, Switzerland,
who is the victim's sister, and Ian Mulvey, of Essex, England, executed separate Sworn Statements giving
their respective versions of the incident (Exhibits "H-4" and "H-7"). They did not take the stand,
however, "for fear of reprisal" so that said Statements were correctly considered by the Trial Court as
hearsay.
On 17 May 1984, Judge Tonel issued the following:

"ORDER

"Having conducted the preliminary examination of this case, this Court finds probable cause that the
crime as charged has been committed and that the accused may be responsible thereof.

WHEREFORE, let the records of this case be registered in the docket. No warrant of arrest is issued for
the apprehension of the accused for the reason that he is already under police custody before the filing
of the complaint. For the provisional liberty of the accused, bail is hereby fixed in the amount of Thirty
Thousand Pesos (P30,000.00)." (p. 4, Original Record)

The Accused posted the required bail on 13 June 1984, which was approved by Judge Tonelon the same
day. On 12 July 1984 the records of the case were forwarded to the Office of the Provincial Fiscal, Kalibo,
Aklan, "for further proceedings" (Order, p. 10, Original Record)

On 27 July 1984 the Provincial Fiscal filed the Information before the Regional Trial Court of Kalibo,
Aklan, charging the Accused with Murder. The case was docketed as Criminal Case No. 2001 in that
Court.

After trial, the lower Court rendered judgment* on 9 December 1985 with the following decretal
portion:

"WHEREFORE, judgment is hereby rendered finding the accused BENNY DY y LIM guilty beyond
reasonable doubt of the crime of MURDER and sentencing him to suffer the penalty of RECLUSION
PERPETUA and to indemnify the heirs, for the death of the victim, in the sum of P30,000.00; actual
damages of P33,243.10; moral damages of P30,000.00; exemplary damages of P30,000.00; and to pay
the costs."

Hence, this appeal. The last Brief before this Court was filed on 26 February 1987 and the case was
deliberated upon on 25 January 1988.

Testifying for the prosecution in the Court below, one Wilson TUMAOB, a resident in the area, and a
fisherman by occupation, gave his account of the incident as follows:

"At around 12:00 midnight while inside the bar, he saw the accused Benny Dy shoot a white person,
(meaning a European) who was hit on the right side of the neck (Tsn. Nov. 12, 1984, pp. 78, 80). He
recognized the accused as the one who shot the white person because of the light coming from the
petromax lamp which was in front of him and he was just one-and-one-half meters from the accused
and about the same distance from the victim (Tsn. Nov. 12, 1984, p. 81). When he saw the accused
shoot the victim, he did not hear any conversation between them (Tsn. Nov. 14, 1984, pp. 81, 82). At
that precise time, there were many people of different nationalities coming in and out of the bar. He did
not know anyone of them except the accused Benny Dy (Tsn. Nov. 14, 1984, p. 108). Neither did he
know the helpers in the bar, nor see anyone of these customers to be residents of, or friends of his
from, barrio Balusbos, Malay, where he resides.
"In the courtroom during the trial, the witness Wilson Tumaob demonstrated how the accused shot the
victim.

Q. When you said you saw Benny Dy shoot the victim, can you demonstrate to the Court how he
did it?

A. (As demonstrated, the victim and the accused were sitting and facing then immediately the
accused stood up and shot the victim. (Tsn. Nov. 14, 1984, pp. 117, 118).

Wilson Tumaob testified that the accused was about one meter from the victim when the accused shot
the latter. The table where he was sitting was parallel to the table where the victim was sitting. He was
looking at the accused and victim when he saw the accused shoot the victim, and the chair occupied by
him and the chair occupied by the victim were at the same side. (Tsn. Nov. 14, 1984, pp. 119-120). After
shooting the victim, the accused remained at the place where the accused was standing. (Tsn. Nov. 14,
1984. p. 118).

"The victim was carried by the victim's companions to the shore and they loaded him on a pumpboat
which was anchored about fifty meters from the bar. Wilson Tumaob helped in carrying the victim to the
pumpboat to be brought to the hospital in Caticlan (Tsn. Nov. 12, 1984, pp. 82, 83). After the incident
the eye-witness (Wilson Tumaob) went home and slept at around 1:30 in the morning of May 8, 1984.
(pp. 4-5, Annex '1', Appellant's Brief)."

Additional prosecution evidence is to the effect that in the early morning after the incident, the Accused
confessed orally to Pat. Rodolfo Padilla, the operator of the radio station on the Island, and voluntarily
surrendered the gun he had used in shooting the victim. Pat. Padilla's testimony reads in part:

"ATTY. RESURRECCION:

Q Sometime on May 8, 1984, can you tell the Honorable Court if you have met the accused Benny
Dy?

A At home after coming from the radio station, Benny Dy came to me and inquired if the Office of
the Chief of Police was opened?

Q And what did you answer him when the accused asked you that?

A I answered him that the Office of the Chief of Police is opened for twenty four hours.

Q Did you ask Benny Dy why he asked you if the Office of the Chief of Police was opened?

A I inquired him why, then he answers me that he had shot a tourist." (p. 6, t.s.n., October 17,
1984).

xxx xxx xxx

"ATTY. RESURRECCION:
Q When Benny Dy answered you that he shot a tourist, what did you do?

A I inquired him further if the tourist was dead but he answered me that the victim was brought to
the hospital.

Q What did you do as police officer when Benny Dy told you that he shot a tourist?

A He asked me to accompany him to the Office of the Chief of Police and I further asked him the
gun he used in shooting the victim and he answered that it was still in his house.

Q When Benny Dy told you that the gun he used in shooting the tourist was in his house, what did
you do?

A I advised him to get that gun and give it to me to be deposited in the Office of the Chief of
Police.

Q Were you able to get that gun from the house of Benny Dy?

A Yes, sir.

Q Were you alone when you went to the house of Benny Dy to get that gun?

A I called one of the policemen to accompany me.

Q What is the name of the policeman who accompanied you?

A Pat. Manuel Casimiro.

Q Were you able to get the gun from the house of Benny Dy together with your companion Pat.
Manuel Casimiro?

A Benny Dy voluntarily gave the gun to us.

Q So do we understand from you that it was Benny Dy also together with your companion Manuel
Casimiro who gave or surrendered the gun to you?

"ATTY. MARIN:

Benny Dy voluntarily gave the gun to him and Pat. Casimiro.

"COURT TO THE WITNESS:

Q Where did Benny Dy give to you and Pat. Manuel Casimiro the gun that is surrendered to you?

A In their house.

"COURT:

Proceed.
"ATTY. RESURRECCION:

Q Who were the persons present in the house of Benny Dy when the gun was given to you by him?

A His houseboy called 'Tan-tan'.

Q Was this Tan-tan already adult or teen-ager?

A Teen-ager.

Q What time of May 8, 1984, did Benny Dy give to you and Pat. Manuel Casimiro the gun he gave
to you?

A About 6:00 in the morning." (pp. 7-9, id.).

xxx xxx xxx

Q When Benny Dy told you that he shot a tourist in his establishment, known as Benny's Bar, what
else did he tell you?

A He told me that after shooting the victim he requested somebody to rush the victim to the
hospital.

Q Did you ask him why he shot the victim?

A I did not.

Q You stated that the accused Benny Dy surrendered to you a gun together with Pat. Manuel
Casimiro, if that gun is shown to you, will you be able to identify the same?

A Yes, sir.

Q I am showing to you a gun in a container revolver caliber .38 and one (1) bullet exhibit against
Benny Dy, which we request that this container be marked as Exhibit 'A' for the prosecution, Your
Honor.

"COURT:

Mark it.

"ATTY. RESURRECCION:

Q Is this the same gun you are referring to which was surrendered by Benny Dy?

A Yes, sir, this is the one. (Witness identifying the gun.)" (pp. 11-12, id.).

The sequence of events presented by the prosecution then discloses that.

"Together with Pat. Manuel Casimiro, Pat. Padilla accompanied Benny Dy to the police headquarters at
the Poblacion of Malay. At the police headquarters, Pat. Padilla gave the gun surrendered by Benny Dy
to Chief of Police Ariston Tambong who in turn handed it over to police supply officer Pat. Romulo Sijano
for safekeeping (pp. 13-24, 27, id)." (pp. 7-9, Appellee's Brief).

The defense version, on the other hand, professes the innocence of the Accused, denies his presence
inside the bar during the shooting, and attributes the offense to an unrecognized person. Thus:

"On May 7, 1984, Benny Dy was inside his bar. However, he remained therein for a few hours as he had
a headache. He left his bar at around 9:30 or 10:00 o'clock in the evening, and went to bed in a room at
the annex building behind the bar. He left his friend, Francisco Ureta known as 'Tan-tan' and his new
helper, Romy, to attend and take charge of the bar.

"In that evening of May 7, 1984, there were several customers inside the bar. Some people were
dancing. At about midnight, a person entered Benny's Bar and in lees than two (2) minutes, an explosion
was heard inside the bar. The explosion caused the customers to scream; they rushed out of the bar
including the person who entered immediately before the explosion.

"The loud explosion coupled with the screaming and rushing of customers, awakened Benny Dy. He was
prompted to immediately come out of his room and directly proceeded to the bar. Inside the bar, Benny
saw a man lying on the sand floor with blood on his shirt.

"Instinctively, Benny Dy carried this man to the beach, and woke up Charlie the owner of a pump boat
which could take the wounded man to the hospital. While the wounded man was being loaded in a
pumpboat, several persons arrived including Australian Nurses to render assistance. The wounded man
was finally brought to Aklan Baptist Hospital at Caticlan, Malay, Aklan for treatment. Unfortunately, the
patient, whose real name is Christian Langel, died.

"The shooting in Benny's Bar 'may nabaril sa Benny's Bar', immediately, spread like forest wild fire in the
small Island of Boracay and rapidly transferred from one ear to another and in the course thereof, it
became distorted from 'may nabaril sa Benny's Bar' to 'may nabaril sa Benny' and finally 'may nabaril si
Benny'. Consequently, loose talks rapidly spread that somebody was shot by Benny ('may nabaril si
Benny').

"Appellant Benny Dy who carried the victim to the shore to be brought to the hospital to save the latter,
and who facilitated the surrender to Pat. Rodolfo Padilla a gun which his helper found the following
morning while cleaning the bar, eventually found himself the suspect in shooting of Langel." (pp. 1-3,
Appellant's Brief)

All defense witnesses were one in testifying that the culprit was someone else other than the Accused.
Thus, Rodrigo Lumogdang, a carpenter allegedly hired by a friend of the Accused to repair the kitchen of
the bar, testified that around 11:30 P.M. of 7 May 1984, he saw a person go inside Benny's Bar but could
not recognize him because the petromax lamp in the bar was not so bright as it was covered by colored
red paper. In less than two minutes after said person entered, a shot exploded from the inside of the
bar. Thereafter he saw the man who had just entered rush outside holding a gun tucked to his waist
(t.s.n., June 25, 1985, pp. 7-8). He then ran a few meters away and when he came back he saw the
Accused asking "Tantan" what had happened to which the latter replied that a white person had been
shot. In particular, Lumogdang stated that he did not see the Accused at 6:30 P.M., when he took a stroll
in the beach nor when he came back at around 11:30 P.M. Much less did he see TUMAOB inside the bar.

Another defense witness, Rogelio Lakandula, testified that he went to Benny's Bar at around 10:00 P.M.
of 7 May 1984. While drinking beer thereat he saw a white person, who was three meters away from
him, shot by a person he did not recognize but he saw him come from the door and enter Benny's Bar
alone. Before and after the shooting incident, he did not see either the Accused or TUMAOB inside the
bar.

Wolfer Tumaob, Jr., a nephew of the principal prosecution witness, TUMAOB, testified that on 7 May
1984 at 11:00 P.M., TUMAOB, Jover Casidsid, Welmer Taunan, Wolfer Tumaob, Sr., and he, went out
fishing at midsea staying thereat up to 6:00 A.M. of 8 May 1984 and that they did not pass Boracay
Island at all on 7 May 1984 but went home on 8 May 1984.

The accused stoutly denied having made any oral confession alleging that he went to Pat. Padilla not to
report the incident but to state that a boy helper in the bar had found a gun on the sand floor while
cleaning and that Pat. Padilla picked up the gun from the bar at his (Accused's) request (t.s.n.,
September 2, 1985, pp. 33-36). The Accused argues that even if he did make such a confession, the same
would be inadmissible in evidence.

The Trial Court found the testimonies of defense witnesses enmeshed in contradictions on material
points, rejected the disclaimers they had made, accorded more credence to the prosecution version,
and as previously stated, rendered a judgment of conviction.

In this appeal, the accused raises the following.

Assignments of Error.

The trial Court erred in holding that the Smith & Wesson revolver cal. .38 with Serial No. 33169 was the
gun which caused the death of Christian Langel.

II

The trial Court erred in finding that Wilson Tumaob testified in court ahead of Dr. Caturan, so the
former's testimony on the relative position of the accused and victim could not have been influenced or
tailored to conform to Dr. Caturan's findings on the trajectory of the bullet slug found in the victim's
body.

III
The trial Court erred in holding that Wilson Tumaob had no unfair motive to fabricate a story different
from what he actually witnessed, and in giving weight to his testimony.

IV

The trial Court erred in holding that accused shot Langel.

The trial Court erred in holding that the conflicting testimonies of Pat. Padilla and Casimiro relate to
minor matters which do not affect their credibility.

VI

The trial Court erred in holding that appellant made the oral confession, and in admitting the same as
well as the entries in the police blotter.

VII

The trial Court erred in holding that compliance with the constitutional procedure on custodial
interrogation is not applicable in the instant case.

VIII

The trial Court erred in holding that the uncorroborated testimony of Wilson Tumaob is sufficient to
sustain appellant's conviction.

IX

The trial Court erred in holding that the evidence adduced by the prosecution is overwhelming and
satisfied the test of proof beyond reasonable doubt in convicting appellant.

The trial Court erred in holding that appellant's defense of alibi is weak.

XI

The trial Court erred in convicting accused-appellant.

XII

The trial Court erred in denying accused-appellant's motion for new trial.

The basic issue is actually one of credibility, the crucial question being whether the Accused had orally
admitted his authorship of the crime and surrendered the gun he had used in shooting the victim, as the
prosecution claims, or, whether he had no involvement whatsoever, the gun surrendered having been
found by a boy helper inside the bar while cleaning the place the morning after the incident, as the
defense would have us believe.

The case history and the documentary evidence attest strongly to Appellant's oral confession and
voluntary surrender. Thus, (1) Entry No. 3904 in the police blotter of the Malay Police Substation, dated
8 May 1984, supra, confirms three significant details: a) Pat. Padilla's testimony that he had
accompanied the Accused to police headquarters in the early morning of 8 May 1984 after the latter
admitted having "shot a tourist;" b) Appellant's voluntary surrender to the Chief of Police; and c) his
surrender of his Smith & Wesson revolver, cal. .38, also to the Chief of Police.

It may be that Chief of Police Ariston T. Tambong, who had presumably made such entry, died on 15
August 1984 before the start of the trial of this case below and was not in a position to identify the same
before the Court. His successor (Lt. Audie Arroyo), however, was presented as a prosecution witness and
identified said entry (t.s.n., October 17, 1984, pp. 29-33).

The revolver, marked as Exhibit "F," in turn, was identified by Pat. Padilla as the firearm surrendered by
the Accused. When Pat. Padilla stated that he saw the fatal gun, its serial number and name for the first
time (t.s.n., October 17, 1984, pp. 17-19) he was clearly referring to particulars which he did not concern
himself with at the time of surrender.

Appellant's assertion that the gun he had surrendered was merely found by a boy helper while cleaning
the bar deserves no credence for, if it were so, it would have been absurd for him to have placed himself
under police custody in the early morning after the incident.

(2) The sworn Complaint for "Murder with Use of Unlicensed Firearm" signed by the Chief of Police
(Exhibit "H"), dated 8 May 1984, also attests to Appellant's oral confession. Said officer could not have
prepared the Complaint with such promptitude sans investigation at "0700H" the morning after the
incident were it not for Appellant's outright admission. That Complaint forms part of the record of the
proceedings before the Municipal Circuit Trial Court of Buruanga, Aklan, and is prima facie evidence of
the facts therein stated (Section 38, Rule 130, Rules of Court). That said Complaint was sworn to before
the Municipal Circuit Trial Court Judge and filed before this Court only on 17 May 1984 will not detract
from the fact that the Chief of Police had taken official action promptly the very morning of Appellant's
surrender by charging him with "Murder with the Use of Unlicensed Firearm" after having heard his
admission.

(3) The fact of Appellant's surrender is further borne out by the Order of the Municipal Circuit Trial
Court Judge, Judge Tonel, dated 17 May 1984, categorically reciting that "no warrant of arrest is issued
for the apprehension of the accused for the reason that he is already under police custody before the
filing of the complaint." It would have been at variance with ordinary human behavior for Appellant to
have voluntarily placed himself under police custody absent any culpability for any offense.

Contrary to the defense contention, 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, Rule 130, Rules of Court). 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).

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. (People vs. Taylaran, G.R. No. 49149, October 31,
1981, 108 SCRA 373). The Trial Court, therefore, cannot be held to have erred in holding that compliance
with the constitutional procedure on custodial interrogation is not applicable in the instant case, as the
defense alleges in its Error VII.

With the indubitable official and documentary evidence on record, the identity of the Accused as the
victim's assailant is indisputable. The denials by the defense immediately lose their credibility and the
errors it has assigned are rendered without any merit whatsoever.

Thus, contrary to Error I, the gun which Appellant surrendered to Pat. Padilla and the Chief of Police,
coupled with his voluntary surrender, cannot but be the weapon which caused the death of the victim.
That is no inference; it is clear and direct evidence. To further require a ballistic examination and a
paraffin test would have been a superfluous exercise.

The issue raised in Error II as to who testified ahead, TUMAOB or the examining physician, Dr. Othello
Caturan, also becomes irrelevant, TUMAOB's testimony being corroborated by the documentary
evidence heretofore mentioned. Besides, even without TUMAOB's testimony the documentary evidence
on record more than suffices to overcome the disclaimers by Appellant and on which his assigned Errors
VIII & IX are predicated.

TUMAOB's motive in testifying the way he did, further assailed in Error III, is immaterial considering the
corroboration his testimony received from Appellant's proven actuations after the incident. Efforts by
the defense to discredit him as a "professional witness," who allegedly asked for a consideration from
Appellant of P500.00 to swing the testimony in Appellant's favor, but which the latter rejected, with the
insinuation that he could have been paid by Swiss authorities to testify the way he did in Court, is
unavailing since conviction is not based on his testimony alone.

Whatever inconsistencies there may have been in the testimonies of Patrolmen Padilla and Casimiro,
posited in Error V, are sufficiently overcome by the documentary evidence of record.

As to the testimonial evidence presented by the defense, which the Trial Court rejected, we find no
reversible error in the meticulous assessment it had made thereof, ably pointing out the material
contradictions in the testimonies and consequently their lack of credibility.
The entries in the police blotter were properly admitted by the Trial Court, contrary to the allegation in
Error VI forming, as they do, part of official records.

The defense of alibi must likewise be rejected in the face of overwhelming evidence against the
Accused. The Trial Court cannot be faulted, therefore, for denying Appellant's bid for acquittal contrary
to the allegations in Errors IV, X and XI.

Lastly, neither was any error committed by the Trial Court in denying the defense Motion for New Trial
(Error XII) based on the affidavit of recantation of witness TUMAOB that he was not at Benny's Bar when
the victim was shot. Even assuming that it can be considered as newly discovered evidence it is
insufficient to overturn the judgment already rendered, for, it bears emphasizing that conviction is not
based on TUMAOB's testimony alone. Moreover,

"Affidavits of retraction executed by witnesses who had previously testified in court will not be
countenanced for the purpose of securing a new trial. — It would be a dangerous rule for courts to
reject testimonies solemnly taken before courts of justice simply because the witnesses who had given
them later on change their mind for one reason or another, for such a rule would make solemn trials a
mockery and place the investigation of truth at the mercy of unscrupulous witnesses. Affidavits of
retraction can be easily secured from poor and ignorant witnesses usually for a monetary consideration.
Recanted testimony is exceedingly unreliable. So courts are wary or reluctant to allow a new trial based
on retracted testimony." (People vs. Saliling, et al, L-27974, February 27, 1976, 69 SCRA 427, cited in
Ibabao vs. People, L-36957, September 28, 1984, 132 SCRA 216).

The penalty of reclusion perpetua imposed by the Trial Court, however, will have to be modified. With
the abolition of the death penalty in the 1987 Constitution, the penalty for Murder is now reclusion
temporal in its maximum period to reclusion perpetua. With the mitigating circumstance of voluntary
surrender to which the Accused should be entitled, the penalty is imposable in its minimum period or
from seventeen (17) years, four (4) months and one (1) day to eighteen (18) years and eight (8) months.
For the application of the Indeterminate Sentence Law, the range of the penalty next lower is prision
mayor in its maximum period to reclusion temporal in its medium period, or, from ten (10) years and
one (1) day to seventeen (17) years and four (4) months.

WHEREFORE, the test of proof beyond reasonable doubt having been met, the judgment appealed from
is hereby AFFIRMED but with the penalty MODIFIED to an indeterminate sentence of ten (10) years and
one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal, as maximum. Costs against the accused-appellant Benny Dy.

SO ORDERED.

Yap, Paras, Padilla and Sarmiento, JJ., concur.

Footnotes

* Penned by Judge Jaime D. Discaya.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 72870 February 23, 1988

Pulido v. Lazaro

FIRST DIVISION

[G.R. No. 72870. February 23, 1988.]

TEODORO R. PULIDO, petitioner, vs. THE HON. MANUEL M. LAZARO, in his capacity as Presidential
Assistant for Legal Affairs, Office of the President, THE HON. GERONIMO Z. VELASCO, ETC., ET AL.,
respondents.

SYLLABUS

1. CIVIL LAW; CONTRACT; DEALERSHIP; TACITA RECONDUCCION; IMPLIED RENEWAL OF

CONTRACT; CASE AT BAR. — Pulido cannot claim to still be the authorized dealer because his dealership
contract with Shell expired long ago, much earlier than the contract of Shell with Rosal. Rosal's contract
would itself have expired on April 6, 1985, but it did not because the parties impliedly continued it under
the original terms and conditions. There was tacita reconduccion under Article 1670 of the Civil Code.
Pulido does not point to any provision in his own contract calling for its automatic renewal or extension.

2. REMEDIAL LAW; ACTIONS; RES JUDICATA; PRINCIPLE APPLIED IN CASE AT BAR. — Pulido had
sold his rights thereunder to Rosal. And when this sale was affirmed by the city court in the ejectment
suit, he did not appeal. Right or wrong, that judgment can no longer be impugned by Pulido at this late
hour. He is bound by it regardless of whether or not res judicata is applicable.

3. CONSTITUTIONAL LAW; DUE PROCESS; RIGHT FULLY AFFORDED WHERE PARTY WAS GIVEN FULL
OPPORTUNITY TO BE HEARD. — Pulido's claim of denial of due process must also be rejected. It is not
true that he was not given a chance to be heard. On the contrary, he had many opportunities to argue
his case, as pointed out by the Solicitor General. Thus, he filed with the BEU his letter-complaint and
then a motion for reconsideration. He appealed to the Minister of Energy and then filed his opposition
to the motion for reconsideration. In the Office of the President, he first moved to dismiss Rosal's appeal
and then moved for reconsideration of Lazaro's decision. In all of these instances, he certainly was
afforded adequate hearing. The Court notes that after the exchange of arguments among the parties,
the petitioner asked for an opportunity to file a reply but in the end manifested that he would no longer
do so. He did not state any reason. Perhaps he has been convinced by the respondent's comments and
has decided finally to yield in good grace.

DECISION
CRUZ, J p:

In 1967, respondent Pilipinas Shell Corporation (Shell) sub-leased to petitioner Teodoro Pulido a
gasoline station in Quezon City which he was later issued a certificate to operate by respondent Bureau
of Energy Utilization (BEU). 1

In 1976, Pulido authorized private respondent Virgilio Rosal to operate and manage the station in
consideration of the monthly amount of P2,000.00 he would pay to the former. 2 Later, Pulido sold to
Rosal all his rights in the station and his equipment therein for the stipulated sum of P50,000. On that
same day, Pulido executed a special power of attorney authorizing Rosal to administer and operate the
said station. 3

The petitioner thereafter revoked this authorization on the ground that Rosal was selling diluted
gasoline. 4 He demanded the return to him of the station but Rosal ignored him. Pulido then sued Rosal
for unlawful detainer. The city court dismissed the complaint, holding that there was no lease
relationship between the parties and in effect affirming the deed of sale executed by them earlier. 5
This decision was not appealed.

On September 20, 1979, Shell filed with the BEU an application for authority to replace Pulido with Rosal
as the authorized dealer of the station. In support of this application, Shell submitted inter alia a copy of
the decision of the city court in the ejectment case. 6 After provisionally permitting Rosal to continue as
dealer, BEU finally granted the application on April 7, 1980. 7

Claiming that he was informed of the authorization in favor of Rosal only on May 28, 1980, Pulido
challenged the same on the ground of due process. 8 Rosal and Shell were required by BEU to answer
Pulido's complaint. 9 Meanwhile, the petitioner manifested in writing that he was waiving all claims for
damages against Shell in connection with the change of dealership. 10

The BEU, after hearing, dismissed Pulido's complaint on the ground, among others, of res judicata, 11
but its decision was on appeal reversed by the Minister of Energy. 12 The Minister was, however,
himself reversed by the Office of the President, through respondent Manuel M. Lazaro, 13 Pulido then
came to this Court to challenge the order of April 24, 1985 reinstating the BEU decision.

Our ruling shall be brief.

Pulido cannot claim to still be the authorized dealer because his dealership contract with Shell expired
long ago, much earlier than the contract of Shell with Rosal. Rosal's contract would itself have expired
on April 6, 1985, 14 but it did not because the parties impliedly continued it under the original terms
and conditions. There was tacita reconduccion under Article 1670 of the Civil Code. Pulido does not
point to any provision in his own contract calling for its automatic renewal or extension.

Moreover, he had sold his rights thereunder to Rosal. And when this sale was affirmed by the city court
in the ejectment suit, he did not appeal. Right or wrong, that judgment can no longer be impugned by
Pulido at this late hour. He is bound by it regardless of whether or not res judicata is applicable.
Pulido's claim of denial of due process must also be rejected. It is not true that he was not given a
chance to be heard. On the contrary, he had many opportunities to argue his case, as pointed out by the
Solicitor General.

Thus, he filed with the BEU his letter-complaint 15 and then a motion for reconsideration. 16 He
appealed to the Minister of Energy 17 and then filed his opposition to the motion for reconsideration.
18 In the Office of the President, he first moved to dismiss Rosal's appeal 19 and then moved for
reconsideration of Lazaro's decision. 20 In all of these instances, he certainly was afforded adequate
hearing.

The Court notes that after the exchange of arguments among the parties, the petitioner asked for an
opportunity to file a reply but in the end manifested that he would no longer do so. 21 He did not state
any reason. Perhaps he has been convinced by the respondent's comments and has decided finally to
yield in good grace.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner.

SO ORDERED.

Teehankee, C.J., Narvasa, Gancayco and Griño-Aquino, JJ., concur.

[G.R. No. 96132. June 26, 1992.]

ORIEL MAGNO, petitioner, vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.

Benito P. Fabie for petitioner.

SYLLABUS

1. CRIMINAL LAW; BATAS PAMBANSA BLG. 22; PURPOSE AND OBJECTIVE. — The law was devised
to safeguard the interest of the banking system and the legitimate public checking account user. It did
not intend to shelter or favor not encourage users of the system to enrich themselves through
manipulations and circumvention of the noble purpose and objective of the law. Least should it be used
also as a means of jeopardizing honest-to-goodness transactions with some color of "get-rich" scheme
to the prejudice of well-meaning businessmen who are the pillars of society.

2. ID.; ID.; ELEMENT THAT CHECK BE DRAWN OR ISSUED "TO APPLY ON ACCOUNT OR FOR VALUE";
NOT ESTABLISHED IN CASE AT BAR. — The crux of the matter rests upon the reason for the drawing of
the postdated checks by the petitioner, i.e., whether they were drawn or issued "to apply on account or
for value," as required under the Section 1 of BP Blg. 22. When viewed against the following definitions
of the catch-terms "warranty" and "deposit," for which the postdated checks were issued or drawn, all
the more, the alleged crime could not have been committed by petitioner.

3. ID.; ID.; ELEMENTS THAT DRAWER KNEW OF INSUFFICIENCY OF HIS FUNDS WITH DRAWEE BANK
AT THE TIME CHECK WAS ISSUED; INVERSELY APPLIED IN CASE AT BAR. — The elements of "knowing at
the time of issue that he does not have sufficient funds in or credit with the drawee bank for the
payment of such check in full upon its presentment, which check is subsequently dishonored by the
drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason . .
." is inversely applied in this case. From the very beginning, petitioner never hid the fact that he did not
have the funds with which to put up the warranty deposit and as a matter of fact, he openly intimated
this to the vital conduit of the transaction, Joey Gomez, to whom petitioner was introduced by Mrs.
Teng. It would have been difficult if this predicament was not communicated to all the parties he dealt
with regarding the lease agreement the financing of which was covered by L.S. Finance Management.

4. ID.; UTILITARIAN THEORY OF CRIMINAL LAW; FUNCTION OF PUNISHMENT; CASE AT BAR. —

Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function
of punishment is the protective (sic) of society against actual and potential wrongdoers." Corollary to
the above view, is the application of the theory that "criminal law is founded upon that moral
disapprobation . . . of actions which are immoral, i. e., which are detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society. This disapprobation is
inevitable to the extent that morality is generally moral opinions of all . . . That which we call
punishment is only an external means of emphasizing moral disapprobation: the method of punishment
is in reality the amount of punishment." (citing People v. Roldan Zaballero, CA 54 O.G., 6904, Note also
Justice Pablo's view in People v. Piosca and Peremne, 86 Phil. 31). Thus, it behooves upon a court of law
that in applying the punishment imposed upon the accused, the objective of retribution of a wronged
society, should be directed against the "actual and potential wrongdoers." In the instant case, there is
no doubt that petitioner's four (4) checks were used to collateralize an accommodation, and not to
cover the receipt of an actual "account or credit for value" as this was absent, and therefore petitioner
should not be punished for mere issuance of the checks in question. Following the aforecited theory, in
petitioner's stead the "potential wrongdoer," whose operation could be a menace to society, should not
be glorified by convicting the petitioner.

DECISION

PARAS, J p:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the
respondent Court of Appeals which affirmed in toto the decision of the Regional Trial Court of Quezon
City, Branch 104 finding the accused petitioner, guilty of violations of Batas Pambansa Blg. 22, in
Criminal Cases Q-35693 to 35696 before they were elevated on appeal to the respondent appellate
Court under CA-G.R. CR No. 04889.

The antecedent facts and circumstances of the four (4) counts of the offense charged, have been clearly
illustrated, in the Comment of the Office of the Solicitor General as official counsel for the public
respondent, thus:

Petitioner was in the process of putting up a car repair shop sometime in April 1983, but he did not have
complete equipment that could make his venture workable. He also had another problem, and that
while he was going into this entrepreneurship, he lacked funds with which to purchase the necessary
equipment to make such business operational. Thus, petitioner, representing Ultra Sources International
Corporation, approached Corazon Teng, (private complainant) Vice President of Mancor Industries
(hereinafter referred to as Mancor) for his needed car repair service equipment of which Mancor was a
distributor. (Rollo, pp. 40-41) LexLib

Having been approached by petitioner on his predicament, who fully bared that he had no sufficient
funds to buy the equipment needed, the former (Corazon Teng) referred Magno to LS Finance and
Management Corporation (LS Finance for brevity) advising its Vice-President, Joey Gomez, that Mancor
was willing and able to supply the pieces of equipment needed if LS Finance could accommodate
petitioner and provide him credit facilities. (Ibid., p. 41)

The arrangement went through on condition that petitioner has to put up a warranty deposit equivalent
to thirty per centum (30%) of the total value of the pieces of equipment to be purchased, amounting to
P29,790.00. Since petitioner could not come up with such amount, he requested Joey Gomez on
personal level to look for a third party who could lend him the equivalent amount of the warranty
deposit. However, unknown to petitioner, it was Corazon Teng who advanced the deposit in question,
on condition that the same would be paid as a short term loan at 3% interest. (Ibid., p. 41)

The specific provision in the Leasing Agreement, reads:

"1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment, the Lessee shall
deposit with the Lessor such sum or sums specified in Schedule A to serve as security for the faithful
performance of its obligations.

"This deposit shall be refunded to the Lessee upon the satisfactory completion of the entire period of
Lease, subject to the conditions of clause 1.12 of this Article." (Ibid., p. 17)

As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS
Finance would lease the garage equipments and petitioner would pay the corresponding rent with the
option to buy the same. After the documentation was completed, the equipment were delivered to
petitioner who in turn issued a postdated check and gave it to Joey Gomez who, unknown to the
petitioner, delivered the same to Corazon Teng. When the check matured, petitioner requested through
Joey Gomez not to deposit the check as he (Magno) was no longer banking with Pacific Bank.

To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2)
checks dated July 29, 1983 were deposited and cleared while the four (4) others, which were the subject
of the four counts of the aforestated charges subject of the petition, were held momentarily by Corazon
Teng, on the request of Magno as they were not covered with sufficient funds. These checks were a)
Piso Bank Check Nos. 006858, dated August 15, 1983, 006859 dated August 28, 1983 and 006860 dated
September 15, 1983, all in the amount of P5,038.43 and No. 086861 dated September 28, 1983, in the
amount of P10,876.87. (Ibid., pp. 42 & 43)

Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage
equipments. It was then on this occasion that petitioner became aware that Corazon Teng was the one
who advanced the warranty deposit. Petitioner with his wife went to see Corazon Teng and promised to
pay the latter but the payment never came and when the four (4) checks were deposited they ware
returned for the reason "account closed." (Ibid., p. 43)

After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner was
convicted for violations of BP Blg. 22 on the four (4) cases, as follows: cdphil

". . . finding the accused-appellant guilty beyond reasonable doubt, of the offense of violations of B.P.
Blg. 22 and sentencing the accused to imprisonment for one year in each Criminal Case Nos. Q-35693, Q-
35695 and Q-35696 and to pay to complainant the respective amounts reflected in subject checks."
(Ibid., pp. 25, 27)

Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is
intrigued about the outcome of the checks subject of the cases which were intended by the parties, the
petitioner on the one hand and the private complainant on the other, to cover the "warranty deposit"
equivalent to the 30% requirement of the financing company. Corazon Teng is one of the officers of
Mancor, the supplier of the equipment subject of the Leasing Agreement subject of the high financing
scheme undertaken by the petitioner as lessee of the repair service equipment, which was arranged at
the instance of Mrs. Teng from the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the
"purchase/lease" value of the equipments subject of the transaction, it is obvious that the "cash out"
made by Mrs. Teng was not used by petitioner who was just paying rentals for the equipment. It would
have been different if petitioner opted to purchase the pieces of equipment on or about the termination
of the lease-purchase agreement in which case he had to pay the additional amount of the warranty
deposit which should have formed part of the purchase price. As the transaction did not ripen into a
purchase, but remained a lease with rentals being paid for the loaned equipment, which were pulled out
by the Lessor (Mancor) when the petitioner failed to continue paying possibly due to economic
constraints or business failure, then it is lawful and just that the warranty deposit should not be charged
against the petitioner.

To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was not
his own account, it having remained with LS Finance, is to even make him pay an unjust "debt", to say
the least, since petitioner did not receive the amount in question. All the while, said amount was in the
safekeeping of the financing company, which is managed, supervised and operated by the corporation
officials and employees of LS Finance. Petitioner did not even know that the checks he issued were
turned over by Joey Gomez to Mrs. Teng, whose operation was kept from his knowledge on her
instruction. This fact alone evoke suspicion that the transaction is irregular and immoral per se, hence,
she specifically requested Gomez not to divulge the source of the "warranty deposit."

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who
"accommodated" petitioner's request for Joey Gomez, to source out the needed funds for the "warranty
deposit". Thus it unfolds the kind of transaction that is shrouded with mystery, gimmickry and doubtful
legality. It is in simple language, a scheme whereby Mrs. Teng as the supplier of the equipment in the
name of her corporation, Mancor, would be able to "sell or lease" its goods as in this case, and at the
same time, privately financing those who desperately need petty accommodations as this one. This
modus operandi has in so many instances victimized unsuspecting businessmen, who likewise need
protection from the law, by availing of the deceptively called "warranty deposit" not realizing that they
also fall prey to leasing equipment under the guise of a lease-purchase agreement when it is a scheme
designed to skim off business clients.

This maneuvering has serious implications especially with respect to the threat of the penal sanction of
the law in issue, as in this case. And, with a willing court system to apply the full harshness of the special
law in question, using the "mala prohibita" doctrine, the noble objective of the law is tainted with
materialism and opportunism in the highest degree.

This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease
agreement knew that the amount of P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the refund of
said amount from LS Finance, notwithstanding the agreement provision to the contrary. To argue that
after the termination of the lease agreement, the warranty deposit should be refundable in full to Mrs.
Teng by Petitioner when he did not cash out the "warranty deposit" for his official or personal use, is to
stretch the nicety of the alleged law (B.P. No. 22) violated.
For all intents and purposes, the law was devised to safeguard the interest of the banking system and
the legitimate public checking account user. It did not intend to shelter or favor nor encourage users of
the system to enrich themselves through manipulations and circumvention of the noble purpose and
objective of the law. Least should it be used also as a means of jeopardizing honest-to-goodness
transactions with some color of "get-rich" scheme to the prejudice of well-meaning businessmen who
are the pillars of society.

Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function
of punishment is the protective (sic) of society against actual and potential wrongdoers." It is not clear
whether petitioner could be considered as having actually committed the wrong sought to be punished
in the offense charged, but on the other hand, it can be safely said that the actuations of Mrs. Carolina
Teng amount to that of potential wrongdoers whose operations should also be clipped at some point in
time in order that the unwary public will not be falling prey to such a vicious transaction. (Aquino, The
Revised Penal Code, 1987 Edition, Vol. I, p. 11)

Corollary to the above view, is the application of the theory that "criminal law is founded upon that
moral disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous) to
those conditions upon which depend the existence and progress of human society. This disapprobation
is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the
moral opinions of all . . . That which we call punishment is only an external means of emphasizing moral
disapprobation: the method of punishment is in reality the amount of punishment." (Ibid., p. 11, citing
People v. Roldan Zaballero, CA 54 O.G. 6904. Note also Justice Pablo's view in People v. Piosca and
Peremne, 86 Phil. 31).

Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the
objective of retribution of a wronged society, should be directed against the "actual and potential
wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of an actual "account or credit for value"
as this was absent, and therefore petitioner should not be punished for mere issuance of the checks in
question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer", whose
operation could be a menace to society, should not be glorified by convicting the petitioner.

While in case of doubt, the case should have been resolved in favor of the accused, however, by the
open admission of the appellate court below, even when the ultimate beneficiary of the "warranty
deposit" is of doubtful certainty, the accused was convicted, as shown below: llcd

"Nor do We see any merit in appellant's claim that the obligation of the accused to complainant had
been extinguished by the termination of the leasing agreement — by the terms of which the warranty
deposit advanced by complainant was refundable to the accused as lessee — and that as the lessor L.S.
Finance neither made any liquidation of said amount nor returned the same to the accused, it may be
assumed that the amount was already returned to the complainant. For these allegations, even if true,
do not change the fact, admitted by appellant and established by the evidence, that the four checks
were originally issued on account or for value. And as We have already observed, in order that there
may be a conviction under the first paragraph of Section 2 of BP Blg. 22 — with respect to the element
of said offense that the check should have been made and issued on account or for value — it is
sufficient, all the other elements of the offense being present, that the check must have been drawn
and issued in payment of an obligation.

"Moreover, even granting, arguendo, that the extinguishment, after the issuance of the checks, of the
obligation in consideration of which the checks were issued, would have resulted in placing the case at
bar beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is no satisfactory proof that
there was such an extinguishment in the present case. Appellate aptly points out that appellant had not
adduced any direct evidence to prove that the amount advanced by the complainant to cover the
warranty deposit must already have been returned to her." (Rollo, p, 30)

It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the
accused is presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the same
court even expected the petitioner-appellant to adduce evidence to show that he was not guilty of the
crime charged. But how can he produce documents showing that the warranty deposit has already been
taken back by Mrs. Teng when she is an officer of Mancor which has interest in the transaction, besides
being personally interested in the profit of her side-line. Thus, even if she may have gotten back the
value of the accommodation, she would still pursue collecting from the petitioner since she had in her
possession the checks that "bounced."

That the court a quo merely relied on the law, without looking into the real nature of the warranty
deposit is evident from the following pronouncement:

"And the trial court concluded that there is no question that the accused violated BP Blg. 22, which is a
special statutory law, violations of which are mala prohibita. The court relied on the rule that in cases of
mala prohibita, the only inquiry is whether or not the law had been violated, proof of criminal intent not
being necessary for the conviction of the accused, the acts being prohibited for reasons of public policy
and the defenses of good faith and absence of criminal intent being unavailing in prosecutions for said
offenses." (Ibid., p. 26)

The crux of the matter rests upon the reason for the drawing of the postdated checks by the petitioner,
i.e., whether they were drawn or issued "to apply on account or for value", as required under Section 1
of BP Blg. 22. When viewed against the following definitions of the catch-terms "warranty" and
"deposit", for which the postdated checks were issued or drawn, all the more, the alleged crime could
not have been committed by petitioner:

"a) Warranty — A promise that a proposition of fact is true. A promise that certain facts are truly as
they are represented to be and that they will remain so; . . ." (Black's Law Dictionary, Fifth Edition,
(1979) p. 1423)

A cross-reference to the following term shows:

"Fitness for Particular Purpose: —

Where the seller at the time of contracting has reason to know any particular purpose for which the
goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish
suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit for
such purpose." (Ibid., p. 573)

"b) Deposit: — Money lodged with a person as an earnest or security for the performance of some
contract, to be forfeited if the depositor fails in his undertaking. It may be deemed to be part payment
and to that extent may constitute the purchaser the actual owner of the estate.

"To commit to custody, or to lay down; to place; to put. To lodge for safekeeping or as a pledge to in
trust to the care of another.

"The act of placing money in the custody of a bank or banker, for safety or convenience, to be
withdrawn at the will of the depositor or under rules and regulations agreed on. Also, the money so
deposited, or the credit which the depositor receives for it. Deposit, according to its commonly accepted
and generally understood among bankers and by the public, includes not only deposits payable on
demand and for which certificates, whether interest-bearing or not, may be issued, payable on demand,
or on certain notice, or at a fixed future time." (Ibid., pp. 394-395)

Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been
dishonored for the same reason . . ." is inversely applied in this case. From the very beginning, petitioner
never hid the fact that he did not have the funds with which to put up the warranty deposit and as a
matter of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez, to whom
petitioner was introduced by Mrs. Teng. It would have been different if this predicament was not
communicated to all the parties he dealt with regarding the lease agreement the financing of which was
covered by L.S. Finance Management. prLL

WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby ACQUITTED of
the crime charged.

SO ORDERED.

Padilla, J ., concurs.

Narvasa, C .J ., concurs in the result.

Regalado, J ., Pro hac vice.

Nocon, J ., is on leave.
[G.R. No. 157171. March 14, 2006.]

ARSENIA B. GARCIA, petitioner, vs. HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

DECISION

QUISUMBING, J p:

This petition seeks the review of the judgment of the Court of Appeals in CA-G.R. CR No. 24547 1 that
affirmed the conviction of petitioner by the Regional Trial Court 2 of Alaminos City, Pangasinan, Branch
54, for violation of Section 27(b) of Republic Act No. 6646. 3

Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial elections,
an information dated March 30, 1998, was filed in the Regional Trial Court of Alaminos, charging
Herminio R. Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner, with
violation of Section 27(b). The information reads:

That on or about May 11, 1995, which was within the canvassing period during the May 8, 1995
elections, in the Municipality of Alaminos, Province of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Election Officer Arsenia B. Garcia,
Municipal Treasurer Herminio R. Romero, Public School District Supervisor Renato R. Viray, Chairman,
Vice-Chairman, and Member-Secretary, respectively, of the Municipal Board of Canvassers of Alaminos,
Pangasinan, tabulators Rachel Palisoc and Francisca de Vera, conspiring with, confederating together
and mutually helping each other, did, then and there, willfully, and unlawfully decrease[d] the votes
received by senatorial candidate Aquilino Q. Pimentel, Jr. from six thousand nine hundred ninety-eight
(6,998) votes, as clearly disclosed in the total number of votes in the one hundred fifty-nine (159)
precincts of the Statement of Votes by Precincts of said municipality, with Serial Nos. 008417, 008418,
008419, 008420, 008421, 008422 and 008423 to one thousand nine hundred twenty-one (1,921) votes
as reflected in the Statement of Votes by Precincts with Serial No. 008423 and Certificate of Canvass
with Serial No. 436156 with a difference of five thousand seventy-seven (5,077) votes. CTAIHc

CONTRARY TO LAW. 4

In a Decision dated September 11, 2000, the RTC acquitted all the accused for insufficiency of evidence,
except petitioner who was convicted as follows:

xxx xxx xxx

5. And finally, on the person of ARSENIA B. GARCIA, the Court pronounces her GUILTY beyond
reasonable doubt, of the crime defined under Republic Act 6646, Section 27 (b) for decreasing the votes
of Senator Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering that this finding is a
violation of Election Offense, she is thus sentenced to suffer an imprisonment of SIX (6) YEARS as
maximum, but applying the INDETERMINATE SENTENCE LAW, the minimum penalty is the next degree
lower which is SIX (6) MONTHS; however, accused ARSENIA B. GARCIA is not entitled to probation;
further, she is sentenced to suffer disqualification to hold public office and she is also deprived of her
right of suffrage.

The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden is ordered to
commit her person to the Bureau of Correctional Institution for Women, at Metro Manila, until further
orders from the court.

No pronouncement as to costs.

IT IS SO ORDERED. 5

Petitioner appealed before the Court of Appeals which affirmed with modification the RTC Decision,
thus,

WHEREFORE, foregoing considered, the appealed decision is hereby AFFIRMED with MODIFICATION,
increasing the minimum penalty imposed by the trial court from six (6) months to one (1) year. HCITDc

SO ORDERED. 6

The Court of Appeals likewise denied the motion for reconsideration. Hence, this appeal assigning the
following as errors of the appellate court:

ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE RESPONDENT COURT, NAMELY, THAT IT
COULD NOT HAVE BEEN SECRETARY VIRAY WHO DECREASED THE VOTES OF COMPLAINANT PIMENTEL
SINCE HE MERELY RELIED ON WHAT THE PETITIONER DICTATED, AND THAT IT COULD NOT HAVE ALSO
BEEN THE TABULATORS BECAUSE PETITIONER WAS THE ONE WHO READ THE ADDING [MACHINE] TAPE.

II

ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE THE TAPES DURING THE TRIAL
BECAUSE IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER.

III

ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE WHO ENTERED THE
REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS
THAT OF THE SECRETARY OF THE BOARD.

IV

THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY NOT WILLFUL OR
INTENTIONAL. 7
Petitioner contends that (1) the Court of Appeals' judgment is erroneous, based on speculations,
surmises and conjectures, instead of substantial evidence; and (2) there was no motive on her part to
reduce the votes of private complainant.

Respondent on the other hand contends that good faith is not a defense in the violation of an election
law, which falls under the class of mala prohibita.

The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se or mala
prohibita? Could good faith and lack of criminal intent be valid defenses?

Generally, mala in se felonies are defined and penalized in the Revised Penal Code. When the acts
complained of are inherently immoral, they are deemed mala in se, even if they are punished by a
special law. 8 Accordingly, criminal intent must be clearly established with the other elements of the
crime; otherwise, no crime is committed. On the other hand, in crimes that are mala prohibita, the
criminal acts are not inherently immoral but become punishable only because the law says they are
forbidden. With these crimes, the sole issue is whether the law has been violated. 9 Criminal intent is
not necessary where the acts are prohibited for reasons of public policy. 10

Section 27(b) of Republic Act No. 6646 11 provides:

SEC. 27. Election Offenses. — In addition to the prohibited acts and election offenses enumerated in
Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an
election offense:

xxx xxx xxx

(b) Any member of the board of election inspectors or board of canvassers who tampers, increases,
or decreases the votes received by a candidate in any election or any member of the board who refuses,
after proper verification and hearing, to credit the correct votes or deduct such tampered votes.
ATcaID

xxx xxx xxx

Clearly, the acts prohibited in Section 27(b) are mala in se. 12 For otherwise, even errors and mistakes
committed due to overwork and fatigue would be punishable. Given the volume of votes to be counted
and canvassed within a limited amount of time, errors and miscalculations are bound to happen. And it
could not be the intent of the law to punish unintentional election canvass errors. However,
intentionally increasing or decreasing the number of votes received by a candidate is inherently
immoral, since it is done with malice and intent to injure another.

Criminal intent is presumed to exist on the part of the person who executes an act which the law
punishes, unless the contrary shall appear. 13 Thus, whoever invokes good faith as a defense has the
burden of proving its existence.
Records show that the canvassing of votes on May 11, 1995 before the Board of Canvassers of the
Municipality of Alaminos, Pangasinan was conducted as follows:

1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the results
thereof were sealed and forwarded to the Municipal Board of Canvassers for canvassing;

2. The number of votes received by each candidate in each precinct was then recorded in the
Statement of Votes with appellant, in her capacity as Chairman, reading the figures appearing in the
results from the precincts and accused Viray, in his capacity as secretary of the Board, entering the
number in the Statements of Votes as read by the appellant. Six Statements of Votes were filled up to
reflect the votes received by each candidate in the 159 precincts of the Municipality of Alaminos,
Pangasinan.

3. After the number of votes received by each candidate for each precincts were entered by
accused Viray in the Statements of Votes, these votes were added by the accused Palisoc and de Vera
with the use of electrical adding machines.

4. After the tabulation by accused Palisoc and de Vera, the corresponding machine tapes were
handed to appellant who reads the subtotal of votes received by each candidate in the precincts listed in
each Statement of Votes. Accused Viray [then] records the subtotal in the proper column in the
Statement of Votes.

5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc and de Vera
added all the subtotals appearing in all Statement of Votes.

6. After the computation, the corresponding machine tape on which the grand total was reflected
was handed to appellant who reads the same and accused Viray enters the figure read by appellant in
the column for grand total in the Statement of Votes. 14

Neither the correctness of the number of votes entered in the Statement of Votes (SOV) for each
precinct, nor of the number of votes entered as subtotals of votes received in the precincts listed in SOV
Nos. 008417 to 008422 was raised as an issue.

At first glance, however, there is a noticeable discrepancy in the addition of the subtotals to arrive at the
grand total of votes received by each candidate for all 159 precincts in SOV No. 008423. 15 The grand
total of the votes for private complainant, Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or
5,000 votes less than the number of votes private complainant actually received. This error is also
evident in the Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and Romero. 16

During trial of this case, petitioner admitted that she was indeed the one who announced the figure of
1,921, which was subsequently entered by then accused Viray in his capacity as secretary of the board.
17 Petitioner likewise admitted that she was the one who prepared the COC (Exhibit A-7), though it was
not her duty. To our mind, preparing the COC even if it was not her task, manifests an intention to
perpetuate the erroneous entry in the COC. 18
Neither can this Court accept petitioner's explanation that the Board of Canvassers had no idea how the
SOV (Exhibit "6") and the COC reflected that private complainant had only 1,921 votes instead of 6,921
votes. As chairman of the Municipal Board of Canvassers, petitioner's concern was to assure accurate,
correct and authentic entry of the votes. Her failure to exercise maximum efficiency and fidelity to her
trust deserves not only censure but also the concomitant sanctions as a matter of criminal responsibility
pursuant to the dictates of the law. 19

The fact that the number of votes deducted from the actual votes received by private complainant, Sen.
Aquilino Pimentel, Jr. was not added to any senatorial candidate does not relieve petitioner of liability
under Section 27(b) of Rep. Act No. 6646. The mere decreasing of the votes received by a candidate in
an election is already punishable under the said provision. 20

At this point, we see no valid reason to disturb the factual conclusions of the appellate court. The Court
has consistently held that factual findings of the trial court, as well as of the Court of Appeals are final
and conclusive and may not be reviewed on appeal, particularly where the findings of both the trial
court and the appellate court on the matter coincide. 21

Public policy dictates that extraordinary diligence should be exercised by the members of the board of
canvassers in canvassing the results of the elections. Any error on their part would result in the
disenfranchisement of the voters. The Certificate of Canvass for senatorial candidates and its supporting
statements of votes prepared by the municipal board of canvassers are sensitive election documents
whose entries must be thoroughly scrutinized. 22

In our review, the votes in the SOV should total 6,998. 23

As between the grand total of votes alleged to have been received by private complainant of 6,921
votes and statement of his actual votes received of 6,998 is a difference of 77 votes. The discrepancy
may be validly attributed to mistake or error due to fatigue. However, a decrease of 5,000 votes as
reflected in the Statement of Votes and Certificate of Canvass is substantial, it cannot be allowed to
remain on record unchallenged, especially when the error results from the mere transfer of totals from
one document to another. DHECac

WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals sustaining
petitioner's conviction but increasing the minimum penalty in her sentence to one year instead of six
months is AFFIRMED.

SO ORDERED.

Carpio, Carpio-Morales and Tinga, JJ., concur.

[G.R. No. 74324. November 17, 1988.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO PUGAY y BALCITA, & BENJAMIN
SAMSON y MAGDALENA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellants.

SYLLABUS

1. CRIMINAL LAW; CONSPIRACY; WHERE UNITY OF CRIMINAL PURPOSE IS NOT SHOWN,

RESPONSIBILITY OF TWO ACCUSED IS INDIVIDUAL NOT COLLECTIVE. — There is nothing in the records
showing that there was previous conspiracy or unity of criminal purpose and intention between the two
accused-appellants immediately before the commission of the crime. There was no animosity between
the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was
accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the
deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from different acts
directed against the deceased is individual and not collective, and each of them is liable only for the act
committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).

2. ID.; HOMICIDE THRU RECKLESS IMPRUDENT; POURING GASOLINE ON THE DECEASED; FAILURE
TO EXERCISE DILIGENCE TO AVOID UNDESIRABLE CONSEQUENCE. — The next question to be
determined is the criminal responsibility of the accused Pugay. Having taken the can from under the
engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this
accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have
escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence
necessary to avoid every undesirable consequence arising from any act that may be committed by his
companions who at the time were making fun of the deceased.

DECISION

MEDIALDEA, J p:

For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y
MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of
First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows:

"That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping and assisting one another, with treachery and evident
premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured
gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there,
wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his
subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda.
"That the crime was committed with the qualifying circumstance of treachery and the aggravating
circumstances of evident premeditation and superior strength, and the means employed was to weaken
the defense; that the wrong done in the commission of the crime was deliberately augmented by
causing another wrong, that is the burning of the body of Bayani Miranda.

"CONTRARY TO LAW" (p. 1, Records).

Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court
rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the
accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the
dispositive portion of which reads as follows:

"WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are
pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of murder
for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance in favor of
Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor; as minimum, to
twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion
perpetua together with the accessories of the law for both of them. The accused are solidarily held liable
to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and
exemplary damages of P5,000.00.

"Let the preventive imprisonment of Pugay be deducted from the principal penalty.

"Cost against both accused.

"SO ORDERED" (p. 248, Records).

Not satisfied with the decision, both accused interposed the present appeal and assigned the following
errors committed by the court a quo:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS

APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED
BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF
SOME EVIDENCE IS FATAL TO ITS CASE.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO
GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief,
p. 48, Rollo).

The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to
run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta
fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a
ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a
comic book with his friend Henry. Later, the accused Pugay and Samson with several companions
arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the
deceased walking nearby, they started making fun of him. They made the deceased dance by tickling
him with a piece of wood.

Not content with what they were doing with the deceased the accused Pugay suddenly took a can of
gasoline from under the engine of the ferris wheel and poured its contents on the body of the former.
Gabion told Pugay not to do so while latter was already in the process of pouring the gasoline. Then, the
accused Samson set Miranda on fire making a human torch out of him.

The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some
people around also poured sand on the burning body and others wrapped the same with rags to
extinguish the flame.

The body of the deceased was still aflame when police officer Rolando Silangcruz and other police
officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were
responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as
the authors thereof.

The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers
brought Gabion, the two accused and five other persons to the Rosario municipal building for
interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two
accused, after which Gabion was released. The two accused remained in custody.

After a careful review of the records, We find the grounds relied upon by the accused-appellants for the
reversal of the decision of the court a quo to be without merit.

It bears emphasis that barely a few hours after the incident, accused-appellants gave their written
statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can
of gasoline on the deceased believing that the contents thereof was water and then the accused Samson
set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw
Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the
fact that both statements did not impute any participation of eyewitness Gabion in the commission of
the offense.

While testifying on their defense, the accused-appellants repudiated their written statements alleging
that they were extracted by force. They claimed that the police maltreated them into admitting
authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the
commission of the offense.
Thus, while it is true that the written statements of the accused-appellants were mentioned and
discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for
the findings of facts in the decision rendered. The said court categorically stated that "even without
Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony which
remains unaffected by the uncorroborated, self-serving and unreliable testimonies of Pugay and
Samson" (p. 247, Records).

Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses
to the incident. They claim that despite the fact that there were other persons investigated by the
police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the
deliberate non-presentation of these persons raises the presumption that their testimonies would be
adverse to the prosecution.

There is no dispute that there were other persons who witnessed the commission of the crime. In fact
there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one
Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and
setting the deceased on fire to the accused-appellants as testified to by Gabion in open court. They were
listed as prosecution witnesses in the information filed. Considering that their testimonies would be
merely corroborative, their non-presentation does not give rise to the presumption that evidence
wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression
of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797). Besides, the matter as to whom to utilize
as witness is for the prosecution to decide.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the
latter requested by the mother of the deceased to testify for the prosecution in exchange for his
absolution from liability but also because his testimony that he was reading a comic book during an
unusual event is contrary to human behavior and experience.

Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and
state the truth about the incident. The mother of the deceased likewise testified that she never talked
to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the
accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson
testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to
testify falsely against them.

In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on
the deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's
testimony on cross-examination that, after telling Pugay not to pour gasoline on the deceased, he
(Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he
noticed a commotion.

However, explaining this testimony on re-direct examination, Gabion stated:

"Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when you
saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see
that incident while you were reading comics?

"A. I put down the comics which I am reading and I saw what they were doing.

"Q. According to you also before Bayani was poured with gasoline and lighted and burned later you
had a talk with Pugay, is that correct?

"A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so.

"Q. We want to clarify. According to you a while ago you had a talk with Pugay and as s matter of
fact, you told him not to pour gasoline. That is what I want to know from you, if that is true?

"A. Yes, sir.

"Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know
that Pugay will pour gasoline unto him?

"A. I do not know that would be that incident.

"Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually?

"A. Because I pity Bayani, sir.

"Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him
not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour
gasoline on Bayani?

"A. I was not told, sir.

"Q. Did you come to know. . .how did you come to know he was going to pour gasoline that is why
you prevent him?

"A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline.

"Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of
gasoline, is that correct?

"A. Yes, sir.

"Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline
when he merely pick up the can of gasoline.

"A. I saw him pouring the gasoline on the body of Joe.

"Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring
gasoline on the body of Bayani?
"A. Yes, sir" (Tsn, July 30, 1983, pp. 32-33).

It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion
stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay
get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the
process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and
that Gabion later saw Samson set the deceased on fire.

However, there is nothing in the records showing that there was previous conspiracy or unity of criminal
purpose and intention between the two accused-appellants immediately before the commission of the
crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting
at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely
wanted to make fun of the deceased. Hence, the respective criminal responsibility of Pugay and Samson
arising from different acts directed against the deceased is individual and not collective, and each of
them is liable only for the act committed by him (U.S. vs. Magcomot, et al., 13, Phil. 386; U.S. vs. Abiog,
et al., 37 Phil. 1371).

The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the
can from under the engine of the ferris wheel and holding it before pouring its contents on the body of
the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable
liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all
the diligence necessary to avoid every undesirable consequence arising from any act that may be
committed by his companions who at the time were making fun of the deceased. We agree with the
Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in
Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et al., 14 Phil. 468, 470, this Court
ruled as follows:

"A man must use common sense, and exercise due reflection in all his acts; it is his duty to be cautious,
careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible
for such results as anyone might foresee and for acts which no one would have performed except
through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings,
would ever be exposed to all manner of danger and injury."

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4)
months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as
maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his
conviction of murder is proper considering that his act in setting the deceased on fire knowing that
gasoline had just been poured on him is characterized by treachery as the victim was left completely
helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree.

There is entire absence of proof in the record that the accused Samson had some reason to kill the
deceased before the incident. On the contrary, there is adequate evidence showing that his act was
merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack
must be deliberate and the culprit employed means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself arising from any defense which
the offended party might make.

There can be no doubt that the accused Samson knew very well that the liquid poured on the body of
the deceased was gasoline and a flammable substance for he would not have committed the act of
setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it can be conceded that as
part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does
not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least
some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act
resulted into a graver offense, as what took place in the instant case, he must be held responsible
therefor. Article 4 of the aforesaid code provides, inter alia that criminal liability shall be incurred by any
person committing a felony (delito) although the wrongful act done be different from that which he
intended.

As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused
Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal
Code, as amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no
intention to commit so grave a wrong as that committed as there is no evidence of a fact from which
such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson
were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).

The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8)
years of prision mayor as minimum, to fourteen (14) years of reclusion temporal as maximum.

The lower court held the accused solidarily liable for P13,940.00 the amount spent by Miranda's parents
for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the
indemnity to the heirs of the deceased Miranda is increased to P43,940.00.

Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral
damages and P5,000.00 as exemplary damages as found by the court a quo.

Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the
accused-appellants.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

[G.R. No. 172716 November 17, 2010.]

JASON IVLER y AGUILAR, petitioner, vs. HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the
Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, respondents.

DECISION

CARPIO, J p:

The Case

The petition seeks the review 1 of the Orders 2 of the Regional Trial Court of Pasig City affirming sub-
silencio a lower court's ruling finding inapplicable the Double Jeopardy Clause to bar a second
prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite the
accused's previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries arising from
the same incident grounding the second prosecution. aCSTDc

The Facts

Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the
Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless
Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by
respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide
and Damage to Property (Criminal Case No. 82366) for the death of respondent Ponce's husband Nestor
C. Ponce and damage to the spouses Ponce's vehicle. Petitioner posted bail for his temporary release in
both cases.

On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was
meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the
Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same
offense of reckless imprudence. SICDAa

The MeTC refused quashal, finding no identity of offenses in the two cases. 3

After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court
of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner
sought from the MeTC the suspension of proceedings in Criminal Case No. 82366, including the
arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on
petitioner's motion, the MeTC proceeded with the arraignment and, because of petitioner's absence,
cancelled his bail and ordered his arrest. 4 Seven days later, the MeTC issued a resolution denying
petitioner's motion to suspend proceedings and postponing his arraignment until after his arrest. 5
Petitioner sought reconsideration but as of the filing of this petition, the motion remained unresolved.
caHASI
Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of
S.C.A. No. 2803 for petitioner's loss of standing to maintain the suit. Petitioner contested the motion.

The Ruling of the Trial Court

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on
petitioner's forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC's order to arrest
petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus, without reaching
the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration
but this proved unavailing. 6 HITEaS

Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego
participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the
line of jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal
before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of
conviction. 7 SICaDA

Petitioner laments the RTC's failure to reach the merits of his petition in S.C.A. 2803. Invoking
jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of
punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been
previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence charged in
Criminal Case No. 82366. Petitioner submits that the multiple consequences of such crime are material
only to determine his penalty. CSTcEI

Respondent Ponce finds no reason for the Court to disturb the RTC's decision forfeiting petitioner's
standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court's
attention to jurisprudence holding that light offenses (e.g., slight physical injuries) cannot be complexed
under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g., homicide). Hence, the
prosecution was obliged to separate the charge in Criminal Case No. 82366 for the slight physical injuries
from Criminal Case No. 82367 for the homicide and damage to property.

In the Resolution of 6 June 2007, we granted the Office of the Solicitor General's motion not to file a
comment to the petition as the public respondent judge is merely a nominal party and private
respondent is represented by counsel. STaCIA

The Issues

Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in
S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment in
Criminal Case No. 82366; and (2) if in the negative, whether petitioner's constitutional right under the
Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366.

The Ruling of the Court

We hold that (1) petitioner's non-appearance at the arraignment in Criminal Case No. 82366 did not
divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by the
Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment for
the same offense bars further proceedings in Criminal Case No. 82366. ADETca

Petitioner's Non-appearance at the Arraignment in Criminal Case No. 82366 did not Divest him of
Standing to Maintain the Petition in S.C.A. 2803

Dismissals of appeals grounded on the appellant's escape from custody or violation of the terms of his
bail bond are governed by the second paragraph of Section 8, Rule 124, 8 in relation to Section 1, Rule
125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals to "also,
upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or
confinement, jumps bail or flees to a foreign country during the pendency of the appeal." The "appeal"
contemplated in Section 8 of Rule 124 is a suit to review judgments of convictions. THaAEC

The RTC's dismissal of petitioner's special civil action for certiorari to review a pre-arraignment ancillary
question on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366
finds no basis under procedural rules and jurisprudence. The RTC's reliance on People v. Esparas 9
undercuts the cogency of its ruling because Esparas stands for a proposition contrary to the RTC's ruling.
There, the Court granted review to an appeal by an accused who was sentenced to death for importing
prohibited drugs even though she jumped bail pending trial and was thus tried and convicted in
absentia. The Court in Esparas treated the mandatory review of death sentences under Republic Act No.
7659 as an exception to Section 8 of Rule 124. 10

The mischief in the RTC's treatment of petitioner's non-appearance at his arraignment in Criminal Case
No. 82366 as proof of his loss of standing becomes more evident when one considers the Rules of
Court's treatment of a defendant who absents himself from post-arraignment hearings. Under Section
21, Rule 114 11 of the Revised Rules of Criminal Procedure, the defendant's absence merely renders his
bondsman potentially liable on its bond (subject to cancellation should the bondsman fail to produce
the accused within 30 days); the defendant retains his standing and, should he fail to surrender, will be
tried in absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the
bondsman to produce the accused underscores the fact that mere non-appearance does not ipso facto
convert the accused's status to that of a fugitive without standing. EScAHT

Further, the RTC's observation that petitioner provided "no explanation why he failed to attend the
scheduled proceeding" 12 at the MeTC is belied by the records. Days before the arraignment, petitioner
sought the suspension of the MeTC's proceedings in Criminal Case No. 82366 in light of his petition with
the RTC in S.C.A. No. 2803. Following the MeTC's refusal to defer arraignment (the order for which was
released days after the MeTC ordered petitioner's arrest), petitioner sought reconsideration. His motion
remained unresolved as of the filing of this petition.

Petitioner's Conviction in Criminal Case No. 82367 Bars his Prosecution in Criminal Case No. 82366
ACaDTH
The accused's negative constitutional right not to be "twice put in jeopardy of punishment for the same
offense" 13 protects him from, among others, post-conviction prosecution for the same offense, with
the prior verdict rendered by a court of competent jurisdiction upon a valid information. 14 It is not
disputed that petitioner's conviction in Criminal Case No. 82367 was rendered by a court of competent
jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal Case No. 82366
and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the affirmative view,
submitting that the two cases concern the same offense of reckless imprudence. The MeTC ruled
otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate
offense from Reckless Imprudence Resulting in Homicide and Damage to Property "as the [latter]
requires proof of an additional fact which the other does not." 15

We find for petitioner. ITSCED

Reckless Imprudence is a Single Crime,

its Consequences on Persons and

Property are Material Only to Determine

the Penalty

The two charges against petitioner, arising from the same facts, were prosecuted under the same
provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasi-
offenses. The text of the provision reads: CcSTHI

Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which,
had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period; if it would have constituted a less grave
felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would
have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods;
if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period
shall be imposed. cdrep

When the execution of the act covered by this article shall have only resulted in damage to the property
of another, the offender shall be punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less than twenty-five pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple
imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a
light felony. ACIESH
In the imposition of these penalties, the court shall exercise their sound discretion, without regard to
the rules prescribed in Article sixty-four.

The provisions contained in this article shall not be applicable: ISDCaT

1. When the penalty provided for the offense is equal to or lower than those provided in the first
two paragraphs of this article, in which case the court shall impose the penalty next lower in degree
than that which should be imposed in the period which they may deem proper to apply.

2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a
person shall be caused, in which case the defendant shall be punished by prision correccional in its
medium and maximum periods. ESTDcC

Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which
material damage results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest. ASTDCH

The penalty next higher in degree to those provided for in this article shall be imposed upon the
offender who fails to lend on the spot to the injured parties such help as may be in this hand to give.

Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties
attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a modified
penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial
courts in imposing penalties (paragraph 5); and (4) the definition of "reckless imprudence" and "simple
imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental attitude or condition
behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible," 16
unlike willful offenses which punish the intentional criminal act. These structural and conceptual
features of quasi-offenses set them apart from the mass of intentional crimes under the first 13 Titles of
Book II of the Revised Penal Code, as amended. DAEICc

Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime,
separately defined and penalized under the framework of our penal laws, is nothing new. As early as the
middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v. Justice
of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself but simply a
way of committing it . . ." 17 on three points of analysis: (1) the object of punishment in quasi-crimes (as
opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct offenses (as
opposed to subsuming them under the mitigating circumstance of minimal intent) and; (3) the different
penalty structures for quasi-crimes and intentional crimes:

The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a
crime in itself but simply a way of committing it and merely determines a lower degree of criminal
liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be
committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal
negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately from
willful offenses. It is not a mere question of classification or terminology. In intentional crimes, the act
itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or
condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible.
. . . ACHEaI

Were criminal negligence but a modality in the commission of felonies, operating only to reduce the
penally therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack
of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would
require that the corresponding penalty should be fixed in proportion to the penalty prescribed for each
crime when committed willfully. For each penalty for the willfull offense, there would then be a
corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the
penalty for reckless imprudence at arresto mayor maximum, to prision correccional [medium], if the
willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all
the way from prision mayor to death, according to the case. It can be seen that the actual penalty for
criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class,
or series, of crimes. 18 (Emphasis supplied)

This explains why the technically correct way to allege quasi-crimes is to state that their commission
results in damage, either to person or property. 19 CEcaTH

Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for "Damage
to Property through Reckless Imprudence," its jurisdiction being limited to trying charges for Malicious
Mischief, an intentional crime conceptually incompatible with the element of imprudence obtaining in
quasi-crimes.

Quizon, rooted in Spanish law 20 (the normative ancestry of our present day penal code) and since
repeatedly reiterated, 21 stands on solid conceptual foundation. The contrary doctrinal pronouncement
in People v. Faller 22 that "[r]eckless impudence is not a crime in itself . . . [but] simply a way of
committing it . . . ," 23 has long been abandoned when the Court en banc promulgated Quizon in 1955
nearly two decades after the Court decided Faller in 1939. Quizon rejected Faller's conceptualization of
quasi-crimes by holding that quasi-crimes under Article 365 are distinct species of crimes and not merely
methods of committing crimes. Faller found expression in post-Quizon jurisprudence 24 only by dint of
lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules defining Article
365 crimes and the complexing of intentional crimes under Article 48 of the Revised Penal Code which,
as will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian
conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy
Clause to quasi-offenses, barring second prosecutions for a quasi-offense alleging one resulting act after
a prior conviction or acquittal of a quasi-offense alleging another resulting act but arising from the same
reckless act or omission upon which the second prosecution was based. caADSE
Prior Conviction or Acquittal of

Reckless Imprudence Bars

Subsequent Prosecution for the Same

Quasi-Offense

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not
merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded
this Court's unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with
People v. Diaz, 25 decided in 1954. There, a full Court, speaking through Mr. Justice Montemayor,
ordered the dismissal of a case for "damage to property thru reckless imprudence" because a prior case
against the same accused for "reckless driving," arising from the same act upon which the first
prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was
brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars
subsequent prosecution for the same quasi-offense, regardless of the consequences alleged for both
charges, the Court unfailingly and consistently answered in the affirmative in People v. Belga 26
(promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v. Lutero 27 (promulgated in 1959,
unreported, per Concepcion, J.), People v. Narvas 28 (promulgated in 1960 by the Court en banc, per
Bengzon J.), People v. Silva 29 (promulgated in 1962 by the Court en banc, per Paredes, J.), People v.
Macabuhay 30 (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v. Buan 31
(promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C.J.), Buerano v. Court of Appeals 32
(promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of Manila 33
(promulgated in 1983 by the First Division, per Relova, J.). These cases uniformly barred the second
prosecutions as constitutionally impermissible under the Double Jeopardy Clause. CSHcDT

The reason for this consistent stance of extending the constitutional protection under the Double
Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in
barring a subsequent prosecution for "serious physical injuries and damage to property thru reckless
imprudence" because of the accused's prior acquittal of "slight physical injuries thru reckless
imprudence," with both charges grounded on the same act, the Court explained: 34

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi
offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law
penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is
only taken into account to determine the penalty, it does not qualify the substance of the offense. And,
as the careless act is single, whether the injurious result should affect one person or several persons, the
offense (criminal negligence) remains one and the same, and can not be split into different crimes and
prosecutions. 35 . . . (Emphasis supplied) SCaITA
Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion
the reasoning of Quizon.

There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding
Diaz by more than a decade, El Pueblo de Filipinas v. Estipona, 36 decided by the pre-war colonial Court
in November 1940, allowed the subsequent prosecution of an accused for reckless imprudence resulting
in damage to property despite his previous conviction for multiple physical injuries arising from the
same reckless operation of a motor vehicle upon which the second prosecution was based. Estipona's
inconsistency with the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At any rate,
all doubts on this matter were laid to rest in 1982 in Buerano. 37 There, we reviewed the Court of
Appeals' conviction of an accused for "damage to property for reckless imprudence" despite his prior
conviction for "slight and less serious physical injuries thru reckless imprudence," arising from the same
act upon which the second charge was based. The Court of Appeals had relied on Estipona. We reversed
on the strength of Buan: 38 cdasia2005

Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People
vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383
(March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that —

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless
imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi
offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law
penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is
only taken into account to determine the penalty, it does not qualify the substance of the offense. And,
as the careless act is single, whether the injurious result should affect one person or several persons, the
offense (criminal negligence) remains one and the same, and can not be split into different crimes and
prosecutions. acEHSI

xxx xxx xxx

. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of
Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his
being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance
of the province, where both charges are derived from the consequences of one and the same vehicular
accident, because the second accusation places the appellant in second jeopardy for the same offense.
39 (Emphasis supplied)

Thus, for all intents and purposes, Buerano had effectively overruled Estipona. aHcACT

It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined
causes with the accused, a fact which did not escape the Court's attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969
(page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner's plea of
double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal Case No.
05123-CR finding petitioner guilty of damage to property through reckless imprudence should be set
aside, without costs." He stressed that "if double jeopardy exists where the reckless act resulted into
homicide and physical injuries, then the same consequence must perforce follow where the same
reckless act caused merely damage to property-not death-and physical injuries. Verily, the value of a
human life lost as a result of a vehicular collision cannot be equated with any amount of damages
caused to a motors vehicle arising from the same mishap." 40 (Emphasis supplied) SDaHEc

Hence, we find merit in petitioner's submission that the lower courts erred in refusing to extend in his
favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence
could not be tailored to petitioner's case than People v. Silva, 41 a Diaz progeny. There, the accused,
who was also involved in a vehicular collision, was charged in two separate Informations with "Slight
Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru Reckless
Imprudence." Following his acquittal of the former, the accused sought the quashal of the latter,
invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on reconsideration,
found merit in the accused's claim and dismissed the second case. In affirming the trial court, we quoted
with approval its analysis of the issue following Diaz and its progeny People v. Belga: 42

On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case,
holding: —

[T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in
People v. Belga, . . . In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the
Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising
from a collision between the two automobiles driven by them (Crim. Case No. 88). Without the
aforesaid complaint having been dismissed or otherwise disposed of, two other criminal complaints
were filed in the same justice of the peace court, in connection with the same collision one for damage
to property through reckless imprudence (Crim. Case No. 95) signed by the owner of one of the vehicles
involved in the collision, and another for multiple physical injuries through reckless imprudence (Crim.
Case No. 96) signed by the passengers injured in the accident. Both of these two complaints were filed
against Jose Belga only. After trial, both defendants were acquitted of the charge against them in Crim.
Case No. 88. Following his acquittal, Jose Belga moved to quash the complaint for multiple physical
injuries through reckless imprudence filed against him by the injured passengers, contending that the
case was just a duplication of the one filed by the Chief of Police wherein he had just been acquitted.
The motion to quash was denied and after trial Jose Belga was convicted, whereupon he appealed to the
Court of First Instance of Albay. In the meantime, the case for damage to property through reckless
imprudence filed by one of the owners of the vehicles involved in the collision had been remanded to
the Court of First Instance of Albay after Jose Belga had waived the second stage of the preliminary
investigation. After such remand, the Provincial Fiscal filed in the Court of First Instance two
informations against Jose Belga, one for physical injuries through reckless imprudence, and another for
damage to property through reckless imprudence. Both cases were dismissed by the Court of First
Instance, upon motion of the defendant Jose Belga who alleged double jeopardy in a motion to quash.
On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court in the following
language: AaIDHS

The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of
police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to
property through reckless imprudence.

In the case of Peo[ple] v. F. Diaz, G.R. No. L-6518, prom. March 30, 1954, the accused was charged in the
municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for
having driven an automobile in a 'fast and reckless manner . . . thereby causing an accident.' After the
accused had pleaded not guilty the case was dismissed in that court 'for failure of the Government to
prosecute'. But some time thereafter the city attorney filed an information in the Court of First Instance
of Rizal, charging the same accused with damage to property thru reckless imprudence. The amount of
the damage was alleged to be P249.50. Pleading double jeopardy, the accused filed a motion, and on
appeal by the Government we affirmed the ruling. Among other things we there said through Mr.
Justice Montemayor — THADEI

The next question to determine is the relation between the first offense of violation of the Motor
Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to property
thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of double
jeopardy is whether or not the second offense charged necessarily includes or is necessarily included in
the offense charged in the former complaint or information (Rule 113, Sec. 9). Another test is whether
the evidence which proves one would prove the other that is to say whether the facts alleged in the first
charge if proven, would have been sufficient to support the second charge and vice versa; or whether
one crime is an ingredient of the other. . . .

xxx xxx xxx

The foregoing language of the Supreme Court also disposes of the contention of the prosecuting
attorney that the charge for slight physical injuries through reckless imprudence could not have been
joined with the charge for homicide with serious physical injuries through reckless imprudence in this
case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecution's
contention might be true. But neither was the prosecution obliged to first prosecute the accused for
slight physical injuries through reckless imprudence before pressing the more serious charge of
homicide with serious physical injuries through reckless imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which
acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more
serious charge of homicide with serious physical injuries through reckless imprudence which arose out
of the same alleged reckless imprudence of which the defendant have been previously cleared by the
inferior court. 43 TEaADS

Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for the
purpose of delimiting or clarifying its application." 44 We declined the invitation, thus:
The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double
jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru
Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits that the facts of
the case at bar, fall squarely on the ruling of the Belga case . . ., upon which the order of dismissal of the
lower court was anchored. The Solicitor General, however, urges a re-examination of said ruling, upon
certain considerations for the purpose of delimiting or clarifying its application. We find, nevertheless,
that further elucidation or disquisition on the ruling in the Belga case, the facts of which are analogous
or similar to those in the present case, will yield no practical advantage to the government. On one
hand, there is nothing which would warrant a delimitation or clarification of the applicability of the
Belga case. It was clear. On the other, this Court has reiterated the views expressed in the Belga case, in
the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959. 45 (Emphasis supplied) DIHETS

Article 48 Does not Apply to Acts Penalized

Under Article 365 of the Revised Penal Code

The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from
persistent but awkward attempts to harmonize conceptually incompatible substantive and procedural
rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and Article 48 on
complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing
single prosecution of multiple felonies falling under either of two categories: (1) when a single act
constitutes two or more grave or less grave felonies (thus excluding from its operation light felonies); 46
and (2) when an offense is a necessary means for committing the other. The legislature crafted this
procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the
maximum of the penalty for the most serious crime. CSTHca

In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental
attitude . . . behind the act, the dangerous recklessness, lack of care or foresight . . .," 47 a single mental
attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime
resulting in one or more consequences.

Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single
prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code,
when proper; Article 365 governs the prosecution of imprudent acts and their consequences. However,
the complexities of human interaction can produce a hybrid quasi-offense not falling under either
models — that of a single criminal negligence resulting in multiple non-crime damages to persons and
property with varying penalties corresponding to light, less grave or grave offenses. The ensuing
prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should Article 48's
framework apply to "complex" the single quasi-offense with its multiple (non-criminal) consequences
(excluding those amounting to light offenses which will be tried separately)? Or should the prosecution
proceed under a single charge, collectively alleging all the consequences of the single quasi-crime, to be
penalized separately following the scheme of penalties under Article 365? IDTSaC
Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of
double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple consequences 48
unless one consequence amounts to a light felony, in which case charges were split by grouping, on the
one hand, resulting acts amounting to grave or less grave felonies and filing the charge with the second
level courts and, on the other hand, resulting acts amounting to light felonies and filing the charge with
the first level courts. 49 Expectedly, this is the approach the MeTC impliedly sanctioned (and respondent
Ponce invokes), even though under Republic Act No. 7691, 50 the MeTC has now exclusive original
jurisdiction to impose the most serious penalty under Article 365 which is prision correccional in its
medium period.

Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized
under Article 365 involves only resulting acts penalized as grave or less grave felonies because there will
be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one of the resulting
acts is penalized as a light offense and the other acts are penalized as grave or less grave offenses, in
which case Article 48 is not deemed to apply and the act penalized as a light offense is tried separately
from the resulting acts penalized as grave or less grave offenses. HDIATS

The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of
the quasi-crime collectively alleged in one charge, regardless of their number or severity, 51 penalizing
each consequence separately. Thus, in Angeles v. Jose, 52 we interpreted paragraph three of Article 365,
in relation to a charge alleging "reckless imprudence resulting in damage to property and less serious
physical injuries," as follows:

[T]he third paragraph of said article, . . . reads as follows: SCADIT

When the execution of the act covered by this article shall have only resulted in damage to the property
of another, the offender shall be punished by a fine ranging from an amount equal to the value of said
damage to three times such value, but which shall in no case be less than 25 pesos.

The above-quoted provision simply means that if there is only damage to property the amount fixed
therein shall be imposed, but if there are also physical injuries there should be an additional penalty for
the latter. The information cannot be split into two; one for the physical injuries, and another for the
damage to property, . . . . 53 (Emphasis supplied) CAcIES

By "additional penalty," the Court meant, logically, the penalty scheme under Article 365.

Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing
one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime by breaking
its resulting acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime,
abandon its present framing under Article 365, discard its conception under the Quizon and Diaz lines of
cases, and treat the multiple consequences of a quasi-crime as separate intentional felonies defined
under Titles 1-13, Book II under the penal code; or (2) we forbid the application of Article 48 in the
prosecution and sentencing of quasi-crimes, require single prosecution of all the resulting acts
regardless of their number and severity, separately penalize each as provided in Article 365, and thus
maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated in Quizon and
applied to double jeopardy adjudication in the Diaz line of cases. TaCIDS

A becoming regard of this Court's place in our scheme of government denying it the power to make laws
constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies
under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is
conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave
or less grave felonies; or (2) an offense which is a necessary means for committing another. This is why,
way back in 1968 in Buan, we rejected the Solicitor General's argument that double jeopardy does not
bar a second prosecution for slight physical injuries through reckless imprudence allegedly because the
charge for that offense could not be joined with the other charge for serious physical injuries through
reckless imprudence following Article 48 of the Revised Penal Code:

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless
imprudence could not be joined with the accusation for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less
grave felonies. This same argument was considered and rejected by this Court in the case of People vs.
[Silva] . . .: SEAHcT

[T]he prosecution's contention might be true. But neither was the prosecution obliged to first prosecute
the accused for slight physical injuries through reckless imprudence before pressing the more serious
charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted
the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which
acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more
serious charge of homicide with serious physical injuries through reckless imprudence which arose out
of the same alleged reckless imprudence of which the defendant has been previously cleared by the
inferior court.

[W]e must perforce rule that the exoneration of this appellant . . . by the Justice of the Peace . . . of the
charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious
physical injuries through reckless imprudence in the Court of First Instance of the province, where both
charges are derived from the consequences of one and the same vehicular accident, because the second
accusation places the appellant in second jeopardy for the same offense. 54 (Emphasis supplied)
CDTHSI

Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article
365, irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally
impermissible second prosecutions are avoided, not to mention that scarce state resources are
conserved and diverted to proper use.

Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of
the number or severity of the consequences. In imposing penalties, the judge will do no more than apply
the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no
splitting of charges under Article 365, and only one information shall be filed in the same first level
court. 55 aAEHCI

Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection
of their constitutional right under the Double Jeopardy Clause. True, they are thereby denied the
beneficent effect of the favorable sentencing formula under Article 48, but any disadvantage thus
caused is more than compensated by the certainty of non-prosecution for quasi-crime effects qualifying
as "light offenses" (or, as here, for the more serious consequence prosecuted belatedly). If it is so
minded, Congress can re-craft Article 365 by extending to quasi-crimes the sentencing formula of Article
48 so that only the most severe penalty shall be imposed under a single prosecution of all resulting acts,
whether penalized as grave, less grave or light offenses. This will still keep intact the distinct concept of
quasi-offenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting crimes
occupying a lower rung of culpability, should cushion the effect of this ruling. CaDSHE

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006 of
the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in Criminal Case No.
82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City,
Branch 71 on the ground of double jeopardy.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of
Representatives. TcCDIS

SO ORDERED.

Carpio Morales, * Peralta, Abad and Mendoza, JJ., concur.

[G.R. No. L-1477. January 18, 1950.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIO GUILLEN, defendant-appellant.

Mariano A. Albert for appellant.

Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee.

SYLLABUS

1. CRIMINAL LAW; MEDICAL JURISPRUDENCE; INSANITY AS A DEFENSE. — The accused, a man of

strong will and convictions, is not insane but suffers from a personality defect called Constitutional
Psychopathic Inferiority, characterized by a weakness of censorship specially in relation to
rationalization about the consequences of his acts.

2. CRIMINAL LAW; COMPLEX CRIME OF MURDER AND MULTIPLE ATTEMPTED MURDER;

OFFENDED PARTIES OTHER THAN INTENDED VICTIM; ACT WITH INTENTION TO KILL; CRIMINAL LIABILITY.
— In throwing a hand grenade at the President with the intention of killing him, the appellant acted with
malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with article
4 of the Revised Penal Code, criminal liability incurred by any person committing a felony (delito)
although the wrongful act done be different from that which he intended to do.

3. ID.; ID.; ID.; QUALIFYING CIRCUMSTANCE OF TREACHERY PROPERLY CONSIDERED. — The

qualifying circumstance of treachery may properly be considered, even when the victim of the attack
was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the
two persons could in any manner put up a defense against the attack, or became aware of it.

4. ID.; ID.; ID.; QUALIFYING CIRCUMSTANCE OF PREMEDITATION MAY NOT PROPERLY BE TAKEN
INTO ACCOUNT. — The qualifying circumstance of premeditation may not properly be taken into
account when the victim of the attack was not the one whom the defendant intended to kill.

5. ID.; ID.; AGGRAVATING CIRCUMSTANCES NEED NOT BE CONSIDERED. — In meting out the
penalty for the complex crime of murder and multiple attempted murder, aggravating circumstances
need not be considered in view of article 48 of the Revised Penal Code, which provides that the
prescribed penalty shall be imposed in its maximum period.

6. ID.; ID.; DEATH PENALTY, DUTY OF THE COURT TO APPLY. — Under the facts and circumstances
proved in this case, it is the painful duty of the court to apply the law and mete out to the accused the
extreme penalty of death provided by article 248 of the Revised Penal Code.

7. ID.; CRIMINAL NEGLIGENCE, WHAT CONSTITUTES. — In criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another act performed without malice.

DECISION

PER CURIAM, p:
This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of
First Instance of Manila in case No. 2764, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found
guilty beyond reasonable doubt of the crime of murder and multiple frustrated murder, as charged in
the information, and is sentenced to the penalty of death, to indemnify the heirs of the deceased
Simeon Varela (or Barrela) in the sum f P2,000 and to pay the costs.

Upon arraignment the accused entered a plea of not guilty to the charges contained in the information.

Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by
the Honorable Buenaventura Ocampo who, after the submission of the evidence of the prosecution and
the defense, rendered judgment as above stated.

In this connection it should be stated that, at the begin- ing of the trial and before arraignment, counsel
de oficio for the accused moved that the mental condition of Guillen be examined. The court,
notwithstanding that it had found out from the answers of the accused to questions propounded to him
in order to test the soundness of his mind, that he was not suffering from any mental derangement,
ordered that Julio Guillen be confined for a period of about 8 days in the government Psychopathic
Hospital, there to be examined by medical experts who should report their findings accordingly. This
was done, and, according to the report of the board of medical experts, presided over by Dr. Fernandez
of the National Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the
heading "Formulation and Diagnosis," at pages 13 and 14, reads:

"FORMULATION AND DIAGNOSIS

"Julio C. Guillen was placed under constant observation since admissions There was not a single moment
during his whole 2 hours daily, that he was not under observation.

"The motive behind the commission of the crime is stated above. The veracity of this motivation was
determined in the Narco-synthesis That the narco-synthesis was successful was checked up the day after
the test. The narco-synthesis proved not only that Julio C. Guillen was telling us the truth, but also did
not reveal any conflict or complex that may explain a delusional or hallucinatory motive behind the act.

"Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen.
He was found to be intelligents always able to differentiate right from wrong, fully aware of the nature
of the crime he committed and is equally decided to suffer for it in any manner or form.

"His version of the circumstances of the crime, his conduct and conversation relative thereto, the
motives, temptations and provocations that preceded the act, were all those of an individual with a
sound mind.

"On the other hand he is a man of strong will and conviction and once arriving at a decision he executes,
irrespective of consequences and as in this case, the commission of the act at Plaza Miranda.

"What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This
is seen not only in the present instance, but sometime when an employee in La Clementina Cigar Factory
he engaged in a boxing bout Mr. Monzano, a Spaniard, one of the managers of the factory because Mr.
Monzano wanted to abuse the women cigar makers, and felt it his duty to defend them. One time he
ran after a policeman with a knife in hand after being provoked to a fight several times. He even
challenged Congressman Nueno to a fight sometime before when Mr. Nueno was running for a seat in
the Municipal Board of the City of Manila, after hearing him deliver one of his apparently outspoken
speeches.

"All these mean a defect in his personality characterized by a weakness of censorship especially in
relation to rationalization about the consequences of his acts "In view of the above findings it is our
considered opinion that Julio C. Guillen is not insane but is an individual with a personality defect which
in Psychiatry is termed, Constitutional Psychopathic Inferiority.

"Final Diagnosis

"Not insane: Constitutional Psychopathic Inferiority, without psychosis."

In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of
one Dr. Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that
Guillen, not being insane, could be tried, as he was tried, for the offenses he committed on the date in
question.

THE FACTS

Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor
General and their respective memoranda, we find that there is no disagreement between the
prosecution and the defense, as to the essential facts which caused the filing of the present criminal
case against this accused. Those facts may be stated as follows:

On the dates mentioned in this decision, Julio Guillen y Corpus, although not affiliated with any
particular political group, had voted for the defeated candidate in the presidential elections held in
1946. Manuel A. Roxas, the successful candidate, assumed the office of President of the Commonwealth
and subsequently President of the Philippine Republic. According to Guillen, he became disappointed in
President Roxas for his alleged failure to redeem the pledges and fulfill the promises made by him
during the presidential election campaign; and his disappointment was aggravated when, according to
him, President Roxas, instead of looking after the interest of his country, sponsored and campaigned for
the approval of the so-called "parity" measure. Hence he determined to assassinate the President.

After he had pondered for some time over the ways and means of assassinating President Roxas, the
opportunity presented itself on the night of March 10, 1947, when at a popular meeting held by the
Liberal Party at Plaza de Miranda, Quiapo, Manila, attended by a big crowd, President Roxas,
accompanied by his wife and daughter and surrounded by a number of ladies and gentlemen prominent
in government and politics, stood on a platform erected for that purpose and delivered his speech
expounding and trying to convince his thousands of listeners of the advantages to be gained by the
Philippines, should the constitutional amendment granting American citizens the same rights granted to
Filipino nationals be adopted.

Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said
firearm, which was duly licensed, he thought of two hand grenades which were given him by an
American soldier in the early days of the liberation of Manila in exchange for two bottles of whisky. He
had likewise been weighing the chances of killing President Roxas, either by going to Malacañang, or
following his intended victim in the latter's trips to the provinces, for instance, to Tayabas (now Quezon)
where the President was scheduled to speak, but having encountered many difficulties, he decided to
carry out his plan at the pro-parity meeting held at Plaza de Miranda on the night of March 10, 1947.

On the morning of that date he went to the house of Amado Hernandez whom he requested to prepare
for him a document (Exhibit B), in accordance with their previous understanding in the preceding
afternoon, when they met at the premises of the Manila Jockey Club on the occasion of an "anti-parity"
meeting held there. On account of its materiality in this case, we deem it proper to quote hereunder the
contents of said document. An English translation (Exhibit B-2) from its original in Tagalog reads:

"FOR THE SAKE OF A FREE PHILIPPINES

"I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by
myself alone. It took me many days and nights pondering over this act, talking to my own conscience, to
my God, until I reached my conclusion. It was my duty.

"I did not expect to live long; I only had one life to spare. And had I expected to live much longer, had I
had several lives to spare, I would not have hesitated either to sacrifice it for the sake of a principle
which was the welfare of the people.

"Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and
there are millions now suffering. Their deeds bore no fruits; their hopes were frustrated.

"I was told by my conscience and by my God that there was a man to be blamed for all this: he had
deceived the people, he had astounded them with too many promises with no other purpose than to
entice them; he even went to the extent of risking the heritage of our future generations. For these
reasons he should not continue any longer. His life would mean nothing as compared with the welfare
of eighteen million souls. And why should I not give up my life too if only for the good of those eighteen
million soul.

"These are the reasons which impelled me to do what I did and I am willing to bear up the consequences
of my act. It matters not if others will curse me. Time and history will show, I am sure, that I have only
displayed a high degree of patriotism in the performance of my said act.

"Hurrah for a free Philippines.

"Cheers for the happiness of every Filipino home.

"May God pity on me.

"Amen.

"JULIO C. GUILLEN"

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew,
was handed to him only at about 6 o'clock in the afternoon of March 10, 1947, for which reason said
Exhibit B-1 appears unsigned, because he was in a hurry for that meeting at Plaza de Miranda.

When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag
which also contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot located
close to the platform, and when he decided to carry out his evil purpose he stood on the chair on which
he had been sitting and, from a distance of about seven meters, he hurled the grenade at the President
when the latter had just closed his speech, was being congratulated by Ambassador Romulo and was
about to leave the platform.

General Castañeda, who was on the platform, saw the smoking, hissing, grenade and, without losing his
presence of mind, kicked it away from the platform, along the stairway, and towards an open space
where the general thought the grenade was likely to do the least. harm; and, covering the President
with his body, shouted to the crowd that everybody should lie down. The grenade fell to the ground and
exploded in the middle of a group of persons who were standing close to the platform. Confusion
ensued, and the crowd dispersed in a panic. It was found that the fragments of the grenade had
seriously injured Simeon Varela (or Barrela) — who died on the following day as a result of mortal
wounds caused by the fragments of the grenade (Exhibits and F-1) — Alfredo Eva, Jose Fabio, Pedro
Carrillo and Emilio Maglalang.

Guillen was arrested by members of the Police Department about two hours after the occurrence. It
appears that one Angel Garcia, who was one of the spectators at that meeting, saw how a person who
was standing next to him hurled an object at the platform and, after the explosion, ran away towards a
barber shop located near the platform at Plaza de Miranda. Suspecting that person was the thrower of
the object that exploded Garcia went after him and had almost succeeded in holding him, but Guillen
offered stiff resistance, got loose from Garcia and managed to escape. Garcia pursued him, but some
detectives, mistaking the former for the real criminal and the author of the explosion, placed him under
arrest. In the meantime, while the City Mayor and some agents of the Manila Police Department were
investigating the affair, one Manuel Robles volunteered the information that the person with whom
Angel Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen
for the previous ten years and had seen each other in the plaza a few moments previous to the
explosion.

The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the
occurrence, found in his home at 1724 Juan Luna Street, Manila, brought to the police headquarters and
identified by Angel Garcia, as the same person who hurled towards the platform the object which
exploded and whom Garcia tried to hold when he was running away.
During the investigation conducted by the police he readily admitted his responsibility, although at the
same time he tried to justify his action in throwing the bomb at President Roxas. He also indicated to his
captors the place where he had hidden his so-called last will quoted above and marked Exhibit B, which
was then assigned by him and subsequently signed at the police headquarters.

Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the
other hand grenade (Exhibit D), and, in the presence of witnesses he signed a statement which
contained his answers to questions propounded to him by Major A. Quintos of the Manila Police, who
investigated him soon after his arrest (Exhibit E). From a perusal of his voluntary statement, we are
satisfied that it tallies exactly with the declarations made by him on the witness stand during the trial of
this case.

THE ISSUES

In brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly
committed the trial court, namely: first, "in finding the appellant guilty of murder for the death of
Simeon Varela"; second, declaring the appellant guilty of the complex crime murder and multiple
frustrated murder"; third,' in applying sub-section 1 of article 49 of the Revised Penal Code in
determining the penalty to be imposed upon the accused"; and fourth, "in considering the concurrence
of the aggravating circumstances of nocturnity and of contempt of public authorities in the commission
of the crime."

The evidence for the prosecution, supported by the brazen statements made by the accused, shows
beyond any shadow of doubt that, when Guillen attended that meeting, carrying with him two hand
grenades, to put into execution his preconceived plan to assassinate President Roxas, he knew fully well
that, by throwing one of those two hand grenades in his possession at President Roxas, and causing it to
explode, he could not prevent the persons who were around his main and intended victim from being
killed or at least injured, due to the highly explosive nature of the bomb employed by him to carry out
his evil purpose.

Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of
transcript) supports our conclusion. He stated that he performed the act voluntarily; that his purpose
was to kill the President, but that it did not make any difference to him if there were some people
around the President when he hurled that bomb, because the killing of those who surrounded the
President was tantamount to kill ing the President, in view of the fact that those persons, being loyal to
the President, were identified with the latter. In other words, although it was not his main intention to
kill the persons surrounding the President, he felt no compunction in killing them also in order to attain
his main purpose of killing the President.

The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide
through reckless imprudence in regard to the death of Simeon Varela and of less serious physical injuries
in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be
sentenced to the corresponding penalties for the different felonies committed, the sum total of which
shall not exceed three times the penalty to be imposed for the most serious crime in accordance with
article 70 in relation to article 74 of the Revised Penal Code.

In throwing hand grenade at the President with the intention of killing him, the appellant acted with
malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with article
4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony (delito)
although the wrongful act done be different from that which he intended. In criminal negligence, the
injury caused to another should be unintentional, it being simply the incident of another act performed
without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be
qualified as imprudence it is necessary that neither malice nor intention to cause injury should
intervene; where such intention exists, the act should be qualified by the felony it has produced even
though it may not have been the intention of the actor to cause an evil of such gravity as that
produced." (Viada's Comments on the Penal Code, vol. 7, 5th ed., p. 7.) And, as was held by this court, a
deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence.
(People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a mistake in the identity of
the intended victim cannot be considered as reckless imprudence. (People vs. Gona, 54 Phil., 605.)

The case of People vs. Mabug-at, 51 Phil., 967, cited by counsel for appellant does not support his
contention. In that case the defendant, with intent to kill his sweetheart, fired a shot from his revolver
which hit not the intended victim but the latter's niece, who was seriously wounded. The defendant in
that case contended that he was guilty only of unlawful discharge of firearms with injuries, but this court
held that the act having been committed with intent to kill and with treachery, defendant was guilty of
frustrated murder.

Squarely on the point raised by counsel is the following decision of the Supreme Court of Spain:

"Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose
negado este a darselo al fiado, se retira aquel sin mediar entre ambos disputa alguna; pero, transcurrido
un cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un arma de
fuego disparada por A desde la calle, quedando muertos en el acto C y el estanquero: supuesta la no
intencion en A de matar a C, y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de
C de imprudencia temeraria? — La Sala de lo criminal de la Audiencia de Granada lo estimo asi, y
condeno al procesado a catorce afios de reclusion por el homicidio y a un ano de prision correccional
por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de asesinato y no de
homicidio, por haberse ejecutado con alevosia, es evidente que la muerte de C, suponiendo que no se
propusiera Keiecutarla el procesado, no pudo calificarse de imprudencia temeraria, sino que tambien
debio declararse le responsable de la misma,a tenor de lo dispuesto en este apartado ultimo del
articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un solo disparo, debio
imponerse al reo la pena del delito de asesinato en el grado maximo, a tenor de lo dispuesto en el art.
90 del Codigo, o sea la pena de muerte. Se ve, pues, claramente que en la antedicha sentencia, aparte
de otros articulos del Codigos se infringio por la Sala la disposicion de este apartado ultimo del articulo
muy principalmente, y asi lo declars el Tribunal Supremo en S. de 18 de junio de 1872. (Gaceta de 1.º de
agosto.)" (I Viada. 5th Ed., p. 42.)
Article 48 of the Revised Penal Code provides as fol lows:

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

We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case
before us is clearly governed by the first clause of article 48 because by a single act, that of throwing a
highly explosive hand grenade at President Roxas, the accused committed two grave felonies, namely:
(1) murder, of which Simeon Varela was the victim; and (2) multiple attempted murder, of which
President Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the injured parties.

The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of
People vs. Mabug-at, supra, this court held that the qualifying circumstance of treachery may be
properly considered, even when the victim of the attack was not the one whom the defendant intended
to kill, if it appears from the evidence that neither of the two persons could in any manner put up
defense against the attack, or become aware of it. In the same case it was held that the qualifying
circumstance of premeditation may not be properly taken into account when the person whom the
defendant proposed to kill was different from the one who became his victim.

There can be no question that the accused attempted to kill President Roxas by throwing a hand
grenade at him with the intention to kill him, thereby commencing the commission of a felony by overt
acts, but he did not succeed in assassinating him "by reason of some cause or accidents other than his
own spontaneous desistance." For the same reason we qualify the injuries caused on the four other
persons already named as merely attempted and not frustrated murder.

In this connection, it should be stated that, although there is abundant proof that, in violation of the
provisions of article 148 of the Revised Penal Code, the accused Guillen has committed among others
the offense of assault upon a person in authority, for in fact his efforts were directed towards the
execution of his main purpose of eliminating President Roxas for his failure to redeem his electoral
campaign promises, by throwing at him in his official capacity as the Chief Executive of the nation the
hand grenade in question, yet, in view of the failure of the prosecution to insert in the information the
appropriate allegation charging Guillen with the commission of said offense, we shall refrain from
making a finding to that effect.

The complex crimes of murder and multiple attempted murder committed by the accused with the
single act of throwing a hand grenade at the President, was attended by the various aggravating
circumstances alleged in the informations without any mitigating circumstance. But ue do not deem it
necessary to consider said aggravating circumstances because in any event article 48 of the Revised
Penal Code above-quoted requires that the penalty for the most serious of said crimes be applied in its
maximum period. The penalty for murder is reclusion temporal in its maximum period to death. (Art.
248.) It is our painful duty to apply the law and mete out to the accused the extreme penalty provided
by it upon the facts and circumstances hereinabove narrated.
The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do
so by a unanimous vote. The death sentence shall be executed in accordance with article 81 of the
Revised Penal Code, under authority of the Director of Prisons, on such working day as the trial court
may fix within 30 days from the date the record shall have been remanded. It is so ordered.

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

Moran, C.J., Mr. Justice F. R. Feria voted for the affirmance of the judgment of the lower court, but, on
account of his absence at the time of the promulgation of this opinion, his signature does not appear
herein.
[G.R. No. 123485. August 31, 1998.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLUSAPE SABALONES alias "Roling," ARTEMIO
TIMOTEO BERONGA, TEODULO ALEGARBES and EUFEMIO CABANERO, accused, ROLUSAPE SABALONES
alias "Roling" and ARTEMIO TIMOTEO BERONGA, accused-appellants.

Solicitor General for plaintiff-appellee.

Jesus Pono and Pedro Albino for accused-appellants.

SYNOPSIS

Accused-appellants were convicted of two counts of murder and three counts of frustrated murder. The
convictions arose from a shooting incident on June 1, 1985 in Talisay, Cebu, which resulted in the killing
of two persons and the wounding of three others, who were all riding in two vehicles which were
allegedly ambushed by appellants. On appeal to the Court of Appeals, the convictions of appellants were
affirmed and they were sentenced to reclusion perpetua for each count of murder and an indeterminate
penalty for each count of frustrated murder. Accordingly, the case was certified to the Supreme Court.
cISDHE

The Supreme Court ruled that it found nothing in the instant case to justify a reversal or modification of
the findings of the trial court and the Court of Appeals. The prosecution has presented the required
quantum of proof to establish that appellants are indeed guilty as charged.

The Court also upheld the Court of Appeals' modification of the penalty for murder. Under Art. 50 of the
Revised Penal Code, the penalty for a frustrated felony is the "next lower in degree than that prescribed
by law for the consummated felony . . . ." The imposable penalty for frustrated murder, therefore, is
prision mayor in its maximum period to reclusion temporal in its medium period. Because there are no
aggravating or mitigating circumstances, the penalty prescribed by law should be imposed in its medium
period. With the application of the Indeterminate Sentence Law, the penalty for frustrated murder
should be 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum. The trial court correctly ordered the payment of P50,000.00 as
indemnity to the heirs of each of the two murdered victims. This amount is awarded without need of
proof other than the fact of the victim's death. For the victims of frustrated murder, they are entitled
only to the amounts of actual expenses duly proven during the trial. ESaITA

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; FINDINGS OF TRIAL COURT AFFIRMED BY

THE COURT OF APPEALS, RESPECTED. — This Court will not interfere with the trial court's assessment of
the credibility of the witnesses, absent any indication or showing that the trial court has overlooked
some material facts or gravely abused its discretion, especially where, as in this case, such assessment is
affirmed by the Court of Appeals. The matter of assigning values to declarations at the witness stand is
best and most competently performed or carried out by a trial judge who, unlike appellate magistrates,
can weigh such testimony in light of the accused's behavior, demeanor, conduct and attitude at the trial.
Factual findings of the lower courts, the trial court and the Court of Appeals are, as a general rule,
binding and conclusive upon the Supreme Court. We find nothing in the instant case to justify a reversal
or modification of the findings of the trial court and the Court of Appeals that appellants committed two
counts of murder and three counts of frustrated murder. SaAcHE

2. ID.; ID.; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT, ESTABLISHED. —
Edwin Santos, a survivor of the assault, positively pointed to and identified the appellants as the authors
of the crime. Rogelio Presores, another survivor, also pointed to appellants as the perpetrators of the
crime. Indeed, we have carefully waded through the voluminous records of this case and the
testimonies of all the fifty-nine witnesses, and we find that the prosecution has presented the required
quantum of proof to establish that appellants are indeed guilty as charged. Appellants' arguments fail to
rebut this conclusion. DEHaTC

3. ID.; ID.; WITNESSES; CREDIBILITY; ABILITY TO IDENTIFY APPELLANTS, UPHELD. — The witnesses
were able to see and identify the appellants, having had a good look at them after the initial burst of
shots. We stress that the normal reaction of a person is to direct his sights towards the source of a
startling shout or occurrence. As held in People v. Dolar, "the most natural reaction for victims of
criminal violence is to strive to see the looks and faces of their assailants and to observe the manner in
which the crime is committed." And even assuming arguendo that the lampposts were not functioning
at the time, the headlights of the jeep and the car were more than sufficient to illuminate the crime
scene. The Court has previously held that the light from the stars or the moon, an oven, or a wick lamp
or gasera can give ample illumination to enable a person to identify or recognize another. In the same
vein, the headlights of a car or a jeep are sufficient to enable eyewitnesses to identify appellants at the
distance of 4 to 10 meters.

4. ID.; ID.; EXTRAJUDICIAL STATEMENT; ALLEGED VIOLATION IRRELEVANT TO CONVICTION WHERE

IT IS NOT THE BASIS THEREFOR. — Appellants were convicted based primarily on the positive
identification of the two survivors, and not only on the extrajudicial statement, which merely
corroborates the eyewitness testimonies. "Any allegation of violation of rights during custodial
investigation is relevant and material only to cases in which an extrajudicial admission or confession
extracted from the accused becomes the basis of their conviction." In any case, we sustain that the
extrajudicial statement of Beronga was executed in compliance with the constitutional requirements.
"Extrajudicial confessions, especially those which are adverse to the declarant's interests are presumed
voluntary, and in the absence of conclusive evidence showing that the declarant's consent in executing
the same has been vitiated, such confession shall be upheld. cEaCTS

5. ID.; ID.; RULES OF ADMISSIBILITY; TESTIMONIAL EVIDENCE; ADMISSION BY CONSPIRATOR; RULE

AND EXCEPTION. — The extrajudicial confession of an accused is binding only upon himself and is not
admissible as evidence against his co-accused, it being mere hearsay evidence as far as the other
accused are concerned. But this rule admits of exception. It does not apply when the confession, as in
this case, is used as circumstantial evidence to show the probability of participation of the co-accused in
the killing of the victims or when the confession of the co-accused is corroborated by other evidence.
6. ID.; ID.; WITNESSES; CREDIBILITY; NOT AFFECTED BY ALLEGED INCONSISTENCIES. — Appellants
also allege that the prosecution account had inconsistencies relating to the number of shots heard, the
interval between gunshots and the victims' positions when they were killed. These, however, are minor
and inconsequential flaws which strengthen, rather than impair, the credibility of said eyewitnesses.
Such harmless errors are indicative of truth, not falsehood, and do not cast serious doubt on the veracity
and reliability of complainant's testimony.

7. ID.; ID.; RELIANCE ON THE CONCEPT OF ABERRATIO ICTUS DOES NOT DETRACT FROM THE
FINDINGS OF GUILT OF APPELLANTS. — The trial court relied on the concept of aberratio ictus to explain
why the appellants staged the ambush, not to prove that appellants did in fact commit the crimes.
Assuming that the trial court did err in explaining the motive of the appellants, this does not detract
from its findings, that the guilt of the appellants was proven beyond reasonable doubt. The fact that
appellants were mistaken does not diminish their culpability. The Court has held that "mistake in the
identity of the victim carries the same gravity as when the accused zeroes in on his intended victim."
aCcADT

8. ID.; ID.; ALIBI; PHYSICAL IMPOSSIBILITY TO BE PRESENT AT THE PLACE AT THE TIME OF THE
OFFENSE, NOT ESTABLISHED. — The established doctrine requires the accused to prove not only that he
was at some other place at the time of the commission of the crime, but that it was physically
impossible for him at the time to have been present at the locus criminis or its immediate vicinity. This
the appellants miserably failed to do. Furthermore, the defense of alibi cannot overcome the positive
identification of the appellants. DaScHC

9. ID.; ID.; FLIGHT; INDICATIVE OF GUILT. — Sabalones on his supposedly borrowed freedom,
jumped bail and hid himself deeper into Mindanao, under a cloak of an assumed name. It is well-
established that "the flight of an accused is competent evidence to indicate his guilt, and flight, when
unexplained, is a circumstance from which an inference of guilt may be drawn." It must be stressed,
nonetheless, that appellants were not convicted based on legal inference alone but on the
overwhelming evidence presented against them.

10. CRIMINAL LAW; MURDER; QUALIFYING CIRCUMSTANCES; TREACHERY; APPRECIATED. —

Accused-appellants are guilty of murder for the deaths of Tiempo and Nardo. The allegation of treachery
as charged in the Information was duly proven by the prosecution. "Treachery is committed when two
conditions concur, namely, that the means, methods, and forms of execution employed gave the person
attacked no opportunity to defend himself or to retaliate; and that such means, methods and forms of
execution were deliberately and consciously adopted by the accused without danger to his person."
These requisites were evidently present when the accused, swiftly and unexpectedly, fired at the victims
who were inside their vehicles and were in no position and without any means to defend themselves.
DAaEIc

11. ID.; ID.; PROPER PENALTY. — Under Article 248 of the Revised Penal Code, the imposable
penalty is reclusion temporal, in its maximum period, to death. There being no aggravating or mitigating
circumstance, aside from the qualifying circumstance of treachery, the appellate court correctly
imposed reclusion perpetua for murder.

12. ID.; FRUSTRATED MURDER; APPRECIATED. — The appellate court also correctly convicted
appellants of frustrated murder for the injuries sustained by Tiempo, Bolo and Presores. The wounds
sustained by these survivors would have caused their death had it not been for the timely medical
intervention. Hence, we sustain the ruling that appellants are guilty of three counts of frustrated
murder.

13. ID.; ID.; PROPER PENALTY. — Under Article 50 of the Revised Penal Code, the penalty for a
frustrated felony is the "next lower in degree than that prescribed by law for the consummated felony . .
. ." The imposable penalty for frustrated murder, therefore, is prision mayor in its maximum period to
reclusion temporal in its medium period. Because there are no aggravating or mitigating circumstance as
the Court of Appeals itself held, the penalty prescribed by law should be imposed in its medium period.
With the application of the Indeterminate Sentence Law, the penalty for frustrated murder should be 8
years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal
(minimum) as maximum. IEHaSc

DECISION

PANGANIBAN, J p:

Factual findings of trial courts which are affirmed by the Court of Appeals are, as a general rule, binding
and conclusive upon the Supreme Court. Alibi, on the other hand, cannot prevail over positive
identification by credible witnesses. Furthermore, alleged violations of constitutional rights during
custodial investigation are relevant only when the conviction of the accused by the trial court is based
on the evidence obtained during such investigation. Cdpr

The Case

These are the principles relied upon by the Court in resolving this appeal from the Court of Appeals (CA)
1 Decision 2 dated September 28, 1995, convicting Rolusape Sabalones and Timoteo Beronga of murder
and frustrated murder. The convictions arose from a shooting incident on June 1, 1985 in Talisay, Cebu,
which resulted in the killing of two persons and the wounding of three others, who were all riding in two
vehicles which were allegedly ambushed by appellants.

After conducting a preliminary investigation, Second Assistant Provincial Prosecutor Juanito M. Gabiana
Sr. filed before the Regional Trial Court (RTC) of Cebu City, Branch 7, 3 five amended Informations
charging four "John Does," who were later identified as Rolusape Sabalones, Artemio Timoteo Beronga,
Teodulo Alegarbes and Eufemio Cabanero, with two counts of murder and three counts of frustrated
murder. The Informations are quoted hereunder

1) Crim Case No. CBU-9257 for murder:

"That on the 1st day of June, 1985; at 11:45 o'clock in the evening, more or less, at Mansueto Village,
Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot GLENN TIEMPO, who was riding [i]n a jeep
and who gave no provocation, thereby inflicting upon the latter several gunshot wounds, thereby
causing his instantaneous death.

"CONTRARY TO Article 248 of the Revised Penal Code."

2) Criminal Case No. 9258 for murder:

"That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less at Mansueto Village,
Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery, did [then] and there
wilfully, unlawfully and feloniously attack, assault and shoot ALFREDO NARDO, who was riding on a jeep
and who gave no provocation, thereby inflicting upon the latter several gunshot wounds, thereby
causing his instantaneous death.

"CONTRARY TO Article 248 of the Revised Penal Code."

3) Crim Case No. CBU-9259 for frustrated murder:

"That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less, at Mansueto Village,
Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot REY BOLO who was riding in a car and who
gave no provocation, thereby inflicting upon the latter the following injuries to wit:

laceration, mouth due to gunshot wound, gunshot wound (L) shoulder penetrating (L) chest; gunshot
wound (R) hand (palm); open fracture (L) clavicle (L) scapula; contusion (L) lung;

thereby performing all the acts of execution which would produce the crime of [m]urder as a
consequence but which, nevertheless, did not produce it by reason of causes independent of the will of
the perpetrator, i.e. the timely medical attendance.

"IN VIOLATION of Article 248 of the Revised Penal Code."

4) Criminal Case No. 9260 for frustrated murder:

"That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less, at Mansueto Village,
Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot ROGELIO PRESORES, who was riding in a car
and who gave no provocation, thereby inflicting upon the latter the following injuries, to wit:

gunshot wound, thru and thru right chest

thereby performing all the acts of execution which would produce the crime of [m]urder as a
consequence but which, nevertheless, did not produce it by reason of causes independent of the will of
the perpetrator, i.e. the timely medical attendance.

"IN VIOLATION of Article 248 of the Revised Penal Code."

5) Criminal Case No. 9261 for frustrated murder:

"That on the 1st day of June, 1985 at 11:45 o'clock in the evening, more or less, at Mansueto Village,
Barangay Bulacao, Municipality of Talisay, Province of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused conspiring, confederating and mutually helping one
another, armed with high-powered firearms, with intent to kill and treachery, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot NELSON TIEMPO, who was riding in a car
and who gave no provocation, thereby inflicting upon the latter the following injuries, to wit:

"Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby performing all the acts
of execution which would produce the crime of [m]urder as a consequence but which nevertheless, did
not produce it by reason of causes independent of the will of the perpetrator, i.e. the timely medical
attendance.

"IN VIOLATION of Article 248 of the Revised Penal Code."

Of the four indictees in the five Informations, Teodulo Alegarbes and Artemio Timoteo Beronga were
the first to be arraigned. Upon the arrest of the two, the Informations were amended by the public
prosecutor, with the conformity of the defense counsel, by substituting the names of the two accused
for the "John Does" appearing in the original Informations. When arraigned, said accused, assisted by
their respective lawyers, pleaded not guilty to the five Informations.

Alegarbes died in the course of trial; thus, the cases against him were dismissed. Accused Cabanero
remained at large. Sabalones, on the other hand, was eventually arrested. Subsequently, he jumped bail
but was recaptured in 1988 and thereafter pleaded not guilty during his arraignment.

The cases against Sabalones and Beronga were jointly tried. Thereafter, the lower court found them
guilty beyond reasonable doubt of the crimes charged. The RTC disposed as follows:

"WHEREFORE, premises above-set forth, the Court finds accused ROLUSAPE SABALONES and (ARTEMIO)
TIMOTEO BERONGA, [g]uilty beyond reasonable doubt, as principals:

"In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art. 248 of the Revised Penal Code,
hereby sentences each said accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and
[o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1) day, of [r]eclusion
[t]emporal, as maximum, to indemnify the heirs of deceased, Glenn Tiempo, the sum of P50,000.00;

"In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art. 248 of the Revised Penal Code,
hereby sentences each said accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and
[o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1) day, of [r]eclusion
[t]emporal, as maximum, to indemnify the heirs of deceased, Alfredo Nardo, the sum of P50,000.00;

"In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to
Art. 50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months of [re]clusion
[t]emporal, as maximum, to indemnify the victim, Rey Bolo, the sum of P20,000.00;

"In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to
Art. 50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight months of [r]eclusion
[t]emporal, as maximum, to indemnify the victim, Rogelio Presores, the sum of P20,000.00;

"In Crim. Case no. CBU-9261, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to
Art. 50 of the Revised Penal Code, hereby sentences each said accused to suffer the penalty of [e]ight (8)
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months of [r]eclusion
[t]emporal, as maximum, to indemnify the victim, Nelson Tiempo, the sum of P20,000.00; and

"To pay the costs in all instances. The period of their preventive imprisonment shall be credited to each
accused in full.

"SO ORDERED." 4

Appellants filed a notice of appeal to the Court of Appeals. Thereafter, the CA affirmed their conviction
but sentenced them to reclusion perpetua for the murders they were found guilty of. Accordingly, the
appellate court, without entering judgment, certified the case to the Supreme Court in accordance with
Section 13, Rule 124 of the Rules of Court. The dispositive portion of the CA Decision reads:

"WHEREFORE, the Decision of the trial court convicting accused-appellants Rolusa[p]e Sabalones and
Artemio Timoteo Beronga for murder in Crim. Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated
[m]urder in Crim. Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is hereby AFFIRMED; however, the
penalties in the [f]rustrated [m]urder and [m]urder cases are hereby MODIFIED, such that both accused-
appellants are each sentenced to imprisonment of TEN (10) YEARS of [p]rision [m]ayor medium as
minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of [r]eclusion [t]emporal medium as
maximum in each of the three [f]rustrated [m]urder cases (Crim. Cases Nos. CBU-9259, CBU-9260 and
CBU-9261); and are each sentenced to [r]eclusion [p]erpetua in each of the two [m]urder cases (Crim.
Cases Nos. CBU-9257 and CBU-9258). The indemnity to the victim in each [f]rustrated [m]urder case
shall remain. In conformity with Rule 124, Section 13 of the Rules of Court, however, this Court refrains
from entering judgment, and hereby certifies the case and orders that the entire record hereof be
elevated to the Supreme Court for review." 5

After the Court of Appeals certified the case to this Court, we required appellants to file supplemental
briefs. Appellants failed to comply within the prescribed period and were deemed to have waived their
right to do so. 6 Thus, in resolving this case, this Court will address primarily the arguments raised by the
appellants in their Brief before the Court of Appeals, which assailed the RTC Decision.

The Facts

Version of the Prosecution

The solicitor general 7 quoted the following factual findings of the trial court:

"Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1, 1985 at 6:00 o'clock in the
evening, he was at the residence of Inday Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu
City to attend a wedding. He stayed until 9:00 o'clock in the evening and proceeded to the house of Maj.
Tiempo at Basak, Mambaling, Cebu City where a small gathering was also taking place. (pp. 3-6, tsn,
April 7, 1987)

"Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio Presores, Rogelio Oliveros, Junior
Villoria, Rey Bolo and Alfredo Nardo. (p. 7, ibid.)

"At about 11:00 o'clock in the evening, Stephen Lim, who was also at the party, called their group and
requested them to push his car. When the engine started, the former asked them to drive his car home.
(pp. 7-11, ibid.)

"Together with Nelson Tiempo, who was at the wheel, Rogelio Presores, Rogelio Oliveros and Junior
Villoria, they drove to the residence of Stephen Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p.
12, ibid.)

"Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in an owner-type jeep, driven by
the latter, in order to bring back the group [as] soon as the car of Mr. Lim was parked in his home. (p.
21, ibid.)

"The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of the car. When they arrived at
the gate of the house of Stephen Lim, they were met with a sudden burst of gunfire. He looked at the
direction where the gunfire came, and saw [the] persons [who] fired at the jeep. He identified accused,
Teodulo Alegarbes, Rolusape Sabalones and Timoteo Beronga as the persons who fired at the vehicle.
Except for Teodulo Alegarbes, who was naked from [the] waist up, the gunmen wore clothes. (pp. 21-23;
13-16; 33, ibid.)

"After firing at the jeep, the assailants shot the car they were riding[,] hitting Nelson Tiempo on the
throat and Rogelio Presores on the breast. Despite the injury he sustained, Nelson Tiempo was able to
maneuver the car back to their residence. (pp. 17-19, ibid.)
"He immediately informed Maj. Tiempo about the incident and the lat[t]er brought the victims to the
Cebu Doctor's Hospital. (p. 20, ibid.)

"Rogelio Presores corroborated in substance the testimony of Edwin Santos, being one of those who
were in the car driven by Nelson Tiempo to the residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)

"He further testified that when the jeep driven by Alfredo Nardo with Rey Bolo and Glenn Tiempo as
passengers arrived at the front gate of Lim's residence and while their car was 3 meters from the rear
end of the jeep, there was a volley of gunfire. He glanced at the direction of the gunfire and saw the
jeep being fired at by four persons, who were standing behind a concrete wall, 42 inches in height, and
armed with long firearms. Thenceforth, he saw Alfredo Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the
ground. (pp. 6-7, ibid.)

"He recognized accused, Rolusape Sabalones, as one of those who fired at the jeep. He also identified in
Court accused, Teodulo Alegarbes, Timoteo Beronga and another person, whom he recognized only
through his facial appearance. (pp. 7-8, ibid.)

"When the shots were directed [at] their car[,] they were able to bend their heads low. When the firing
stopped, he directed Nelson Tiempo to back out from the place. As the latter was maneuvering the car,
the shooting continued and he was hit in the breast while Nelson Tiempo, in the neck, and the
windshield of the vehicle was shattered. (p. 10, ibid.)

"Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctor's Hospital. He and Nelson
Tiempo were operated on. He had incurred hospital expenses in the sum of P5,412.69, (Exh. 'I', 'K'). (pp.
11-12, ibid.)

"Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory, Regional Unit 7 stationed at
Camp Sotero Cabahug, Cebu City remembered having performed a post-mortem examination on the
dead body of Glenn Tiempo on June 2, 1985 at the Cosmopolitan Funeral Homes, Cebu City. (p. 7, tsn,
Nov. 11, 1987)

"He issued the necessary Death Certificate, (Exh. 'D') and Necropsy Report, (Exh. 'F') and indicated
therein that the victim's cause of death was '[c]ardio respiratory arrest due to [s]hock and [h]emorrhage
[s]econdary to [g]unshot wounds to the trunk.' (p. 8, ibid.)

"The victim sustained gunshot wounds in the right chest and left lumbar area. (pp. 10-11, ibid.)

"He explained that in gunshot wound no. 1, the wound entrance[,] which [was] characterized by
invaginated edges and contusion collar[,] was located in the right chest and the bullet went up to the
left clavicle hitting a bone which incompletely fractured it causing the navigation of the bullet to the left
and to the anterior side of the body. He recovered a slug, (Exh. 'G') below the muscles of the left clavicle.
(p. 21, ibid.)

"Based on the trajectory of the bullet, the assailant could have been [o]n the right side of the victim or in
front of the victim but [o]n a lower level than the latter.
"In both gunshot wounds, he did not find any powder burns which would indicate that the muzzle of the
gun was beyond a distance of 12 inches from the target. (p. 15, ibid.)

"At the time he conducted the autopsy, he noted that rigor mortis in its early stage had already set in
which denote[s] that death had occurred 5 to 6 hours earlier. (pp. 34-5, ibid.)

"Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo, testified that when he learned
about the incident in question, he immediately summoned military soldiers and together they
proceeded to the scene. (pp. 4-6, tsn, Nov. 12, 1988)

"Arriving thereat, he saw the lifeless body of his son, Glenn. He immediately carried him in his arms and
rushed him to the hospital but the victim was pronounced Dead on Arrival. (pp. 6-7, ibid.)

"They buried his son, who was then barely 14 years old, at Cebu Memorial Park and had incurred funeral
expenses (Exhs. 'K', 'L', 'O'). (pp. 7-8, ibid.)

"His other son, Nelson, then 21 years old and a graduate of [m]edical [t]echnology, was admitted at the
Cebu Doctor's Hospital for gunshot wound in the neck. The latter survived but could hardly talk as a
result of the injuries he sustained. He had incurred medical and hospitalization expenses in the sum of
P21,594.22, (Exh. 'H'), (pp. 8-10, ibid.)

"He had also incurred expenses in connection with the hospitalization of the injured victims, Rogelio
Presores and Rey Bolo in the amount[s] of P5,412.69, (exh. 'I') and P9,431.10, (Exh. 'J'), respectively. (p.
11, ibid.)

"He further stated that he [was] familiar with the accused; Roling Sabalones, because the latter had a
criminal record in their office in connection with the kidnapping of a certain Zabate and Macaraya. (p.
16, ibid.)

xxx xxx xxx

"Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu Metrodiscom, had conducted an
autopsy on the dead body of Alfredo Nardo, who sustained two (2) gunshot wounds in the lower lip and
left intraclavicular region, upon the request of the [c]hief of the Homicide Section of Cebu Metrodiscom.
He issued the victim's Necropsy Report, (Exh. 'F') and Death Certificate, (Exh. 'G'). (pp. 5-8, tsn, Dec. 4,
1987; pp. 4-6, tsn, Nov. 29, 1988) cdphil

"He stated that the wound of entrance in gunshot wound no. 1 was located in the lower lip, more or
less[,] on the left side making an exit in the left mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8,
tsn, Nov. 29, 1988)

"In gunshot wound no. 2, the wound of entrance was in the left intraclavicular region exiting at the back
as reflected in the sketch, (Exh. 'F-2'). This wound was fatal and [could] almost cause an instantaneous
death considering that the bullet penetrated the thoracic cavity, lacerating the lungs and perforating the
heart before making an exit. (pp. 11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988)
"He found no tattooing around the wound of entrance in both gunshot wounds. (pp. 8-9, tsn, Nov. 29,
1988)

"He prepared and issued th[e] Necropsy Report, (Exh. 'F') and Death Certificate, (Exh. 'G') of Alfredo
Nardo who was identified to him by the latter's daughter, Anita Nardo. (pp. 26-27, ibid.)

"Rey Bolo, one of the victims, testified that when the jeep he was riding [in] together with Glenn Tiempo
and Alfredo Nardo, reached the gate of the residence of Stephen Lim, they were suddenly fired upon.
(pp. 5-8, tsn, March 6, 1989)

"He was hit in the right palm and left cheek. He jumped out of the vehicle and ran towards the car which
was behind them but he was again shot at [,] [and hit] in the left scapular region. He was still able to
reach the road despite the injuries he sustained and tried to ask help from the people who were in the
vicinity but nobody dared to help him, [they] simply disappeared from the scene, instead: (pp. 8-9, ibid.)

"He took a passenger jeepney to the city and had himself treated at the Cebu Doctor's Hospital, and
incurred medical expenses in the sum of P9,000.00. (p. 9, ibid.)

"He was issued a Medical Certificate, (Exh. 'N') by his attending physician.

"Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended [to] the victims, Nelson Tiempo,
Rey Bolo and Rogelio Presores at the Cebu Doctor's Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May
30, 1989)

"Nelson Tiempo sustained gunshot wound[s] in the neck and in the right chest but the bullet did not
penetrate the chest cavity but only the left axilla. He was not able to recover any slugs because the same
disintegrated while the other was thru and thru. The wound could have proved fatal but the victim
miraculously survived. As a consequence of the injury he sustained, Nelson Tiempo permanently lost his
voice because his trachea was shattered. His only chance of recovery is by coaching and speech therapy.
He issued his Medical Certificate. (Exh. 'O'). (pp. 8-11, ibid.)

"With regard to the patient, Rey Bolo, the latter suffered multiple gunshot wounds in the left shoulder
penetrating the chest and fracturing the 2nd, 3rd, and 4th ribs in the process, in the right hand
fracturing the proximal right thumb and in the mouth lacerating its soft tissues, per Medical Certificate,
(Exh. 'N') which he issued. (pp. 11-16, ibid.)

"Based on the trajectory of the bullet, the gunman could have been in front of the victim, when gunshot
would no. 1 was inflicted. (p. 30, ibid.)

"With respect to the patient, Rogelio Presores, the latter suffered [a] gunshot wound in the chest with
the wound of entrance in the right anterior chest exiting at the back which was slightly lower than the
wound of entrance. He issued the victim's Medical Certificate, (Exh. 'M'). (pp. 34-35, ibid.)

"Based on the location of the wound, the gunman could have been in front of the victim but [o]n a
slightly higher elevation than the latter. (pp. 35-36, ibid.)" 8
Version of the Defense

Appellants interposed denial and alibi. Their version of the facts is summarized by the trial court 9 thus:

". . . Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in the afternoon of June 1, 1985,
he was in the Talisay Sports Complex located at Tabunok, Talisay, Cebu to attend a cock-derby.

"At about 7:00 o'clock in the evening, he was fetched by his wife and they left taking a taxicab going to
their residence in Lapulapu City. After passing by the market place, they took a tricycle and arrived
home, at 8:00 o'clock in the evening.

"After taking his supper with his family, he went home to sleep at 10:30 in the evening. The following
morning, after preparing breakfast, he went back to sleep until 11:00 in the morning.

"On February 24, 1987, while he was playing mahjong at the corner of R.R. Landon and D. Jakosalem
Sts., Cebu City, complainant, Maj. Juan Tiempo with some companions, arrived and after knowing that
he [was] "Timmy," [which was] his nickname, the former immediately held him by the neck.

"He ran away but the latter chased him and kicked the door of the house where he hid. He was able to
escape through the back door and took refuge in Mandaue at the residence of Nito Seno, a driver of
Gen. Emilio Narcissi.(Tsn-Abangan, pp. 4-17, October 19, 1989)

"On February 27, 1987, upon the advi[c]e of his friend, they approached Gen. Narcissi and informed him
of the incident. The latter brought him to the Provincial Command Headquarters in Lahug, Cebu City to
confront Maj. Juan Tiempo.

"After several days, he was brought by Maj. Tiempo to the PC Headquarter[s] in Jones Ave., Cebu City
where he was provided with a lawyer to defend him but he was instructed that he should assent to
whatever his lawyer would ask of him.

"He was introduced to Atty. Marcelo Guinto, his lawyer, who made him sign an Affidavit, (Exh. "U") the
contents of which, co[u]ched in the dialect, were read to him.

"He also testified that before he was detained at the CPDRC, complainant brought him inside the shop of
a certain Den Ong, where he was again mauled after he denied having any knowledge of the
whereabouts of Roling Sabalones and the carbine.

"At the instance of Col. Medija, he was physically examined at the Southern Islands Hospital, Cebu City
and was issued a [M]edical Certificate. (Tsn-Formentera, pp. 3-36, Jan. 18, 1990).

"Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company (VECO) South Extension Office,
who is in charge of the billing, disconnection and reconnection of electric current, testified that based on
the entries in their logbook, (Exh. "3") made by their checker, Remigio Villaver, the electrical supply at
the Mansueto Compound, Bulacao, Talisay, Cebu, particularly the Mansueto Homeowners covered by
Account No. 465-293000-0, (Exh. "4-B") was disconnected on January 10, 1985, (Exh. "3-A") for non-
payment of electric bills from March 1984 to January 1985 and was reconnected only on June 17, 1985
(Exh. "4", "4-A"). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).

"Remigio Villaver, a checker of VECO, whose area of responsibility cover[ed] the towns of Talisay and
San Fernando, Cebu had kept the record of disconnection of electrical supply of Mansueto Subdivision in
Bulacao, Talisay, Cebu and the same showed that on January 10, 1985, (Exh. "3-A"), a service order was
issued by their office to the Mansueto Homeowners for the permanent disconnection of their electric
lights due to non-payment of their electric bills from March 1984 until January 1985. The actual
disconnection took place on December 29, 1984.

"Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-Formentera, pp. 3-5, Apr. 20,
1990).

"Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu since 1957 until the present,
remembered that on June 1, 1985, between 10:00 o'clock and 11:00 o'clock in the evening, he heard a
burst of gunfire about 15 to 20 armslength [sic] from his residence.

"He did not bother to verify because he was scared since the whole place was in total darkness. (Tsn-
Abangan, pp. 18-23, Feb. 22, 1990).

"Marilyn Boc, another witness for the accused, stated that on the date and time of the incident in
question, while she was at the wake of Junior Sabalones, younger brother of Roling Sabalones, who died
on May 26, 1985, a sudden burst of gunfire occurred more or less 60 meters away.

"Frightened, she went inside a room to hide and saw accused, Roling Sabalones, sound asleep.

"She came to know accused, Timoteo Beronga, only during one of the hearings of this case and during
the entire period that the body of the late Junior Sabalones [lay] in state at his residence, she never saw
said accused.

"She was requested to testify in this case by Thelma Beronga, wife of Timoteo Beronga. (Tsn-Abangan,
pp. 9-13, February 28, 1990).

"Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern Islands Hospital, Cebu City had
treated the patient, Timoteo Beronga on March 18, 1987.

"Upon examination, he found out that the patient sustained linear abrasion, linear laceration and
hematoma in the different parts of the body. Except for the linear laceration which he believed to have
been inflicted two or three days prior to [the] date of examination, all the other injuries were already
healed indicating that the same were inflicted 10 to 12 days earlier.

"He issued the corresponding Medical Certificate (Exh. "2") to the patient. (Tsn-Abangan, pp. 9-13, May
21, 1990).

"Atty. Jesus Pono, counsel for accused Beronga, mounted the witness stand and averred that he [was] a
resident of Mansueto Compound, Bulacao, Talisay, Cebu. As shown in the pictures, (Exhs. "3", "4" & "5"
with submarkings) his house is enclosed by a concrete fence about 5 feet 6 inches tall. It is situated 6
meters from the residence of accused, Roling Sabalones, which was then being rented by Stephen Lim.
Outside the fence [are] shrubs and at the left side is a lamp post provided with 200 watts fluorescent
bulb.

"On June 1, 1985 at about 7:00 o'clock in the evening, he saw Roling Sabalones, whom he personally
[knew] because they used to be neighbors in Talisay, Cebu, at the wake of his brother, Federico
Sabalones, Jr. or Junior Sabalones, as mentioned repeatedly hereabout. They even had a talk and he
noticed accused to be physically indisposed being gravely affected by the loss of his only brother, who
met a violent death in the hands of an unknown hitman on May 26, 1985.

"He went home after he saw accused [lie] down on a bamboo bench to rest.

"At about 12:00 o'clock midnight, he was awakened by a rapid burst of gunfire which emanated near his
house. He did not attempt to go down or look outside. He [was] in no position to tell whether or not the
street light was lighted.

"When he verified the following morning, he noticed bloodstains on the ground as well as inside the
jeep which was parked 2 to 3 meters from his fence and 50 to 70 meters from the house where Junior
Sabalones [lay] in state. He observed that the jeep was riddled with bullets and its windshield shattered.
(Tsn-Abangan, pp. 3-16, June 6, 1990).

"He admitted that he used to be a counsel of accused, Roling Sabalones, in several cases, among which
involved the death of a certain Garces and Macaraya, which cases were however, dismissed by the
Office of the Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).

"Doroteo Ejares, a relative of accused, testified that when he attended the wake of Junior Sabalones on
June 1, 1985 at 8:00 o'clock in the evening; he saw accused lying on a bamboo bench in the yard of the
house of the deceased.

"At past 10:00 o'clock in the evening, accused excused himself as he was not feeling well and entered a
room to rest while he remained by the door and slept.

"At almost 12:00 o'clock midnight, he was awakened by a burst of gunfire which took place more or less
20 meters away and saw the people scamper[ing] for safety. He hid inside the room where accused was
sleeping and peeped thru the door. Not long after, Marilyn Boc entered and in a low voice talked about
the incident.

"They decided to wake up the accused to inform him of what was happening, but the latter merely
opened his eyes and realizing that accused was too weak, they allowed him to go back to sleep.

"When he went home at past 5:00 o'clock in the morning of June 2, 1985, he saw a jeep outside of the
compound. He did not bother to investigate or inquire about the incident as he was in a hurry to go
home and prepare for the burial of Junior Sabalones.
"He was requested to testify in this case by his aunt and mother of accused Rolusape Sabalones. (Tsn-
Tumarao, pp. 10-15, June 13, 1990).

"Russo Sabalones, uncle of accused, Sabalones, averred that the latter was once, one of his undercover
agents while he was then the [c]hief of the Intelligence Service of the PC from 1966 until 1968.

"As part of their intelligence tradition, an undercover agent is not allowed to carry his real name. In the
case of his nephew and accused, Rolusape Sabalones, the latter chose the name "Paciano Laput" which
name was recorded in their code of names.

"When he retired in 1968, the accused ceased to be an agent and . . . likewise ceased to have the
authority to use the name Paciano Laput. (Tsn-Abangan, p. 12, July 23, 1990).

Alfonso Allere, a distant relative of the accused, remembered having received a call from Roling
Sabalones, one morning after the burial of the latter's brother, asking for his advise because of the
threats [to] his life which he received thru telephone from the group of Nabing Velez and the group of
the military.

"After he had advised accused to lie low, he had not heard of him, since then.

"Godofredo Mainegro of the Public Assistance and Complaint Action Office of the Regional Unified
Command 7, received a complaint from one Inocencia Sabalones on March 13, 1986.

"He recorded the complaint in their Complaint Sheet, (Exh. "6") and let complainant affix her signature.

"After the document was subscribed and sworn to before him, (Exh. "6-C"), he indorsed it to their
[c]ommanding [o]fficer, Apolinario Castano. (Tsn-Formentera, pp. 3-10, July 24, 1990).

"Ret. Col. Apolinario Castano, recalled that while he was then with the Regional Unified Command 7, his
niece, Racquel Sabalones together with her husband Roling Sabalones, came to him for advi[c]e because
the latter was afraid of his life brought about by the rampant killings of which his brother and the son of
Maj. Tiempo were victims.

"Considering that accused's problem was a police matter, they approached Gen. Ecarma, the then
[c]ommander of the PC/INP, Recom 7, and the latter referred them to his [c]hief of [s]taff, Col. Roger
Denia, who informed them that there was no case filed against the accused. Nevertheless, the latter was
advised to be careful and consult a lawyer.

"Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that on March 12, 1986 at past
10:00 o'clock in the evening, she was roused from sleep by a shout of a man demanding for Roling
Sabalones.

"Upon hearing the name of her son, she immediately stood up and peeped through the door of her
store and saw men in fatigue uniforms carrying long firearms. Thenceforth, these men boarded a vehicle
and left.
"On the following morning, she was again awakened by the persistent shouts and pushing of the gate.
When she verified, the man who introduced himself to her as Maj. Tiempo, ordered her to open the
gate. Once opened, the men of Maj. Tiempo entered the house and proceeded to search for Roling
Sabalones, whom Maj. Tiempo suspected to have killed his son and shot another to near death. When
she demanded for a search warrant, she was only shown a piece of paper but was not given the chance
to read its contents.

"Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that on June 1, 1985 at 1:00
o'clock in the afternoon, she was at the wake of her brother-in-law, Junior Sabalones, at his residence in
Bulacao, Talisay, Cebu.

"At 11 :00 o'clock in the evening of the same day, together with her 3 daughters as well as Marlyn
Sabarita, Rose Lapasaran and Gloria Mondejar, left the place in order to sleep in an unoccupied
apartment situated 30 meters away from the house where her deceased, brother-in-law, Junior, was
lying in state, as shown in the Sketch, (Exh. "7" and submarkings) prepared by her. They brought with
them a flashlight because the whole place was in total darkness.

"As they were about to enter the gate leading to her apartment she noticed a sedan car coming towards
them. She waited for the car to come nearer as she thought that the same belong[ed] to her friend, but
the vehicle instead stopped at the corner of the road, (Exh. "7-F") and then proceeded to the end
portion of Mansueto Compound, (Exh. "7-G"). As it moved slowly towards the highway, she rushed
inside the apartment.

"Few minutes later, she heard a burst of gunfire outside their gate. She immediately gathered her
children and instructed Marlyn Sabarita to use the phone situated at the third door apartment and call
the police.

"After the lull of gunfire, she went to the terrace and saw people in civilian and in fatigue uniforms with
firearms, gathered around the place. One of these men even asked her about the whereabouts of her
husband, whom she left sleeping in the house of the deceased.

"At 8:30 in the morning of June 2, 1985, during the burial of Junior Sabalones, they were informed by
Pedro Cabanero that Roling Sabalones was a suspect for the death of Nabing Velez and the son of Maj.
Tiempo.

"She believed that the reason why her husband was implicated in the killing of Nabing Velez was
because of the slapping incident involving her father-in-law, Federico Sabalones, Sr. and Nabing Velez
which took place prior to the death of Junior Sabalones.

"After the funeral, she began to receive mysterious calls at their residence in Sikatuna St., Cebu City
where they began staying since 1978. She also noticed cars with tinted windows strangely parked in
front of their residence.
"Frightened and cowed, they decided to seek the advice of Col. Apolinario Castano, who after relating to
him their fears, advised her husband to lie low and to consult a lawyer.

"To allay their apprehension, accused, Roling Sabalones, left Cebu City for Iligan, Manila and other cities
to avoid those who were after him. When she learned about the threat made by Maj. Tiempo on her
husband, she forewarned the latter not to return to Cebu.

"Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated that in the night in question,
she was at the wake of Junior Sabalones and saw her Papa Roling, the herein accused, lying on the lawn
of the house of the deceased.

"She was already in the apartment with her Mama Racquel when she heard a burst of gunfire. Upon
instructions of the latter, she went out to call the police thru the phone located [in] the third apartment
occupied by a certain Jet. (Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).

"Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-Star Daily, while then a
military and police reporter had covered the shooting incident which took place on June 1, 1985 at the
Mansueto Compound, Bulacao, Talisay, Cebu.

"At past 1:00 o'clock dawn, together with their newspaper photographer, Almario Bitang, they went to
the crime scene boarding the vehicle of the Cosmopolitan Funeral Homes. Arriving thereat, they decided
not to proceed inside the compound because of fear. The place was then in complete darkness.

"Upon being informed that the victims were brought to Cebu City Medical Center, they rushed to the
place and met Maj. Tiempo hugging the dead body of his 14-year old son. His photographer took a
picture of that pathetic scene. (Exh. "8-B").

"Samson Sabalones, a retired [a]mbassador and uncle of Rolusape Sabalones, posted a bail bond for his
nephew with Eastern Insurance Company, when a warrant for his arrest was issued by the Municipal
Court, on March 12, 1986 because he was bothered by the fact that the latter was being unreasonably
hunted by several groups. He even advised the accused to appear in [c]ourt to clarify the nature of the
case filed against him.

"Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape Sabalones, who introduced himself
to her as "Paciano Laput" nicknamed, Ondo, in a massage clinic where she was working.

"For less than a year, they lived together as husband and wife without the benefit of marriage because
according to her the accused was married but separated from his wife, whose name was never
mentioned to her. For such a short span of time being together, her love for the accused developed to
the extent that whatever happen[ed] to him, she [would] always be there to defend him. . .

"With the help of Maj. delos Santos, who advised her to always stay close [to] the accused, she was able
to board the same vessel. She saw the latter clad in green T-shirt, (Exh. "14") and pants, handcuffed and
guarded. cda
"Reaching Cebu City, they took a taxicab and as the vehicle went around the city, she was instructed by
Maj. Tiempo to place the towel, (Exh. "15") which she found inside her bag, on the head of the accused.
They stopped at the Reclamation Area and Maj. Tiempo pulled them out of the vehicle but she held on
tightly to Ondo, ripping his shirt. This pulling incident happened for several times but complainant failed
to let them out of the vehicle.

"The accused was finally brought to the Provincial Jail while she stayed in the residence of the accused.
She returned to Butuan after a week. (Tsn-Formentera, pp. 5-33, Jan. 22, 1991).

"Accused, Rolusape Sabalones, alias "Roling", in his defense, with ancillary incidental narrations,
testified, that on June 1, 1985 at 6:00 o'clock in the evening, he was at the wake of his only brother,
Junior Sabalones, who was killed on May 26, 1985.

"He had no idea as to who was responsible for the killing of his brother inasmuch as the latter had
plenty of enemies. He also did not exert effort to look into the case and to place it under police authority
since he had lost faith in the capabilities of the police. The matter was however reported by his uncle,
Ambassador Sabalones, to the authorities.

"He stayed at the wake until 10:00 o'clock in the evening because he was not feeling well. He retired in a
small room adjacent to the sala of the house of the deceased. Not long after, he felt somebody waking
him up but he merely opened his eyes and went back to sleep as he was really exhausted.

"At 6:30 the following morning, he was roused by his wife so he could prepare for the burial. He came to
know about the burst of gunfire which took place the previous night upon the information of his wife.
He did not take the news seriously as he was busy preparing for the burial of his deceased brother, Jun.

"The funeral started at past 8:00 o'clock in the morning and he noticed the presence of Maj. Eddie
Ricardo and his men, who were sent by Col. Castano purposely to provide the burial with military
security, upon the request of his wife.

"He had a conversation with Maj. Ricardo who inquired about the shooting incident which resulted in
the death of the son of Maj. Tiempo and others in his company. Also in the course of their conversation,
he came to know that Nabing Velez was killed earlier on that same night in Labangon, Cebu [C]ity.

"On the same occasion, Pedro Cabanero also notified him that he was a suspect in the killing of Nabing
Velez, a radio commentator of ferocious character, who was engaged in a protection racket with several
under his control.

"He remembered that a month prior to the death of Nabing Velez, his father, Federico Sabalones, Sr.
and the deceased while matching their fighting cocks at the Talisay Sports Complex, had an altercation
and the latter slapped his paralytic father and challenged him to ask one of his sons to avenge what he
had done to him. He came to know about the incident only after a week.
"He did not deny the fact that he was hurt by the actuation of the deceased for humiliating his father
but it did not occur to him to file a case or take any action against the deceased because he was too
busy with his business and with his work as a bet caller in the cockpit.

"He advised his father to stay in Bohol to avoid further trouble because he knew that the latter would
frequent the cockpit[,] being a cockfight aficionado.

"Likewise, during the burial, he was informed by a PC soldier, Roger Capuyan, that he was also a suspect
in the killing of the son of Maj. Tiempo and even advised him to leave the place.

"On the following days after the burial, his wife started to notice cars suspiciously parked in front of
their house and [she] also received mysterious calls.

"Together with his wife, they decided to see Col. Apolinario Castaño to seek his advise. The latter
verified from the Cebu Metrodiscom and learned that there was no case filed against him.

"In the evening of June 6, 1985, he left for Iligan and after a month, he transferred to Ozamis and then
to Pagadian. He likewise went to Manila especially when he learned that his uncle, Samson Sabalones,
had arrived from abroad. The latter posted a bond for his temporary liberty immediately after being
informed that a case was filed against him, before the Municipal Court of Talisay.

"Despite . . . the bond put up by his uncle, he did not return to Cebu City because it came to his
knowledge that Maj. Tiempo inquired from the bonding company as to his address.

He also stayed in Marikina in the house of his friend and during his stay in the said place, he registered
as a voter and was issued a Voter's Affidavit, (Exh. '19'; Exh. 'R' for the prosecution) which bore the
name 'Paciano Mendoza Laput' which [was] his baptismal name. He explained that the name[s]
Mendoza and Laput [were] the middle name and surname, respectively of his mother. The name
'Rolusape' was given to him by his father and the same [was] not his registered name because during
the old days, priests would not allow parents to name their children with names not found in the
Almanac; thus, Paciano [was] his chosen name and the same appeared in his Baptismal Certificate, (Exh.
'20') issued by the Parish of the Blessed Trinity of Talibon, Bohol. In his Birth Certificate, it [was] the
name 'Rolusape' which appeared based upon the data supplied by his father.

"He had used the name Paciano during the time when he [was] still a secret agent under his uncle, Gen.
Russo Sabalones, when the latter was still the [c]hief of the C-2 in 1966 until 1967 and as such, he was
issued a firearm. He likewise used said name at the time he was employed at the Governor's Office in
Agusan and when he registered in the Civil Service Commission to conceal his identity to protect himself
from those who were after him.

"From Marikina he proceeded to Davao and then to Butuan City where he was made to campaign for
the candidacy of Gov. Eddie Rama. When the latter won in the election, he was given a job at the
Provincial Capitol and later became an agent of the PC in Butuan using the name, 'Paciano Laput.'

"During his stay in Butuan, he met Virgie Pajigal, a manicurist who became his live-in partner.
"On October 23, 1988 while he was at the Octagon Cockpit in Butuan with Sgt. Tambok, he was arrested
by Capt. Ochate and was brought to the PC Headquarter[s] in Libertad, Butuan City and was detained.
Among the papers confiscated from him was his Identification Card No. 028-88, (Exh. '21') issued by the
PC Command bearing the name Paciano Laput.

"On October 26, 1988 he was taken from the City Jail by Capt. Ochate and some soldiers, one of whom
was Maj. Tiempo whom he met for the first time.

"On their way to Nasipit to board a vessel bound for Cebu City, Maj. Tiempo made him lie flat on his
belly and stepped on his back and handcuffed him. He cried in pain because of his sprained shoulder. A
certain soldier also took his watch and ring.

"Arriving in Cebu at 7:00 o'clock in the morning, he and Virgie Pajigal, who followed him in the boat,
were made to board a taxicab. Maj. Tiempo alighted in certain place and talked to a certain guy.
Thereafter, they were brought to the Reclamation Area and were forced to go down from the vehicle
but Virgie Pajigal held him tightly. They were again pulled out of the taxi but they resisted.

"From the Capitol Building, they proceeded to CPDRC and on their way thereto, Maj. Tiempo sat beside
him inside the taxi and boxed him on the right cheek below the ear and pulled his cuffed hands apart.

"At the Provincial Jail, he was physically examined by its resident physician, Dr. Dionisio Sadaya, and was
also fingerprinted and photographed, (Exh. '21'). He was issued a Medical Certificate, (Exh. '22).

"He further stated that he [was] acquainted with his co- accused Timoteo Beronga, known to him as
'Timmy' being also a bet caller in the cockpit. (Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan,
pp. 3-33, Feb. 27, 1991; Tsn-Abangan, pp. 4-18, Apr. 10, 1991).

"As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a certain soldier because at
the time he was arrested, his wallet as well as his wristwatch and ring worth P2,000.00 each were
confiscated and his hands tied behind his back.

"He also denied the allegation of Maj. Tiempo that he offered the latter the amount of P1,000,000.00 to
drop the case against him, the truth being that while they were on board a vessel bound for Cebu City,
Maj. Tiempo compelled him to tell [who] the real killers of his son [were] because he knew that he
(Rolusape Sabalones) was not responsible. The former also inquired from him as to the whereabouts of
the carbine.

"He also rebutted complainant's testimony that upon their arrival here in Cebu City and while on board
a taxicab, he directed the former [to] first go around the city to locate a certain Romeo Cabañero, whom
he did not know personally." 10

Ruling of the Court of Appeals

Giving full credence to the evidence of the prosecution, the Court of Appeals affirmed the trial court's
Decision convicting appellants of two counts of murder and three counts of frustrated murder. Like the
trial court, it appreciated the qualifying circumstance of treachery and rejected appellants' defense of
alibi.

The Court of Appeals, however, ruled that the penalties imposed by the trial court were erroneous.
Hence, for each count of murder, it sentenced appellants to reclusion perpetua. For each count of
frustrated murder, it imposed the following penalty: ten years (10) of prision mayor (medium), as
minimum, to seventeen years (17) years and four (4) months of reclusion temporal (medium), as
maximum. Sustaining the trial court, the Court of Appeals awarded indemnity of P20,000 to each of the
victims of frustrated murder. However, it was silent on the indemnity of P50,000 awarded by the trial
court to the heirs of each of the two deceased.

Having imposed reclusion perpetua on the appellants, the Court of Appeals, as earlier noted, refrained
from entering judgment and certified the case to the Supreme Court for review, in conformity with
Section 13, Rule 124 of the Rules of Court.

Hence, this appeal before this Court. 11

The Issues

In his Brief, 12 Appellant Sabalones raised the following errors allegedly committed by the trial court:

"The court a quo erred in finding that accused Sabalones and his friends left the house where his
brother Sabalones Junior was lying in state and "went to their grisly destination amidst the dark and
positioned themselves in defense of his turf against the invasion of a revengeful gang of the supporters
of Nabing Velez.

II

"The court a quo erred in finding that accused Sabalones and his two co-accused were identified as
among the four gunmen who fired at the victims:

III

"The court a quo erred in overlooking or disregarding physical evidence that would have contradicted
the testimony of prosecution witnesses Edwin Santos and Rogelio Presores that the gunmen were
shooting at them from a standing position.

IV

"The court a quo erred in holding that the instant case is 'one of aberratio ictus', which is not a defense,
and that the 'defense of alibi' interposed by the accused may not be considered.

V
"The court a quo erred in not finding that the evidence of the prosecution has not overcome the
constitutional presumption of innocence in favor of the accused.

VI

"The court a quo erred in not acquitting the accused on ground of reasonable doubt,

In a Manifestation dated December 20, 1995, Appellant Beronga, through counsel, adopted as his own
the Brief of Sabalones. 13

The foregoing assignment of errors shall be reformulated by the Court into these three issues or topics.
(1) credibility of the witnesses and sufficiency of the prosecution evidence, (2) defense of denial and
alibi, and (3) characterization of the crimes committed and the penalty therefor.

The Court's Ruling

The appeal is devoid of merit.

First Issue:

Credibility of witnesses and Sufficiency of Evidence

Well-entrenched is the tenet that this Court will not interfere with the trial court's assessment of the
credibility of the witnesses, absent any indication or showing that the trial court has overlooked some
material facts or gravely abused its discretion, 14 especially where, as in this case, such assessment is
affirmed by the Court of Appeals. "As this Court has reiterated often enough, the matter of assigning
values to declarations at the witness stand is best and most competently performed or carried out by a
trial judge who, unlike appellate magistrates, can weigh such testimony in light of the accused's
behavior, demeanor, conduct and attitude at the trial." 15 Giving credence to the testimonies of the
prosecution witnesses, the trial court concluded:

"Stripped of unnecessary verbiage, this Court, given the evidence, finds that there is more realism in the
conclusion based on a keener and realistic appraisal of events, circumstances and evidentiary facts on
record, that the gun slaying and violent deaths of Glenn Tiempo and Alfredo Nardo, and the near fatal
injuries of Nelson Tiempo, Rey Bolo and Rogelio Presores, resulted from the felonious and wanton acts
of the herein accused for mistaking said victims for the persons [who were] objects of their wrath." 16

We stress that "factual findings of the lower courts, the trial court and the Court of Appeals are, as a
general rule, binding and conclusive upon the Supreme Court." 17 We find nothing in the instant case to
justify a reversal or modification of the findings of the trial court and the Court of Appeals that
appellants committed two counts of murder and three counts of frustrated murder.

Edwin Santos, a survivor of the assault, positively pointed to and identified the appellants as the authors
of the crime. His categorical and straightforward testimony is quoted hereunder: 18

"COURT:
Q You stated there was a gun fired. What happened next?

WITNESS:

A There was a rapid fire in succession.

Q When you heard this rapid firing, what did you do?

A I tried to look from where the firing came from.

Q After that, what did you find?

A I saw persons firing towards us.

Q Where were these persons situated when they were firing towards you?

A Near the foot of the electric post and close to the cemented wall.

Q This electric post, was that lighted at that moment?

A Yes, sir, it was lighted.

Q How far were these persons firing, to the place where you were?

A From here to there (The witness indicating the distance by pointing to a place inside the
courtroom, indicating a distance of about 6 to 7 meters, making the witness stand as the point of
reference).

Q Were you able to know how many persons fired towards you?

A I only saw 3 to 4 persons.

Q How long did these persons fire the guns at you?

A Until we went home. The persons were still firing, until we went home.

Q You stated that you saw these persons who were firing at you. Do you know these persons?

A I can identify [them] when I [see] them.

Q Try to look around this courtroom, if these persons you saw who were firing at you are present
in the courtroom[.]

A Yes, sir.

Q Can you point to these persons?

A Yes, sir.

Q Point at them.
COURT INTERPRETER:

The Court directed the witness to go down from the witness stand and [point] at them, Beronga and
Alegarbes.

FISCAL GABIANA:

I would like to make it of record that on the bench of prisoner, only the two accused were seated.

COURT:

Make it of record that only two prisoners were present.

Q Now, Mr. Santos, aside from these two accused you identified as among those who fired [at]
you on that evening, were there other persons that you saw on that particular occasion who fired at
you?

A Yes, sir, there were[;] if I can see them, I can identify them."

Corroborating the foregoing, Rogelio Presores, another survivor, also pointed to Timoteo Beronga,
Teodulo Alegarbes and Roling Sabalones as the perpetrators of the crime. His testimony proceeded in
this manner: 19

"Q When you arrived at the residence of Stephen Lim, can you remember of any unusual incident
that took place?

A Yes, sir.

Q What was that?

A When the jeep arrived, the car was following.

Q What happened next?

A When the jeep was near the gate, the car was following.

Q The car was following the jeep, at what distance?

A 3 to 4 meters.

Q While the car was following the jeep at that distance of 3 to 4 meters, what happened?

A All of a sudden, we heard the burst of gunfire.

Q From what direction was the gunfire?

A Through the direction of the jeep?

Q After hearing the gunfire, what happened?

A We looked at the jeep.

Q What did you see?

A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the ground. There were only 3.

Q Who was driving the jeep at that time?

A Alfredo Nardo.

Q What happened after that?

A So, I looked, whence the burst of gunfire came from.

Q What did you see from that gunfire?

A I saw 4 persons standing at the back of the fence.

Q What were those 4 persons doing when they were standing at the back of the fence?

A They were bringing long firearms.

Q Did you recognize these persons?

A I can clearly recognize one and the 3 persons[.] I can identify them, if I can see them again.

Q If you are shown these persons, can you recognize them? Can you name these persons?

A No, sir. Only their facial appearance.

Q What about the 3 persons?

A That's why the 3 persons, I do not know them. I can recognize only their facial appearance.

Q What about one person?

A Yes, sir.

Q What is the name of the person?

A Roling Sabalones.

Q If Roling Sabalones is inside the courtroom, can you recognize Roling Sabalones?

A Yes, sir, he is around.

Q Can you point to Roling Sabalones?

A Yes, he is there (The witness pointing to the person who answered the name of Roling
Sabalones).
Q I would like [you] again to please look around and see, if those persons whom you know through
their faces, if they are here around?

A The two of them (The witness pointing to the 2 persons, who, when asked, answered that his
name [was] Teofilo Beronga and the other [was] Alegarbes)."

Indeed, we have carefully waded through the voluminous records of this case and the testimonies of all
the fifty-nine witnesses, and we find that the prosecution has presented the required quantum of proof
to establish that appellants are indeed guilty as charged. Appellants' arguments, as we shall now discuss,
fail to rebut this conclusion.

Positive Identification

Appellants allege that the two witnesses could not have properly identified the appellants because, after
the first burst of shooting, they both crouched down, such that they could not have seen the faces of
their assailants. This contention does not persuade Both eyewitnesses testified that the firing was not
continuous; thus, during a lull in the firing, they raised their heads and managed a peek at the
perpetrators. Edwin Santos testified as follows:

"Atty. Albino, counsel for accused Beronga:

Q You mean to say that when you bent you heard the successive shots, [and] you again raised
your head. Is that correct?

A There were times that the shots were not in succession and continuous and that was the time I
raised my head. again." 20

Like Santos, Rogelio Presores also stooped down when the firing started, but he raised his head during a
break in the gunfire:

"Atty. Albino:

Q So, what did you do when you first heard that one shot?

A So, after the first shot, we looked towards the direction we were facing and when we heard the
second shot that was the time we stooped down." 21

He further testified:

"Atty. Acido: [Counsel for Appellant Sabalones]

Q And you said you stooped down inside the car when you heard the first firing to the jeep. Is that
what you want the Court to understand[?]

Presores:

A Yes, sir.
Q So, you never saw who fired the successive shots to the car as you said you stooped down inside
the car?

A The bursts of gunfire stopped for a while and that was the time I reared of [sic] my head.

Q And that was the first time you saw them? prcd

A Yes, sir." 22

The records clearly show that two vehicles proceeded to the house of Stephen Lim on that fateful day.
The first was the jeep where Alfredo Nardo, Glenn Tiempo and Rey Bolo were riding. About three to four
meters behind was the second car carrying Nelson Tiempo, Guillermo Viloria, Rogelio Oliveros and the
two prosecution witnesses — Edwin Santos and Rogelio Presores. 23 As stated earlier, said witnesses
attested to the fact that after the first volley of shots directed at the jeep, they both looked at the
direction where the shots were coming from, and they saw their friends in the jeep falling to the ground,
as well as the faces of the perpetrators. 24 It was only then that a rapid succession of gunshots were
directed at them, upon which they started crouching to avoid being hit.

Hence, they were able to see and identify the appellants, having had a good look at them after the initial
burst of shots. We stress that the normal reaction of a person is to direct his sights towards the source
of a startling shout or occurrence. As held in People v. Dolar, 25 "the most natural reaction for victims of
criminal violence is to strive to see the looks and faces of their assailants and to observe the manner in
which the crime is committed."

In bolstering their claim that it was impossible for the witnesses to have identified them, appellants
further aver that the crime scene was dark, there being no light in the lampposts at the time. To prove
that the service wire to the street lamps at the Mansueto Compound was disconnected as early as
December 1984 and reconnected only on June 27, 1985, they presented the testimonies of Vicente
Cabanero, 26 Remigio Villaver, 27 Fredo Canete 28 and Edward Gutang. 29 The trial court, however, did
not lend weight to said testimonies, preferring to believe the statement of other prosecution witnesses
that the place was lighted during that time.

The Court of Appeals sustained said findings by citing the testimonies of defense witnesses. Fredo
Canete of the Visayan Electric Company (VECO), for instance, admitted that it was so easy to connect
and disconnect the lights. He testified thus:

"Atty. Kintanar:

Q Now, as a cutter, what instruments do you usually use in cutting the electrical connection of a
certain place?

Canete:

A Pliers and screw driver.

Q Does it need . . . very sophisticated instruments to disconnect the lights?

A No, these are the only instruments we use.

Q Ordinary pliers and ordinary screw driver?

A Yes, sir.

Q And does [one] need to be an expert in electronic [sic] in order to conduct the disconnection?

A No, sir.

Q In other words, Mr. Canete, any ordinary electrician can cut it?

A That is if they are connected with the Visayan Electric Company.

Q What I mean is that, can the cutting be done by any ordinary electrician?

A Yes, sir." 30

Said witness even admitted that he could not recall if he did in fact cut the electrical connection of the
Mansueto Compound. 31 The Court of Appeals further noted that "none of the above witnesses were at
the crime scene at or about the exact time that the ambush occurred. Thus, none was in a position to
state with absolute certainty that there was allegedly no light to illuminate the gunmen when they
rained bullets on the victims." 32

Even assuming arguendo that the lampposts were not functioning at the time, the headlights of the jeep
and the car were more than sufficient to illuminate the crime scene. 33 The Court has previously held
that the light from the stars or the moon, an oven, or a wick lamp or gasera can give ample illumination
to enable a person to identify; or recognize another. 34 In the same vein, the headlights of a car or a
jeep are sufficient to enable eyewitnesses to identify appellants at the distance of 4 to 10 meters.

Extrajudicial Statement

of Beronga

Appellants insist that Beronga's extrajudicial statement was obtained through violence and intimidation.
Citing the res inter alios acta rule, they also argue that the said statement is inadmissible against
Sabalones. Specifically, they challenge, the trial court's reliance on the following portions of Beronga's
statement:

"Q After Roling knew that Na[b]ing Velez was killed, have you observed [if] Roling and his
companions prepared themselves for any eventuality?

A It did not take long after we knew that Na[b]ing was killed, somebody called up by telephone
looking for Roling, and this was answered by Roling but we did not know what they were conversing
about and then Roling went back to the house of Junior after answering the phone. And after more than
two hours, we heard the sound of engines of vehicles arriving, and then Meo, the man who was told by
Roling to guard, shouted saying: "They are already here[;]" after that, Roling came out carrying a carbine
accompanied by Tsupe, and not long after we heard gunshots and because of that we ran towards the
house where the wake was. But before the gun-shots, I heard Pedring Sabalones father of Roling saying:
"You clarify, [t]hat you watch out for mistake[n] in identity," and after that shout, gunshots followed.
[sic] Then after the gun-shots Roling went back inside still carrying the carbine and shouted: 'GATHER
THE EMPTY SHELLS AND MEO[,] YOU BRING A FLASHLIGHT,' and then I was called by Meo to help him
gather the empty shells of the carbine and also our third companion to gather the empty shells."

These arguments have no merit. In the first place, it is well to stress that appellants were convicted
based primarily on the positive identification of the two survivors, Edwin Santos and Rogelio Presores,
and not only on the extrajudicial statement, which merely corroborates the eyewitness testimonies.
Thus, said arguments have no relevance to this case. As the Court held in People vs. Tidula: 35 "Any
allegation of violation of rights during custodial investigation is relevant and material only to cases in
which an extrajudicial admission or confession extracted from the accused becomes the basis of their
conviction."

In any case, we sustain the trial court's holding, as affirmed by the Court of Appeals, that the
extrajudicial statement of Beronga was executed in compliance with the constitutional requirements. 36
"Extrajudicial confessions, especially those which are adverse, to the declarant's interests are presumed
voluntary, and in the absence of conclusive evidence showing that the declarant's consent in executing
the same has been vitiated, such confession shall be upheld." 37

The exhaustive testimony of Sgt. Miasco, who undertook the investigation, shows that the appellant was
apprised of his constitutional rights to remain silent and to have competent and independent counsel of
his own choice. 38 Said witness also stated that Beronga was assisted by Atty. Marcelo Guinto during
the custodial investigation. 39 In fact, Atty. Guinto also took the witness stand and confirmed that
Appellant Beronga was informed of his rights, and that the investigation was proper, legal and not
objectionable. Indeed, other than appellants' bare allegations, there was no showing that Beronga's
statement was obtained by force or duress. 40

Equally unavailing is appellants' reliance on the res inter alios acta rule under Section 30, Rule 130 of the
Rules of Court, which provides:

"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 or
declaration."

Appellants assert that the admission referred to in the above provision is considered to be against a co-
conspirator only when it is given during the existence of the conspiracy. They argue that Beronga's
statement was made after the termination of the conspiracy; thus, it should not be admitted and used
against Sabalones.

The well-settled rule is that the extrajudicial confession of an accused is binding only upon himself and is
not admissible as evidence against his co-accused, it being mere hearsay evidence as far as the other
accused are concerned. 41 But this rule admits of exception. It does not apply when the confession, as in
this case, is used as circumstantial evidence to show the probability of participation of the co-accused in
the killing of the victims 42 or when the confession of the co-accused is corroborated by other evidence.
43

Beronga's extrajudicial statement is, in fact, corroborated by the testimony of Prosecution Witness
Jennifer Binghoy. Pertinent portions of said testimony are reproduced hereunder:

"Q While you were at the wake of Jun Sabalones and the group were sitting with Roling' Sabalones,
what were they doing?

A They were gathered in one table and they were conversing with each other.

xxx xxx xxx

Q On that same date, time and place, at about 10:00 [i]n the evening, can you remember if there
was unusual incident that took place?

A I heard over the radio at the Sabalones Family that a certain Nabing Velez was shot.

Q That [a] certain Nabing Velez was shot? What else . . . transpired?

A I observed that their reactions were so queer, — as if they were running.

xxx xxx xxx

Q In that evening of June 1, 1985, when you went there at the house of Jun Sabalones, have you
seen an armalite?

A Yes, sir.

Q Where did you see this armalite?

A At the table where they were conversing.

Q How many armalites or guns [did you see] that evening in that place?

A Two (2).

xxx xxx xxx

Q This armalite that you saw, — how far was this in relation to the groups of Sabalones?

A There (The witness indicating a distance of about 4 to 5 meters).

ATTY. KINTANAR

Q When you looked . . . through the window and saw there were two vehicles and there were
bursts of gunfire, what happened after that?
A I did not proceed to look . . . through the window because I stooped down.

Q When you stooped down, what happened?

A After the burst of gunfire, I again opened the window.

Q And when again you opened the window, what happened?

A I saw two persons going towards the jeep.

Q What transpired next after [you saw] those 2 persons?

A When they arrived there, they nodded their head[s].

Q After that, what happened?

A So, they went back to the direction where they came from, going to the house of Sabalones.

Q While they were going to the direction of the house of Sabalones, what transpired?

A I saw 5 to 6 persons coming from the highway and looking to the jeep, and before they reached
the jeep, somebody shouted that 'it's ours'.

Q Who shouted?

A The voice was very familiar to me.

Q Whose voice?

A The voice of Roling Sabalones.

Q What else have you noticed during the commotion [when] wives were advising their husbands
to go home?

A They were really in chaos." 44

A careful reading of her testimony buttresses the finding of the trial court that Rolusape Sabalones and
his friends were gathered at one table, conversing in whispers with each other, that there were two
rifles on top of the table, and that they became panicky after hearing of the death of Nabing Velez on
the radio. Hence, the observation of the trial court that "they went to their grisly destination amidst the
dark and positioned themselves in defense of his turf against the invasion of a revengeful gang of
supporters of the recently slain Nabing Velez." 45

Alleged Inconsistencies

Appellants also allege that the prosecution account had inconsistencies relating to the number of shots
heard, the interval between gunshots and the victims' positions when they were killed. These, however,
are minor and inconsequential flaws which strengthen, rather than impair, the credibility of said
eyewitnesses. Such harmless errors are indicative of truth, not falsehood, and do not cast serious doubt
on the veracity and reliability of complainant's testimony. 46

Appellants further claim that the relative positions of the gunmen, as testified to by the eyewitnesses,
were incompatible with the wounds sustained by the victims. They cite the testimony of Dr. Ladislao
Diola, who conducted the autopsy on Glenn Tiempo. He declared that the victim must necessarily be on
a higher level than the assailant, in the light of the path of the bullet from the entrance wound to where
the slug was extracted. This finding, according to appellant, negates the prosecution's account that the
appellants were standing side by side behind a wall when they fired at the victims. If standing,
appellants must have been on a level higher than that of the occupants of the vehicles, if beside each
other, they could not have inflicted wounds which were supposed to have come from opposite angles.

We are not persuaded. The defense presumes that the victims were sitting still when they were fired
upon, and that they froze in the same position during and after the shooting. This has no testimonial
foundation. On the contrary, it was shown that the victims ducked and hid themselves, albeit in vain,
when the firing began. After the first volley, they crouched and tried to take cover from the hail of
bullets. It would have been unnatural for them to remain upright and still in their seats. Hence, it is not
difficult to imagine that the trajectories of the bullet wounds varied as the victims shifted their positions.
We agree with the following explanation of the Court of Appeals:

"The locations of the entry wounds can readily be explained. . . . Glenn Tiempo, after looking in the
direction of the explosion,' turned his body around; and since the ambushers were between the jeep
and the car, he received a bullet in his right chest (wound no. 1 ) which traveled to the left. As to wound
No. 2, it can be explained by the spot where Major Tiempo found his fallen son.

'Atty. Kintanar:

Q: Upon being informed by these occupants who were ambushed and [you] were able to return
the car, what did you do?

Major Tiempo:

A: I immediately got soldiers and we immediately proceeded to the area or to the place where my
fallen son was located and when we reached . . . the place, I saw my fallen son [in] a kneeling position
where both knees [were] touching the ground and the toes also and the forehead was touching towards
the ground.' (TSN, Feb. 12, 1988, p. 6)

In such position, the second bullet necessarily traveled upwards in relation to the body, and thus the
entry wound should be lower than the exit wound. There is no showing that both wounds were inflicted
at the same time." 47

In any event, the witnesses saw that the appellants were the gunmen who were standing side by side
firing at them. They could have been in a different position and in another hiding place when they first
fired, but this is not important. They were present at the crime scene, and they were shooting their rifles
at the victims.
Aberratio Ictus

Appellants likewise accuse the 'trial court of engaging in "conjecture" in ruling that there was aberratio
ictus in this case. This allegation does not advance the cause of the appellants. It must be stressed that
the trial court relied on the concept of aberratio ictus to explain why the appellants staged the ambush,
not to prove that appellants did in fact commit the crimes. Even assuming that the trial court did err in
explaining the motive of the appellants, this does not detract from its findings, as affirmed by the Court
of Appeals and sustained by this Court in the discussion above, that the guilt of the appellants was
proven beyond reasonable doubt.

In any event, the trial court was not engaging in conjecture in so ruling. The conclusion of the trial court
and the Court of Appeals that the appellants killed the wrong persons was based on the extrajudicial
statement of Appellant Beronga and the testimony of Jennifer Binghoy. These pieces of evidence
sufficiently show that appellants believed that they were suspected of having killed the recently slain
Nabing Velez, and that they expected his group to retaliate against them. Hence, upon the arrival of the
victims' vehicles which they mistook to be carrying the avenging men of Nabing Velez, appellants
opened fire. Nonetheless, the fact that they were mistaken does not diminish their culpability. The Court
has held that "mistake in the identity of the victim carries the same gravity as when the accused zeroes
in on his intended victim." 48

Be that as it may, the observation of the solicitor general on this point is well-taken. The case is better
characterized as error in personae or mistake in the identity of the victims, rather than aberratio ictus
which means mistake in the blow, characterized by aiming at one but hitting the other due to
imprecision in the blow.

Second Issue:

Denial and Alibi

Appellants decry the lower courts' disregard of their defense of alibi. We disagree. As constantly
enunciated by this Court, the established doctrine requires the accused to prove not only that he was at
some other place at the time of the commission of the crime, but that it was physically impossible for
him at the time to have been present at the locus criminis or its immediate vicinity. 49 This the
appellants miserably failed to do.

Appellant Beronga testified that, at the time of the incident, he was in his residence in Lapulapu city,
which was not shown to be so remote and inaccessible that it precluded his presence in Mansueto
Subdivision. The alibi of Sabalones is even more unworthy of belief; he sought to establish that he was a
mere 20-25 meters away from the scene of the crime. He was allegedly in the house of his brother who
was lying in state, which was so near the ambush site that some of the defense witnesses even testified
that they were terrified by the gunfire. Clearly, appellants failed to establish the requisites of alibi.

Furthermore, the defense of alibi cannot overcome the positive identification of the appellants. 50 As
aptly held by this Court in People v. Nescio: 51
"Alibi is not credible when the accused-appellant is only a short distance from the scene of the crime.
The defense of alibi is further offset by the positive identification made by the prosecution witnesses.
Alibi, to reiterate a well-settled doctrine, is accepted only upon the clearest proof that the accused-
appellant was not or could not have been at the crime scene when it was committed."

Flight

Appellants further object to the finding that Sabalones, after the incident, "made himself scarce from
the place of commission. He left for Manila, thence Mindanao on the supposition that he want[ed] to
escape from the wrath of Maj. Tiempo and his men for the death of Glenn Tiempo and the near fatal
shooting of the other son or from the supporters of Nabing Velez. . . . On his supposedly borrowed
freedom, he jumped bail and hid himself deeper into Mindanao, under a cloak of an assumed name.
Why, did his conscience bother him for comfort?" 52

Appellants rationalized that Sabalones was forced to jump bail in order to escape two groups, who were
allegedly out to get him, one of Nabing Velez and the other of Major Tiempo. Their ratiocination is futile.
It is well-established that "the flight of an accused is competent evidence to indicate his guilt, and flight,
when unexplained, is a circumstance from which an inference of guilt may be drawn." 53 It must be
stressed, nonetheless, that appellants were not convicted based on legal inference alone but on the
overwhelming evidence presented against them. dctai

Third Issue:

Crime and Punishment

We agree with the appellate court that accused-appellants are guilty of murder for the deaths of Glenn
Tiempo and Alfredo Nardo. The allegation of treachery as charged in the Information was duly proven by
the prosecution. "Treachery is committed when two conditions concur, namely, that the means,
methods, and forms of execution employed gave the person attacked no opportunity to defend himself
or to retaliate; and that such means, methods and forms of execution were deliberately and consciously
adopted by the accused without danger to his person." 54 These requisites were evidently present when
the accused, swiftly and unexpectedly, fired at the victims who were inside their vehicles and were in no
position and without any means to defend themselves.

The appellate court also correctly convicted them of frustrated murder for the injuries sustained by
Nelson Tiempo, Rey Bolo and Rogelio Presores. As evidenced by the medical certificates and the
testimony of Dr. Miguel Mancao who attended to the victims, Nelson Tiempo sustained a neck wound
which completely shattered his trachea and rendered him voiceless, as well as a wound on the right
chest which penetrated his axilla but not his chest cavity. 55 Rey Bolo sustained three injuries which
affected his clavicle, ribs and lungs. 56 Rogelio Presores, on the other hand, sustained an injury to his
lungs from a bullet wound which entered his right chest and exited through his back. 57
The wounds sustained by these survivors would have caused their death had it not been for the timely
medical intervention. Hence, we sustain the ruling of the Court of Appeals that appellants are guilty of
three counts of frustrated murder.

We also uphold the Court of Appeals' modification of the penalty for murder, but not its computation of
the sentence for frustrated murder.

For each of the two counts of murder, the trial court imposed the penalty of fourteen (14) years, eight
(8) months and one (1) day of reclusion temporal (medium), as minimum, to seventeen (17) years, four
(4) months and one (1) day of reclusion temporal (maximum), as maximum. This is incorrect. Under
Article 248 of the Revised Penal Code, the imposable penalty is reclusion temporal, in its maximum
period, to death. There being no aggravating or mitigating circumstance, aside from the qualifying
circumstance of treachery, the appellate court correctly imposed reclusion perpetua for murder.

The Court of Appeals, however, erred in computing the penalty for each of the three counts of
frustrated murder. It sentenced appellants to imprisonment of ten years of prision mayor (medium) as
minimum to seventeen years and four months of reclusion temporal (medium) as maximum. It modified
the trial court's computation of eight (8) years of prision mayor (minimum), as minimum, to fourteen
(14) years and eight (8) months of reclusion temporal (minimum) as maximum.

Under Article 50 of the Revised Penal Code, the penalty for a frustrated felony is the "next lower in
degree than that prescribed by law for the consummated felony . . ." The imposable penalty for
frustrated murder, therefore, is prision mayor in its maximum period to reclusion temporal in its
medium period. 58 Because there are no aggravating or mitigating circumstance as the Court of Appeals
itself held, 59 the penalty prescribed by law should be imposed in its medium period. With the
application of the Indeterminate Sentence Law, the penalty for frustrated murder should be 8 years of
prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as
maximum.

Although the Court of Appeals was silent on this point, the trial court correctly ordered the payment of
P50,000 as indemnity to the heirs of each of the two murdered victims. In light of current jurisprudence,
this amount is awarded without need of proof other than the fact of the victim's death. 60 The trial
court and the CA, however, erred in awarding indemnity of P20,000 each to Nelson Tiempo, Rogelio
Presores and Rey Bolo. There is no basis, statutory or jurisprudential, for the award of a fixed amount to
victims of frustrated murder. Hence, they are entitled only to the amounts of actual expenses duly
proven during the trial.

Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck which shattered his trachea,
should be awarded indemnity of P21,594.22 for his medical expenses. This is evidenced by a statement
of account from Cebu Doctor's Hospital. 61

Rogelio Presores, who was likewise treated for gunshot wound in the same hospital, presented a
statement of account amounting to P5,412.69 for his hospitalization. 62 Hence, he is likewise entitled to
indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the treatment of his gunshot wounds,
as evidenced by a statement of account from the same hospital. 63 This amount should be awarded to
him, as indemnity.

WHEREFORE, the appeal is DENIED and the assailed Decision is AFFIRMED. However, the penalties are
hereby MODIFIED as follows:

1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are each hereby sentenced to
reclusion perpetua and to indemnify, jointly and severally, the heirs of the deceased, Glenn Tiempo, in
the sum of P50,000;

2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are each hereby sentenced to
reclusion perpetua and to indemnify, jointly and severally, the heirs of the deceased, Alfredo Nardo, in
the sum of P50,000;

3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accused-appellants are each hereby
sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly and severally pay the victim, Rey
Bolo, in the sum of P9,431.10 as actual damages;

4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accused-appellants are hereby
sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly and severally indemnify the victim,
Rogelio Presores, in the sum of P5,412.69 for actual damages;

5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accused-appellants are hereby
sentenced to suffer the penalty of 8 years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly and severally indemnify the victim,
Nelson Tiempo, in the sum of P21,594.22 as actual damages.

Let copies of this Decision be furnished the Secretary of Interior and Local Government and the
Secretary of Justice so that Accused Eufemio Cabanero may be brought to justice.

Costs against appellants.

SO ORDERED. dctai

Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ ., concur.

[G.R. No. 38773. December 19, 1933.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GINES ALBURQUERQUE Y SANCHEZ,
defendant-appellant.

Gibbs & McDonough and Roman Ozaeta for appellant.

Solicitor-General Hilado for appellee.

SYLLABUS

1. HOMICIDE; SELF-DEFENSE NOT PROVEN. — According to the facts stated in the decision, the
appellant herein did not act in legitimate self- defense inasmuch as he provoked and commenced the
aggression by drawing his penknife.

2. ID.; ARTICLE 49, REVISED PENAL CODE. — Article 49 of the Revised Penal Code is a reproduction
of article 64 of the old Code and has been interpreted as applicable only in cases where the crime
committed befalls a different person (decisions of the Supreme Court of Spain of October 20, 1897, and
June 20 1899), which is not the case herein.

DECISION

AVANCEÑA, C.J p:

The judgment appealed from finds the appellant Gines Alburquerque guilty of the crime of homicide
committed on the person of Manuel Osma and sentences him to eight years an one day of prision
mayor, and to indemnify the heirs of the deceased in the sum of P1,000, with the costs.

The appellant herein, who is a widower of fifty-five years of age and father of nine living children, has
been suffering from partial paralysis form some time, walks dragging one leg and has lost control of the
movement of his right arm. He has been unable to work since he suffered the stroke of paralysis. One of
his daughters named Maria and another, are married, while still another one is a nun. With the
exception of the other married daughter and the nun, all of them, including the appellant, live with
Maria upon whom they depend for support.

Among the daughters living with Maria, one named Pilar became acquainted and had intimate relations
later with the deceased Manuel Osma about the end of the year 1928. It was then that the appellant
became acquainted with the deceased who frequently visited Pilar in his house. The relations between
Pilar and the deceased culminated in Pilar's giving birth to a child. The appellant did not know that his
daughter's relations with the deceased had gone to such extremes, that he had to be deceived with the
information that she had gone to her godfather's house in Singalong, when in fact she had been taken to
the Chinese Hospital for delivery. The appellant learned the truth only when Pilar returned home with
her child.

Naturally the appellant was deeply affected by this incident, since which time he had appeared sad and
worried not only because of the dishonor it brought upon his family but also because the child meant an
added burden to Maria upon whom they all depended for support. For some time the appellant wrote
letters, that at times were hostile and threatening and at other times entreating the deceased to
legitimize his union with Pilar by marrying her, or at least, to support her and his child. Although the
deceased agreed to give the child a monthly allowance by way of support, he never complied with his
promise.

The appellant was in such a mood when he presented himself one day at the office where the deceased
worked and asked leave of the manager thereof to speak to Osma. They both went downstairs. What
happened later, nobody witnessed. But the undisputed fact is that on that occasion the appellant
inflicted a wound at the base of the neck of the deceased, causing his death.

After excluding the improbable portions thereof, the court infers from the testimony of the appellant
that he proposed to said deceased to marry his daughter and that, upon hearing that the latter refused
to do so, he whipped out his penknife. Upon seeing the appellant's attitude, the deceased tried to seize
him by the neck whereupon the said appellant stabbed him on the face with the said penknife. Due to
his lack of control of the movement of his arm, the weapon landed on the base of the neck of the
deceased.

The trial court found that the appellant did not intend to cause so grave an injury as the death of the
deceased. We find that this conclusion is supported b y the evidence. In his testimony the appellant
emphatically affirmed that he only wanted to inflict a wound that would leave a permanent scar on the
face of the deceased, or one that would compel him to remain in the hospital for a week or two but
never intended to kill him, because then it would frustrate his plan of compelling him to marry or, at
least, support his daughter. The appellant had stated this intention in some of his letters to the
deceased by way of a threat to induce him to accept his proposal for the benefit of his daughter. That
the act of the appellant is stabbing the deceased resulted in the fatal wound at the base of his neck, was
due solely to the fact hereinbefore mentioned that appellant did not have control of his right arm on
account of paralysis and the blow, although intended for the face, landed at the base of the neck.

Therefore, the mitigating circumstance of lack of intention to cause so grave an injury as the death of
the deceased as well as those of his having voluntarily surrendered himself to the authorities, and acted
under the influence of passion and obfuscation, should be taken into consideration in favor of the
appellant.

Under the facts above stated, we cannot entertain the appellant's contention that he acted in legitimate
self-defense inasmuch as he provoked and commenced the aggression by whipping out and brandishing
his penknife.

The defense likewise claims that, at all events, article 49 of the Revised Penal Code, which refers to
cases where the crime committed is different from that intended by the accused, should be applied
herein. This article is a reproduction of article 64 of the old Code and has been interpreted as applicable
only in cases where the crime committed befalls a different person (decisions of the Supreme Court of
Spain of October 20, 1897, and June 28, 1899), which is not the case herein.
The facts as herein proven constitute the crime of homicide defined and penalized in article 249 of the
Revised Penal Code with reclusion temporal. In view of the concurrence therein of three mitigating
circumstances without any aggravating circumstance, the penalty next lower in degree, that is, prision
mayor, should be imposed.

Wherefore, pursuant to the provisions of Act No. 4103, the appellant is hereby sentenced to suffer the
indeterminate penalty of from one (1) year of prision correccional to eight (8) years and one (1) day of
prision mayor, affirming the judgment appealed from in all other respects, with the costs. So ordered.

Street, Abad Santos, Vickers, and Butte, JJ., concur.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 39403 December 16, 1933

Lee Sing v. Insular Collector of Customs

059 Phil 147

FIRST DIVISION

[G.R. No. 39403. December 16, 1933.]

LEE SING, on behalf of his son Lee Shu, petitioner-appellee, vs. THE INSULAR COLLECTOR OF CUSTOMS,
respondent-appellant.

Solicitor-General Hilado for appellant.

Marcelo Cariñgal for appellee.

SYLLABUS

1. ALIENS; IMMIGRATION; HABEAS CORPUS. — There is no doubt that the board of special inquiry
came to the conclusion that the applicant is not the son of his alleged father because they observed a
racial difference between the two which made the relationship impossible. There being evidence to
sustain the finding of the board and no arbitrary or illegal act on their part being shown, the judgment of
the Court of First Instance is reversed with directions to dismiss the petition for habeas corpus.

DECISION

BUTTE, J p:

This is an appeal by the Insular Collector of Customs from a judgment of the Court of First Instance of
Manila granting a writ of habeas corpus to the appellee, Lee Sing, on behalf of his son Lee Shu.
Lee Shu, represented by his alleged father, Lee Sing, applied to the Collector of Customs for admission
into the Philippine Islands. Lee Shu based his right to enter the Philippine Islands on the claim that he is
the legitimate son of Lee Sing who is an American citizen. Aboard of special inquiry in the Bureau of
Customs, before whom both Lee Sing and Lee Shu testified, rendered a decision which is as follows:

"This is the case of Lee Shu, male, 19 years of age, who seeks admission into this country as minor son of
one Lee Sing, an American citizen landed on appeal as such per C. B. R. No. 4001-2. From the
investigation of this case, the record shows that the herein applicant and his alleged father committed
some discrepancies with regards to the number of rooms their house in China has. The herein applicant
testified that it has (house) two rooms and a hall, while the alleged father stated that it has two rooms;
a hall and two small additional rooms. It should be made of note that the alleged father arrived in this
country barely a month ahead of the applicant and if they really belong to the same family as claimed,
such discrepancy would have easily been overcome. The second ground for rejecting is with regards to
the surroundings of their house in China, in that applicant testified that what is at the back of their
house is a hill and that a farm is also at the right side, while the alleged father stated that ground is
behind and the house is at the right side. The last ground for an adverse decision is the fact that
according to the observation of the board based on its experience on conducting investigations on
similar cases, the herein applicant is a pure blooded Chinese rather than a person born of an American
citizen as father as claimed. His conduct to the effect that he is really a full blooded Chinese will bear the
board out of its observation and conclusion.

"In view of the foregoing, he is hereby rejected and refused landing in this country. He and his broker
are informed of this decision and are given two days within which to appeal to the Insular Collector of
Customs, should they feel dissatisfied with the decision."

The applicant appealed from the decision of the board and the Collector of Customs, the appellant
herein, on February 21, 1933, affirmed the decision of the board and ordered the Lee Shu be returned to
the port of his embarkation in accordance with law. Thereupon Lee Sing on behalf of his alleged son, Lee
Shu, filed his petition in the Court of First Instance of Manila praying for a writ of habeas corpus.

The contradictions in the testimony on Lee Sing and Lee Shu found by the board and the collector, the
court below, examining the same testimony, found not to exist. We have reviewed the testimony and
find that there are contradictions as found by the board but they relate to minor details and standing
alone, would probably not be sufficient to warrant the exclusion of the applicant. The third ground for
exclusion is based on the personal observation of the board which had Lee Sing and Lee Shu before it.
The board also had before it the record of Lee Sing, C. B. R. No. 4001-2. From its personal observation of
these two individuals, the board concluded that the applicant being a pure blooded Chinese is not the
son of the American citizen who claims to be his father. The decision of the board on this point is inaptly
worded but we think it is clearly inferable that the board observed racial dissimilarity which made it
impossible for Lee Sing to be the father of a pure blooded Chinese.

The lower court rested its decision upon a literal interpretation of the language of the board which it
held to be absurd on its face. We think that justice to the board required that an effort be made to get
at the true meaning of the board. There is no doubt that the board came to the conclusion that Lee Shu
is not the son of Lee Sing because they observed a racial difference between the two which made that
relationship impossible.

There being evidence to sustain the finding of the board and no arbitrary or illegal act on their part
being shown, the judgment of the court below is revised with directions to dismiss the petition. Cost
against the appeal.

Avanceña, C.J., Abad Santos, Vickers, and Diaz, JJ., concur.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 39003 December 16, 1933

Elegado v. Tavora

059 Phil 140

EN BANC

[G.R. No. 39003. December 16, 1933.]

LAUREANO ELEGADO, SIMEON GALERO, and ARISTON RABDON, petitioners-appellants, vs. NICANOR
TAVORA, Justice of the Peace of San Fernando, La Union, respondent-appellee.

Ramon Sotelo for appellants.

Nicanor Tavora in his own behalf.

SYLLABUS

1. CRIMINAL LAW; APPEALS FROM JUSTICE OF THE PEACE COURTS; NOTICE OF APPEAL; SECTION
45, GENERAL ORDERS, NO. 58, CONSTRUED. — An appeal in a criminal case must be perfected in the
manner and form prescribed by section 45 of General Orders, No. 58, which is almost an exact copy of
section 1240 of the Penal Code of California and was evidently taken from said Code. In accordance with
the decisions of the Supreme Court of California a recital in the appeal that a notice of appeal has been
served and filed is no evidence that an appeal has been taken. The notice of appeal must be served and
filed, and the giving of notice in open court that an appellant intends taking an appeal is an essentially
different proceeding from filing such notice with the clerk of the court. The word "filing" as used in said
section 45 can be construed only as requiring a placing or depositing with the clerk of a written notice of
intention of taking an appeal. (U. S. vs. Tenorio, 37 Phil., 7.)
2. ID.; ID.; ID.; SECTION 43, GENERAL ORDERS, NO. 58, CONSTRUED. — If section 43 of General
Orders, No. 58 had been intended to provide a different manner of giving notice of the intention to
appeal from a decision of the justice of the peace, from the given when the appeal is taken from the
Court of First Instance, a verb other than "to file" would have been employed to indicate that the notice
might be given either verbally or in writing. As the petitioners gave only a "verbal notice of their
intention to appeal", they did not comply with the requirements of the law, and their alleged notice of
intention to appeal did not produce the desired legal effect. (Ricaña and Glory vs. Provincial Warden of
Tayabas, 54 Phil., 821.)

DECISION

VICKERS, J p:

This is an appeal from a decision of Judge Buenaventura Ocampo in the Court of First Instance of La
Union denying the petition for a writ of mandamus to require the respondent justice of the peace to
allow the appeal presented by the petitioners in the criminal case in which they were convicted. The
present case was submitted for decision in the Court of First Instance of the following stipulation of
facts:

"1. Que los acusados en la causa criminal No. 2832 del Juzgado de Paz de San Fernando, La Union,
que son los recurrentes en esta causa, han sido condenados por dicho Juzgado a cuatro meses y un dia
de prision cada uno;

"2. Que inmediatamente despues de haberse dectado la sentencia por el Juez de Paz de San
Fernando, La Union, el abogado de los acusados, en Corte abierta, manifesto su intencion de apelar el
asunto al Juzgado de Primera Instancia de esta provincia;

"3. Que el Juez de Paz de San Fernando, en el mismo dia, 17 de octubre de 1932, a peticion del
mismo abogado de los acusados autorizo mediante carta que es el Exhibit C al Juez de Paz del Municipio
de Rosales, Pangasinan, para recibir la fianza de los acusados en la cantidad de P200;

"4. Que en virtud de la carta Exhibit C, el Juez de Paz de Rosales, Pangasinan, recibio y aprobo la
fianza formalizada por los acusados, los aqui recurrentes, en la cantidad de P200, adjuntando en el
escrito de fianza una carta sin firma que pedimos sea marcada como Exhibit D y que explica por si
misma;

"5. Que el Exhibit D se recibio por el Juez de Paz de San Fernando, La Union, el dia 27 de octubre de
1932, juntamente con la fianza, tal como ha sido aceptada y aprobada por el Juez de Paz de Rosales,
Pangasinan;

"6. Que el 2 de noviembre de 1932, el Juez de Paz de San Fernando, La Union, expidio la orden que,
para su indentificacion, pedimos sea marcada como Exhibit E, la cual orden es una copia del original que
obra en el Expediente No. 2832 del Jurgado de Paz de San Fernando, La Union, ordenando la ejecucion
de la sentencia dictada en dicho expediente;
"7. Que los recurrentes en esta cause, desde el 17 de octubre de 1932, no han presentado otra
apelacion mas que la formalizada verbalmente en Corte abierta, por el abogado Sr. Basco;

"8. Que el Exhibit A no se ha facilitado copia a la parte contraria."

The attorney for the appellants alleges that the lower court erred in declaring that the appellants herein
did not present their appeal in due form in criminal case No. 2832 of the justice of the peace court of
San Fernando, La Union; and in dismissing the complaint in the present case.

The contention of the petitioners in the lower court was that their oral statement in the justice of the
peace court of their intention to appeal to the Court of First Instance was a sufficient compliance with
the law. In this court the attorney for the appellants relies principally upon the fact that the petitioners
presented an appeal bond within fifteen days, which was approved by the justice of the peace, as set
forth in paragraphs 3, 4, and 5 of stipulation of facts.

Section 43 of General Orders, No. 58, as amended by section 34 of Act No. 1627 and section 1 of Act No.
3785, reads as follows:

"From all final judgments of the Court of First Instance or courts of similar jurisdiction, and in all cases in
which the law now provides for appeals from said courts, an appeal may be taken to the Supreme Court
as hereinafter prescribed. The convicted party may appeal from any final judgment of a justice of the
peace in a criminal cause to the Court of First Instance by filing a notice of appeal with such justice
within fifteen days after the entry of judgment. Upon such notice being so filed, the justice shall forward
to the Court of First Instance all original papers and a transcript of all docket entries in the cause and the
provincial fiscal shall thereupon take charge of the cause in behalf of the prosecution: Provided,
however, That the period of fifteen days with in which the accused may file his notice of appeal either
from a judgment of a justice of the peace court or from a judgment of a Court of First Instance shall be
interrupted from the time a motion for new trial is filed."

In the case of the United States vs. Tenorio (37 Phil., 7), referring to appeals from decisions of Courts of
First Instance, this court held that an appeal in a criminal case must be perfected in the manner and
form prescribed by section 45 of General Orders, No. 58; that said section is almost an exact copy of
section 1240 of the Penal Code of California, and was evidently taken from said Code; that we are
justified in following the interpretation given by the supreme court of the state from the statutes of
which the provisions of our own laws are copied; that in accordance with the decisions of the Supreme
Court of California a recital in the appeal that a notice of appeal has been served and filed is no evidence
that an appeal has been taken; that the notice of appeal must be served and filed; that giving notice in
open court that an appellant intends taking an appeal is an essentially different proceeding from filing
such notice with the clerk of the court; that the word "filing" as used in section 45 can be construed only
as requiring a placing or depositing with the clerk of a written notice of intention of taking an appeal.

In the case of Ricaña and Glory vs. Provincial Warden of Tayabas (54 Phil., 821), it was held that if
section 43 of General Orders, No. 58 had been intended to provide a different manner of giving notice of
the intention to appeal from a decision of the justice of the peace from that given when the appeal is
taken from the Court of First Instance, a verb other than "to file" would have been employed to indicate
that the notice might be given either verbally or in writing; that as the petitioners gave only a "verbal
notice of their intention to appeal", they did not comply with the requirements of the law, and their
alleged notice of intention to appeal did not produce the desired legal effect.

The case just cited is similar in many respects to the case now under consideration. In that case the
petitioners verbally announced their intention to appeal to the Court of First Instance of Tayabas, and an
appeal bond was fixed by the justice of the peace at P600; the bond was signed by the petitioners and
their bondsmen, and the petitioners were temporarily released. It appears, however, that the bond was
not approved by the proper justice of the peace. About thirty days after the judgment had been
rendered, the petitioners were arrested because they had not perfected their appeal in accordance with
the law.

The attorney also calls our attention to the decision of this court in the case at bar calls attention to the
fact that the bond sent by the petitioners to the justice of the peace of San Fernando was accompanied
by a letter requesting the justice of the peace to give effect to their notice of appeal announced in open
court. It appears, however, from the agreed statement of facts that this letter was not signed by any
one.

Appellants' attorney also calls our attention to the decision of this court in the case of the United States
vs. Sotavento and Sotavento (40 Phil., 176), in which it was held that an accused does not lose his right
to prosecute his appeal to final judgment merely because he failed to serve a copy of his written notice
of appeal on the provincial fiscal. The decision in that case does not support the contention of the
present petitioners, but emphasizes the fact that the notice of appeal should be effected in writing
within a period of fifteen days. Furthermore, it appears that there was difference of opinion in the court
as to the grounds expressed the opinion that the fiscal would be informed of the appeal filed by the
accused when notified of the order issued by the lower court upon for warding the case to the Supreme
Court on account of the appeal. Four justice concurred. Justices Johnson and Araullo held that the
Government being the adverse party the filing of the written notice with the clerk was tantamount to
service upon the adverse party. Justice Malcolm concurred in the result for the special reasons existing
in that case, but expressly stated that the exception made in that case should not be allowed to
overturn judicial precedents and to nullify the law.

In our opinion no reason has been adduced that would justify us in accepting a bond in lieu of the
written notice of appeal expressly required by law.

For the foregoing reasons, the decision appealed from is affirmed, with the costs against the appellants.

Avanceña, C.J., Street, Villa-Real, Hull, Imperial, and Diaz, JJ., concur.

Malcolm, J., dissents.

Separate Opinions

ABAD SANTOS, J., dissenting:

I think the judgment should be reversed. The law provides that:

"The convicted party may appeal from any final judgment of a justice of the peace in a criminal cause to
the Court of First Instance by filing a notice of appeal with such justice within fifteen days after the entry
of judgment. Upon such notice being so filed, the justice shall forward to the Court of First Instance all
original papers and a transcript of all docket entries in the cause, and the provincial fiscal shall
thereupon take charge of the cause in behalf of the prosecution." (Code of Criminal Procedure, section
43.)

The object of the notice of appeal is merely to advice the justice of the peace of the defendant's
intention to appeal to the Court of First Instance. Clearly, that object is attained when the notice is given
in open court. It has been held that statutes giving and regulating the right of appeal are remedial in
their nature, and should receive a liberal construction in furtherance of the right of appeal. (2 R. C., 29,
30.) "Statutes giving the right of appeal are liberally construed in furtherance of justice; such an
interpretation as will work a forfeiture of that right is not favored." (2 Lewis' Sutherland Statutory
Construction, 1304, 1305.)

In the case at bar, it is admitted that immediately after the rendition of the judgment by the justice of
the peace, counsel for the defendants below, the petitioners herein, gave notice in open court of the
latter's intention to appeal to the Court of First Instance; that, at the request of said counsel, the
amount of the bond for the temporary release of the defendants was fixed; and that the bond was later
filed and approved. Upon these admitted facts, I am of the opinion that the requirement for the
perfection of an appeal had been fully complied with by the petitioners.

With all due respect to the opinion of the majority of the court, I believe that it takes too narrow a view
of the law. It sacrifices substance to form, and reduces the protection of human rights to a mere
formula.

BUTTE, J., dissenting:

The case of Ricaña and Glory vs. Provincial Warden of Tayabas (54 Phil., 821), definitely settled, I think,
the proposition that an oral notice of intention to appeal from a decision of the justice of the peace is
not a sufficient compliance with the provisions of section 43 of General Orders, No. 58, the Code of
Criminal Procedure. In that case an appeal bond was submitted but it does not appear to have been
accepted or approved by the justice of the peace. In the present case the appeal bond was accepted and
approved by the justice of the peace. The recitals of the ordinary appeal bond plainly show that it is the
intention of the defendant to appeal from the decision of the justice of the peace. Section 3 of General
Orders, No. 58 does not prescribe any special form of notice of appeal. The primary object of filing a
notice of intention to appeal is to require the justice to forward to the Court of First Instance the original
papers and a transcript of all docket entries in the cause. It seems to me that, in view of the fact that the
bond itself recites the intention of the accused to appeal, when that bond is examined, accepted and
approved by the justice of the peace, it disclose to the justice the real intention of the accused to
prosecute his appeal as effectively as if a mere formal notice was filed.
In the present instance the justice accepted the oral notice of appeal as sufficient and permitted the
accused to go to all the trouble of preparing a bond and obtaining the signatures of the sureties on the
assumption of all the parties including the court that nothing further needed to be done to perfect the
appeal. I think that the filing, acceptance and approval of the bond is a very substantial compliance with
the requirement that a written notice of intention to appeal be given and I concur in the conclusion of
Justice Abad Santos that the decision of the majority sacrifices substance to form.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 38417 December 16, 1933

People v. Medina

059 Phil 134

FIRST DIVISION

[G.R. No. 38417. December 16, 1933.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. MARCIANO MEDINA (alias MARIANO
MEDINA, alias ALEJANDRO DOLA), defendant-appellant.

Jose M. Casal for appellant.

Solicitor-General Hilado for appellee.

SYLLABUS

1. CRIMINAL LAW; COMPLAINT OR INFORMATION CHARGING MORE THAN ONE CRIME; FAILURE
TO OBJECT FOR MULTIFARIOUSNESS IN THE COMPLAINT, CONSTITUTES WAIVER. — The information in
this case apparently does not comply with section 11 of the Code of Criminal Procedure, which provides
that a complaint or information must charge but one offense, except only in those cases in which
existing laws prescribe a single punishment for various allied offenses, but the attorney for the accused
did not demur to the information, and the trial judge was justified in finding the defendant guilty of the
several crimes with which he was charged and in imposing upon him the corresponding penalties. That
is the established doctrine of this court.

2. ID.; SUCCESSIVE SERVICE OF SENTENCES; ARTICLE 70, REVISED PENAL CODE. — Article 70 of the
Revised Penal Code provides that when the culprit has to serve two or more penalties, he should serve
them simultaneously if the nature of the penalties will so permit; otherwise, said penalties shall be
executed successively, following the order of their respective severity. Article 48 of the Revised Penal
Code relates to complex crimes, and has no application to the case at bar.
DECISION

VICKERS, J p:

The accused was charged in the Court of First Instance of Rizal with "the crime of trespass to dwelling,
with frustrated homicide, and physical injuries", committed as follows:

"That on or about the 7th day of August, 1932, in the municipality of Parañaque, Province of Rizal,
Philippine Islands, and within the jurisdiction of this court, the said accused, Marciano Medina alias
Mariano Medina alias Alejandro Dola, being a private individual, at night time, did then and there
wilfully, unlawfully and feloniously enter the dwelling of Capt. J. H. Davidson against the latter's will, by
forcing his way through a window protected by wire screens, an opening not intended for entrance, and
once inside the house, when his presence therein was detected by the inmates thereof who tried to put
him under arrest, the said Marciano Medina in resisting arrest and thus be able to escape, with intent to
kill Joseph Davidson, son of Capt. Davidson, did then and there willfully, unlawfully and feloniously,
assault, attack and stab with an open knife said Joseph Davidson on the upper left chest, thus inflicting
upon him a mortal wound penetrating the lung, which would have produced his death as a
consequence, thus performing all the acts of execution which would produce the death of said Joseph
Davidson by reason of causes independent of the will of the accused, that is, because of the timely, able
and efficacious medical aid given to the victim by Dr. Alexander Mileau. In his efforts to escape, the
accused Marciano Medina further criminally, unlawfully and feloniously attacked and assaulted Captain
Davidson, Mrs. Davidson and their daughter Mary Davidson, with an open knife, thus inflicting upon
Captain Davidson several wounds, one on the right hand, one on the right sterno-clavicular articulation
and one on the upper right arm; Mrs. Davidson sustained a lacerated wound on the palmar surface left
ring finger and on the middle finger severing the tendons; and Mary Davidson the daughter, sustained a
wound on the left occipito-parietal region on the scalp. These wounds sustained by Mr. and Mrs.
Captain Davidson and their daughter required medical attendance for a period of time longer than 10
days but less than 30 days and incapacitated all of them from performing their customary labor for an
equal period of time.

"That in the commission of the acts herein complained of, the following aggravating circumstances
existed; (1) that the crime was committed at night time which the accused purposely sought to insure
success in the commission of the offense herein complained of; (2) in disregard of the sex due to two of
the offended parties, Mrs. Davidson and her daughter Mary Davidson; (3) through an unlawful entry,
that is, by passing through a window; (4) that as a means to the commission of the offense, the window
was broken and (5) that the accused has previously been punished four times of the crimes of theft and
for other violations of the law, to which lighter penalties were attached, by virtue of final judgments
handed down by competent courts."

The accused was represented by an attorney de oficio. After the information had been read to him, the
court asked the accused if he understood it, and when he answered in the affirmative the court asked
him if he pleaded guilty or not guilty, and the accused answered "guilty" The accused was then
permitted to testify.
Upon the termination of the hearing, Judge Francisco Zandueta, in view of the plea of guilty interposed
by the defendant, found him guilty of the crimes of "allanamiento de morada mediante fuerza",
"homicidio frustrado", and "lesiones menos graves", as alleged in the information, with the present of
four aggravating circumstances, while there was only one mitigating circumstance consisting of the
defendant's plea of "guilty", and sentenced him to suffer the following penalties:

1. For the crime of trespass to dwelling by means of violence, four years, nine months, and eleven
days of prision correccional;

2. For the crime of frustrated homicide in ten years and one day of prision mayor;

3. For the crime of less serious physical injuries, four months and one day of arresto mayor.

The defendant was further sentenced to suffer the accessory penalties provided by law, and to pay the
costs.

Defendant's attorney de oficio now alleges that the lower court erred in convicting the appellant of
three different crimes on the facts alleged in the information, to wit: trespass to dwelling, frustrated
homicide, and less serious physical injuries; and in imposing upon the appellant the total penalty of
fifteen years, one month, and thirteen days of imprisonment.

Appellant's attorney de oficio in this court, Jose M. Casal, has submitted a brief of twenty pages on
behalf of the appellant, and maintains that the appellant was deprived of a fair trial and that the case
should be remanded to the lower court for a new trial, the fiscal to choose the charge he wishes to rely
on or to file a separate information for each crime with which he desires to charge the accused; that the
only crime of which the defendant can be convicted in this case is less serious physical injuries.

Although we commend the zeal with which appellant's attorney de oficio has studied the case, we
cannot agree with his conclusions.

The information in question apparently does not comply with section 11 of the Code of Criminal
Procedure, which provides that a complaint or information must charge but one offense, except only in
those cases in which existing laws prescribe a single punishment for various allied offenses, but the
attorney for the accused did not demur to the information, and the trial judge was justified in finding
the defendant guilty of the several crimes with which he was charged and in imposing upon him the
corresponding penalties. That is the established doctrine of this court.

"When the defendant in a criminal cause goes to trial under a complaint or information which contains a
description of more than one offense, he thereby waives the objection, and may be found guilty of, and
should be sentenced for, as many offenses as are charged in the complaint and proved during the trial. A
failure to object for multifariousness in a complaint is a waiver, and that objection cannot be raised for
the first time on an appeal." (People vs. Miana, 50 Phil., 771.)

As to the nature of the plea of "guilty" and its sufficiency to sustain a conviction, this court in the case of
United States vs. Jamad (37 Phil., 305), said:
"The essence of the plea of guilty in a criminal trial is that the accused, on arraignment, admits his guilt
freely, voluntarily, and with full knowledge of the consequences and meaning of his act, and with a clear
understanding of the precise nature of the crime or crimes charged in the complaint or information;
such a plea of guilty, when formally entered an arraignment, is sufficient to sustain a conviction of any
offense charged in the information, even a capital offense, without the introduction of further evidence,
the defendants himself having supplied the necessary proof."

Appellant's attorney contends that there is no article in the Revised Penal Code corresponding to article
87 of the Penal Code, and that it is therefore not proper to impose upon the accused the several
penalties corresponding to the three crimes with which he was charged, but only that corresponding to
the gravest of them in accordance with article 48 of the Revised Penal Code. There is no merit in this
contention, as article 70 of the Revised Penal Code provides that when the culprit has to serve two or
more penalties, he should serve them simultaneously if the nature of the penalties will so permit;
otherwise, said penalties shall be executed successively, following the order of their respective severity.
Article 48 of the Revised Penal Code relates to complex crimes, that is, when a single act constitutes two
or more crimes, or when an offense is a necessary means for committing the other (or when one of
them is a necessary means for committing the other), and has no application to the case at bar.

Appellant's present attorney severely criticizes the conduct of defendant's attorney in the lower court,
but it does not necessarily follow that the defendant was prejudiced by the failure of his attorney to
demur to the information.

The lower court found that four aggravating circumstances were present in the commission of the crime
and that the accused was entitled to the mitigating circumstance of having pleaded guilty. The lower
court did not specify the four aggravating circumstances taken into account. Although the unlawful
entry, that is, the passing of the accused through a window, and the breaking of the window could not
properly be regarded as aggravating circumstances in the crime of trespass to dwelling, nevertheless the
other aggravating circumstances were sufficient to justify the imposition of the maximum degree of the
corresponding penalties.

The decision of the lower court sentencing the defendant to suffer four months and one day of arresto
mayor for lesiones menos graves is affirmed.

In accordance with articles 280 and 249 of the Revised Penal Code and Act No 4103, the appellant is
condemned to suffer the following indeterminate sentences:

1. For the crime of trespass to dwelling by means of violence, not more than four years, nine
months, and eleven days of prision correccional, and a fine of P200 or the corresponding subsidiary
imprisonment in case of insolvency, and not less than two years of prision correccional;
2. For the crime of frustrated homicide, not more than ten years and one day of prision mayor, and
not less than five years of prision correccional.
As thus modified, the decision appealed from is affirmed, with the costs against the appellant.

Avanceña, C.J., Street, Abad Santos, and Butte, JJ., concur.

[G.R. No. L-10126. October 22, 1957.]

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and
ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN,
plaintiffs-appellants, vs. MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant-appellant.

SYLLABUS

1. DAMAGES; CARRIER'S LIABILITY; WORDS AND PHRASES; PROXIMATE CAUSE DEFINED. — "The
proximate legal cause is that the acting first and producing the injury, either immediately or by setting
other events in motion., all constituting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final event in the chain immediately affecting the
injury as a natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person might be
probably result therefrom."

2. ID.; ID.; OVERTURNING OF BUS; PROXIMATE CAUSE OF DEATH. — When a vehicle turned not
only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural
or unexpected; that the coming of the men with the lighted torch was in response to the call for help,
made not only by the passengers, but most probably by the driver and the conductor themselves, and
that because it was very dark (about 2:30 in the morning), the rescuers had to carry a light with them;
and coming as they did from a rural area where the lanterns and flashlights were not available, they had
to use a torch the most handy and available; and what was more natural, that said rescuers should
innocently approached the overtuned vehicle to extend the aid and effect the rescue requested from
them. Held: That the proximate cause of the death of B was overturning of the vehicle thru the
negligence of defendant and his agent.

3. ID.; ID.; CARRIER'S NEGLIGENCE; BURNING OF THE BUS. — The burning of the bus wherein some
of the passengers were trapped can also be attributed to the negligence of the carrier, through the
driver and conductor who were on the road walking back and forth. They should and must have known
that in the position in which the overtuned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when
spilled, especially over a large area, can be smelt and detected even from a distance, Held: That the
failure of the driver and the conductor to have cautioned or taken steps to warn the rescuers not to
bring the lighted torch too near the bus, constitute negligence on the part of the agents of the carrier
under the provisions of the Civil Code, particularly, Article 1733, 1759 and 1763 thereof.

DECISION

MONTEMAYOR, J p:
Shortly after midnight, on September 13, 1952, bus No. 30 of the Medina Transportation, operated by
its owner, defendant Mariano Medina, under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were
about eighteen passengers, including the driver and conductor. Among the passengers were Juan
Bataclan, seated beside and to the right of the driver, Felipe Lara, seated to the right of Bataclan,
another passenger apparently from the Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated on the left side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned. At about 2 :00 o'clock that same morning, while
the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle
began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of
the passengers managed to leave the bus the best way they could, others had to be helped or pulled
out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the
woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the
passengers, after they had clambered up to the road, heard groans and moans from inside the bus,
particularly, shouts for help from Bataclan and Lara, who said that they could not get out of the bus.
There, is nothing in the evidence to show whether or not the passengers already free from the wreck,
including the driver and the conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the
neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of
bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approached
the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the
bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline
began to leak and escape from the gasoline tank on the side of the chassis, spreading over and
permeating the body of the bus and the ground under and around it, and that the lighted torch brought
by one of the men who answered the call for help set it on fire.

That same day, the charred bodies of the four doomed passengers inside the bus were removed and
duly identified, specially that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in
her name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs, plus P600 as
attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale
and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of
Appeals, but the latter court endorsed the appeal to us because of the value involved in the claim in the
complaint.

Our New Civil Code amply provides for the responsibility of a common carrier to its passengers and their
goods. For purposes of reference, we are reproducing the pertinent codal provisions:

"ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735,
and 1745, Nos. 5, 6, and 7 while the extraordinary diligence for the safety of the passengers is further
set forth in articles 1755 and 1756."

"ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances."

"ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence
as prescribed in articles 1733 and 1755."

"ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or wilful acts of the former's employees, although such employees may have acted beyond
the scope of their authority or in violation of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision of their employees."

"ART. 1763. A common carrier is responsible for injuries suffered by a passenger on account of the
wilful acts or negligence of other passengers or of strangers, if the common carrier's employees through
the exercise of the diligence of a good father of a family could have prevented or stopped the act or
omission."

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also
agree with the trial court that there was negligence on the part of the defendant, through his agent, the
driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as
testified to by one of the passengers, and as shown by the fact that according to the testimony of the
witnesses, including that of the defense, from the point where one of the front tires burst up to the
canal where the bus overturned after zig-zagging, there was a distance of about 150 meters. The
chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the
velocity at which the bus must have been running, its momentum carried it over a distance of 150
meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question is to
what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was
not the overturning of the bus, but rather, the fire that burned the bus, including himself and his co-
passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have
suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his
death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate
cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in
their brief. It is as follows:
". . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as an ordinarily prudent
and intelligent person, have reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom."

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing
him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on
fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger
is burned to death, one might still contend that the proximate cause of his death was the fire and not
the overturning of the vehicle. But in the present case and under the circumstances obtaining in the
same, we do not hesitate to hold that the proximate cause of the death of Bataclan was the overturning
of the bus, this for the reason that when the vehicle turned not only on its side but completely on its
back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the passengers, but most
probably, by the driver and the conductor themselves, and that because it was very dark (about 2:30 in
the morning), the rescuers had to carry a light with them; and coming as they did from a rural area
where lanterns and flashlights were not available, they had to use a torch, the most handy and available;
and what was more natural than that said rescuers should innocently approach the overturned vehicle
to extend the aid and effect the rescue requested from them. In other words, the coming of the men
with the torch was to be expected and was a natural sequence of the overturning of the bus, the
trapping of some of its passengers and the call for outside help. What is more, the burning of the bus
can also in part be attributed to the negligence of the carrier, through its driver and its conductor.
According to the witnesses, the driver and the conductor were on the road walking back and forth. They,
or at least, the driver should and must have known that in the position in which the overturned bus was,
gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus,
this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and detected
even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or
taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the
part of the agents of the carrier come under the codal provisions above- reproduced, particularly,
Articles 1733, 1759 and 1763.

As regards the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the amount
of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include
compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees,
and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in
the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees
may well be fixed at EIGHT HUNDRED (P800) PESOS. The award made by the trial court of ONE
HUNDRED (P100) PESOS for the loss of the merchandise carried by the deceased in the bus, is adequate
and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of
the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital,
she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him
speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed
immediately because they were already old, and that as a matter of fact, he had been telling the driver
to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove
that the driver had not been diligent and had not taken the necessary precautions to insure the safety of
his passengers. Had he changed the tires, specially those in front, with new ones, as he had been
instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have
occurred. All in all, there is reason to believe that the driver operated and drove his vehicle negligently,
resulting in the death of four of his passengers, physical injuries to others, and the complete loss and
destruction of their goods, and yet the criminal case against him, on motion of the fiscal and with his
consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose testimony
he was banking to support the complaint, either failed to appear or were reluctant to testify. But the
record of the case before us shows that several witnesses, passengers in that bus, willingly and
unhesitatingly testified in court to the effect that the said driver was negligent. In the public interest, the
prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the
promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the
Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS to SIX THOUSAND (P6,000) PESOS, and from SIX
HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for attorney's fees,
respectively, the decision appealed from is hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion., Reyes, J. B. L., Endencia
and Felix, JJ., concur.
[G.R. No. 75369. November 26, 1990.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO ILIGAN y JAMITO, EDMUNDO ASIS y
ILIGAN and JUAN MACANDOG (at large), defendants, FERNANDO ILIGAN y JAMITO and EDMUNDO ASIS
y ILIGAN, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Cesar R. Canonizado for defendants-appellants.

SYLLABUS

1. REMEDIAL LAW; APPEAL; THROWS THE CASE OPEN FOR A COMPLETE REVIEW OF ALL ERRORS
AS MAY BE IMPUTABLE TO THE TRIAL COURT. — While the factual findings of the trial court are
generally given due respect by the appellate court, an appeal of a criminal case throws it open for a
complete review of all errors, by commission or omission, as may be imputable to the trial court.
(People v. Valerio, Jr., L-4116, February 25, 1982, 112 SCRA 208, 231) In this instance, the lower court
erred in finding that the maceration of one half of the head of the victim was also caused by Iligan for
the evidence on record point to a different conclusion. We are convinced beyond peradventure that
indeed, after Quiñones, Jr. had fallen from the bolo-hacking perpetrated by Iligan, he was run over by a
vehicle. This finding, however, does not in any way exonerate Iligan from liability for the death of
Quiñones, Jr.

2. CRIMINAL LAW; LIABILITY; REQUISITES THEREOF, PRESENT IN THE CASE AT BAR. — Under Article
4 of the Revised Penal Code, criminal liability shall be incurred "by any person committing a felony
(delito) although the wrongful act done be different from that which he intended." Based on the
doctrine that "el que es causa de la causa es causa del mal causado" (he who is the cause of the cause is
the cause of the evil caused), (People vs. Ural, G.R. No. L-30801, March 27, 1974, 56 SCRA 138, 144) the
essential requisites of Article 4 are: (a) that an intentional felony has been committed, and (b) that the
wrong done to the aggrieved party be the direct, natural and logical consequence of the felony
committed by the offender. (People v. Mananquil, L-35574, September 28, 1984, 132 SCRA 196, 207).
We hold that these requisites are present in this case.

3. ID.; ID.; PROXIMATE LEGAL CAUSE, DEFINED. — The intentional felony committed was the
hacking of the head of Quiñones, Jr. by Iligan. That it was considered as superficial by the physician who
autopsied Quiñones is beside the point. What is material is that by the instrument used in hacking
Quiñones, Jr. and the location of the wound, the assault was meant not only to immobilize the victim
but to do away with him as it was directed at a vital and delicate part of the body: the head. (See:
People v. Diana, 32 Phil. 344 [1915]). The hacking incident happened on the national highway where
vehicles are expected to pass any moment. One such vehicle passed seconds later when Lukban and
Zaldy Asis, running scared and having barely negotiated the distance of around 200 meters, heard
shouts of people. Quiñones, Jr., weakened by the hacking blow which sent him to the cemented
highway, was run over by a vehicle. Under these circumstances, we hold that while Iligan's hacking of
Quiñones, Jr.'s head might not have been the direct cause, it was the proximate cause of the latter's
death. Proximate legal cause is defined as "that acting first and producing the injury, either immediately
or by setting other events in motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at the moment of his act or default that an injury
to some person might probably result therefrom. (Urbano v. Intermediate Appellate Court, G.R. No.
72964, January 7, 1988, 157 SCRA 1 quoting Vda. De Bataclan v. Medina, 102 Phil. 181). In other words,
the sequence of events from Iligan's assault on him to the time Quiñones, Jr. was run over by a vehicle
is, considering the very short span of time between them, one unbroken chain of events. Having
triggered such events, Iligan cannot escape liability.

4. ID.; ALIBI; NOT CONSIDERED WHEN ACCUSED IS POSITIVELY IDENTIFIED BY WITNESSES. — We

agree with the lower court that the defense of alibi cannot turn the tide in favor of Iligan because he
was positively seen at the scene of the crime and identified by the prosecution witnesses. (People v.
Pineda, G.R. No. 72400, January 15, 1988, 157 SCRA 71).

5. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT PREMEDITATION, WRONGLY

APPRECIATED IN THE CASE AT BAR. — But we disagree with the lower court with regards to its findings
on the aggravating circumstances of treachery and evident premeditation. Treachery has been
appreciated by the lower court in view of the suddenness of the attack on the group of Quiñones, Jr.
Suddenness of such attack, however, does not by itself show treachery. (People v. Gadiano, L-31818,
July 30, 1982, 115 SCRA 559) There must be evidence that the mode of attack was consciously adopted
by the appellant to make it impossible or hard for the person attacked to defend himself. (People v.
Crisostomo, L-32243, April 15, 1988, 160 SCRA 47). In this case, the hacking of Edmundo Asis by Iligan
followed by the chasing of the trio by the group of Iligan was a warning to the deceased and his
companions of the hostile attitude of the appellants. The group of Quiñones, Jr. was therefore placed on
guard for any subsequent attacks against them. (People v. Mercado, L-33492, March 30, 1988, 159 SCRA
455). The requisites necessary to appreciate evident premeditation have likewise not been met in this
case. Thus, the prosecution failed to prove all of the following: (a) the time when the accused
determined to commit the crime; (b) an act manifestly indicating that the accused had clung to their
determination to commit the crime; and (c) the lapse of sufficient length of time between the
determination and execution to allow him to reflect upon the consequences of his act. (People v. Batas,
G.R. Nos. 84277-78, August 2, 1989, 176 SCRA 46).

6. ID.; CONSPIRACY; NOT SUFFICIENTLY CONSTITUTED BY MERE KNOWLEDGE, ACQUIESCENCE OR

APPROVAL OF THE ACT WITHOUT COOPERATION OR AGREEMENT TO COOPERATE NOR BY MERE
PRESENCE AT THE SCENE OF THE CRIME. — Absent any qualifying circumstances, Iligan must be held
liable only for homicide. Again, contrary to the lower court's finding, proof beyond reasonable doubt has
not been established to hold Edmundo Asis liable as Iligan's co-conspirator. Edmundo Asis did not take
any active part in the infliction of the wound on the head of Quiñones, Jr., which led to his running over
by a vehicle and consequent death. As earlier pointed out, the testimony that he was carrying a stone at
the scene of the crime hardly merits credibility being uncorroborated and coming from an undeniably
biased witness. Having been the companion of Iligan, Edmundo Asis must have known of the former's
criminal intent but mere knowledge, acquiescence or approval of the act without cooperation or
agreement to cooperate, is not enough to constitute one a party to a conspiracy. There must be
intentional participation in the act with a view to the furtherance of the common design and purpose.
(People v. Izon, 104 Phil. 690 [1958]) Such being the case, his mere presence at the scene of the crime
did not make him a co-conspirator, a co-principal or an accomplice to the assault perpetrated by Iligan.
(Orobio v. Court of Appeals, G.R. No. 57519, September 13, 1988, 165 SCRA 316) Edmundo Asis
therefore deserves exoneration.

7. ID.; HOMICIDE; PENALTY; ABSENT ANY MITIGATING CIRCUMSTANCE AND APPLYING THE
INDETERMINATE SENTENCE LAW. — There being no mitigating circumstance, the penalty imposable on
Iligan is reclusion temporal medium (Arts. 249 and 64, Revised Penal Code). Applying the Indeterminate
Sentence Law, the proper penalty is that within the range of prision mayor as minimum and reclusion
temporal medium as maximum. We find insufficient proof to warrant the award of P256,960 for the
victim's unrealized income and therefore, the same is disallowed.

DECISION

FERNAN, C.J p:

In this appeal, uncle and nephew, Fernando Iligan and Edmundo Asis, seek a reversal of the decision of
the then Court of First Instance of Camarines Norte, Branch II 1 convicting them of the crime of murder
and sentencing them to suffer the penalty of reclusion perpetua and to indemnify the heirs of
Esmeraldo Quiñones, Jr. in the amounts of P30,000 for the latter's death and P256,960 representing the
victim's unrealized income.

On October 21, 1980, the following information for murder was filed against Fernando Iligan, Edmundo
Asis and Juan Macandog: prLL

"That on or about 3:00 a.m., August 4, 1980, at sitio Lico II, barangay Sto. Domingo, municipality of
Vinzons, province of Camarines Norte, Philippines, and within the jurisdiction of the Honorable Court,
the above named accused, conspiring and mutually helping one another, with treachery and evident
premeditation, one of the accused Fernando Iligan armed with a bolo (sinampalok) and with deliberate
intent to kill, did then and there wilfully, unlawfully and feloniously, gang up and in a sudden
unexpected manner, hacked Esmeraldo Quiñones, Jr., on his face, thus causing fatal injuries on the
latter's face which resulted to (sic) the death of said Esmeraldo Quiñones.

"CONTRARY TO LAW."

Juan Macandog was never apprehended and he remains at large. At their arraignment on January 12,
1981 Fernando Iligan and Edmundo Asis pleaded not guilty to the crime charged. Thereafter, the
prosecution presented the following version of the commission of the crime. prLL

At around 2:00 o'clock in the morning of August 4, 1980, Esmeraldo Quiñones, Jr. and his companions,
Zaldy Asis and Felix Lukban, were walking home from barangay Sto. Domingo, Vinzons, Camarines Norte
after attending a barrio fiesta dance. In front of the ricemill of a certain Almadrones, they met the
accused Fernando Iligan, his nephew, Edmundo Asis, and Juan Macandog. Edmundo Asis pushed
("winahi") them aside thereby prompting Zaldy Asis to box him. 2 Felix Lukban quickly told the group of
the accused that they had no desire to fight. 3 Fernando Iligan, upon seeing his nephew fall, drew from
his back a bolo and hacked Zaldy Asis but missed. Terrified, the trio ran pursued by the three accused.
They ran for about half an hour, passing by the house of Quiñones, Jr. They stopped running only upon
seeing that they were no longer being chased. After resting for a short while, Quiñones, Jr. invited the
two to accompany him to his house so that he could change to his working clothes and report for work
as a bus conductor. 4

While the trio were walking towards the house of Quiñones, Jr., the three accused suddenly emerged on
the roadside and without a word, Fernando Iligan hacked Quiñones, Jr. with his bolo hitting him on the
forehead and causing him to fall down. 5 Horrified, Felix Lukban and Zaldy Asis fled to a distance of 200
meters, but returned walking after they heard shouts of people. Zaldy Asis specifically heard someone
shout "May nadale na." 6

On the spot where Quiñones, Jr. was hacked, Zaldy Asis and Felix Lukban saw him already dead with his
head busted. 7 They helped the brother of Quiñones, Jr. in carrying him to their house. 8

That same day, August 4, 1980, the body of Quiñones, Jr. was autopsied at the Funeraria Belmonte in
Labo, Camarines Norte by the municipal health officer, Dr. Marcelito E. Abas. The postmortem
examination report which is found at the back of the death certificate reveals that Esmeraldo Quiñones,
Jr., who was 21 years old when he died, sustained the following injuries:

"1. Shock and massive cerebral hemorrhages due to multiple fracture of the entire half of the
frontal left, temporal, parietal and occipital bone of the head, with massive maceration of the brain
tissue.

"2. Other findings — Incised wound at the right eyebrow, medial aspect measuring about 4 cms. in
length, 0.5 cm. in width and 0.5 cm. in depth, abrasion on the left shoulder and right side of the neck." 9

The death certificate also indicates that Quiñones, Jr. died of "shock and massive cerebral hemorrhages
due to a vehicular accident."

The defendants denied having perpetrated the crime. They alleged that they were in their respective
houses at the time the crime was committed. LLphil

Accused Fernando Iligan testified that at around midnight of August 4, 1980, he left his house to fetch
his visitors at the dance hall. 10 Along the way, he met his nephew, Edmundo Asis, whom he presumed
was drunk. He invited his nephew to accompany him to the dance hall. However, they were not able to
reach their destination because Edmundo was boxed by somebody whom he (Edmundo) sideswiped. 11
Instead, Fernando Iligan brought his nephew home. 12 On their way, they were overtaken by Juliano
Mendoza whom Fernando Iligan invited to his house to help him cook. 13 After bringing his nephew
home, Fernando Iligan and Juliano Mendoza proceeded to Iligan's house and arrived there between 1:30
and 2:00 o'clock in the morning of the same day. 14

Edmundo Asis corroborated Iligan's testimony. He testified that while they were walking in front of the
Almadrones ricemill, he sideswiped someone whom he did not recognize because there were several
persons around. He said, "Sorry, pare" but the person to whom he addressed his apology boxed him on
his left face. He fell down and Iligan helped him. Later, Iligan accompanied him to his home in Lico II. 15
After Iligan and Juliano Mendoza had left his house, he slept and woke up at 7:00 o'clock the following
morning. 16

The defense made capital of the testimony of prosecution witness Dr. Abas to the effect that Quiñones,
Jr. died because of a vehicular accident. In ruling out said theory, however, the lower court, in its
decision of May 7, 1986, said:

"The accused, to augment their alibi, have pointed to this Court that the Certificate of Death have shown
that the victim's death was caused by a vehicular accident. To this, notwithstanding, the Court cannot
give credit for some reasons. First, the fact of the alleged vehicular accident has not been fully
established. Second, Esmeraldo Quiñones, Sr., (the) father of the victim, testified that Dr. Abas told him
that if his son was hacked by a bolo on the face and then run over the entire head by a vehicle's tire,
then that hacking on the face could not be visibly seen on the head (t.s.n., pp. 16-17, October 13, 1981)
Third, Exhibit '2' (the photograph of the victim taken immediately after his body had been brought
home) is a hard evidence. It will attestly (sic) show that the entire head was not crushed by any vehicle.
On the contrary, it shows that only half of the face and head, was damaged with the wound starting on a
sharp edge horizontally. There are contusions and abrasions on the upper left shoulder and on the neck
while the body downwards has none of it, while on the right forehead there is another wound caused by
a sharp instrument. Therefore, it is simple, that if the victim was run over by a vehicle, the other half
portion of his head and downward part of his body must have been likewise seriously damaged, which
there are none." 17

The lower court also found that Iligan's group conspired to kill anyone or all members of the group of
the victim to vindicate the boxing on the face of Edmundo Asis. It appreciated the aggravating
circumstances of evident premeditation and treachery and accordingly convicted Iligan and Edmundo
Asis of the crime of murder and imposed on them the aforementioned penalty.

Iligan and Edmundo Asis interposed this appeal professing innocence of the crime for which they were
convicted. For the second time, they attributed Quiñones, Jr.'s death to a vehicular accident.

No eyewitnesses were presented to prove that Quiñones, Jr. was run over by a vehicle. The defense
relies on the testimony of Dr. Abas, a prosecution witness, who swore that the multiple fracture on the
head of Quiñones, Jr. was caused by a vehicular accident 18 which opinion was earlier put in writing by
the same witness in the postmortem examination. Dr. Abas justified his conclusion by what he
considered as tire marks on the victim's left shoulder and the right side of his neck. 19 He also testified
that the incised wound located at the victim's right eyebrow could have been caused by a sharp bolo but
it was so superficial that it could not have caused the victim's death. 20
Circumstantial evidence on record indeed point to the veracity of the actual occurrence of the vehicular
mishap. One such evidence is the testimony of prosecution witness Zaldy Asis that when he helped bring
home the body of Quiñones, Jr., he told the victim's father, Esmeraldo Quiñones, Sr. that "before
Esmeraldo Quiñones (Jr.) was run over by a vehicle, he was hacked by Fernando Iligan." 21 When asked
why he mentioned an automobile, Zaldy Asis said that he did not notice any vehicle around but he
mentioned it "because his (Quiñones, Jr.) head was busted." 22 It is therefore not farfetched to conclude
that Zaldy Asis had actual knowledge of said accident but for understandable reasons he declined to
declare it in court. Defense witness Marciano Mago, the barangay captain of Sto. Domingo, also testified
that when he went to the scene of the crime, he saw bits of the brain of the victim scattered across the
road where he also saw tire marks. 23

For its part, the prosecution, through the victim's father, presented evidence to the effect that Iligan
authored the maceration of half of the victim's head. Quiñones, Sr. testified that from their house,
which was about five meters away from the road, he saw Fernando Iligan holding a "sinampalok" as he,
together with Edmundo Asis and Juan Macandog, chased someone. During the second time that he saw
the three accused, he heard Iligan say, "Dali, ayos na yan." 24 Hence, the lower court concluded that the
victim's head was "chopped" resulting in the splattering of his brain all over the place. 25 It should be
emphasized, however, that the testimony came from a biased witness and it was uncorroborated.

While the factual findings of the trial court are generally given due respect by the appellate court, an
appeal of a criminal case throws it open for a complete review of all errors, by commission or omission,
as may be imputable to the trial court. 26 In this instance, the lower court erred in finding that the
maceration of one half of the head of the victim was also caused by Iligan for the evidence on record
point to a different conclusion. We are convinced beyond peradventure that indeed, after Quiñones, Jr.
had fallen from the bolo-hacking perpetrated by Iligan, he was run over by a vehicle. This finding,
however, does not in any way exonerate Iligan from liability for the death of Quiñones, Jr. prcd

Under Article 4 of the Revised Penal Code, criminal liability shall be incurred "by any person committing
a felony (delito) although the wrongful act done be different from that which he intended." Based on
the doctrine that "el que es causa de la causa es causa del mal causado" (he who is the cause of the
cause is the cause of the evil caused), 27 the essential requisites of Article 4 are: (a) that an intentional
felony has been committed, and (b) that the wrong done to the aggrieved party be the direct, natural
and logical consequence of the felony committed by the offender. 28 We hold that these requisites are
present in this case.

The intentional felony committed was the hacking of the head of Quiñones, Jr. by Iligan. That it was
considered as superficial by the physician who autopsied Quiñones is beside the point. What is material
is that by the instrument used in hacking Quiñones, Jr. and the location of the wound, the assault was
meant not only to immobilize the victim but to do away with him as it was directed at a vital and
delicate part of the body: the head. 29

The hacking incident happened on the national highway 30 where vehicles are expected to pass any
moment. One such vehicle passed seconds later when Lukban and Zaldy Asis, running scared and having
barely negotiated the distance of around 200 meters, heard shouts of people. Quiñones, Jr., weakened
by the hacking blow which sent him to the cemented highway, was run over by a vehicle.

Under these circumstances, we hold that while Iligan's hacking of Quiñones, Jr.'s head might not have
been the direct cause, it was the proximate cause of the latter's death. Proximate legal cause is defined
as "that acting first and producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such circumstances that the person responsible for
the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect
at the moment of his act or default that an injury to some person might probably result therefrom." 31
In other words, the sequence of events from Iligan's assault on him to the time Quiñones, Jr. was run
over by a vehicle is, considering the very short span of time between them, one unbroken chain of
events. Having triggered such events, Iligan cannot escape liability. LLphil

We agree with the lower court that the defense of alibi cannot turn the tide in favor of Iligan because he
was positively seen at the scene of the crime and identified by the prosecution witnesses. 32

But we disagree with the lower court with regards to its findings on the aggravating circumstances of
treachery and evident premeditation. Treachery has been appreciated by the lower court in view of the
suddenness of the attack on the group of Quiñones, Jr. Suddenness of such attack, however, does not by
itself show treachery. 33 There must be evidence that the mode of attack was consciously adopted by
the appellant to make it impossible or hard for the person attacked to defend himself. 34 In this case,
the hacking of Edmundo Asis by Iligan followed by the chasing of the trio by the group of Iligan was a
warning to the deceased and his companions of the hostile attitude of the appellants. The group of
Quiñones, Jr. was therefore placed on guard for any subsequent attacks against them. 35

The requisites necessary to appreciate evident premeditation have likewise not been met in this case.
Thus, the prosecution failed to prove all of the following: (a) the time when the accused determined to
commit the crime; (b) an act manifestly indicating that the accused had clung to their determination to
commit the crime; and (c) the lapse of sufficient length of time between the determination and
execution to allow him to reflect upon the consequences of his act. 36

Absent any qualifying circumstances, Iligan must be held liable only for homicide. Again, contrary to the
lower court's finding, proof beyond reasonable doubt has not been established to hold Edmundo Asis
liable as Iligan's co-conspirator. Edmundo Asis did not take any active part in the infliction of the wound
on the head of Quiñones, Jr., which led to his running over by a vehicle and consequent death. As earlier
pointed out, the testimony that he was carrying a stone at the scene of the crime hardly merits
credibility being uncorroborated and coming from an undeniably biased witness. Having been the
companion of Iligan, Edmundo Asis must have known of the former's criminal intent but mere
knowledge, acquiescence or approval of the act without cooperation or agreement to cooperate, is not
enough to constitute one a party to a conspiracy. There must be intentional participation in the act with
a view to the furtherance of the common design and purpose. 37 Such being the case, his mere
presence at the scene of the crime did not make him a co-conspirator, a co-principal or an accomplice to
the assault perpetrated by Iligan. 38 Edmundo Asis therefore deserves exoneration.

There being no mitigating circumstance, the penalty imposable on Iligan is reclusion temporal medium
(Arts. 249 and 64, Revised Penal Code). Applying the Indeterminate Sentence Law, the proper penalty is
that within the range of prision mayor as minimum and reclusion temporal medium as maximum. We
find insufficient proof to warrant the award of P256,960 for the victim's unrealized income and
therefore, the same is disallowed. LexLib

WHEREFORE, appellant Fernando Iligan y Jamito is hereby convicted of the crime of homicide for which
he is imposed the indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium as maximum and he
shall indemnify the heirs of Esmeraldo Quiñones, Jr. in the amount of fifty thousand pesos (P50,000).
Appellant Edmundo Asis is hereby acquitted of the crime charged against him. Costs against appellant
Iligan.

SO ORDERED.

Gutierrez, Jr. and Bidin, JJ., concur.

Feliciano, J., is on leave.

Footnotes

1. Presided by Judge Luis D. Dictado.

2. TSN, February 12, 1981, pp. 54-55.

3. TSN, February 11, 1981, p. 7.

4. TSN, February 12, 1981, pp. 57-58.

5. Ibid., pp. 58-59.

6. Ibid., p. 59.

7. Ibid., p. 63.

8. Ibid., pp. 59-60.

9. Exh. A.

10. TSN, May 11, 1983, p. 316.

11. Ibid., pp. 317-318.

12. Ibid., p. 319.

13. Ibid., pp. 320, 322-323.

14. Ibid., p. 325.

15. TSN, August 29, 1983, pp. 349-350.

16. Ibid., p. 351.

17. Decision, pp. 8-9.

18. TSN, September 2, 1981, p. 114.

19. Ibid., p. 121.

20. Ibid., pp. 114-116.

21. TSN, February 12, 1981, p. 60.

22. Ibid., p. 63.

23. TSN, February 24, 1982, pp. 196 & 208-209.

24. TSN, January 19, 1982, pp. 157-163.

25. Decision, p. 8.

26. People v. Valerio, Jr., L-4116, February 25, 1982, 112 SCRA 208, 231.

27. People v. Ural, G.R. No. L-30801, March 27, 1974, 56 SCRA 138, 144.

28. People v. Mananquil, L-35574, September 28, 1984, 132 SCRA 196, 207.

29. See: People v. Diana, 32 Phil. 344 (1915).

30. TSN, February 11, 1981, p. 8.

31. Urbano v. Intermediate Appellate Court, G.R. No. 72964, January 7, 1988, 157 SCRA 1 quoting
Vda. de Bataclan v. Medina, 102 Phil. 181.

32. People v. Pineda, G.R. No. 72400, January 15, 1988, 157 SCRA 71.

33. People v. Gadiano, L-31818, July 30, 1982, 115 SCRA 559.

34. People v. Crisostomo, L-32243, April 15, 1988, 160 SCRA 47.

35. People v. Mercado, L-33492, March 30, 1988, 159 SCRA 455.

36. People v. Batas, G.R. Nos. 84277-78, August 2, 1989, 176 SCRA 46.

37. People v. Izon, 104 Phil. 690 (1958).

38. Orobio v. Court of Appeals, G.R. No. 57519, September 13, 1988, 165 SCRA 316.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 53967 November 26, 1990

Velasco v. Ople

FIRST DIVISION

[G.R. No. 53967. November 26, 1990.]

ALFREDO VELASCO AND ADELINA VELASCO, petitioners-appellants, vs. Hon. BLAS OPLE, in his Official
Capacity as Secretary of Labor and Hon. RONALDO ZAMORA, in his Official Capacity as The Assistant
Executive Secretary, respondents-appellants.

SYLLABUS

1. LABOR LAW; APPEAL TO THE OFFICE OF THE PRESIDENT FROM THE SECRETARY OF LABOR;
EXPRESSLY PROVIDED FOR IN SECTION 5 OF P.D. NO. 21; DECISION OF THE SECRETARY OF LABOR,
IMMEDIATELY EXECUTORY UNDER P.D. NO. 1367; APPEALS FROM THE NLRC TO THE SECRETARY OF
LABOR, ELIMINATED UNDER P.D. NO. 1391. — The applicable law then governing appeals to the Office
of the President is Presidential Decree No. 21, promulgated on October 14, 1972. Section 5 of P.D. No.
21 provides: "SEC. 5. The decision of the Commission shall be immediately executory unless appealed to
the Secretary of Labor who shall act on all cases within five (5) days from filing. The latter's decision is
appealable to the President." The aforequoted section expressly provides for the remedy of appeal to
the Office of the President from the decision of the Secretary of Labor without qualification. It is only
when Presidential Decree No. 1367 was promulgated on May 1, 1978 that the decision of the Secretary
of Labor in labor cases shall be immediately executory provided that the President of the Philippines
may assume jurisdiction over cases which he considers national interest cases. Subsequently,
Presidential Decree 1391 promulgated on May 29, 1978 further eliminated appeals from the NLRC to
the Secretary of Labor. Hence, petitioners Alfredo and Adelina Velasco could still avail of the remedy of
appeal to the President when the decision of the Secretary of Labor was rendered on December 5, 1973.

2. ID.; ID.; MACHINERY OR BODY IN THE OFFICE OF THE PRESIDENT GOVERNING SUCH APPEALS NO
LONGER EXISTING UNDER THE PRESENT LAW. — With regard to the remedy of appeal to which the
petitioners are entitled under the applicable law then, this Court deems it impractical to allow the
parties to still pursue their appeal to the Office of the President at this time considering that under the
present law, the Labor Code, as amended, the President may only assume jurisdiction only in cases
which the latter considers to be of national interest. With respect to those labor cases which do not
involve national interest, such as the case at bar, the machinery or body in the Office of the President
governing such appeals apparently is no longer existing under the present law. Hence, for just and
equitable considerations, this Court instead shall grant the petitioners the opportunity to file a proper
petition for certiorari within a reasonable time questioning the decision on the merits of the Secretary of
Labor.

3. ID.; REGULAR COURTS WITHOUT JURISDICTION TO ACT ON LABOR CASES OR VARIOUS

INCIDENTS ARISING THEREFROM; DECISION OF THE SECRETARY OF LABOR MAY ONLY BE QUESTIONED
THROUGH A PETITION FOR CERTIORARI WITH THE SUPREME COURT. — The second issue involves the
jurisdiction of the trial court to enjoin or restrain the implementation and execution of the decision of
the Secretary of Labor in labor cases. The rule is settled that regular courts have no jurisdiction to act on
labor cases or various incidents arising therefrom. Jurisdiction to try and adjudicate such cases pertain
exclusively to the proper labor officials of the Department of Labor (Associated Labor Unions (ALU-
TUCP) v. Borromeo, G.R. 75736, September 29, 1988, 166 SCRA 99). Regular courts, being ill-prepared to
apply labor laws, should not interfere in labor cases (Goodrich Employees Association v. CFI of Rizal, L-
30211, October 5, 1976, 73 SCRA 297). Hence, the Court of First Instance had no jurisdiction in the case
at bar to issue the writ of injunction to restrain the enforcement of the decision rendered by the
Secretary of Labor. Where the issue is lack of authority or arbitrary or improvident exercise thereof, the
decision of the Secretary of Labor may only be questioned and reviewed through a petition for certiorari
with the Supreme Court, which is the proper forum for it (Asiaworld Publishing House Inc. v. Ople, G.R.
No. 56398, July 23, 1987, 152 SCRA 219). Thus, We find the decision of the trial court null and void for
lack of jurisdiction in enjoining the Secretary of Labor from implementing his decision.

DECISION

MEDIALDEA, J p:

This is an appeal from the decision of the Court of First Instance of Manila (now Regional Trial Court)
granting the petition for Prohibition and Mandamus filed by Alfredo Velasco and Adelina Velasco. This
was appealed by the parties to the Court of Appeals but the latter court issued a resolution dated April
9, 1980 certifying the appeal to Us since only pure questions of law are involved.

The antecedent facts of the case as stated by the Court of Appeals in its resolution are as follows: cdrep

". . . [O]n March 28, 1973 Quirino Acebuche, Primitiva Caranyangan, Cora Donor and Catalina Ogaya
private respondents, thru their common authorized representative Rolando Bartolome, filed with the
National Labor Relations Commission (NLRC) complaints against the herein petitioners, owners and
proprietors of the Belen's Restaurant of Intramuros, Manila, for overtime pay and salary differentials
under the Minimum Wage Law, docketed therein as NLRC Cases Nos. 1953, 2290 and 2427; that after
due proceedings in the NLRC, the Commission headed by chairman Amado G. Inciong, rendered a
decision on August 15, 1973 Ordering the petitioners to pay the claimants the total amount of
P14,087.00 (Exh. K); that upon appeal to the respondent Secretary of Labor, the latter rendered a
decision on December 5, 1973 reducing the awards due to the private respondents due to a mistake in
computation (Exh. L); that a motion for reconsideration by the petitioners was denied by the respondent
Secretary of Labor in his order dated February 14, 1974 (Exh. M); that the petitioners filed with the
Bureau of Labor Relations on March 12, 1974 a notice of appeal stating that they were appealing the
decision and order to the Office of the President (Exh. N); that on June 10, 1974, Assistant Executive
Secretary Ronaldo Zamora addressed a letter to the Chief of the Constabulary to cause compliance by
the petitioners of the decision of the Secretary of Labor within five days from the receipt of said letter,
pursuant to Section 10 of P.D. No. 21 which provides for the arrest and detention of any person failing
to comply with a decision or order of the NLRC (Exh. P); that the petitioners in turn wrote Assistant
Executive Secretary Zamora for a reconsideration of the latter's directive of June 10, 1974 on the main
ground that their appeal from the decision of the Secretary of Labor has not yet been resolved (Exh. Q);
that on July 12, 1974 Assistant Executive Secretary Zamora wrote the petitioners stating that his Office
could not entertain the appeal of the petitioners 'in view of the President's instructions that henceforth
this Office should take cognizance of appeals in labor cases from the Secretary of Labor only those
involving national interest and those labor cases pending appeal in this office not involving national
interest should be remanded or returned to the Secretary of Labor for appropriate action and/or
execution' (Exh. R); that on July 15, 1974, the petitioners filed with the lower court the present petition
for prohibition and mandamus with a prayer for the issuance of a preliminary injunction — subsequently
amended on July 29, 1974, seeking to restrain the Secretary of Labor and the Assistant Executive
Secretary from implementing the decision of the Secretary of Labor, alleging that since petitioner's
appeal to the Office of the President has not yet been resolved, the decision of the Secretary of Labor
has not yet become final and executory, so that the directive of the Assistant Executive Secretary to
implement said decision is therefore null and void; that the lower court issued an order on October 31,
1974 directing the respondent to answer the petition and issued a writ of preliminary injunction
enjoining the public respondents from implementing the decision of the Secretary of Labor dated
December 5, 1973 and the order of February 14, 1974, as well as the directives of the respondent
Assistant Executive Secretary dated June 10, 1974 and July 12, 1974; that after the public respondents
had filed their Answer to the amended petition, the lower court, after declaring the private respondents
in default for failure to file their answer, conducted a hearing therein, after which it rendered its
decision on September 30, 1975, . . ." (pp. 46-47, Rollo)

The dispositive portion of the decision of the trial court reads as follows:

"The Court will therefore limit itself to making the preliminary injunction issued in this case permanent
and respondent public officials, their agents, representatives and/or persons acting under them are
prohibited and enjoined from implementing the decision of the Secretary of Labor dated December 5,
1973 and order of February 4, 1974, and the letters of respondent Assistant Executive Secretary dated
June 10, 1974 and July 12, 1974, until such time as petitioners' appeal has been given due course or
otherwise disposed of in accordance with any official change in the applicable law." (p. 45, Rollo)

Not satisfied with the decision, both parties appealed. Respondent public officials, in their appeal
assigned the following errors of the trial court:

"I
THE LOWER COURT ERRED IN ISSUING INJUNCTION PROHIBITING IMPLEMENTATION OF THE DECISION
OF THE SECRETARY OF LABOR DATED DECEMBER 5, 1973.

"II

THE LOWER COURT ERRED IN HOLDING THAT PETITIONERS HAVE STILL A RIGHT TO APPEAL FROM THE
DECISION OF THE SECRETARY OF LABOR WHICH WAS ALLEGEDLY VIOLATED BY RESPONDENTS-
APPELLANTS PUBLIC OFFICIALS WHICH SHOULD BE PROTECTED BY INJUNCTION.

"III

THE LOWER COURT ERRED IN HOLDING THAT THE 'INTEGRITY' OF THE DECISION OF THE SECRETARY OF
LABOR DATED DECEMBER 5, 1973 SUFFERS FROM TAINT OF UNDUE INFLUENCE WHICH IS ADDITIONAL
REASON FOR ENJOINING ITS IMPLEMENTATION." (pp. 1-2, Brief for the Respondents-Appellants)

On the other hand, petitioners in their appeal made the following assignment of error:

"THE LOWER COURT ERRED IN HOLDING IN ITS ORDER DATED NOVEMBER 17, 1975 THAT IT HAD NO
JURISDICTION TO REVIEW THE CORRECTNESS OF THE DECISION OF THE SECRETARY OF LABOR AND
ASSISTANT EXECUTIVE SECRETARY IN NLRC CASES NOS. 1953, 2290 AND 2497." (p. 42, Brief for the
Petitioners as Appellees and Appellants.)

In view of the foregoing assignment of errors by the parties, the following issues are presented to this
Court for resolution: 1) whether or not the petitioners-appellants have the right of appeal to the
President of the Philippines under the provision of P.D. No. 21; and 2) whether or not the Court of First
Instance (now Regional Trial Court) of Manila has the jurisdiction to issue the writ of injunction
prohibiting the implementation of the decision of the Secretary of Labor.

The issue on whether petitioners can appeal to the Office of the President from the Secretary of Labor
shall be decided in accordance with the law in force at that time. Article 293 of the Labor Code, as
amended, provides: LLphil

"ART. 293. Application of law enacted prior to this Code. — All actions or claims accruing prior to
the effectivity of this Code shall be determined in accordance with the laws in force at the time of their
accrual.

Moreover, Article 299 of the same Code states, in part:

"ART. 299. Disposition of pending cases. . . . Cases on labor relations on appeal with the-Secretary
of Labor or the Office of the President of the Philippines as of the date of effectivity of this Code shall
remain under their respective jurisdiction and shall be decided in accordance with the rules and
regulations in force at the time of appeal.

The applicable law then governing appeals to the Office of the President is Presidential Decree No. 21,
promulgated on October 14, 1972. Section 5 of P.D. No. 21 provides:
"SEC. 5. The decision of the Commission shall be immediately executory unless appealed to the
Secretary of Labor who shall act on all cases within five (5) days from filing. The latter's decision is
appealable to the President." (Emphasis ours)

The aforequoted section expressly provides for the remedy of appeal to the Office of the President from
the decision of the Secretary of Labor without qualification. It is only when Presidential Decree No. 1367
was promulgated on May 1, 1978 that the decision of the Secretary of Labor in labor cases shall be
immediately executory provided that the President of the Philippines may assume jurisdiction over
cases which he considers national interest cases. Subsequently, Presidential Decree 1391 promulgated
on May 29, 1978 further eliminated appeals from the NLRC to the Secretary of Labor. Hence, petitioners
Alfredo and Adelina Velasco could still avail of the remedy of appeal to the President when the decision
of the Secretary of Labor was rendered on December 5, 1973. LLpr

The second issue involves the jurisdiction of the trial court to enjoin or restrain the implementation and
execution of the decision of the Secretary of Labor in labor cases. The rule is settled that regular courts
have no jurisdiction to act on labor cases or various incidents arising therefrom. Jurisdiction to try and
adjudicate such cases pertain exclusively to the proper labor officials of the Department of Labor
(Associated Labor Unions (ALU-TUCP) v. Borromeo, G.R. 75736, September 29, 1988, 166 SCRA 99).
Regular courts, being ill-prepared to apply labor laws, should not interfere in labor cases (Goodrich
Employees Association v. CFI of Rizal, L-30211, October 5, 1976, 73 SCRA 297). Hence, the Court of First
Instance had no jurisdiction in the case at bar to issue the writ of injunction to restrain the enforcement
of the decision rendered by the Secretary of Labor. Where the issue is lack of authority or arbitrary or
improvident exercise thereof, the decision of the Secretary of Labor may only be questioned and
reviewed through a petition for certiorari with the Supreme Court, which is the proper forum for it
(Asiaworld Publishing House Inc. v. Ople, G.R. No. 56398, July 23, 1987, 152 SCRA 219). Thus, We find
the decision of the trial court null and void for lack of jurisdiction in enjoining the Secretary of Labor
from implementing his decision.

With regard to the remedy of appeal to which the petitioners are entitled under the applicable law then,
this Court deems it impractical to allow the parties to still pursue their appeal to the Office of the
President at this time considering that under the present law, the Labor Code, as amended, the
President may only assume jurisdiction only in cases which the latter considers to be of national
interest. With respect to those labor cases which do not involve national interest, such as the case at
bar, the machinery or body in the Office of the President governing such appeals apparently is no longer
existing under the present law. Hence, for just and equitable considerations, this Court instead shall
grant the petitioners the opportunity to file a proper petition for certiorari within a reasonable time
questioning the decision on the merits of the Secretary of Labor. Cdpr

ACCORDINGLY, the assailed decision of the Court of First Instance of Manila (now Regional Trial Court)
Branch XX in Civil Case No. 94698 dated September 30, 1975 is hereby REVERSED AND SET ASIDE for lack
of jurisdiction. Petitioners Alfredo and Adelina Velasco shall be allowed the right to file a proper petition
to this Court assailing the decision of the Secretary of Labor dated December 5, 1973 in NLRC Cases Nos.
1953, 2290 and 2427.
SO ORDERED.

Narvasa, Cruz and Griño-Aquino, JJ., concur.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 93212 November 22, 1990

De Vera v. NLRC

FIRST DIVISION

[G.R. No. 93212. November 22, 1990.]

DIOSDADO DE VERA AND UNITED CMC TEXTILE WORKERS UNION, petitioners, vs. NATIONAL LABOR
RELATIONS COMMISSION, CENTRAL TEXTILE MILLS, INC., and/or AGUSTIN CABATINGAN, respondents.

Romeo C . Lagman for petitioners.

Cruz, Durian, Agabin, Atienza, Alday & Tuason for private respondents.

SYLLABUS

1. LABOR LAW; NATIONAL LABOR RELATIONS COMMISSION; ITS FINDINGS OF FACTS ARE
CONCLUSIVE ON THE SUPREME COURT ABSENT A SHOWING OF ARBITRARINESS. — The findings of fact
of the NLRC are conclusive on this Court in the absence of a showing that they were arrived at
arbitrarily. The petitioner has failed to show such arbitrariness. We therefore accept, on the basis of the
evidence of record, including the petitioner's own admission, that he had indeed committed a violation
of company rules by hitting Ocampo on the head. Assuming the provocation, we nevertheless agree that
the attack was not justified. It is not correct to say that the company was not itself prejudiced, for the
peace in its premises was disturbed and the discipline of the personnel affected. The private respondent
could not close its eyes to the incident at the risk of further disregard of its rules, which it had a right to
enforce. The fact that Ocampo chose not to prefer charges did not prevent the company from acting
motu proprio to investigate the incident.

2. ID.; LABOR RELATIONS; ALLEGED UNFAIR LABOR PRACTICE, NOT SUPPORTED BY EVIDENCE;
PENALTY OF DISMISSAL, NOT COMMENSURATE WITH THE OFFENSE; CASE AT BAR. — We also sustain
the finding that the private respondent was not guilty of any unfair labor practice, no evidence having
been submitted to support the charge. Going deeper into the record, however, we find that the penalty
of dismissal was not commensurate with the offense, considering the other circumstances of this case.
We note, first of all, that the petitioner had been working with the respondent company for fourteen
years and was apparently doing well except for the earlier-mentioned offenses that had already been
sufficiently punished. The differences between De Vera and Ocampo have long since been patched up
and the two have decided to forget the incident. To all appearances, the discipline of the company has
not deteriorated as a result of the quarrel between the two employees. Given all these facts, we feel
that a lighter penalty than that meted out to De Vera would have been more just, if not humane.

3. ID.; ID.; REINSTATEMENT OF THE EMPLOYEE, NOT PRACTICAL IF THE RELATION BETWEEN THE
PARTIES HAVE ALREADY BEEN STRAINED; SEPARATION PAY MAY BE GRANTED TAKING INTO ACCOUNT
THE NATURE AND DEGREE OF THE OFFENSE COMMITTED. — Nevertheless, since relations between the
parties have already been strained, we feel it is not practical anymore to reinstate the petitioner, who is
no longer welcome in the company. We shall therefore sustain the penalty imposed, but with
modification. The modification is that the petitioner shall be granted separation pay at the rate of one
month salary for every year of service, taking into account the nature and degree of the offense he has
committed, which is neither serious nor depraved. This ruling is conformable to the case of PLDT v.
NLRC, (164 SCRA 671) where the Court said: There should be no question that where it comes to such
valid but not iniquitous causes of failure to comply with work standards, the grant of separation pay to
the dismissed employee may be both just and compassionate, particularly if he has worked for some
time with the company. For example, a subordinate who has irreconcilable policy or personal
differences with his employer may be validly dismissed for demonstrated loss of confidence, which is an
allowable ground. A working mother who has also to take care of her child may also be removed
because of her poor attendance, this being another authorized ground. It is not the employee's fault if
he does not have the necessary aptitude for his work but on the other hand the company cannot be
required to maintain him just the same at the expense of the efficiency of its operations. He too may be
validly replaced. Under these and similar circumstances, however, the award to the employee of
separation pay would be sustainable under the social justice policy even if the separation is for cause.

DECISION

CRUZ, J p:

Diosdado de Vera was employed as a mechanic in the weaving department of the Central Textile Mills,
the herein private respondent. He claims he was active in union activities. In the course of his
employment, he had been administered disciplinary sanctions for various offenses, including not
wearing the ID tag in the company premises, leaving his workplace without permission, habitual
tardiness, reporting for work under the influence of liquor, and damaging property in the performance
of his duties. The last two offenses were each punished with 5 days suspension and the others with
written or oral warnings. LLjur

On October 2, 1984, the petitioner had a row with Jesus Ocampo, a fellow worker, whom he hit in the
head with a stick. The protagonists were soon pacified. Ocampo saw fit not to file any charge against De
Vera with the company or the police. Nevertheless, the private respondent, upon learning of the
incident, called for its investigation by a fact-finding committee. This was composed of a company
representative as chairman and two union representatives.

In the investigation, De Vera claimed he had on the date in question asked Ocampo for payment of a
P100.00 loan he had extended him, but the latter resented the dunning and swore at him. That
provoked his attack on Ocampo. Ocampo himself never appeared before the investigators. Two months
later, the committee chairman, allegedly without notice to the two union members, recommended De
Vera's dismissal for violation of company rules. Acting on this recommendation, the private respondent
dismissed the petitioner on December 10, 1984.

On October 15, 1985, the president of the CMC Textile Workers Union filed on its behalf and of the
petitioner a complaint for illegal dismissal against the Central Textile Mills, Inc. After hearing, the
complaint was dismissed by Labor Arbiter Emerson C. Tumanon in a decision dated May 22, 1989. 1 On
appeal, the decision was affirmed in toto by the NLRC in its resolution dated February 28, 1990. 2 The
petitioner then came to this Court alleging grave abuse of discretion on the part of the public
respondent.

The findings of fact of the NLRC are conclusive on this Court in the absence of a showing that they were
arrived at arbitrarily. The petitioner has failed to show such arbitrariness. We therefore accept, on the
basis of the evidence of record, including the petitioner's own admission, that he had indeed committed
a violation of company rules by hitting Ocampo on the head. cdrep

Assuming the provocation, we nevertheless agree that the attack was not justified. It is not correct to
say that the company was not itself prejudiced, for the peace in its premises was disturbed and the
discipline of the personnel affected. The private respondent could not close its eyes to the incident at
the risk of further disregard of its rules, which it had a right to enforce. The fact that Ocampo chose not
to prefer charges did not prevent the company from acting motu proprio to investigate the incident.

We also sustain the finding that the private respondent was not guilty of any unfair labor practice, no
evidence having been submitted to support the charge.

Going deeper into the record, however, we find that the penalty of dismissal was not commensurate
with the offense, considering the other circumstances of this case. We note, first of all, that the
petitioner had been working with the respondent company for fourteen years and was apparently doing
well except for the earlier-mentioned offenses that had already been sufficiently punished. The
differences between De Vera and Ocampo have long since been patched up and the two have decided
to forget the incident. To all appearances, the discipline of the company has not deteriorated as a result
of the quarrel between the two employees.

Given all these facts, we feel that a lighter penalty than that meted out to De Vera would have been
more just, if not humane.

Nevertheless, since relations between the parties have already been strained, we feel it is not practical
anymore to reinstate the petitioner, who is no longer welcome in the company. We shall therefore
sustain the penalty imposed, but with modification. The modification is that the petitioner shall be
granted separation pay at the rate of one month salary for every year of service, taking into account the
nature and degree of the offense he has committed, which is neither serious nor depraved. This ruling is
conformable to the case of PLDT v. NLRC, 3 where the Court said: cdll
There should be no question that where it comes to such valid but not iniquitous causes of failure to
comply with work standards, the grant of separation pay to the dismissed employee may be both just
and compassionate, particularly if he has worked for some time with the company. For example, a
subordinate who has irreconcilable policy or personal differences with his employer may be validly
dismissed for demonstrated loss of confidence, which is an allowable ground. A working mother who
has also to take care of her child may also be removed because of her poor attendance, this being
another authorized ground. It is not the employee's fault if he does not have the necessary aptitude for
his work but on the other hand the company cannot be required to maintain him just the same at the
expense of the efficiency of its operations. He too may be validly replaced. Under these and similar
circumstances, however, the award to the employee of separation pay would be sustainable under the
social justice policy even if the separation is for cause.

But where the cause of the separation is more serious than mere inefficiency, the generosity of the law
must be more discerning. There is no doubt it is compassionate to give separation pay to a salesman if
he is dismissed for his inability to fill his quota but surely he does not deserve such generosity if his
offense is misappropriation of the receipts of his sales. This is no longer mere incompetence but clear
dishonesty. A security guard found sleeping on the job is doubtless subject to dismissal but may be
allowed separation pay since his conduct, while inept, is not depraved. But if he was in fact not really
sleeping but sleeping with a prostitute during his tour of duty and in the company premises, the
situation is changed completely. This is not only inefficiency but immorality and the grant of separation
pay would be entirely unjustified. (Emphasis supplied)

The social justice policy mandates a compassionate attitude toward the working class in its relations
with management. While in calling for the protection of labor, the Constitution does not condone
wrongdoing by the employee, it nevertheless urges a moderation of the sanctions that may be applied
to him in the light of the many disadvantages that weigh heavily on him like an albatross hanging from
his neck. Management must look upon the working class with sympathy, remembering that they are
equal partners joined in a common venture whose success should redound to their mutual benefit. They
should regard each other in a spirit of amity and trust, not with closed hands but with open arms, that
they may endeavor better together.

WHEREFORE, the petition is partly GRANTED, and the private respondent is DIRECTED to pay separation
pay to the petitioner as above indicated. It is so ordered. cdrep

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

FERNAN, C.J p:
[G.R. No. 72964. January 7, 1988.]

FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
PHILIPPINES, respondents.

SYLLABUS

1. CRIMINAL LAW; CRIMINAL LIABILITY; LIABILITY OF ACCUSED FOR NATURAL CONSEQUENCES

RESULTING FROM CRIME. — Article 4 of the Revised Penal Code which provides that "Criminal liability
shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be
different from that which he intended . . ." Pursuant to this provision "an accused is criminally
responsible for acts committed by him in violation of law and for all the natural and logical
consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631)

2. ID.; ID.; ID.; ACCUSED IN CASE AT BAR NOT LIABLE FOR SUBSEQUENT DEATH OF HACKING
VICTIM DUE TO TETANUS NOT PRESENT AT TIME OF INFLICTION OF WOUND. — In the case at bar, Javier
suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in
hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he
suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15,
1980, he died. If, therefore, the wound of Javier inflicted by the appellant was already infected by
tetanus germs at the time, it is more medically probable that Javier should have been infected with only
a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking
incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have
seen more than six days. Javier, however, died on the second day from the onset time. The more
credible conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with
tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound
could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

3. ID.; ID.; ID.; CONVICTION TO HOMICIDE REQUIRES PROOF BEYOND REASONABLE DOUBT THAT
WOUND WAS PROXIMATE CAUSE OF DEATH. — The rule is that the death of the victim must be the
direct, natural, and logical consequence of the wounds inflicted upon him by the accused. (People v.
Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused
the victim's death must convince a rational mind beyond reasonable doubt. The medical findings,
however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient
intervening cause later or between the time Javier was wounded to the time of his death. The infection
was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038). Doubts are present.
There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure
to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with
which the petitioner had nothing to do.

4. CRIMINAL PROCEDURE; SETTLEMENT OF MINOR OFFENSES ALLOWED UNDER P.D. 1508. — It

strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least,
the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal
liability in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and
Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave
Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is
allowed under the express provisions of Presidential Decree No. 1508, Section 2(3). (See also People v.
Caruncho, 127 SCRA 16).

5. ID.; CIVIL LIABILITY; JUDGMENT OF ACQUITTAL DOES NOT NECESSARILY EXTINGUISH CIVIL
LIABILITY. — It does not necessarily follow that the petitioner is also free of civil liability. The well-settled
doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case of
People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said: . . . ". . . While the guilt of
the accused in a criminal prosecution must be established beyond reasonable doubt, only a
preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The
judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration
that the facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA
559)

DECISION

GUTIERREZ, JR., J p:

This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the
decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty
beyond reasonable doubt of the crime of homicide.

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his
ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco
seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water coming
from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the
canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked
them who was responsible for the opening of the irrigation canal and Javier admitted that he was the
one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them
ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and
hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Javier
who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again
hitting Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When
Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking
Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50
meters away from where the incident happened. Emilio then went to the house of Barangay Captain
Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis instead.
Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report
the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr.
Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead
suggested that they go to Dr. Mario Meneses because Padilla had no available medicine.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who
conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated
September 28, 1981) which reads:

"TO WHOM IT MAY CONCERN:

"This is to certify that I have examined the would of Marcelo Javier, 20 years of age, married, residing at
Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following:

"1-Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.

"As to my observation the incapacitation is from (7-9) days period. This would was presented to me only
for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano
promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two
accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement.
Patrolman Torio recorded the event in the police blotter (Exhibit "A"), to wit:

xxx xxx xxx

"Entry Nr 599/27 Oct '80/1030H/ Re entry Nr 592 on page 257 both parties appeared before this Station
accompanied by brgy councilman Felipe Solis and settled their case amicably, for they are neighbors and
close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who
shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office that this
will never be repeated anymore and not to harbour any grudge against each other." (p. 87, Original
Records.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00
was given to Javier at Urbano's house in the presence of barangay captain Soliven. prLL

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very
serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr.
Edmundo Exconde who personally attended to Javier found that the latter's serious condition was
caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm which could have
been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr.
Exconde are as follows:

"Date Diagnosis
11-14-80 ADMITTED due to trismus

adm. at DX: TETANUS

1:30 AM Still having frequent muscle spasm. With

difficulty opening his mouth.

#35, 421 Restless at times. Febrile

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden

cessation of respiration and HR after

muscular spasm. O2 inhalation

administered. Ambo bag resuscitation and

cardiac massage done but to no avail.

Pronounced dead by Dra. Cabugao at 4:18

P.M. PMC done and cadaver brought

home by relatives." (p. 100, Original

Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before
the then Circuit Criminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as
charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of
prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion
temporal, as maximum, together with the accessories of the law, to indemnify the heirs of the victim,
Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and
to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of
the decision, in view of the nature of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the
award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant. prcd

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on
an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:

"That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present
having been re-elected to such position in the last barangay elections on May 17, 1982;
"That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and
other places of Central Luzon including San Fabian, a town of said province;

"That during the typhoon, the sluice or control gates of the Bued-irrigation dam which irrigates the
ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the canals
and ditches were regulated and reduced;

"That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which
will bring water to the ricefields, the water in said canals and ditches become shallow which was suitable
for catching mudfishes;

"That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto
Jaravata;

"That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in
the shallow irrigation canals with some companions;

"That few days thereafter, or on November 15, 1980, I came to know that said Marcelo Javier died of
tetanus." (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal
liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done
be different from that which he intended . . ." Pursuant to this provision "an accused is criminally
responsible for acts committed by him in violation of law and for all the natural and logical
consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631)

The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which
Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the
22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the
following day, November 15, 1981, he died from tetanus.

Under these circumstances, the lower courts ruled that Javier's death was the natural and logical
consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the
appellate court said:

"The claim of appellant that there was an efficient cause which supervened from the time the deceased
was wounded to the time of his death, which covers a period of 23 days does not deserve serious
consideration. True, that the deceased did not die right away from his wound, but the cause of his death
was due to said wound which was inflicted by the appellant. Said wound which was in the process of
healing got infected with tetanus which ultimately caused his death.
"Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw
because of the infection of the wound with tetanus. And there is no other way by which he could be
infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the
proximate cause of the victim's death was the wound which got infected with tetanus. And the settled
rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4,
par. 1, R.P.C.; People v. Red, CA 43 O.G. 5072; People v. Cornel, 78 Phil. 418)

"Appellant's allegation that the proximate cause of the victim's death was due to his own negligence in
going back to work without his wound being properly healed, and lately, that he went to catch fish in
dirty irrigation canals in the first week of November, 1980, is an afterthought, and a desperate attempt
by appellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it is
impossible to conceive that the deceased would be reckless enough to work with a disabled hand." (pp.
20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to
his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected
with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare
hands exposing the wound to harmful elements like tetanus germs. LLpr

The evidence on record does not clearly show that the wound inflicted by Urbano was infected with
tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which
was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected
with tetanus However, as to when the wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate
cause:

xxx xxx xxx

". . . A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of
American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

". . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as an ordinarily prudent
and intelligent person, have reasonable ground to expect at the moment of his act or default that an
injury to some person might probably result therefrom." (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time
Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death.
We look into the nature of tetanus —

"The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable
symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within
14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3
days of injury, the mortality rate approaches 100 percent.

"Nonspecific premonitory symptoms such as restlessness, irritability, and headache are encountered
occasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or
back and difficulty swallowing. As the disease progresses, stiffness gives way to rigidity, and patients
often complain of difficulty opening their mouths. In fact, trismus is the commonest manifestation of
tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are involved,
rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and
sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and
symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved
to some degree, and the signs and symptoms encountered depend upon the major muscle groups
affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptoms, on interval referred to as the
onset time. As in the case of the incubation period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction of muscles and their
antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer-lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent
adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than
6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild.
Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is
marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during
spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or
less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms.
(Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo
which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on
November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the
time, it is more medically probable that Javier should have been infected with only a mild cause of
tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more
than 14 days after the infliction of the wound. Therefore, the onset time should have seen more than six
days. Javier, however, died on the second day from the onset time. The more credible conclusion is that
at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was
not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking
incident. Considering the circumstance surrounding Javier's death, his wound could have been infected
by tetanus 2 or 3 or a few but not 20 to 22 days before he died. prcd

The rule is that the death of the victim must be the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a
criminal conviction, the proof that the accused caused the victim's death must convince a rational mind
beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the
infection of the wound by tetanus was an efficient intervening cause later or between the time Javier
was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime.
(People v. Rellin, 77 Phil. 1038)

Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent
infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of
Javier's death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v.
Remonquillo, et al. (99 Phil. 118)

"'A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more
than furnish the condition or give rise to the occasion by which the injury was made possible, if there
intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and
efficient cause of the injury, even though such injury would not have happened but for such condition or
occasion. If no danger existed in the condition except because of the independent cause, such condition
was not the proximate cause. And if an independent negligent act or defective condition sets into
operation the circumstances, which result in injury because of the prior defective condition, such
subsequent act or condition is the proximate cause.' (45 C.J. pp. 931-932)." (at p. 125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least,
the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal
liability in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and
Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave
Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is
allowed under the express provisions of Presidential Decree No. 1508, Section 2(3). (See also People v.
Caruncho, 127 SCRA 16)

We must stress, however, that our discussion of proximate cause and remote cause is limited to the
criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free
of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be civilly
liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we
said:

xxx xxx xxx

". . . While the guilt of the accused in a criminal prosecution must be established beyond reasonable
doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code).
The judgment of acquittal extinguishes the civil liability of the accused only when it includes a
declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of
Appeals, 129 SCRA 559)

"The reason for the provisions of Article 29 of the Civil Code, which provides that the acquittal of the
accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily
exempt him from civil liability for the same act or omission, has been explained by the Code Commission
as follows:

"The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is
one of the most serious flaws in the Philippine legal system. It has given rise to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to
the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived
from the criminal offense, when the latter is not proved, civil liability cannot be demanded.

"'This is one of those causes where confused thinking leads to unfortunate and deplorable
consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and
civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate
and distinct from each other. One affects the social order and the other, private rights. One is for the
punishment or correction of the offender while the other is for reparation of damages suffered by the
aggrieved party. The two responsibilities are so different from each other that article 1813 of the
present (Spanish) Civil Code reads thus: 'There may be a compromise upon the civil action arising from a
crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished.' It
is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense
should be proved beyond reasonable doubt. But for the purpose of indemnifying the complaining party,
why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of
every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved
person any less private because the wrongful act is also punishable by the criminal law?

"'For these reasons, the Commission recommends the adoption of the reform under discussion. It will
correct a serious defect in our law. It will close up an inexhaustible source of injustice — a cause for
disillusionment on the part of the innumerable persons injured or wronged.'"

The respondent court increased the P12,000.00 indemnification imposed by the trial court to
P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly examined.
This aspect of the case calls for fuller development if the heirs of the victim are so minded.
WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate
Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the
crime of homicide. Costs de oficio.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes JJ., concur.

[G.R. No. 103119. October 21, 1992.]

SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES,
respondents.

Public Attorney's Office for petitioner.

SYLLABUS

1. CRIMINAL LAW; REVISED PENAL CODE; ARTICLE 4, PARAGRAPH 2 THEREOF AN INNOVATION;

PURPOSE; RATIONALE. — Article 4, paragraph 2 is an innovation of the Revised Penal Code. This seeks to
remedy the void in the Old Penal Code where: . . . it was necessary that the execution of the act has
been commenced, that the person conceiving the idea should have set about doing the deed, employing
appropriate means in order that his intent might become a reality, and finally, that the result or end
contemplated shall have been physically possible. So long as these conditions were not present, the law
and the courts did not hold him criminally liable. This legal doctrine left social interests entirely
unprotected. The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his
formidability, and now penalizes an act which were it not aimed at something quite impossible or
carried out with means which prove inadequate, would constitute a felony against person or against
property. The rationale of Article 4(2) is to punish such criminal tendencies.

2. ID.; ID.; ID.; LEGAL IMPOSSIBILITY; EXPLAINED; FACTUAL IMPOSSIBILITY; EXPLAINED; CASE AT
BAR. — Under this article, the act performed by the offender cannot produce an offense against persons
or property because: (1) the commission of the offense is inherently impossible of accomplishment; or
(2) the means employed is either (a) inadequate or (b) ineffectual. That the offense cannot be produced
because the commission of the offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the offender must be by its nature one
impossible of accomplishment. There must be either (1) legal impossibility, or (2) physical impossibility
of accomplishing the intended act in order to qualify the act as an impossible crime. Legal impossibility
occurs where the intended acts, even if completed, would not amount to a crime. Thus: Legal
impossibility would apply to those circumstances where (1) the motive, desire and expectation is to
perform an act in violation of the law; (2) there is intention to perform the physical act, (3) there is a
performance of the intended physical act; and (4) the consequence resulting from the intended act does
not amount to a crime. The impossibility of killing a person already dead falls in this category. On the
other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the intended crime. One example is the man who puts
his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket
empty. The case at bar belongs to this category. Petitioner shoots the place where he thought his victim
would be, although in reality, the victim was not present in said place and thus, the petitioner failed to
accomplish his end.

3. ID.; DIFFERENCE BETWEEN PHILIPPINE AND AMERICAN LAWS REGARDING CONCEPT AND
APPRECIATION OF IMPOSSIBLE CRIMES; CASE AT BAR. — There is a difference between the Philippine
and the American laws regarding the concept and appreciation of impossible crimes. In the Philippines,
the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made them
punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding
this matter. What it provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an
attempt charge. In this regard, commentators and the cases generally divide the impossibility defense
into two categories: legal versus factual impossibility. . . To restate, in the United States, where the
offense sought to be committed is factually impossible of accomplishment, the offender cannot escape
criminal liability. He can be convicted of an attempt to commit the substantive crime where the
elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible
crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible
of accomplishment, the actor cannot be held liable for any crime — neither for an attempt nor for an
impossible crime. The only reason for this is that in American law, there is no such thing as an impossible
crime. Instead, it only recognizes impossibility as a defense to a crime charge — that is, attempt. This is
not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore,
the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec
nos distinguere debemos. The factual situation in the case at bar presents physical impossibility which
rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the
Revised Penal Code, such is sufficient to make the act an impossible crime. To uphold the contention of
respondent that the offense was Attempted Murder because the absence of Palangpangan was a
supervening cause independent of the actor's will, will render useless the provision in Article 4, which
makes a person criminally liable for an act "which would be an offense against persons or property,
were it not for the inherent impossibility of its accomplishment . . ." In that case, all circumstances which
prevented the consummation of the offense will be treated as an accident independent of the actor's
will which is an element of attempted and frustrated felonies.

DECISION

CAMPOS, JR., J p:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming
in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the
crime of attempted murder. prLL

From the records, we gathered the following facts.

In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig
went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go
with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio
and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to
be killed because of a land dispute between them and that Mandaya should accompany the four (4)
men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and
Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis
Occidental. At the instance of his companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out,
however, that Palangpangan was in another city and her home was then occupied by her son-in-law and
his family. No one was in the room when the accused fired the shots. No one was hit by the gun fire.

Petitioner and his companions were positively identified by witnesses. One witness testified that before
the five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina
Palangpangan and we will come back if (sic) you were not injured". 2

After trial, the Regional Trial Court convicted Intod of attempted murder. The Court of Appeals affirmed
in toto the trial court's decision. Hence this petition. prLL

This petition questions the decision of the Regional Trial Court (RTC), as affirmed by the Court of
Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a
modification of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the
Revised Penal Code which provides:

ARTICLE 4(2). Criminal Responsibility. — Criminal responsibility shall be incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of inadequate
or ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night he and his companions
riddled it with bullets made the crime inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime was not impossible.
Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder.
Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed
out that:

. . . The crime of murder was not consummated, not because of the inherent impossibility of its
accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than petitioner's
and his co-accused's own spontaneous desistance (Art. 3., ibid.) Palangpangan did not sleep at her
house at that time. Had it not been for this fact, the crime is possible, not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the
Old Penal Code where:

. . . it was necessary that the execution of the act has been commenced, that the person conceiving the
idea should have set about doing the deed, employing appropriate means in order that his intent might
become a reality, and finally, that the result or end contemplated shall have been physically possible. So
long as these conditions were not present, the law and the courts did not hold him criminally liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the
Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it
not aimed at something quite impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such
criminal tendencies. 9

Under this article, the act performed by the offender cannot produce an offense against persons or
property because: (1) the commission of the offense is inherently impossible of accomplishment; or (2)
the means employed is either (a) inadequate or (b) ineffectual. 10

That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. 11 There must be either (1) legal
impossibility, or (2) physical impossibility of accomplishing the intended act 12 in order to qualify the act
as an impossible crime. LibLex

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13
Thus:

Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is
to perform an act in violation of the law; (2) there is intention to perform the physical act, (3) there is a
performance of the intended physical act; and (4) the consequence resulting from the intended act does
not amount to a crime. 14

The impossibility of killing a person already dead 15 falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the intended crime. 16 One example is the man who
puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the
pocket empty. 17

The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would
be, although in reality, the victim was not present in said place and thus, the petitioner failed to
accomplish his end.

One American case has facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused,
with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned
out, however, that the latter was in a different place. The accused failed to hit him and to achieve his
intent. The Court convicted the accused of an attempt to kill. It held that:

The fact that the officer was not at the spot where the attacking party imagined where he was, and
where the bullet pierced the roof, renders it no less an attempt to kill. It is a well settled principle of
criminal law in this country that where the criminal result of an attempt is not accomplished simply
because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to
the aggressor at the time, the criminal attempt is committed.

In the case of Stokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim
because the latter did not pass by the place where he was lying-in wait, the court held him liable for
attempted murder. The court explained that: LLphil

It was no fault of Stokes that the crime was not committed . . . It only became impossible by reason of
the extraneous circumstance that Lane did not go that way; and further, that he was arrested and
prevented from committing the murder. This rule of the law has application only where it is inherently
impossible to commit the crime. It has no application to a case where it becomes impossible for the
crime to be committed, either by outside interference or because of miscalculation as to a supposed
opportunity to commit the crime which fails to materialize; in short it has no application to the case
when the impossibility grows out of extraneous acts not within the control of the party.

In the case of Clark vs. State, 20 The court held defendant liable for attempted robbery even if there was
nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one
can seriously doubt that the protection of the public requires the punishment to be administered,
equally whether in the unseen depths of the pocket, etc., what was supposed to exist was really present
or not. The community suffers from the mere alarm of crime. Again: 'Where the thing intended
(attempted) as a crime and what is done is a sort to create alarm, in other words, excite apprehension
that the evil intention will be carried out, the incipient act which the law of attempt takes cognizance of
is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that
the latter was inside. However, at that moment, the victim was in another part of the house. The court
convicted the accused of attempted murder.

The aforecited cases are the same cases which have been relied upon by Respondent to make this Court
sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these
decisions to resolve the issue at hand. There is a difference between the Philippine and the American
laws regarding the concept and appreciation of impossible crimes.

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and
made them punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is
silent regarding this matter. What it provided for were attempts of the crimes enumerated in the said
Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense
to an attempt charge. In this regard, commentators and the cases generally divide the impossibility
defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held
that: LexLib
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have been
committed had the circumstances been as the defendant believed them to be, it is no defense that in
reality the crime was impossible of commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an
attempt. In U.S. vs. Berrigan, 24 the accused was indicted for attempting to smuggle letters into and out
of prison. The law governing the matter made the act criminal if done without the knowledge and
consent of the warden. In this case, the offender intended to send a letter without the latter's
knowledge and consent and the act was performed. However, unknown to him, the transmittal was
achieved with the warden's knowledge and consent. The lower court held the accused liable for attempt
but the appellate court reversed. It held unacceptable the contention of the state that "elimination of
impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and
the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this
contention, the Court held that the federal statutes did not contain such provision, and thus, following
the principle of legality, no person could be criminally liable for an act which was not made criminal by
law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the
offense of attempt irrespective of legal impossibility until such time as such legislative changes in the
law take place, this court will not fashion a new non-statutory law of criminal attempt.

To restate, in the United States, where the offense sought to be committed is factually impossible of
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to
commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that
the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any
crime — neither for an attempt nor for an impossible crime. The only reason for this is that in American
law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as a defense
to a crime charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility
of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore,
the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec
nos distinguere debemos.

The factual situation in the case at bar presents physical impossibility which rendered the intended
crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such
is sufficient to make the act an impossible crime. prLL

To uphold the contention of respondent that the offense was Attempted Murder because the absence
of Palangpangan was a supervening cause independent of the actor's will, will render useless the
provision in Article 4, which makes a person criminally liable for an act "which would be an offense
against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that
case, all circumstances which prevented the consummation of the offense will be treated as an accident
independent of the actor's will which is an element of attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED, the petition is hereby GRANTED, the decision of respondent Court
of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. WE hereby hold
Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the
Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by
Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor, together
with the accessory penalties provided by the law, and to pay the costs.

SO ORDERED.

Feliciano, Regalado and Nocon, Jr., JJ ., concur.

Narvasa, C .J ., on official leave.

[G.R. No. 162540. July 13, 2009.]

GEMMA T. JACINTO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PERALTA, J p:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal
of the Decisions 1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003,
affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution 2 dated March 5,
2004 denying petitioner's motion for reconsideration. aETDIc

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline
Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime
of Qualified Theft, allegedly committed as follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused; conspiring together and mutually
helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein
represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid
establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated July
14, 1997 in the sum of P10,000.00, representing payment made by customer Baby Aquino to the Mega
Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated amount of P10,000.00.

CONTRARY TO LAW. 3

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the
events that transpired to be as follows. STHAaD

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner
Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The
check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and petitioner was then
the collector of Mega Foam. Somehow, the check was deposited in the Land Bank account of Generoso
Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the former pricing,
merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in
the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if she
could issue checks payable to the account of Mega Foam, instead of issuing the checks payable to CASH.
Said customer had apparently been instructed by Jacqueline Capitle to make check payments to Mega
Foam payable to CASH. Around that time, Ricablanca also received a phone call from an employee of
Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to
inform Capitle that the subject BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the
latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced check.
Ricablanca explained that she had to call and relay the message through Valencia, because the Capitles
did not have a phone; but they could be reached through Valencia, a neighbor and former co-employee
of Jacqueline Capitle at Mega Foam. aCcADT

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask
Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the cash and
divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca,
upon the advise of Mega Foams accountant, reported the matter to the owner of Mega Foam, Joseph
Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed
handed petitioner a BDO check for P10,000.00 sometime in June 1997 as payment for her purchases
from Mega Foam. 4 Baby Aquino further testified that, sometime in July 1997, petitioner also called her
on the phone to tell her that the BDO check bounced. 5 Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she had
already paid Mega Foam P10,000.00 cash in August 1997 as replacement for the dishonored check. 6

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank
account, but explained that the check came into his possession when some unknown woman arrived at
his house around the first week of July 1997 to have the check rediscounted. He parted with his cash in
exchange for the check without even bothering to inquire into the identity of the woman or her address.
When he was informed by the bank that the check bounced, he merely disregarded it as he didn't know
where to find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint, with the National Bureau of Investigation (NBI) and worked out
an entrapment operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were
marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca,
who was tasked to pretend that she was going along with Valencia's plan. AacSTE

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then
holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push through.
However, they agreed to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioner's house, where she met petitioner and
Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to
Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino,
pretending that she was getting cash from Baby Aquino. However, the cash she actually brought out
from the premises was the P10,000.00 marked money previously given to her by Dyhengco. Ricablanca
divided the money and upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner.
Thereafter, petitioner and Valencia were arrested by NBI agents, who had been watching the whole
time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent
powder on the palmar and dorsal aspects of both of their hands. This showed that petitioner and
Valencia handled the marked money. The NBI filed a criminal case for qualified theft against the two and
one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and presented the following
scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but
claimed that she had stopped collecting payments from Baby Aquino for quite some time before her
resignation from the company. She further testified that, on the day of the arrest, Ricablanca came to
her mother's house, where she was staying at that time, and asked that she accompany her (Ricablanca)
to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the Chinese General
Hospital, Ricablanca decided to hitch a ride with the former and her husband in their jeep going to Baby
Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked there to wait in their
jeep, which they parked outside the house of Baby Aquino, and was very surprised when Ricablanca
placed the money on her lap and the NBI agents arrested them. AIaDcH

Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997.
It was never part of her job to collect payments from customers. According to her, on the morning of
August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could accompany her
(Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so, despite her
admission during cross-examination that she did not know where Baby Aquino resided, as she had never
been to said house. They then met at the house of petitioner's mother, rode the jeep of petitioner and
her husband, and proceeded to Baby Aquino's place. When they arrived at said place, Ricablanca
alighted, but requested them to wait for her in the jeep. After ten minutes, Ricablanca came out and, to
her surprise, Ricablanca gave her money and so she even asked, "What is this?" Then, the NBI agents
arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its
Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita
Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of the crime of
QUALIFIED THEFT and each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE
(5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY
(20) DAYS, as maximum.
SO ORDERED. 7

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive
portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that: IcTEAD

(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium.

(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma
Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and
Resolution of the CA. The issues raised in the petition are as follows:

1. Whether or not petitioner can be convicted of a crime not charged in the information;

2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt. 8

The petition deserves considerable thought. HETDAa

The prosecution tried to establish the following pieces of evidence to constitute the elements of the
crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal
Code: (1) the taking of personal property — as shown by the fact that petitioner, as collector for Mega
Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another — the check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was done with intent to gain — this is presumed from
the act of unlawful taking and further shown by the fact that the check was deposited to the bank
account of petitioner's brother-in-law; (4) it was done without the owner's consent — petitioner hid the
fact that she had received the check payment from her employer's customer by not remitting the check
to the company; (5) it was accomplished without the use of violence or intimidation against persons, nor
of force upon things — the check was voluntarily handed to petitioner by the customer, as she was
known to be a collector for the company; and (6) it was done with grave abuse of confidence —
petitioner is admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal
property subject of the theft must have some value, as the intention of the accused is to gain from the
thing stolen. This is further bolstered by Article 309, where the law provides that the penalty to be
imposed on the accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was
apparently without value, as it was subsequently dishonored. Thus, the question arises on whether the
crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals 9 is highly instructive and applicable to the present case. In Intod, the accused,
intending to kill a person, peppered the latter's bedroom with bullets, but since the intended victim was
not home at the time, no harm came to him. The trial court and the CA held Intod guilty of attempted
murder. But upon review by this Court, he was adjudged guilty only of an impossible crime as defined
and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because
of the factual impossibility of producing the crime. Pertinent portions of said provisions read as follows:
cCAIaD

Article. 4(2). Criminal Responsibility. — Criminal responsibility shall be incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against persons or property, were it
not for the inherent impossibility of its accomplishment or on account of the employment of inadequate
to ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the means
employed or the aims sought are impossible. — When the person intending to commit an offense has
already performed the acts for the execution of the same but nevertheless the crime was not produced
by reason of the fact that the act intended was by its nature one of impossible accomplishment or
because the means employed by such person are essentially inadequate to produce the result desired
by him, the court, having in mind the social danger and the degree of criminality shown by the offender,
shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against
persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either inadequate or ineffectual. The aspect of the
inherent impossibility of accomplishing the intended crime under Article 4 (2) of the Revised Penal Code
was further explained by the Court in Intod 10 in this wise: cCDAHE

Under this article, the act performed by the offender cannot produce an offense against persons or
property because: (1) the commission of the offense is inherently impossible of accomplishment; or (2)
the means employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. There must be either (1) legal
impossibility, or (2) physical impossibility of accomplishing the intended act in order to qualify the act as
an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.

xxx xxx xxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the intended crime. . . . 11

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a
man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets
nothing since the pocket is empty. AEScHa

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In
this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime
against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the
check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact
that the check bounced, she would have received the face value thereof, which was not rightfully hers.
Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown
to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by
petitioner turned out to be absolutely worthless, because the check was eventually dishonored, and
Mega Foam had received the cash to replace the value of said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought
was the cash replacement for the dishonored check, is of no moment. The Court held in Valenzuela v.
People 12 that under the definition of theft in Article 308 of the Revised Penal Code, "there is only one
operative act of execution by the actor involved in theft — the taking of personal property of another."
Elucidating further, the Court held, thus:

. . . Parsing through the statutory definition of theft under Article 308, there is one apparent answer
provided in the language of the law — that theft is already "produced" upon the "tak[ing of] personal
property of another without the latter's consent."

xxx xxx xxx

. . . when is the crime of theft produced? There would be all but certain unanimity in the position that
theft is produced when there is deprivation of personal property due to its taking by one with intent to
gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once
having committed all the acts of execution for theft, is able or unable to freely dispose of the property
stolen since the deprivation from the owner alone has already ensued from such acts of execution. . . .
SICaDA

xxx xxx xxx

. . . we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same. . . .

. . . Unlawful taking, which is the deprivation of one's personal property, is the element which produces
the felony in its consummated stage. . . . 13

From the above discussion, there can be no question that as of the time that petitioner took possession
of the check meant for Mega Foam, she had performed all the acts to consummate the crime of theft,
had it not been impossible of accomplishment in this case. The circumstance of petitioner receiving the
P5,000.00 cash as supposed replacement for the dishonored check was no longer necessary for the
consummation of the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give cash
as replacement for the check was hatched only after the check had been dishonored by the drawee
bank. Since the crime of theft is not a continuing offense, petitioner's act of receiving the cash
replacement should not be considered as a continuation of the theft. At most, the fact that petitioner
was caught receiving the marked money was merely corroborating evidence to strengthen proof of her
intent to gain. SCHcaT

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by
its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was not
included or covered by the allegations in the Information, the Court cannot pronounce judgment on the
accused; otherwise, it would violate the due process clause of the Constitution. If at all, that fraudulent
scheme could have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated
December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T.
Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2, and
59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6) months
of arresto mayor, and to pay the costs.

SO ORDERED.

Ynares-Santiago, Chico-Nazario, Velasco, Jr. and Nachura, JJ., concur.