Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

L-68955 September 4, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN BURGOS y TITO, defendant-appellant. GUTIERREZ, JR., J.: This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendant- appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms in Furtherance of Subversion. The dispositive portion of the decision reads: WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond reasonable doubt, of the offense charges , pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated September 22, 1972, and General Order No. 7, dated September 23, 1972, in relation further to Presidential Decree No. 885, and considering that the firearm subject of this case was not used in the circumstances as embraced in paragraph I thereof, applying the provision of indeterminate sentence law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment of twenty (20) years of reclusion temporal maximum, as minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of Presidential Decree No. 9, as aforementioned, with accessory penalties, as provided for by law. As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to be disposed of in accordance with law. Likewise, the subversive documents, leaflets and/or propaganda seized are ordered disposed of in accordance with law. The information charged the defendant-appellant with the crime of illegal possession of firearm in furtherance of subversion in an information which reads as follows: That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur, Philippines, within the jurisdiction of this Court, the above- named accused with intent to possess and without the necessary license, permit or authority issued by the proper government agencies, did then and there wilfully, unlawfully and feloniously keep, possess, carry and have in his possession, control and custody one (1) homemade revolver, caliber .38, make Smith and Wesson, with Serial No. 8.69221, which firearm was issued to and used by the accused at Tiguman, Digos, Davao del Sur, his area of operations by one Alias Commander Pol for the New People's Army (NPA), a subversive organization organized for the purpose of overthrowing the Government of the Republic of the Philippines through lawless and violent means, of which the accused had knowledge, and which firearm was used by the accused in the performance of his subversive tasks such as the recruitment of New Members to the NPA and collection of contributions from the members. CONTRARY TO LAW. The evidence for the prosecution is summarized in the decision of the lower court as follows: xxx xxx xxx . . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of an intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to the authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary Headquarters, stating that he was forcibly recruited by accused Ruben Burgos as member of the NPA, threatening him with the use of firearm against his life, if he refused.

Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso (P1.00) per month, as his contribution to the NPA TSN, page 5, HearingOctober 14, 1982). Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15) members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where through the help of Pedro Burgos, brother of accused, the team was able to locate accused, who was plowing his field. (TSN, pages 6-7, HearingOctober 14, 1982). Right in the house of accused, the latter was caned by the team and Pat. Bioco asked accused about his firearm, as reported by Cesar Masamlok. At first accused denied possession of said firearm but later, upon question profounded by Sgt. Alejandro Buncalan with the wife of the accused, the latter pointed to a place below their house where a gun was buried in the ground. (TSN, page 8, Hearing-October 14, 1982). Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he recovered the firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution. After the recovery of the firearm, accused likewise pointed to the team, subversive documents which he allegedly kept in a stock pile of qqqcogon at a distance of three (3) meters apart from his house. Then Sgt. Taroy accordingly verified beneath said cogon grass and likewise recovered documents consisting of notebook colored maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated December 31, 1980, marked as Exhibit "C", and another pamphlet Asdang Pamantalaang Masa sa Habagatang Mindanao, March and April 1981 issue, consisting of ten (10) pages, marked as Exhibit "D" for the prosecution. Accused, when confronted with the firearm Exhibit "A", after its recovery, readily admitted the same as issued to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team leader of the sparrow unit of New People's Army, responsible in the liquidation of target personalities, opposed to NPA Ideological movement, an example was the killing of the late Mayor Llanos and Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October 14,1982). To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented, who declared that on March 7, 1972, in his former residence at Tiguman Digos, Davao del Sur, accused Ruben Burgos, accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called him downstair. Thereupon, accused told Masamlok, their purpose was to ask rice and one (1) peso from him, as his contribution to their companions, the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983). Accused and his companions told Masamlok, he has to join their group otherwise, he and his family will be killed. He was also warned not to reveal anything with the government authorities. Because of the threat to his life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a seminar scheduled on April 19, 1982. Along with this invitation, accused pulled gut from his waistline a .38 caliber revolver which Masamlok really saw, being only about two (2) meters away from accused, which make him easily Identified said firearm, as that marked as Exhibit "A" for the prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983). On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of accused and attended the seminar, Those present in the seminar were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias Pedipol and one alias Jamper. The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together with his companions, to assure the unity of the civilian. That he encouraged the group to overthrow the government, emphasizing that those who attended the seminar were already members of the NPA, and if they reveal to the authorities, they will be killed.

Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the NPA will be victorious. Masamlok likewise Identified the pamphlets as those marked as Exh. exhibits "B", "C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983) Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded their own opinions about the NPA. It was also announced in said seminar that a certain Tonio Burgos, will be responsible for the collection of the contribution from the members. (TSN, pages 78-79, Hearing- January 4, 1983) On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial Headquarters of the Philippine Constabulary, Digos, Davao del Sur. Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May 19, 1982, he administered the subscription of th extra-judicial confession of accused Ruben Burgos, marked as Exhibit "E " for the prosecution, consisting of five (5) pages. Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing that accused was not represented by counsel, requested the services of Atty. Anyog, whose office is adjacent to the Fiscal's Office, to assist accused in the subscription of his extra-judicial statement. Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting to the deletion of question No. 19 of the document, by an inserted certification of Atty. Anyog and signature of accused, indicating his having understood, the allegations of his extra-judicial statement. Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to remain silent, right to counsel and right to answer any question propounded or not. With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal Lovitos, without the presence of military authorities, who escorted the accused, but were sent outside the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40, nearing November 15, 1982) Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives, NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur, was presented and testified, that among the lists of firearm holders in Davao del Sur, nothing was listed in the name of accused Ruben Burgos, neither was his name included among the lists of persons who applied for the licensing of the firearm under Presidential Decree No. 1745. After the above-testimony the prosecution formally closed its case and offered its exhibits, which were all admitted in evidence, despite objection interposed by counsel for accused, which was accordingly overruled. On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows: From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC Barracks at Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the evening, he was investigated by soldiers, whom he cannot Identify because they were wearing a civilian attire. (TSN, page 14 1, Hearing-June 15, 1983) The investigation was conducted in the PC barracks, where he was detained with respect to the subject firearm, which the investigator, wished him to admit but accused denied its ownership. Because of his refusal accused was mauled, hitting him on the left and right side of his body which rendered him unconscious. Accused in an atmosphere of tersed solemnity, crying and with emotional attachment, described in detail how he was tortured and the ordeals he was subjected. He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit "A", for him to admit and when he repeatedly refused to accept as his own firearm, he was subjected to further prolong (sic) torture and physical agony.

Accused said, his eyes were covered with wet black cloth with pungent effect on his eyes. He was undressed, with only blindfold, pungent water poured in his body and over his private parts, making his entire body, particularly his penis and testicle, terribly irritating with pungent pain. All along, he was investigated to obtain his admission, The process of beating, mauling, pain and/or ordeal was repeatedly done in similar cycle, from May 13 and 14, 1982. intercepted only whenever he fell unconscious and again repeated after recovery of his senses, Finally on May 15, 1982, after undergoing the same torture and physical ordeal he was seriously warned, if he will still adamantly refuse to accept ownership of the subject firearm, he will be salvaged, and no longer able to bear any further the pain and agony, accused admitted ownership of subject firearm. After his admission, the mauling and torture stopped, but accused was made to sign his affidavit marked as Exhibit "E" for the prosecution, consisting of five (5) pages, including the certification of the administering officer, (TSN, pages 141-148, Hearing-June 15, 1983) In addition to how he described the torture inflicted on him, accused, by way of explanation and commentary in details, and going one by one, the allegations and/or contents of his alleged extrajudicial statement, attributed his answers to those questions involuntarily made only because of fear, threat and intimidation of his person and family, as a result of unbearable excruciating pain he was subjected by an investigator, who, unfortunately he cannot Identify and was able to obtain his admission of the subject firearm, by force and violence exerted over his person. To support denial of accused of being involved in any subversive activities, and also to support his denial to the truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47, along with qqqs answers to those questions, involving Honorata Arellano ahas Inday Arellano, said Honorata Arellano appeared and declared categorically, that the above-questions embraced in the numbers allegedly stated in the extrajudicial confession of accused, involving her to such NPA personalities, as Jamper, Pol, Anthony, etc., were not true because on the date referred on April 28, 1982, none of the persons mentioned came to her house for treatment, neither did she meet the accused nor able to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983) She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged with subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao del Sur, but said charge was dismissed without reaching the Court. She likewise stated that her son, Rogelio Arellano, was likewise charged for subversion filed in the Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation to her cross-examination, Hearing-May 18, 1983) To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was presented, who declared, he was not personally aware of any subversive activities of accused, being his neighbor and member of his barrio. On the contrary, he can personally attest to his good character and reputation, as a law abiding citizen of his barrio, being a carpenter and farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983) He however, admitted in cross-examination, that there were a lot of arrests made by the authorities in his barrio involving subversive activities but they were released and were not formally charged in Court because they publicly took their oath of allegiance with the government. (TSN, pages 133-134, in relation to page 136, Hearing-May 18, 1983) Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and who testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was night time, when the two left the gun, alleging that it was not in order, and that they will leave it behind, temporarily for them to claim it later. They were the ones who buried it. She said, her husband, the accused, was not in their house at that time and that she did not inform him about said firearm neither

did she report the matter to the authorities, for fear of the life of her husband. (TSN, page 24, November 22, 1983) On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a mask, she can still Identify him. (TSN, page 6, Hearing-November 22, 1983) After the above-testimony, accused through counsel formally rested his case in support of accused's through counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative for violation merely of simple illegal possession of firearm, 'under the Revised Administrative Code, as amended by Republic Act No. 4, reflected in the manifestation of counsel for accused. (TSN, pages 113-114, Hearing-May 18, 1983) Accused-appellant Ruben Burgos now raises the following assignments of error, to wit: I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSEDAPPELLANT WITHOUT VALID WARRANT TO BE LAWFUL. II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE LAWFUL. III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS NOS. 6 AND 7 Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of a firearm and documents allegedly found therein conducted in a lawful and valid manner? Does the evidence sustaining the crime charged meet the test of proving guilt beyond reasonable doubt? The records of the case disclose that when the police authorities went to the house of Ruben Burgos for the purpose of arresting him upon information given by Cesar Masamlok that the accused allegedly recruited him to join the New People's Army (NPA), they did not have any warrant of arrest or search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November 15, 1982). Article IV, Section 3 of the Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers and effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why this right is so important: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life, (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966], could fitly characterize this constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no legs than to value human dignity, and that his privacy must not be

disturbed except in case of overriding social need, and then only under stringent procedural safeguards.' (Ibid, p. 47). The trial court justified the arrest of the accused-appelant without any warrant as falling under one of the instances when arrests may be validly made without a warrant. Rule 113, Section 6 * of the Rules of Court, provides the exceptions as follows: a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another. The Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities received an urgent report of accused's involvement in subversive activities from a reliable source (report of Cesar Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence on the matter." If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive documents would become an incident to a lawful arrest as provided by Rule 126, Section 12, which states: A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The conclusions reached by the trial court are erroneous. Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife. At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest. The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection. The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b) using the test of reasonableness. He submits that. the information given by Cesar Masamlok was sufficient to induce a reasonable ground that a crime has been committed and that the accused is probably guilty thereof. In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the authorities to suspect that the accused had committed a crime. They were still fishing for evidence of a crime not yet ascertained. The subsequent recovery of the subject firearm on the basis of information

from the lips of a frightened wife cannot make the arrest lawful, If an arrest without warrant is unlawful at the moment it is made, generally nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is necessarily also tainted. More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown, The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was not required to subscribe his allegations under oath. There was no compulsion for him to state truthfully his charges under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through the process of securing a search warrant and a warrant of arrest becomes even more clear. The arrest of the accused while he was plowing his field is illegal. The arrest being unlawful, the search and seizure which transpired afterwards could not likewise be deemed legal as being mere incidents to a valid arrest. Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin (supra) xxx xxx xxx . . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181). We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S. 458). That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident from the records:

A CALAMBA: Q When you went to the area to arrest Ruben Burgos, you were not armed with an arrest warrant? A None Sir. Q Neither were you armed with a search warrant? A No Sir. Q As a matter of fact, Burgos was not present in his house when you went there? A But he was twenty meters away from his house. Q Ruben Burgos was then plowing his field? A Yes Sir.

Q When you called for Ruben Burgos you interviewed him? A Yes Sir. Q And that you told him that Masamlok implicated him? A No Sir. Q What did you tell him? A That we received information that you have a firearm, you surrender that firearm, first he denied but when Sgt. Buncalan interviewed his wife, his wife told him that it is buried, I dug the firearm which was wrapped with a cellophane. Q In your interview of Burgos you did not remind him of his rights under the constitution considering that he was purposely under arrest? A I did not. Q As a matter of fact, he denied that he has ever a gun? A Yes Sir. Q As a matter of fact, the gun was not in his possession? A It was buried down in his horse. Q As a matter of fact, Burgos did not point to where it was buried? A Yes Sir. (TSN, pp. 25-26, Hearing-October 14, 1982) Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the accused's constitutional rights against unreasonable searches and seizures, it follows that they are inadmissible as evidence. There is another aspect of this case. In proving ownership of the questioned firearm and alleged subversive documents, the prosecution presented the two arresting officers who testified that the accused readily admitted ownership of the gun after qqqs wife pointed to the place where it was buried. The officers stated that it was the accused himself who voluntarily pointed to the place where the alleged subversive documents were hidden. Assuming this to be true, it should be recalled that the accused was never informed of his constitutional rights at the time of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the location of the subversive documents after questioning, the admissions were obtained in violation of the constitutional right against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right.. . . The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in evidence. Consequently, the testimonies of the arresting officers as to the admissions made by the appellant cannot be used against him. The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence. The court stated that the appellant's having been exhaustively subjected to physical terror, violence, and third degree measures may not have been supported by reliable evidence but the failure to present the investigator who conducted the investigation gives rise to the "provocative presumption" that indeed torture and physical violence may have been committed as stated.

The accused-appellant was not accorded his constitutional right to be assisted by counsel during the custodial interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog, to help the accused when he subscribed under oath to his statement at the Fiscal's Office was too late. It could have no palliative effect. It cannot cure the absence of counsel at the time of the custodial investigation when the extrajudicial statement was being taken. With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in evidence against the accused-appellant, the only remaining proof to sustain the charge of Illegal Possession of Firearm in Furtherance of Subversion is the testimony of Cesar Masamlok. We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the trial court found Masamlok's testimony credible and convincing. However, we are not necessarily bound by the credibility which the trial court attaches to a particular witness. As stated in People vs.. Cabrera (100 SCRA 424): xxx xxx xxx . . .Time and again we have stated that when it comes to question of credibility the findings of the trial court are entitled to great respect upon appeal for the obvious reason th+at it was able to observe the demeanor, actuations and deportment of the witnesses during the trial. But we have also said that this rule is not absolute for otherwise there would be no reversals of convictions upon appeal. We must reject the findings of the trial court where the record discloses circumstances of weight and substance which were not properly appreciated by the trial court. The situation under which Cesar Masamlok testified is analogous to that found in People vs. Capadocia (17 SCRA 98 1): . . . The case against appellant is built on Ternura's testimony, and the issue hinges on how much credence can be accorded to him. The first consideration is that said testimony stands uncorroborated. Ternura was the only witness who testified on the mimeographing incident. . . . xxx xxx xxx . . .He was a confessed Huk under detention at the time. He knew his fate depended upon how much he cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. As in the case of Rodrigo de Jesus, whose testimony We discounted for the same reason, that of Ternura cannot be considered as proceeding from a totally unbiased source. . . . In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered to the military certainly his fate depended on how eagerly he cooperated with the authorities. Otherwise, he would also be charged with subversion. The trade-off appears to be his membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered as an interested witness. It can not be said that his testimony is free from the opportunity and temptation to be exaggerated and even fabricated for it was intended to secure his freedom. Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of subversive activities or actually engaged in subversive acts, the prosecution never presented any other witness. This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient to prove the guilt of the accused beyond reasonable doubt. As held in the case of People vs. Baia (34 SCRA 347): It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after stressing that accusation is not, according to the fundamental law, synonymous with guilt, it was made clear: 'Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. 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 defendant 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.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124 SCRA 697). We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a well-organized plan to overthrow the Government through armed struggle and replace it with an alien system based on a foreign ideology. The open defiance against duly constituted authorities has resulted in unfortunate levels of violence and human suffering publicized all over the country and abroad. Even as we reiterate the need for all freedom loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national security, we must also remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated: While the government should continue to repel the communists, the subversives, the rebels, and the lawless with an the means at its command, it should always be remembered that whatever action is taken must always be within the framework of our Constitution and our laws. Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards constitutional liberties and protections will only fan the increase of subversive activities instead of containing and suppressing them. WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The accused-appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has been charged. The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) and the alleged subversive documents are ordered disposed of in accordance with law. Cost de oficio.SO ORDERED.Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 90628 February 1, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE RAYRAY Y AREOLA, accused-appellant. BELLOSILLO, J.: After offering to sell 2.9452 grams of marijuana to a stranger in San Fernando, La Union, who turned out to be the Chief Administrative Officer of the Regional Integrated National Police (INP) Command stationed in Baguio City, accused-appellant Jose Rayray y Areola was arrested, tried and subsequently convicted of violation of Sec. 4, Art. II of R. A. No. 6425. The antecedents as found by the trial court: At nine forty-five in the morning of 12 September 1986 P/Lt. Ramon Ancheta was at the Friendly Shop located at Ortega St., San Fernando, La Union, when accusedappellant Jose Rayray y Areola approached him offering to sell marijuana. Making the latter believe that he was interested in buying, Lt. Ancheta asked where the merchandise was and accused-appellant responded by taking marijuana wrapped in komiks from his pocket. Catching sight of the marijuana fruiting tops and marijuana cigarette being offered him, Lt. Ancheta immediately identified himself as a police officer, arrested accused-appellant and brought him to the San Fernando Police Station where he was turned-over to the desk officer, Sgt. Carmelito Leyga, who entered the details of the arrest in the police blotter. Accused-appellant denied making the offer to sell and instead testified that he was at Dodies' Fishing Supply at Ortega Street with his friend Bonifacio Chan to buy fish hooks when he was suddenly tapped on the shoulder by somebody who whispered, "Don't try to involve somebody." After being ordered to undress, he was made to face the stranger who was holding something wrapped in paper and which he tried to pass off as that of accused-appellant by saying, "You are selling marijuana." Afterwards, accusedappellant was forced into a tricycle, brought to the municipal jail and there incarcerated for no reason. On 29 August 1989, rejecting the defense of frame-up and invoking the presumption of regularity in the performance of official duties in favor of the prosecution, Judge Benito A. Dacanay declared accusedappellant guilty of the offense charged and sentenced him to suffer life imprisonment and to pay a fine of 1 P20,000.00. Hence, this recourse to us. But for reasons set forth below, the appeal should be denied. Accused-appellant argues that his arrest was illegal because P/Lt. Ancheta had no authority to arrest persons in San Fernando, La Union, being then assigned at the Regional INP Command in Baguio City. 2 We cannot yield to appellant's view that just because Lt. Ancheta was assigned in Baguio City he could not arrest persons caught in the act of committing a crime in some other place, especially so where he was the intended victim. A policeman cannot callously set aside his essential duty of apprehending criminal offenders and of keeping peace and order on the shallow excuse that he is not in his place of assignment. His responsibility to protect the public by apprehending violators of the law, especially one caught in flagrante delicto is not limited by territorial constraints. It follows him wherever he goes. Moreover, Sec. 5, par. (a), Rule 113, of the Revised Rules on Criminal Procedure authorities a warrantless arrest, otherwise called a citizen's arrest, "when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense." Thus, although officially assigned in Baguio City, Lt. Ancheta's act of arresting accused-appellant (after the latter offered to sell him marijuana in San Fernando, La Union) is justified not only by his duty as a law enforcer but also by Sec. 5 of Rule 113, which authorizes instances of warrantless or citizens' arrests. Second, accused-appellant takes exception to the fact that the trial judge accepted the uncorroborated testimony of P/Lt. Ancheta over his which was in fact corroborated by two other witnesses.

The argument is without merit. No rule exists which requires that a testimony has to be corroborated to be 3 4 adjudged credible. Witnesses are to be weighed, not numbered, hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness and despite the lack of corroboration where such testimony is found positive and credible by the trial court. In such a case, the 5 lone testimony is sufficient to produce a conviction. For although the number of witnesses may be considered a factor in the appreciation of evidence, preponderance is not necessarily with the greatest 6 number and conviction can still be had on the basis of the credible and positive testimony of a single witness more so when such testimony proceeds from the positive narration of a police officer who, in addition, has to his credit the presumption of regularity in the performance of official duty and obedience to law. 7 Narration of an incident by prosecution witnesses who are police officers and who are presumed 8 to have regularly performed their duties is credible. In the case at bench, while details of accused-appellant's offense came from the lone testimony of P/Lt. Ancheta, that of the defense is admittedly corroborated by the testimonies of witnesses Gabriel Galvez and Bonifacio Chan. However, such fact failed to render the version offered by the defense more credible and believable than that of the prosecution. Apart from the fact that both Galvez and Chan are not entirely 9 disinterested witnesses, being a companion in the fishing business and close friend or barkada of 10 accused-appellant, respectively, a review of their respective testimonies vis-a-vis that of accusedappellant reveals certain points which render their corroboration not so reliable, as correctly concluded by the court a quo. Accused-appellant testified that in the morning of 12 September 1986 while packing fish in the house of Junior Galvez (also known as Gabriel Galvez), he suddenly remembered that somebody from Pangasinan requested him to buy fish hooks and that was why he asked permission from Galvez to go to Dodies Fishing Supply at Ortega Street. 11 However, Junior Galvez testified that it was he himself who asked accused-appellant to buy the fish hooks and that he did so in the same morning in 12 question. Secondly, Galvez testified that he was informed about the arrest of accused-appellant by the 13 latters grandmother, an old woman called Isten (not presented as a witness). However, Bonifacio Chan 14 claimed that it was from him that Gabriel Galvez learned of the incident. Third, while Bonifacio Chan corroborated accused-appellant's defense by claiming to have witnessed the alleged frame-up, it is curious to note that Chan did not even lift a finger to help accused-appellant (his supposed close friend) while the latter was allegedly being ordered to undress and forced into a vehicle by an "unknown man" in civilian clothes for no apparent reason. Instead, Chan appeared unaffecfed by his friend's fate for he just 15 went home after the incident and did nothing except to inform Galvez (who even denied that he learned about the incident from Chan) about the arrest, who in the same manner, likewise did nothing by way of succor. 16 If the story about the alleged frame-up is true, a friend as Chan claims himself to be would do everything in his power to assist his friend and not abandon him as Chan practically did. It even appears from the records that Bonifacio Chan initially refused to testify for the defense (by refusing to receive the subpoena being served on him) and denied any knowledge about the incident, nay, even his close 17 association with accused-appellant. Third, accused-appellant argues that there was misappreciation of evidence since the judge who decided 18 the case was not the one who conducted the trial. Again, we cannot ascribe any merit to the argument since it is now well recognized that the fact that the judge who heard the evidence is not himself the one who prepared, signed and promulgated the decision, but some other judge in his place, constitutes no compelling reason to jettison his findings and conclusions 19 and does not per serender it erroneous. 20 The trial judge's assessment of the credibility of a testimony is not to be anchored solely on how the witness conducted himself on the witness stand. Aside from the danger of being misled by appearance inherent in such a case, a judge is supposed to render a decision on the basis of the evidence before him, i.e., records and all. Although an undeniable tool in arriving at the correct decision, the failure of the trial judge to observe the witnesses testify on the stand in no way affects the validity of the judgment rendered or ipso factocondemns it as erroneous more so where the judgment appears to be fully supported by the evidence on record as in the case at bench. Finally, with respect to accused-appellant's contention that his constitutional rights were violated during the custodial investigation conducted by the San Fernando Police, we can only say that although he was admittedly not informed of his constitutional rights, much less assisted by counsel during the interrogation, such did not paralyze the cause for the prosecution because the confession allegedly elicited from him that the subject marijuana was indeed confiscated form him 21 does not constitute the whole fabric of the evidence for the prosecution. It should be remembered that accused-appellant's attempt at selling marijuana was succinctly and clearly detailed by the positive testimony of P/Lt. Ancheta as earlier pointed out. Thus, although the alleged admission is inadmissible in evidence having been obtained from accused-appellant without the assistance of counsel, the act constituting the offense (offer to sell marijuana) was nevertheless credibly established by the prosecution coupled with the presentation 22 of the corpus delicti of the offense making accused-appellant's conviction inevitable.

But, a modification in the penalty imposed on accused-appellant is called for in view of the amendments 23 introduced by R.A. No. 7659. The court a quo sentenced accused-appellant to life imprisonment and to pay a fine of P20,000.00. However, under Sec. 20 of R.A. No. 6425 (The Dangerous Drugs Act of 1972) as amended by Sec. 17 of R.A. No. 7659, the illegal sale of marijuana is now penalized with reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000.00 if the marijuana unlawfully sold is 750 grams or more; otherwise, if the quantity is less than 750 grams, the penalty shall 24 range from prision correccional to reclusion temporal without fine. Since the amount of marijuana confiscated from accused-appellant is only 2.9452 grams, the proper imposable component penalty is prision correctional to be applied in its medium period in view of the absence of any mitigating or aggravating circumstance. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken; from the medium period of prision correctional, which is two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is arresto mayor the range of which is one (1) month and one (1) day to six (6) months. WHEREFORE, the decision of the Regional Trial Court of San Fernando, La Union, Br. 28, declaring accused-appellant JOSE RAYRAY Y AREOLA guilty of violating Sec. 4, of Art. II, of R.A. No. 6425 is AFFIRMED with the modification that he is sentenced to suffer an indeterminate prison term of six (6) months of arresto mayormaximum as minimum to four (4) years and two (2) months of prision correccional medium as maximum. It appearing that accused-appellant has already been detained at the New Bilibid Prisons in Muntinlupa for more than seven (7) years; he is ordered immediately released from custody unless he is held for some other lawful cause. SO ORDERED.Padilla, Davide, Jr., Quiason and Kapunan, JJ., concur.

SECOND DIVISION [G.R. No. L-8666. March 28, 1956.] NATALIO P. AMARGA, provincial fiscal of Sulu, Petitioner, vs. HONORABLE MACAPANTON ABBAS, as Judge, of the Court of First Instance of Sulu, Respondent. DECISION PARAS, C.J.: The Petitioner, the Provincial Fiscal of Sulu, filed in the Court of First Instance of Sulu an information for murder (criminal case No. 1131, People of the Philippines vs. Madpirol, Awadi, Rajah, Sali, Insa and Maharajah Bapayani). At the foot of the information the Petitionercertified under oath that he has conducted the necessary preliminary investigation pursuant to the provisions of Republic Act No. 732. As the only supporting affidavit was that of Iman Hadji Rohmund Jubair, to the effect that the latter was told that the deceased was shot and killed by three persons named:chanroblesvirtuallawlibrary Hajirul Appang, Rajah Appang and Awadi Bagali, and thePetitioner had failed or refused to present other evidence sufficient to make out a prima facie case, the Respondent judge issued an order the dispositive part of which reads as follows:chanroblesvirtuallawlibraryIn view of the foregoing considerations, and considering that the only affidavit supporting the information does not make out a prima facie case, this case is hereby ordered dismissed without prejudice to reinstatement should the provincial fiscal support his information with record of his investigation which in the opinion of the court may support a prima facie case. Whereupon the Petitioner instituted in this court the present petition for certiorari and mandamus, wherein it is contended that, as he had already conducted a preliminary investigation, it became the ministerial function of the Respondent judge to issue the corresponding warrant of arrest upon the filing of the information in criminal case No. 1131. Upon the other hand, the Respondent judge argues that the issuance of a warrant of arrest involves a judicial power which necessarily imposes upon him the legal duty of first satisfying himself that there is probable cause, independently of and notwithstanding the preliminary investigation made by the provincial fiscal under Republic Act No. 732; chan roblesvirtualawlibraryand to that end he may require the fiscal to submit such evidence as may be sufficient to show at least a prima facie case. Section 1, paragraph 3, of Article III of the Constitution provides that no warrant shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. As was said in the case of U.S. vs. Ocampo, 18 Phil., 1, 41-42, The question whether probable cause exists or not must depend upon the judgment and discretion of the judge or magistrate issuing the warrant. It does not mean that particular facts must exist in each particular case. It simply means that sufficient facts must be presented to the judge or magistrate issuing the warrant to convince him, not that the particular person has committed the crime, but that there is probable cause for believing that the person whose arrest is sought committed the crime charged. No rule can be laid down which will govern the discretion of the court in this matter. If he decides, upon the proof presented, that probable cause exists, no objection can be made upon constitutional grounds against the issuance of the warrant. His conclusion as to whether probable cause existed or not is final and conclusive. If he is satisfied that probable cause exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney, then his conclusion is sufficient upon which to issue the warrant for arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. The issuance of the warrant of arrest is prima facie evidence that, in his judgment at least, there existed probable cause for believing that the person against whom the warrant is issued is guilty of the crime charged. There is no law which prohibits him from reaching the conclusion that probable cause exists from the statement of the prosecuting attorney alone, or any other person whose statement or affidavit is entitled to credit in the opinion of the judge or magistrate. The preliminary investigation conducted by the Petitioner under Republic Act No. 732 which formed the basis for the filing in the Court of First Instance of Sulu of criminal case No. 1131 does not, as correctly contended by the Respondent judge, dispense with the latters duty to exercise his judicial power of determining, before issuing the corresponding warrant of arrest, whether or not probable cause exists therefor. The Constitution vests such power in the Respondent judge who, however, may rely on the facts stated in the information filed after preliminary investigation by the prosecuting attorney. While the Respondent Judge was within his right in requiring the Petitioner to submit further evidence so as to show probable cause for the issuance of a warrant of arrest, he exceeded his jurisdiction in dismissing the case which was filed with the Court of First Instance of Sulu not merely for purposes of preliminary investigation. In other words, the failure or refusal of the Petitioner to present further evidence, although good as a ground for the RespondentJudge not to issue a warrant of arrest, is not a legal cause for dismissal.

Wherefore, the petition is granted and the Respondent Judge ordered to proceed with criminal case No. 1131 in accordance with law, it being understood that, if within ten days after notice by the Respondent Judge, the Petitioner still fails or refuses to present other necessary evidence, the dismissal will stand for lack of prosecution. Without costs. Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur. Separate Opinions PADILLA, J., dissenting:chanroblesvirtuallawlibrary I agree with Mr. Justice Montemayor and wish to add that, if the preliminary investigation conducted by the provincial fiscal, as provided for in section 1687 of the Revised Administrative Code, as amended by Republic Act No. 732, takes the place of, or dispenses with, the preliminary investigation referred to in sections 1, 2, 3, 4, 5, and 6, Rule 108, to be done before a warrant of arrest is issued, as provided for in section 7 of the same rule, or with the preliminary investigation proper as provided for in sections 11 and 12, Rule 108, prior to the transmittal of the case to the court having jurisdiction of the offense, as provided for in section 13 of the same rule, then the Court has no alternative but to issue the warrant of arrest of the persons charged with the offense already investigated by the provincial fiscal in the manner and form prescribed in section 1687 of the Revised Administrative Code, as amended by Republic Act No. 732, because the provincial fiscal acts as a committing magistrate, and the reason the court has to issue the warrant is because the provincial fiscal has no power to issue it. The power and authority vested in the courts to determine probable cause before issuance of a warrant of arrest, being statutory may be taken away and vested in another judicial officer, as it has been vested concurrently with the courts in the provincial fiscals by the passage of Republic Act No. 732. Section 1, paragraph 3, Article III of the Constitution refers to search warrants. Petition to annul and set aside the order of dismissal and to direct the Respondent court to issue a warrant of arrest, so that it may acquire jurisdiction over the Defendants and proceed with their trial, should be granted.

MONTEMAYOR, J., dissenting:chanroblesvirtuallawlibrary The majority opinion seeks to lay down a fundamental doctrine of far-reaching implications and effects which would result in the scrapping and abandonment of laws and of the general practice and followed these many years, regarding the issuance of a warrant of arrest. Because I disagree to such doctrine, in my opinion, unreasonable and unwarranted, I find it necessary not only to dissent but also to give my reasons for the same. The facts involved in the present case are without dispute. Petitioner Natalio P. Amarga, as provincial fiscal of Sulu, after conducting a preliminary investigation in a case of murder where on Dugusan Paspasan was alleged to have been killed by about six Moros in his house in the municipal district of Indana, province of Sulu, filed the corresponding information in criminal case No. 1131 in the Court of First Instance of Sulu, certifying that he had conducted the preliminary investigation pursuant to the provisions of Republic Act No. 732 and that in his opinion the accused herein was probably guilty of the crime charged. According to Petitioner, Respondent Judge Macapanton Abbas of the Court of First Instance of Sulu asked him for the affidavits and testimonies of the witnesses examined by him in order to satisfy himself (Respondent) that there was probable cause. According toPetitioner, not desiring to reveal all the evidence in his possession, for strategic reasons, he delivered to Respondent Judge only the affidavit of one Iman Hadji Mohamad Jubair. Said affidavit is to the effect that the affiant had examined the body of the deceased and found gunshot wounds on the same, and that while he was examining the body, he was told that the deceased had been shot and killed by three persons who are included in the information.Respondent after reading the affidavit was of the opinion that portion of the same referring to what affiant had been told about the killing of the deceased and the identity of the killers was hearsay, and concluding that there was no probable cause, he dismissed the case for not making out a prima facie case, without prejudice to reinstatement should the provincial fiscal support his information with record of his investigation which in the opinion of the court may support a prima facie case. Claiming that Respondent had gravely exceeded and abused his powers and unlawfully neglected the performance of an act to issue the corresponding warrant of arrest against the persons accused in the information, Petitionerprovincial fiscal has filed the present petition asking us to order Respondent to lift his order of dismissal and to immediately issue the corresponding warrant of arrest in criminal case No. 1131. In his answer, Respondent Judge contends that the issuance of a warrant of arrest involves judicial power and that the magistrate called upon to issue said warrant has the right to exercise discretion before issuing the warrant; chan roblesvirtualawlibrarythat even where the fiscal had already conducted the preliminary investigation it is still within the power of the judge before whom the information is filed to satisfy himself that there is probable cause, and that for said purpose, said judge may require additional evidence or affidavits to be presented before issuing the warrant of arrest.

In our study of the present case, we have found no judicial authority or jurisprudence on this particular legal point. What we have found are decisions to the effect that a preliminary investigation conducted by the city fiscal of the City of Manila under its Charter as amended by Act No. 612 of the Philippine Commission is sufficient in law for the purpose of proceeding to the trial of the case; chan roblesvirtualawlibrarythat a person accused in an information filed by the city fiscal of Manila is not entitled to the preliminary investigation provided for in the old criminal procedure (General Orders No. 58); chan roblesvirtualawlibraryand that when a judge issues a warrant of arrest on the strength of a certificate of the city fiscal of Manila that he had conducted the necessary preliminary investigation, the issuance of said warrant of arrest is proof that there was probable cause, because the magistrate before issuing the warrant of arrest is supposed to satisfy himself and find that there was really probable cause. In the City of Manila I have not come across any case where any judge of the city had declined or refused to issue the warrant of arrest on the strength of the certificate filed by the city fiscal that he had conducted the necessary preliminary investigation. The majority opinion maintains that under our Constitution, particularly section 1, paragraph 3 of Article III thereof, before a warrant of arrest can issue, a judge must first determine whether there is probable cause and he must examine under oath or affirmation the complainant and the witnesses he may produce, and that the question whether probable cause exists or not must depend upon the judgment and discretion of the magistrate issuing the warrant; chan roblesvirtualawlibraryand it then proceeds to reproduce but partially the following provisions of the Constitution:chanroblesvirtuallawlibrary cralaw, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. The trouble is that the majority has contented itself with reproducing only a part of said section 1, paragraph 3 of Article III of the Constitution. For purposes of reference, we should reproduce the whole paragraph 3 of said section which reads thus:chanroblesvirtuallawlibrary (3) The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation. The complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Italics supplied.) Before the promulgation of our Constitution, the provisions in our basic law regarding security against unreasonable searches and seizures and the issuance of warrant upon probable cause were contained in the Philippine Bill of 1902, as amended, and the Jones Law of 1916. They are as follows:chanroblesvirtuallawlibrary That the right to be secure against unreasonable searches and seizures shall not be violated. xxx xxx xxx

That no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized (Section 5, Philippine Bill of 1902.) That the right to be secure against unreasonable searches and seizures shall not be violated. xxx xxx xxx

That no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (Section 3, Jones Law.) Our Constitution has combined the two provisions in the Philippine Bill of 1902 and the Jones Law into one single paragraph now contained in section 1, paragraph 3, Article III, above reproduced. It will be noticed that neither in the Philippine Bill of 1902 nor in the Jones Law was it required that before issuing a warrant a judge or magistrate should first determine probable cause by examining under oath or affirmation the complainant and the witnesses he may produce. All that was then required was that the probable cause be supported by oath or affirmation. The question now to determine is whether this new requirement in our Constitution section 1, paragraph 3, Article III, that a magistrate before issuing a warrant must first determine probable cause by examining under oath the complainant and the witnesses he may produce, refers to both warrant of arrest and search warrant, or only to the latter. I maintain that the new requirement refers to the issuance of a search warrant only and that was the intention of the members of the Constitutional Convention, as may be gathered from their discussion of the draft and the amendment thereto which was finally approved as section 1, paragraph 3, of Article III of the Constitution. Professor Jose A. Aruego, a member of the Constitutional Convention in his book entitled The Framing of the Philippine Constitution, Vol. I, p. 160 under the heading Security Against Unreasonable Searches, etc. says:chanroblesvirtuallawlibrary xxx xxx xxx

During the debates on the draft, Delegate Francisco proposed an amendment which was adopted by the convention, the amendment being the insertion of the words, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. The idea in

the Francisco amendment was not new in the Philippines; chan roblesvirtualawlibraryfor it was provided for in the Code of criminal Procedure of the Philippines. The dignification of the idea into constitutional provision was zealously insisted upon, in order to make the principle more sacred to the judges and to prosecuting officials. The amendment was intended to be a remedy for the evils pointed out in the debates, caused by the issuance of search warrants, many of which were in blank, upon mere affidavits on facts most of which are generally found afterwards to be false. As to the debates on this particular subject of search warrants Atty. Salvador Aranetas Proceedings of the Constitutional Convention, Vol. 6, p. 3006, we find the following:chanroblesvirtuallawlibrary SR. FRANCISCO. Seor Presidente, caballeros de la convencion bajo el proyecto del comite de 7, se puede expedir mandamientos de registro, con tal de que la peticion vaya acompaada de un affidavit, en el que aparezcan hechos y circunstancias que demuestren causas probables. Bajo mi enmienda, un juez no puede expidir un mandamiento de registro sino solo despues de haber examinado al denunciante y a sus testigos bajo juramento. Parece ser que la diferencia es grande. El texto en ingles del proyecto dice:chanroblesvirtuallawlibrary cralaw and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized. Esta expresion ha sido interpretada por los tribunales de America en el sentido de que el juez tiene dos medios:chanroblesvirtuallawlibrary o puede tomar en cuenta para la expedicion de un mandamiento de registro un affidavit en que consten hechos y demuestre la causa probable, o mediante examen del denunciante. Someto a la consideracion de esta asamblea que es completamente peligroso permitir que un juez expida mandamiento de registro, ateniendose exclusivamente o lo que consta en un affidavit. Esta idea de que se puede expedir mandamiento de registro mediante affidavit, o sea, solamente mediante un documento jurado en el que aparezcan hechos probables. No ha sido aceptada en esta jurisdiccion no solamente en la practica sino tambien por la orden general No. 58. Esta convencion, creo que se habia fijado quien en dicha general No. 58 esta disposicion que aparece en el proyecto del comite de 7 que es una reproduccion o copia del precepto que aparece en el bill de Filipinas y luego en la ley Jones, aparece reproducido, como ya he dicho, en la orden general No. 58, como articulo 27. (sic) Este articulo 27 (sic), dice lo siguiente:chanroblesvirtuallawlibrary No se expedira mandamiento de registro sino por causa probable y por falta de peticion apoyada por juramento. [Note:chanroblesvirtuallawlibrary this is part of section 97, General Orders No. 58.] Como ya he dicho, Peticion apoyada por juramento puede ser testimonio del testigo o affidavit. Considerandose, sin embargo, que esto es verdaderamente peligroso para el derecho que tiene un individuo a la seguridad de sus bienes y papeles, nuestro mismo Codigo de Procedimiento Civil [Note:chanroblesvirtuallawlibrary should be Criminal] inserta en su articulo 28 [Note:chanroblesvirtuallawlibrary should be 98] una disposicion exige como requisito sine qua non el que el jues no puede expidir mandamiento de registro sino mediante el examen de testigos, especialmente del denunciante. Este articulo viene a ser el articulo 28 [98] del codigo de procedimiento civil [criminal] que dice lo siguiente El juez de primera instancia o el juez de paz, debera, antes de expidir el mandamiento, examinar bajo juramento al denunciante o a los testigos que presente, consignando sus declaraciones por escrito. De modo que mi enmienda es a tenor o en consonancia con esta disposicion legal. Como ya he dicho, el mantuvieramos el precepto del proyecto de constitucion, esta disposicion de la orden general No. 58 podra en cierto modo ser contradictoria el precepto del proyecto de constitucion, y nosotros sabemos muy bien que si se aprobara una constitucion en la forma como este el precepto, cuya enmienda pido, y si encontrara una discrepancia sustancial entre dicho precepto y el codigo de procedimiento civil [criminal] creo que este utilmo tendria que quedarse derogado 6 al menos no puede mantenerse este precepto por anti constitucional. Pero yo creo que ninguno de los miembros de esta asamblea vera que mi enmienda no responde a una razon fundamental y a una necesidad que se ha sentido en la practica. Los abogados, que estamos en el ejercicio de la profesion hemos visto muchas veces casos en que agentes secretos consiguen mandamientos da registro solamente mediante la presentacion de affidavit que reune los requisitos de la ley. Pero que expedido el registro e impugnados despues los terminos del affidavit se descubre que los hechos que aparecen en el mismo son completamente falsos. De ahi que si queramos salvaguardar en todo lo posible derecho de un individuo a arrestos o registros arbitrarios; chan roblesvirtualawlibrarysi queremos que el derecho del individuo a la seguridad de sus bienes o papeles este rodeado de todas las garantias que puedan impedir o que impidan la peticion de registros imotivados o infundidos que queden dar lugar a molestias o vejaciones injustas o irreparables, creo que debemos hacer que en nuestra constitucion se consigne el precepto tal como yo propongo que se enmienda. (Araneta, Vol. VI, Proceedings of the Constitutional Convention, pp. 3006-3008.) The attitude and stand of the framers of the Constitution was conservative, that is, not to incorporate in the Constitution new ideas or principles regarding the issuance of search warrants but merely to incorporate in said document, legislation already existing on the subject-matter so as to make it part of the basic law. This may be gleaned from the statements of delegate Jose P. Laurel, Chairman of the Committee on Bill of Rights, which are as follows:chanroblesvirtuallawlibrary EL SR. LAUREL cralaw . Es preciso y que determinemos claramente, ya que de todos modos queremos rodear de todas las garantias ese derecho importante del ciudadano con respecto a la propiedad y a la

libertad, no debe haber objecion que esa disposision que ya existe actualmente en nuestra legislacion, sea incorporada que en nuestra constitucion que vamos a adoptar. (Idem. 3014-15.) xxx xxx xxx

SR. LAUREL, cralaw Si las garantias que deben rodear a esa constitucion son esenciales, hay que incorporarlas en la constitucion, ya que de todos modos existe esa legislacion (3015.) (Italics supplied.) Professor Aruego himself attests to this policy of the Convention not to depart from the then existing legislation because of the philosophy of conservatism. He says:chanroblesvirtuallawlibrary The report of the committee on bill of rights was largely a reproduction of the provisions of the bill of rights of the Jones Law, which is in turn were borrowed from American constitutions. Other provisions of the committee report were drawn from the Malolos constitution and from the constitutions of the Republic of Spain, Italy and Japan. The report was struck on a philosophy of conservatism, the same philosophy that pervaded the debates on the same in the Convention. In submitting its draft of the bill of rights to the President of the Convention, the committee on the bill of rights said:chanroblesvirtuallawlibrary Adoption and adaptation have been the relatively facile work of your committee in the formulation of a bill or declaration of rights to be incorporated in the Constitution of the Philippine Islands. No attempt has been made to incorporate new or radical changes. Radicalism, no matter how democratic, may prove detrimental. It were better that we keep close to the shore; chan roblesvirtualawlibrarylet others venture on the deep. The enumeration of individual rights in the present organic law (Acts of Congress of July 1, 1902, August 29, 1916) is considered ample, comprehensive and precise enough to safeguard abuses or encroachments of the Government, its powers or agents. Your committee, therefore, has not been allured by attractive innovations that are found in some modern constitutions, lest our constitution suffer from the defect of an admixture of declaration and declamations in the enunciation of constitutional dogmas. Modifications of changes in phraselogy have been avoided, wherever possible. This is because the principles must remain couched in a language expressive of their historical background nature, extent and limitations, as construed and expounded by the great statesmen and jurists that have vitalized them. (Aruego, Vol. I, The Framing of the Philippine Constitution, pp. 149-150.) Now, what was that existing legislation which the framers of the Constitution wanted to incorporate into that instrument? It is sections 97 and 98 of General Orders No. 58 which I reproduce below, and which are found under Chapter XIII search warrant:chanroblesvirtuallawlibrary SEC. 97. A search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person or thing to be seized. SEC. 98. The judge or justice must before issuing the warrant, examine on oath the complainant and any witnesses he may produce and their deposition in writing. (Italics supplied.) From all this, to me it is clear that in drafting, amending, and finally approving section 1, paragraph 3, Article III of the Constitution, the delegates to the Constitutional Convention were satisfied with the practice and procedure then existing about the issuance of warrants of arrest based merely on probable cause supported by oath or affirmation, but they were deeply concerned with issuance of search warrants which according to them had been gravely abused because search warrants had previously been issued on the strength of mere affidavits which later proved to be false; chan roblesvirtualawlibraryand so to guard against and prevent further abuses they imposed this constitutional requirement that a judge or magistrate before issuing a search warrant must first examine under oath the complainant and the witnesses he may produce. And it will be observed that the phraseology of the requirement in section 1, paragraph 3 of Article III of the Constitution, namely, examination under oath or affirmation of the complainant and the witnesses he may produce, is a virtual reproduction of the clause examine on oath the complainant and any witnesses he may produce, contained in Section 98 of General Orders No. 58, on the subject of search warrants. The framers of the Constitution were fully warranted in surrounding the issuance of search warrants with this additional safeguard and guaranty. A search warrant implies the invasion of the sanctity of a mans home which is said to be his castle. Under a search warrant ones privacy is intruded on, his affairs pried into, his secrets discovered, his papers and personal documents may be ransacked and taken to court and later may be used against him in a criminal prosecution. Searches and seizures under a search warrant are intimately linked with the fundamental rights of a citizen not to be compelled to testify against himself. A citizen is practically helpless against a search warrant and its effects. Papers and documents and articles seized thereunder once taken to court are beyond his reach. He cannot prevent their being utilized as evidence against him. This is why, the framers of the Constitution showed so much concern and solicitude in their discussion on the subject of search warrant, and knowing the abuses and excesses that in the past had been committed under it, decided to surround its issuance with constitutional safeguards. Not so with a warrant of arrest. A person illegally or wrongly arrested under a warrant of arrest improvidently issued, has a ready and simple remedy. He can always sue out a writ of habeas corpus to secure his release from arbitrary or illegal detention. So, there is really no necessity for

surrounding the issuance of a warrant of arrest with constitutional safeguards as was done with the issuance of a search warrant. Besides, why make elaborate and render difficult the issuance of a warrant of arrest by a constitutional requirement that a judge must first examine under oath the complainant and his witnesses, when the policy of the Government and the intention of the law has always been to effect arrests quickly and easily, presumably in aid keeping peace and order. Under our law, a warrant of arrest is in many cases not only a peace officer but even a private citizen may without warrant, arrest a person when that person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; chan roblesvirtualawlibraryor when an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; chan roblesvirtualawlibraryor when the person to be arrested is a prisoner who has escaped from a penal establishment. (Section 6, Rule 109, Rules of Court). But one may ask, if the provision in section 1, paragraph 3, Article III of the Constitution requiring that a judge must examine under oath or affirmation the complainant and the witnesses he may produce, refers only to a search warrant, why is it that the part of said section reading and particularly describing the place to be searched and the persons or things to be seized mentions the word persons, which would convey the idea that warrant of arrest of a person was also contemplated? The mention or inclusion of the word persons in the said clause does not necessarily mean arrest. It will be noticed that this same word person is contained in section 97 of General Orders No. 58 regarding search warrant, which as already stated, was incorporated into the Constitution under section 1, paragraph 3, Article III. The purpose of a search warrant is to search for and seize personal property which is alleged to have been stolen or embezzled, and other proceeds or fruits of the offense and property used or intended to be used for committing an offense. (Section 96, General Orders No. 58 and section 1, Rule 122, of the Rules of Court.) Should the official serving a search warrant find in the possession or on the person of the party searched personal properties such as stolen or prohibited articles like counterfeit money, lottery tickets, opium, etc., said party must necessarily be taken to court with such articles because their possession implies the commission of a crime by him unless satisfactorily explained. Should he convince the judge that opium found in his possession belongs to and was left there by another, or that the stolen goods were bought by him without knowing their illegal origin, or that the counterfeit money found on his person was received by him in payment and without knowing that it was counterfeit, he would be released. In other words, a persons apprehension under a search warrant is made not because he has committed a crime and therefore subject to arrest but because his possession of the goods subject of the search warrant establishes a prima facie connection and link with the commission of a crime which however may be satisfactorily explained and rebutted, resulting in his release. Judge Cooley in his book entitled Constitutional Limitation, Vol. I, p. 622, under the topic Unreasonable Searches and Seizures says:chanroblesvirtuallawlibrary The warrant must also command that the goods or other articles to be searched for, if found, together with the party in whose custody they are found, be brought before the magistrate, to the end that, upon further examination into the facts, the goods, and the party in whose custody they were, may be disposed of according to law. (Italics supplied.) This may be the reason why the law and the constitutional provision on search warrants require that such a warrant must particularly describe the place to be searched and the persons or things to be seized. The apprehension of a person under a warrant of arrest is, however, different. In asking for a warrant of arrest the complainant alleges the commission of a crime and points to a certain person as the one committing it. Stated differently, a person is expressly and clearly accused of the commission of a crime not clearly linked with the possession of a prohibited article. Respondent Judge Abbas in refusing to issue the warrant of arrest in the present case claims that the determination of probable cause justifying the issuance of a warrant of arrest is a judicial prerogative or judicial power and he cites the case of U. S. vs. Ocampo, 18 Phil., 42; chan roblesvirtualawlibraryand the majority opinion sustains him in his contention saying that the determination of probable cause before the issuance of a warrant of arrest is a judicial power. It is interesting, however, to note that when this same case of U. S. vs. Ocampo was appealed to the Supreme Court of the United States, that Tribunal held that it is only a quasi-judicial function or power which can be exercised not only by a judge or magistrate but can be delegated to an executive officer. It is insisted that the finding of probable cause is a judicial act, and cannot properly be delegated to a prosecuting attorney. We think, however, that it is erroneous to regard this function, as performed by committing magistrates generally, or under General Orders, No. 58, as being judicial in the proper sense. There is no definite adjudication. A finding that there is no probable cause is not equivalent to an acquittal, but only entitles the accused to his liberty for the present, leaving him subject to rearrest. It is expressly so provided by section 14 of General Orders, No. 58, as it is by section 2 of Act 194, above quoted. Such was the nature of the duty of a committing magistrate in the common law practice, and it is recognized in Revised Statistics section 1014. U.S. Comp. Stat. 1901, p. 716. Benson vs. McMahon, 127 U.S. 457, 462, 463, 32 L. ed. 234, 236, 237, 8 Supp. Ct. Rep. 1240; chan roblesvirtualawlibraryRe Oteiza y Cortes, 136 U.S. 330, 335, 34 L. ed. 464, 467, 10 Sup. Ct. Rep. 1031, 3 Am. Crim. Rep. 241; chan roblesvirtualawlibraryTodd vs. United States, 158 U.S. 278, 283, 39 L. ed. 982; chan roblesvirtualawlibrary15 Sup. Ct. Rep. 889. In short, the function of determining that probable cause

exists for the arrest of a person accused is only quasi judicial, and not such that, because of its nature, it must necessarily be confined to a strictly judicial officer or tribunal. (Ocampo vs. U.S., 58 L. ed. 1231, 1235.) The case of U. S. vs. Ocampo involved among other things the question of whether a fiscal of the City of Manila under authority of Act No. 6I2 of the Philippine Commission could determine probable cause so as to justify the issuance of a warrant of arrest and whether said function devolves exclusively to a judge or magistrate. As already stated, that function of determining probable cause is only a quasi- judicial function or involves only an exercise of quasi-judicial power which may well be performed by a non-judicial officer. This same duty and authority of the fiscal of the City of Manila to conduct preliminary investigation so as to determine probable cause was extended to provincial fiscals conducting preliminary investigations over offenses which fall under the jurisdiction of the Court of First Instance and so we may say that under the authority of Ocampo vs. U. S., supra., the determination of probable cause by the provincial fiscal is the exercise of only a quasi judicial power and can properly be performed by him. Now, what was the purpose of delegating this function for determining probable cause through a preliminary investigation to the fiscal of the City of Manila. It was to relieve the Municipal Court and Court of First Instance judges of Manila of this tedious task of conducting preliminary investigation so as to give those judges more time to devote to the trial and determination of criminal cases. This practice of delegating the conduct of preliminary investigations to determine probable cause, to the Manila City Fiscal was found apparently so satisfactory and advantageous to the administration of justice that Congress by means of Republic Act No. 732 extended the same function and practice to Provincial Fiscals. But were we to follow the rule and doctrine laid down by the majority in the present case that only a judge or magistrate can determine probable cause, and that to do so he must examine under oath the complainant and the witnesses he may produce, then we could have to scrap and annul Act No. 612 and Republic Act No. 732 and take away from Fiscals the right and authority to conduct preliminary investigations to determine probable cause and require judges to devote their valuable time to said work. This would be a veritable retrogression and a reversion to the old practice and system which experience has shown to be slow and inefficient and which the law- making body had corrected by the promulgation of Act No. 612 and Republic Act No. 732. The baneful effects of such a rule could only be imagined. I cannot bring myself to believe that the framers of the Constitution ever contemplated, much less intended it. But the majority, presumably realizing the adverse effects of such a rule on an efficient and speedy administration of justice, suggests that a judge need not examine under oath the complainant and his witnesses to determine probable cause before issuing a warrant of arrest but that he may rely on the facts stated in the information filed by the fiscal after the preliminary investigation made by said official. I quote the majority opinion on this point. The preliminary investigation conducted by the Petitioner under Republic Act No. 732 which formed the basis for the filing in the Court of First Instance of Sulu of criminal case No. 1131 does not, correctly contended by the Respondent judge, dispense with the latters duty to exercise his judicial power of determining, before issuing the corresponding warrant of arrest, whether or not probable cause exists therefor. The Constitution vests such power in the Respondent judge who, however, may rely on the facts stated in the information filed after preliminary investigation by the prosecuting attorney. (Italics supplied.) But how could a judge rely on the facts stated in the information filed by the fiscal, when the Constitution itself, according to the same majority, requires the judge himself to examine under oath the complainant and his witnesses for the purpose of determining probable cause? If as ascerted in the majority opinion above quoted, the determination of probable cause before issuing a warrant of arrest by examining the complainant and his witnesses under oath, is a duty imposed by the Constitution, then that duty must of necessity be performed. There is no choice or alternative allowed by the Constitution. The judge cannot and may not dispense with and shirk said duty and merely rely on what the fiscal alleges in the information. That would be a clear violation of the Constitution because it would be depriving a person of the constitutional protection and guarantee extended to a citizen that before a warrant of arrest can be issued against him, judge must first examine under oath the complainant and his witnesses to determine probable cause. This is another reason, in my opinion, why we should hold that this constitutional provision cannot have been intended to refer to the issuance of warrants of arrest. Let us now consider the question of whether a judge of a Court of First Instance after receiving an information subscribed by the fiscal with a certification that he had conducted a preliminary investigation and found probable cause, may as was done by Respondent judge, refuse to issue the corresponding warrant of arrest. The majority opinion says that he may decline to issue the warrant of arrest because the issuance of that warrant is discretionary, resting upon the judgment or discretion of the judge or magistrate issuing the warrant. I believe, however, that the issuance of a warrant of arrest by a judge or magistrate after receiving the corresponding information and the certification by the Fiscal is mandatory and that said Judge or magistrate must issue the warrant of arrest, unless he questions the regularity or validity of the preliminary investigation conducted by the fiscal. As I have already stated, the Determination of probable cause after preliminary investigation is not purely judicial function but only a quasi-judicial one which can be performed by a non-judicial officer, as held by the Federal Supreme Court in the Ocampo case. The rule and practice in the United States under the jury system is for the Grand Jury to receive evidence about the commission of an offense. If it finds probable cause, it prepares the

corresponding indictment and upon presentation thereof to the judge or magistrate, the latter is in duty bound to issue the corresponding warrant of arrest. No judicial discretion is involved. cralaw Where an indictment fair on its face is returned by the grand jury, the court to which it is returned should issue a warrant for the arrest of the accused as a matter of course. (22 C.J. S., Criminal Law, section 317, p. 469). In the case of Ex parte United States, 287 U. S. 241, 77 L. ed, 283, decided by the Supreme Court of the United States, the facts were:chanroblesvirtuallawlibrary On March 10, 1932, a grand jury for the district, duly empaneled, returned an indictment against Wingert, charging him with violating certain provisions of the banking laws of the United States. No question is raised as to the regularity of the proceedings before the grand jury, or as to the sufficiency of the indictment. On March 22, the United States attorney presented to the court a written petition praying that a bench warrant issued for Wingerts arrest. The district court, with nothing before it, so far as the record discloses but the petition and the indictment, denied the petition and refused to issue the warrant. The sole ground alleged in the return for such denial is that the matter was within the judicial discretion of the court, and, therefore, not subject to mandamus proceedings. (77 L. ed. 284-285.) In granting the application for a writ of mandamus, the U. S. Supreme Court made the following pertinent rulings:chanroblesvirtuallawlibrary 2. The theory of the court below is that its denial of the petition of the government for a bench warrant was an exercise of its judicial discretion, and, therefore, not reviewable by mandamus. This view of the matter cannot be sustained. The question whether there was probable cause for putting the accused on trial was for the grand jury to determine, and the indictment being fair on its face, the court to which it was returned, upon the application of the United States attorney, should have issued the warrant as a matter of course. Cases are cited said to be the contrary, but they are not in point cralaw . It reasonably cannot be doubted that, in the court to which the indictment is returned, the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer. (Cases cited.) The refusal of the trial court to issue a warrant of arrest under such circumstances is, in reality and effect, a refusal to permit the case to come to a hearing upon either questions of law or of fact, and falls little short of a refusal to permit the enforcement of the law. The authority conferred upon the trial judge to issue a warrant of arrest upon an indictment does not, under the circumstances here disclosed, carry with it the power to decline to do so under the guise of judicial discretion; chan roblesvirtualawlibraryor, as this court suggested in Ex parte United States, 242 U.S. 27, 61 L. ed. 129, 355, the power to enforce does not inherently beget a discretion permanently to refuse to enforce cralaw . (Ex Parte United States, 77 L. ed. 283, 287.) The jury system was never implanted in these Islands. The determination of probable cause thru preliminary investigation before the issuance of a warrant of arrest originally devolved on justices of the peace and judges of Courts of First Instance. Later, however, for purposes of efficiency and time-saving the duty and function was delegated to the Fiscal in the City of Manila under Act No. 612 and later to Provincial Fiscals under Republic Act No. 732. Under these two Acts, the function exercised by the Grand Jury in the United States now correspond to the Fiscal of the City of Manila and Provincial Fiscal. And, just as under the jury system in the United States, after a grand jury has found probable cause and prepared the corresponding indictment the judge or magistrate is bound to issue the corresponding warrants of arrest, so, under legal system and judicial procedure after the Fiscal, counter part of the grand jury, has conducted the preliminary investigation, found probable cause and filed the corresponding information with a certification that he had conducted the preliminary investigation and found probable cause, the judge of the court of First Instance is bound to issue the corresponding warrant of arrest, and if he refuses to do so, he may be compelled by writ of mandamus. This is the first time to my knowledge that a judge of the Court of First Instance has refused to issue a warrant of arrest despite the fact that the fiscal has filed an information and certified that he had conducted the preliminary investigation and found probable cause. Since the promulgation of Act No. 612 under which the fiscal of the City of Manila exercised this function of conducting preliminary investigation, way back in 1903 until the present, I know of no instance where a judge of the Court of First Instance of Manila has refused to issue the corresponding warrant of arrest on the ground that despite the certificate of the fiscal he is not convinced that there existed probable cause and so he must conduct said investigation by himself. We must assume that when the framers of the Constitution, many of them able constitutional lawyers, drafted, amended and finally approved the constitutional provision now found in section 1, paragraph 3 of Article III of the Constitution, they were aware of the practice adopted and being followed in the City of Manila since 1903, to the effect that the determination of probable cause thru preliminary investigation was delegated to the city fiscal, and that upon his filing the information and the corresponding certification, the judge invariably issued the corresponding warrant of arrest. Said framers of the Constitution could not by the drafting and by the approval of section 1, paragraph 3, of Article III have intended it to refer to warrants of arrest, because by so doing they would be radically changing, yea, abolishing the practice found efficient and satisfactory in the City of Manila under Act No. 612 for so many years. In this connection, it is interesting to note that in June, 1952, Congress passed Republic Act No.

732 extending to the provinces the practice and procedure in Manila under Act No. 612, and to provincial fiscals the authority of the Manila city fiscal to determine probable cause by conducting preliminary investigations. A good number of the members of Congress who approved Republic Act No. 732 were delegates to the Constitutional Convention and were lawyers. They could not have extended the practice and procedure in Manila under Act No. 612 to the provinces if under section 1, paragraph 3, Article III of the Constitution which they drafted, they had already abolished said practice. Before concluding I wish to emphasize that the requirement that a judge must first examine under oath the complainant and his witnesses cannot possibly refer to a warrant of arrest. As shown by the proceedings in the Constitutional Convention, the delegates in considering the subject of the issuance of warrants, discussed only search warrants. They referred to and deplored the abuses that had been committed in the past in the issuance of search warrants and sought to prevent and do away with said abuses by requiring that the judge before issuing a warrant (search warrant) should not be satisfied with mere affidavits but must examine under oath the complainant and his witnesses. Nothing, absolutely nothing was said about issuance of warrants of arrest ever having been abused. So the requirement about examination of the complainant and his witnesses under oath by the judge was not designed and could not have been intended to include and cover warrants of arrest for the simple reason that there was neither occasion nor necessity for it. There might be other reasons or argument but I believe that those already adduced in the present modest dissent are sufficiently adequate to support the stand that, that portion of section 1, paragraph 3, Article III of the Constitution requiring a judge or magistrate to examine under oath a complainant and his witnesses before issuing the warrant, refers not to warrants of arrest but only to search warrants; chan roblesvirtualawlibrarythat the function of determining probable cause so as to justify the issuance of a warrant of arrest and require the accused to stand trial is only a quasi judicial function which may be exercised by a nonjudicial officer, like the Fiscal or prosecuting attorney and that the exercise of such function is properly and lawfully delegated to the city fiscal of Manila under Act No. 612 and provincial fiscals under Republic Act No. 732; chan roblesvirtualawlibrarythat once the fiscal, after conducting the preliminary investigation, finds probable cause, files the information and his certification before a judge, the latter is bound to issue the warrant of arrest, unless he questions the regularity and validity of the preliminary investigation conducted by the Fiscal, because otherwise, the only thing remaining to be done by the judge is for him to determine the legal question whether the facts alleged in the information constitute an offense or violation of ordinance, and issue a warrant of commitment if they do, or of release if they do not. (Sayo vs. Chief of Police, 80 Phil., 859; chan

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-59524 February 18, 1985 JOVITO R. SALONGA, petitioner, vs. HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.

GUTIERREZ, JR., J.: The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the democratic opposition in the Philippines. The background of this case is a matter of public knowledge. A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests, including Lovely. As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property. On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons. On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother. The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the various bombings in Metro Manila. Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for some time. On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General Military Council was called for October 6, 1980.

On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings. On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be respected. On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority. Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges. On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" inPeople v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of the above-entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the charges against him nor any copies of the so-called supporting evidence. On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice. On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March 17, 1981. On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad. On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor Lovely himself. On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the prosecution to establish a prima facie case against him. On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner.

The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to admit that no rule of law exists in the Philippines today. After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to establish a prima facie case against the petitioner. We grant the petition. However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents. The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that criminal prosecutions should not be enjoined. The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such exception. In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit: xxx xxx xxx ... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599;Echarol v. Purisima, et al., 13 SCRA 309.) On this argument, we ruled: There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap v. Lutero,G.R. No. L-12669, April 30, 1969." Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to him until this Court intervened through the issuance of an order directing that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an information after finding that a prima facie case had been established against an of the forty persons accused. In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the

petitioner's citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned resolutions. The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at what cost not only to the petitioner but to the basic fabric of our criminal justice system? The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction? We do not think so. The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in the United States nowhere mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of exSenator Salonga where they met together with Renato Taada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a member, the witness replied: A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15) Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value as the affiant could not have been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually led to the filing of the information. Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and crossexamined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution witness. According to Lovely's statement, the following events took place: 36. Q. Did Psinakis tell you where to stay? A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give the materials

needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to accomplish my mission 37. Q. Did you comply as instructed? A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila. 38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis? A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place at exactly 4 P.M. 39. Q. What happened then? A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case but did not tell me the name. 40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials? A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed. 41. Q. How long did you wait until that somebody arrived? A. About thirty (30) minutes. 41. Q. What happened when the man arrived? A. This man arrived and I was greatly surprised to see Atty. Renato Taada Jovy Salonga was the one who met him and as I observed parang nasa sariling bahay si Taada nung dumating. They talked for five (5) minutes in very low tones so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Taada told me "Nasa akin ang kailangan mo, nasa kotse." 43. Q. Were the materials given to you? A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Taadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Taada handed me a "Puma" bag containing all the materials I needed.

xxx xxx xxx 45. Q. What were the contents of the Puma bag? A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10) pieces nonelectrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each. However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's participation was concerned: xxx xxx xxx Q. Who were the people that you contacted in Manila and for what purpose? A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga. And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I was able to contact him. I made an appointment t see him. I went to Sen. Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Taada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied) During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his sworn statement: Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also present, was this destabilization plan as alleged by you already formulated? WITNESS: A. Not to my knowledge. COURT TO WITNESS: Q. Mr. Witness, who invited you to the party? A. Raul Daza, your Honor. Q. Were you told that Mr. Salonga would be present in the party. A. I am really not quite sure, your Honor. Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the party?

A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84). Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said: Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67) Respondent judge further said: COURT: As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is concerned. I don't know why it concerns this cross-examination. ATTY. YAP: Because according to him, it was in pursuance of the plan that he came to Manila. COURT: According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems to be the thrust of the questions. COURT: In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74). Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Taada, which was all that Lovely really stated in his testimony. However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the United States as his basis for denying the motion to dismiss: On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately. It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that purpose it has linked itself

with even communist organizations to achieve its end. It appears to rely on aliens for its supporters and financiers. The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable but without foundation. The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two reasons(1) Because his house was used as a "contactpoint"; and (2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately." The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined. The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Taada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely. The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing. It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding. The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in the complaint. Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate." We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments. The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and

speech which would prepare a group for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected speech. It stated: We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a political opposition to the President. In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy. Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to: (6) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof. As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a subversive organization. Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that: WITNESS: Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10]. Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner: COURT: Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga? A. No, your Honor. I did not try to implicate Salonga.

It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents. The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention. The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as part of the alleged destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had already been proved beyond reasonable doubt. The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93). The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution. We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations. Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot and academic by the action of the prosecution. Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic. Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions. The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's functions.

The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless rendered a decision and stated: The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required. In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law. Stan, this Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution). In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in the Reports. In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records. WHEREFORE, the petition is DISMISSED for having become moot and academic. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova and Cuevas, JJ., concur. Aquino, De la Fuente and Alampay, JJ., took no part. Separate Opinions ABAD SANTOS, J., concurring Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405, was a petition for the writ of habeas corpus. Before this Court could finally act on the petition, the subject was released and for that reason the majority of this Court resolved to dismiss the petition for having become moot and academic. Justice Teehankee and the undersigned disagreed with the majority; we expressed the view that despite the release of the subject, the petition should have been resolved on the merits because it posed important legal questions. Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the respondents from interrogating the petitioners, members of the print media, on various aspects of their works, feelings, sentiments, beliefs, associations and even their private lives. Again the majority of this Court dismissed the petition because the assailed proceedings had come to an end thereby rendering the petition moot and academic. In dismissing the petition a short and mild note of concern was added. And again Justice Teehankee and the undersigned disagreed with the majority. We expressed the view that this Court should rule squarely on the matters raised in the petition rather than dismiss it for having become moot and academic. I am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on the ground that they have become moot and academic and stopped there. I am glad it has reverted to De la

Camara vs. Enage, Gonzales vs. Marcos and Aquino v. Enrile which are mentioned in the ponencia of Justice Gutierrez. I agree with the ponencia of Justice Gutierrez that because the subversion charges against the petitioner had been dropped by the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from prosecuting Criminal Case No. Q-18606 insofar as he is concerned. I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit the prosecution of the petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that on this matter the Court has been preempted by a "first strike" which has occurred once too often. Justice Gutierrez states that, "The Court had already deliberated on this case, and a consensus on the Court's judgment had been arrived at." Let me add that the consensus had taken place as early as October 24, 1984, and the decision started to circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating overtaken by events. The decision could have had a greater impact had it been promulgated prior to the executive action. Separate Opinions ABAD SANTOS, J., concurring Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405, was a petition for the writ of habeas corpus. Before this Court could finally act on the petition, the subject was released and for that reason the majority of this Court resolved to dismiss the petition for having become moot and academic. Justice Teehankee and the undersigned disagreed with the majority; we expressed the view that despite the release of the subject, the petition should have been resolved on the merits because it posed important legal questions. Babst et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the respondents from interrogating the petitioners, members of the print media, on various aspects of their works, feelings, sentiments, beliefs, associations and even their private lives. Again the majority of this Court dismissed the petition because the assailed proceedings had come to an end thereby rendering the petition moot and academic. In dismissing the petition a short and mild note of concern was added. And again Justice Teehankee and the undersigned disagreed with the majority. We expressed the view that this Court should rule squarely on the matters raised in the petition rather than dismiss it for having become moot and academic. I am glad that this Court has abandoned its cavalier treatment of petitions by dismissing them on the ground that they have become moot and academic and stopped there. I am glad it has reverted to De la Camara vs. Enage, Gonzales vs. Marcos and Aquino v. Enrile which are mentioned in the ponencia of Justice Gutierrez. I agree with the ponencia of Justice Gutierrez that because the subversion charges against the petitioner had been dropped by the trial court on January 18, 1985, there is no longer any need to prohibit the respondents from prosecuting Criminal Case No. Q-18606 insofar as he is concerned. I am not revealing any confidential matter by saying that the initial action of this Court was to grant the petition, i.e. prohibit the prosecution of the petitioner. This is manifest from the ponencia of Justice Gutierrez. I regret that on this matter the Court has been preempted by a "first strike" which has occurred once too often. Justice Gutierrez states that, "The Court had already deliberated on this case, and a consensus on the Court's judgment had been arrived at." Let me add that the consensus had taken place as early as October 24, 1984, and the decision started to circulate for signature on November 2, 1984. Alas, on January 18, 1985, the decision was still circulating overtaken by events. The decision could have had a greater impact had it been promulgated prior to the executive action.

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. R-368-MTJ September 30, 1987 BENJAMIN C. UY petitioner, vs. HON. RENATO S. MERCADO, respondent. PER CURIAM: Municipal Trial Court Judge Renato S. Mercado of Cabarrogue Quirino Province, later Municipal Circuit Trial Court Judge of Aglipay-Sagaday, Quirino Province, is administratively charged with abuse of judicial power and discretion and gross ignorance of the law. The records show that, on 3 May 1985, former Mambabatas Pambansa (MP) Orlando C. Dulay of Quirino Province filed a complaint for libel with the Municipal Trial Court of Cabarroguis, Quirino Province, presided over by respondent judge, against herein complainant Benjamin C. Uy, Apolonio Batalla and Ulpiano Quizon, based on a publication in the Tempo newspaper, dated 28, April 1985, implicating said former MP Orlando C. Dulay, along with several others, who were charged before the Provincial Fiscal of Cavite with the crime of robbery in band. The records further show that respondent judge conducted the preliminary investigation on former MP Orlando C. Dulay, as complainant on 3 May 1985, and issued the warrant for the arrest of the accused in the libel case on the same day, without any evidence or proof that there was immediate necessity of placing the accused under custody of the court and without proof or evidence to warrant a conclusion that the accused may frustrate the ends of justice by their non-appearance in the trial, as mandated by Rule 112, Section 6(b) of the 1985 Rules on Criminal Procedure. As a result, complainant Benjamin C. Uy, on 14 May 1985, while in the vicinity of the City Hall in Quezon City, was arrested and ordered detained in Cabarroguis, Quirino Province. The issuance of said warrant of arrest caused incalculable damage and suffering to complainant and his family, particularly because of the unusual arrest effected by the military elements under the control and supervision of then MP Orlando C. Dulay. Complainant alleges that respondent judge gave due course to the complaint of libel despite the fact that, under Rep. Act No. 1289, as amended by Rep. Act No. 4363, the proper jurisdiction and venue of the case is Quezon City, where former MP Orlando C. Dulay held office or in Manila where the allegedly libelous article was printed and first published. Respondent judge, in his Comment, admits having conducted the preliminary investigation in the libel case. He claims, however, that from the preliminary examination made, along with what he gleaned from the news item, there was reason to believe that there was probable cause for issuance of the warrant of arrest and the court, over which he presided, was of the behalf that the three accused were probably guilty of said libel. Citing the cases of US vs. Ocampo, 18 Phil. 1, and Amarga vs. Abbas, 98 Phil. 739, respondent judge case that the judicial determination of probable cause is final and conclusive and that whether probable cause exists or not is discretionary for the court. He asks for the dismissal of the administrative complaint. Under Sec. 37 of Batas Pambansa No. 129, judges of Metropolitan Trial Courts, except those in the National Capital Region, Municipal Trial Courts and Municipal Circuit Trial Courts have authority to conduct preliminary investigation of crimes alleged to have been committed within their respective territorial jurisdictions and cognizable by the Regional Trial Courts. And, Art. 360 of the Revised Penal Code on held, as amended by Rep. Act No. 1289 and further amended by Rep. Act No. 4363, provides that, where one of the offended parties is a public officer, the action shall be filed in the Court of First Instance (now Regional Trial Court) of the province or city where he holds office at the time of the commission of the offense or of the province or city where the libelous article was printed and first published. It is also provided that preliminary investigation of criminal actions for written defamations shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such actions may be instituted in accordance with the provisions of the above article. The limitation of choice of venue is clearly intended to minimize or limit the filing of out-oftown libel suits to protect the alleged offender from hardship, inconvenience, and harassment and to protect the interest of the public service where one of the offended parties is a public officer. 1 Hence, the proper court to hear the libel case, in this instance, was either the court in Quezon City where former MP

Orlando C. Dulay held Office, or the court in Manila where the allegedly libelous matter was printed and final published, but not the court in Qurino Province. When respondent judge, in the libel case filed by MP Dulay, conducted the preliminary investigation on Dulay, he issued the warrant of arrest against the accused on the same day. While it is mandated by law that preliminary investigations should be simple, speedy and should not drag on for weeks and months, to protect the substantial rights of the accused, and that the investigating judge acts only upon probable cause and reasonable belief in issuing a warrant of arrest, it is equally mandated that preliminary investigations should secure the innocent against hasty, malicious and oppressive prosecution to protect him from public accusation of crime, from the trouble, expense and anxiety of public trial and to protect the State from useless and expensive prosecutions. 2 Considering that libel suits are often intended to harass an alleged offender, respondent judge should have satisfied himself not only that probable cause exists, but likewise made certain that venue is properly laid and jurisdiction legally acquired before taking cognizance of the case and issuing the warrant of arrest. This, he did not do. Reference may be made, at this point, to cases where despite the existence of probable cause, the investigating judge does not issue a warrant of arrest when there appears to be no necessity therefor. 3 It should be noted that the accused in the held case filed a motion to dismiss, raising the issue of venue and jurisdiction, thus affording respondent Judge an opportunity to rectify his previous stand, but 4 respondent fitted and refused to dismiss the libel suit, even as it was clear that the court, over which he presided, really had no jurisdiction over the case. With this unjustified action, respondent judge placed his integrity under a heavy cloud, leading the Court to believe that he went "out of his way" to accommodate and favor the then influential and powerful former Governor and later Mambabatas Pambansa of Quirino Province, Orlando C. Dulay. As held by this Court in Montemayor vs. Judge Collado. 5 ... The conduct and behavior of everyone connected with an office charged with the position of justice, like the courts below, from the presiding judge to the lowest clerk, should be circumscribed with the heavy burden of responsibility. His conduct, at all times, must not only be character with propriety and above all must be above suspicion. Although every office in the government service is a public trust, no position acts a greater demand on momentarily righteousness and uprightness of an individual than a seat in the judiciary. ... It appearing that the records of the case sufficiently provide a clear basis for the determination of charges. 6 The unjustified and irregular acts of respondent judge in the premises constitute serious misconduct or at least, gross ignorance of the law. Ordinarily, the misconduct of the respondent would have warranted his dismissed from the service in view of its gravity. However, this penalty may no longer be imposed because of his automatic separation from the service upon his filing of a certificate of candidacy for the position of Congressman for the province of Quirino in the elections of 11 May 1987. But, his actions cannot be allowed to go unpunished. WHEREFORE, the Court orders the forfeiture of respondent's accrued retirement benefits as well as leave and other privileges, if any, with prejudice to re-employment in any branch or agency of the government, including government-owned or controlled corporations. Respondent is further required to show cause, within ten (10) days from notice hereof, why he should not be disbarred for the misconduct referred to in this resolution. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Gancayco, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 71410 November 25, 1986 JOSEFINO S. ROAN, petitioner, vs. THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE, REGIONAL TRIAL COURT OF MARINDUQUE, BRANCH XXXVIII; THE PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIAL COMMANDER, PC-INP MARINDUQUE, respondents. CRUZ, J: Once again we are asked to annul a search warrant on the ground that it violates the Constitution. As we can do no less if we are to be true to the mandate of the fundamental law, we do annul. One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown. That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning. That right is guaranteed in the following provisions of Article IV of the 1973 Constitution: SEC. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. SEC. 4. (1) The privacy of communication and cor- respondence shag be inviolable except upon lawful order of the court, or when public safety and order require otherwise. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure conducted by the military authorities. The articles seized from him are sought to be used as evidence in his prosecution for illegal possession of firearms. He asks that their admission be temporarily restrained (which we have) 1 and thereafter permanently enjoined. The challenged search warrant was issued by the respondent judge on May 10, 1984. 2 The petitioner's house was searched two days later but none of the articles listed in the warrant was 3 discovered. However, the officers conducting the search found in the premises one Colt Magnum revolver and eighteen live bullets which they confiscated. They are now the bases of the charge against 4 the petitioner. To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be a specific description of the place to be searched and the things to be seized, to prevent arbitrary and indiscriminate use of the warrant. 5 Probable cause was described by Justice Escolin in Burgos v. Chief of Staff as referring to "such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to
6

be searched." As held in a long line of decisions, the probable cause must refer to only one specific 7 offense. The inclusion of the requirement for the "examination under oath or affirmation of the complainant and the witnesses he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose was the strengthening of the guaranty against unreasonable searches and seizures. Although the condition did not appear in the corresponding provision of the federa Constitution of the United States which served as our model it was then already embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights of that body, readily accepted the proposal and it was thereafter, following a brief debate, approved by the Convention. 8 Implementing this requirement, the Rules of Court provided in what was then Rule 126: SEC. 4. Examination of the applicant. The municipal or city judge must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him. The petitioner claims that no depositions were taken by the respondent judge in accordance with the above rule, but this is not entirely true. As a matter of fact, depositions were taken of the complainant's 9 two witnesses in addition to the affidavit executed by them. It is correct to say, however, that the complainant himself was not subjected to a similar interrogation. Commenting on this matter, the respondent judge declared: The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a search warrant on May 10, 1984, he appeared before me in the company of his two (2) witnesses, Esmael Morada and Jesus Tohilida, both of whom likewise presented to me their respective affidavits taken by Pat. Josue V. Lining, a police investigator assigned to the PC-INP command at Camp Col. Maximo Abad. As the application was not yet subscribed and sworn to, I proceeded to examine Captain Quillosa on the contents thereof to ascertain, among others, if he knew and understood the same. Afterwards, he subscribed and swore to the same before me. 10 By his own account, an he did was question Captain Quillosa on the contents of his affidavit only "to ascertain, among others, if he knew and understood the same," and only because "the application was not yet subscribed and swom to." The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him. In any case, he did not ask his own searching questions. He limited himself to the contents of the affidavit. He did not take the applicant's deposition in writing and attach them to the record, together with the affidavit presented to him. As this Court held in Mata v. Bayona: 11 Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he niay produce and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it wifl be found later that his declarations are false. We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid. The respondent judge also declared that he "saw no need to have applicant Quillosa's deposition taken considering that he was applying for a search warrant on the basis of the information provided by the aforenamed witnesses whose depositions as aforementioned had already been taken by the undersigned." 12 In other words, the applicant was asking for the issuance of the search warrant on the basis of mere hearsay and not of information personally known to him, as required by settled jurisprudence." 13 The rationale of the requirement, of course, is to provide a ground for a prosecution for perjury in case the applicant's declarations are found to be false. His application, standing alone, was insufficient to justify the issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their own 14 personal information, to establish the apphcant's claims.

Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of the applicant himself, there is still the question of the sufficiency of their depositions. It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the 15 contents of the affidavit but must make his own inquiry on the intent and justification of the application. A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be "intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits, except that they were made in the form of answers to the questions put to them by the respondent judge. Significantly, the meaningful remark made by Tohilida that they were suspicious of the petitioner because he was a follower of the opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the respondent judge's own suspicions. This should have put him on guard as to the motivations of the witnesses and alerted him to possible misrepresentations from them. The respondent judge almost unquestioningly received the witnesses' statement that they saw eight men 17 deliver arms to the petitioner in his house on May 2, 1984. This was supposedly done overtly, and Tohilida said he saw everything through an open window of the house while he was near the gate. 18 He could even positively say that six of the weapons were.45 caliber pistols and two were.38 caliber 19 revolvers. One may well wonder why it did not occur to the respondent judge to ask how the witness could be so certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or a second floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses, considering that these acts were against the law. These would have been judicious questions but they were injudiciously omitted. Instead, the declarations of the witnesses were readily accepted and the search warrant sought was issued forthwith. The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor General argues that whatever defect there was, was waived when the petitioner voluntarily submitted to the search and manifested his conformity in writing. 20 We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of the search they were conducting. Confronted with the armed presence of the military and the presumptive authority of a judicial writ, the petitioner had no choice but to submit. This was not, as we 21 held in a previous case, the manifestation merely of our traditional Filipino hospitality and respect for authority. Given the repressive atmosphere of the Marcos regime, there was here, as we see it, an intimidation that the petitioner could not resist. The respondents also argue that the Colt Magnum pistol and the eighteen have bullets seized from the petitioner were illegal per se and therefore could have been taken by the military authorities even without a warrant. Possession of the said articles, it is urged, was violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal articles could be taken even without a warrant. Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short, the military officers who entered the petitioner's premises had no right to be there and therefore had no right either to seize the pistol and bullets. It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se.Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. If the rule were otherwise, then the military authorities could have just entered the premises and looked for the guns reportedly kept by the petitioner without bothering to first secure a search warrant. The fact that they did bother to do so indicates that they themselves recognized the necessity of such a warrant for the seizure of the weapons the petitioner was suspected of possessing. It is true that there are certain instances when a search may be validly made without warrant and articles may be taken validly as a result of that search. For example, a warrantless search may be made incidental to a lawful arrest, 22 as when the person being arrested is frished for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent 23 smuggling of aliens and contraband and even in the interior upon a showing of probable 24 cause. Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. 25 The individual may knowingly agree to be searched or waive objections to an illegal search. 26 And it has also been held that prohibited

articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon 27 them inadvertently. Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents cannot even claim that they stumbled upon the pistol and bullets for the fact is that these things were deliberately sought and were not in plain view when they were taken. Hence, the rule having been violated and no exception being applicable, the conclusion is that the petitioner's pistol and bullets were confiscated illegally and therefore are protected by the exclusionary principle. Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973 Constitution. While conceding that there may be occasions when the criminal might be allowed to go free because "the constable has blundered," Chief Justice Concepcion observed that the exclusionary rule was nonetheless "the only practical means of enforcing the constitutional injunction" against abuse. The decision cited Judge Learned Hand's justification that "only in case the prosecution which itself controls the seizing officials, know that it cannot profit by their wrong, will the wrong be repressed. " The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal action against him for illegal possession of firearms. Pending resolution of that case, however, the said articles must remain incustodia legis. Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the quashal of the search warrant by the respondent judge in accordance with the normal procedure. But as we said and did in Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised. 28 WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby declared null and void and accordingly set aside. Our restraining order of August 6,1985, is made permanent. No costs.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-27360 February 28, 1968

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila; and MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners, vs. REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of First Instance of Manila, respondents. Office of the Solicitor General for petitioners. Juan T. David for respondents. ZALDIVAR, J.: This is an original action for prohibition and certiorari, with preliminary injunction filed by Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First Instance of Manila, praying for the annulment of the order issued by respondent Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967, which authorized the release under bond of certain goods which were seized and held by petitioners in connection with the enforcement of the Tariff and Customs Code, but which were claimed by respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said case. Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on November 3, 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a "Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No. 67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police Department without search warrant issued by a competent court; that anila Chief of Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods because the goods were no longer under the control and supervision of the Commissioner of Customs; that the goods, even assuming them to have been misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and Customs Code because Remedios Mago had bought them from another person without knowledge that they were imported illegally; that the bales had not yet been opened, although Chief of Police Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and that unless restrained their constitutional rights would be violated and they would truly suffer irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining order, ex parte, enjoining the above-named police and customs authorities, or their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor.

On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining the respondents in Civil Case No. 67496 now petitioners in the instant case before this Court from opening the nine bales in question, and at the same time set the hearing of the petition for preliminary injunction on November 16, 1966. However, when the restraining order was received by herein petitioners, some bales had already been opened by the examiners of the Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city fiscal and a representative of herein respondent Remedios Mago. Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case, the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods because the full duties and charges thereon had not been paid; that the members of the Manila Police Department had the power to make the seizure; that the seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and Customs Code could effect search, seizures and arrests in inland places in connection with the enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein petitioners averred in the court below that the writ could not be granted for the reason that Remedios Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the case. At the hearing on December 9, 1966, the lower Court, with the conformity of the parties, ordered that an inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center of the Manila Police Department. On December 13, 1966, the above-named persons filed a "Compliance" itemizing the contents of the nine bales. Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release the goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same should be released as per agreement of the patties upon her posting of the appropriate bond that may be determined by the court. Herein petitioners filed their opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967 seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of Manila, and the determination of all questions affecting the disposal of property proceeded against in seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January 30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the goods. On March 7, 1967, the respondent Judge issued an order releasing the goods to herein respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond. On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for reconsideration of the order of the court releasing the goods under bond, upon the ground that the Manila Police Department had been directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure proceedings. Without waiting for the court's action on the motion for reconsideration, and alleging that they had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present action for prohibition and certiorari with preliminary injunction before this Court. In their petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons: (1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of First Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial intervention; (3) the

Government was not estopped by the negligent and/or illegal acts of its agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release of the goods was grossly insufficient. In due time, the respondents filed their answer to the petition for prohibition and certiorari in this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long before seizure, and identification proceedings against the nine bales of goods in question were instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in question after the corresponding duties and taxes had been paid and said goods had left the customs premises and were no longer within the control of the Bureau of Customs; (3) that respondent Remedios Mago was purchaser in good faith of the goods in question so that those goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods was affected by members of the Manila Police Department at a place outside control of jurisdiction of the Bureau of Customs and affected without any search warrant or a warrant of seizure and detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers have no authority to seize the goods in question because they are not articles of prohibited importation; (7) that petitioners are estopped to institute the present action because they had agreed before the respondent Judge that they would not interpose any objection to the release of the goods under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that the bond for the release of the goods was sufficient. The principal issue in the instant case is whether or not, the respondent Judge had acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods in question. The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and other frauds upon 1 the customs; and (3) to enforce tariff and customs laws. The goods in question were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal Entry". 2 As long as the importation has not been terminated the imported goods remain under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and the legal permit for withdrawal shall have 3 4 been granted. The payment of the duties, taxes, fees and other charges must be in full. The record shows, by comparing the articles and duties stated in the aforesaid "Statement and Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a comparison of the goods on which duties had been assessed, as shown in the "Statement and Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared, presumably to avoid the payment of duties thereon. For example, Annex B (the statement and receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320 dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code. And this Court has held that merchandise, the importation of which is effected contrary to law, is subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8 Even if it be granted, arguendo, that after the goods in question had been brought out of the customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been formally 9 deputized by the Commissioner of Customs, the Bureau of Customs had regained jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of all imported articles upon which duties, taxes, and other charges have not been paid or secured to be paid, and to dispose of the same according to law. The goods in question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise

jurisdiction over said goods even if the warrant of seizure and detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been issued by the Collector of Customs. The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When the goods where about to leave the customs premises in Manila, on October 6, 1964, the customs authorities held them for further verification, and upon examination the goods were found to be different from the declaration in the cargo manifest of the carrying vessel. Francindy Commercial subsequently demanded from the customs authorities the release of the goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was involved so the Bureau of Customs had no right to examine the goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector of Customs of the port of Manila to compel said customs authorities to release the goods. Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no jurisdiction over the goods because the same were not imported to the port of Manila; that it was not liable for duties and taxes because the transaction was not an original importation; that the goods were not in the hands of the importer nor subject to importer's control, nor were the goods imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture proceedings. The Court of First Instance held resolution on the motion to dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply with the preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In resolving the question raised in that case, this Court held: This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the goods and institute forfeiture proceedings against them? and (2) has the Court of First Instance jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the goods? Francindy Commercial contends that since the petition in the Court of first Instance was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of the said court. The record shows, however, that the goods in question were actually seized on October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs bureau was to verify whether or not Custom duties and taxes were paid for their importation. Hence, on December 23, 1964, Customs released 22 bales thereof, for the same were found to have been released regularly from the Cebu Port (Petition Annex "L"). As to goods imported illegally or released irregularly from Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code (RA 1957). The Bureau of Customs has jurisdiction and power, among others to collect revenues from imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957). The goods in question are imported articles entered at the Port of Cebu. Should they be found to have been released irregularly from Customs custody in Cebu City, they are subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant to Republic Act 1937. Said proceeding should be followed; the owner of the goods may set up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec.

11 of Republic Act, 1125. To permit recourse to the Court of First Instance in cases of seizure of imported goods would in effect render ineffective the power of the Customs authorities under the Tariff and Customs Code and deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v. Averia,supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general legislation, not to mention that the former are later enactments, the Court of First Instance should yield to the jurisdiction of the Customs authorities. It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs actually seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much less then would the Court of First Instance of Manila have jurisdiction over the goods in question after the Collector of Customs had issued 10 the warrant of seizure and detention on January 12, 1967. And so, it cannot be said, as respondents contend, that the issuance of said warrant was only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case. The court presided by respondent Judge did not acquire jurisdiction over the goods in question when the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods. Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could not seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests,11 and it was his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be subject to forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine 13 any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in question at 15 the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said "dwelling house may be entered and 17 searched only upon warrant issued by a judge or justice of the peace. . . ." It is our considered view, therefor, that except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code, said as follows: Thus contemporaneously with the adoption of the 4th Amendment, we find in the first Congress, and in the following second and fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house of similar place, and like goods in course of transportation and concealed in a movable vessel, where readily they could be put out of reach of a search warrant. . . .

Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it was made lawful for customs officers not only to board and search vessels within their own and adjoining districts, but also to stop, search and examine any vehicle, beast or person on which or whom they should suspect there was merchandise which was subject to duty, or had been introduced into the United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or otherwise, and if they should find any goods, wares, or merchandise thereon, which they had probably cause to believe had been so unlawfully brought into the country, to seize and secure the same, and the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap. 100), for a year and expired. The Act of February 28, 1865, revived 2 of the Act of 1815, above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither 3061 nor any of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . . In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to make any search before they seized the two trucks and their cargo. In their original petition, and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege that there was a search. 18 All that they complained of was, That while the trucks were on their way, they were intercepted without any search warrant near the Agrifina Circle and taken to the Manila Police Department, where they were detained. But even if there was a search, there is still authority to the effect that no search warrant would be needed under the circumstances obtaining in the instant case. Thus, it has been held that: The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.) In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by defendant's counsel was whether an automobile truck or an automobile could be searched without search warrant or other process and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws of the State. Same counsel contended the negative, urging the constitutional provision forbidding unreasonable searches and seizures. The Court said: . . . Neither our state nor the Federal Constitution directly prohibits search and seizure without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is forbidden. . . . . . . The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to. The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions until the slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called "bootleging" or "rum running," which is itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is

unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made. Having declared that the seizure by the members of the Manila Police Department of the goods in question was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal and decisive issue in the present case. We do not consider it necessary, for the purposes of this decision, to discuss the incidental issues raised by the parties in their pleadings. WHEREFORE, judgment is hereby rendered, as follows: (a) Granting the writ of certiorari and prohibition prayed for by petitioners; (b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First Instance of Manila; (c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any manner in said case; (d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and1wph1.t (e) Ordering the private respondent, Remedios Mago, to pay the costs. It is so ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro, Angeles and Fernando, JJ., concur.1wph1.t

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. Nos. 111771-77 November 9, 1993 ANTONIO L. SANCHEZ, petitioner, vs. The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of Regional Trial Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity as Secretary of Justice), JOVENCITO R. ZUO, LEONARDO C. GUIYAB, CARLOS L. DE LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P. LORENZO, the last six respondents in their official capacities as members of the State Prosecutor's Office), respondents. Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner. The Solicitor General for respondents.

CRUZ, J.: There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez of Calauan, Laguna, who stands accused of an unspeakable crime. On him, the verdict has already been rendered by many outraged persons who would immediately impose on him an angry sentence. Yet, for all the prejudgments against him, he is under our Constitution presumed innocent as long as the contrary has not been proved. Like any other person accused of an offense, he is entitled to the full and vigilant protection of the Bill of Rights. Sanchez has brought this petition to challenge the order of the respondent judge denying his motion to quash the informations for rape with homicide filed against him and six other persons. We shall treat it as we would any other suit filed by any litigant hoping to obtain a just and impartial judgment from this Court. The pertinent facts are as follows: On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate charges against several persons, including the petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and the killing of Allan Gomez. Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was represented by his counsel, Atty. Marciano Brion, Jr. On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on Sanchez in the morning of August 13,1993, and he was immediately taken to the said camp. At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to the Department of Justice in Manila. The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador Panelo as his counsel. After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August 13, 1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp Crame, where he remains confined.

On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba, Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta. On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest of all the accused, including the petitioner, in connection with the said crime. The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in Laguna in favor of the petitioner and the relationship of an employee, in the trial court with one of the accused. This Court thereupon ordered the transfer of the venue of the seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet Demetriou. On September 10, 1993, the seven informations were amended to include the killing of Allan Gomez as an aggravating circumstance. On that same date, the petitioner filed a motion to quash the informations substantially on the grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and prohibition with prayer for a temporary restraining order/writ of injunction. The petitioner argues that the seven informations filed against him should be quashed because: 1) he was denied the right to present evidence at the preliminary investigation; 2) only the Ombudsman had the competence to conduct the investigation; 3) his warrantless arrest is illegal and the court has therefore not acquired jurisdiction over him, 4) he is being charged with seven homicides arising from the death of only two persons; 5) the informations are discriminatory because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the offense only by the Sandiganbayan. The respondents submitted a Comment on the petition, to which we required a Reply from the petitioner 1 2 within a non-extendible period of five days. The Reply was filed five days late. The Court may consider his non-compliance an implied admission of the respondents' arguments or a loss of interest in prosecuting his petition, which is a ground for its dismissal. Nevertheless, we shall disregard this procedural lapse and proceed to discuss his petition on the basis of the arguments before us. The Preliminary Investigation. The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that he was not accorded the right to present counter-affidavits. During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano Brion, manifested that his client was waiving the presentation of a counter-affidavit, thus: Atty. Brion, Jr.: [W]e manifest that after reviewing them there is nothing to rebut or countermand all these statements as far as Mayor Sanchez is concerned, We are not going to submit any counter-affidavit. ACSP Zuo to Atty. Brion: xxx xxx xxx Q. So far, there are no other statements. A. If there is none then, we will not submit any counter-affidavit because we believe there is nothing to rebut or countermand with all these statements. Q. So, you are waiving your submission of counter-affidavit? A. Yes, your honor, unless there are other witnesses who will come up 3 soon.

Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion that he could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was filed. During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel, this time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and told him he could submit counter-affidavits on or before August 27, 1993. The following exchange ensued: ACSP Zuo: For the record, we are furnishing to you the sworn statement of witness Aurelio Centeno y Roxas and the sworn statement of SPO3 Vivencio Malabanan y Angeles. Do I understand from you that you are again waiving the submission of counter-affidavit? Atty. Panelo: Yes. ACSP Zuo: So, insofar as the respondent, Mayor Antonio Sanchez is concerned, this 4 case is submitted for resolution. On the other hand, there is no support for the petitioner's subsequent manifestation that his counsel, Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was not furnished with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with their supplemental affidavits dated August 15, 1993. Moreover, the above-quoted excerpt shows that the petitioner's counsel at the hearing held on August 13, 1993, was not Atty. Brion but Atty. Panelo. The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel. During the entire proceedings, he remained quiet and let this counsel speak and argue on his behalf. It was only in his tardy Reply that he has suddenly bestirred himself and would now question his representation by this lawyer as unauthorized and inofficious. Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer shall base his resolution on the evidence presented by the complainant.
5 Just as the accused may renounce the right to be present at the preliminary investigation , so may he waive the right to present counter-affidavits or any other evidence in his defense.

At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of the information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information. 6 If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the accused, order an investigation or reinvestigation and hold the proceedings in the criminal case in abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment. Jurisdiction of the Ombudsman
8 Invoking the case of Deloso v. Domingo, the petitioner submits that the proceedings conducted by the Department of Justice are null and void because it had no jurisdiction over the case. His claim is that it is the Office of the Ombudsman that is vested with the power to conduct the investigation of all cases involving public officers like him, as the municipal mayor of Calauan, Laguna.

The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate and prosecute, any illegal act or omission of any public official. However, as we held only two years ago in the 9 case ofAguinaldo v. Domagas, this authority "is not an exclusive authority but rather a shared or concurrent authority in. respect of the offense charged."

Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal or omissions on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA at 550) isnot an exclusive authority but rather a shared or concurrent authority in respect of the offense here charged, i.e., the crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the present case does not have any adverse legal consequence upon the authority the panel of prosecutors to file and prosecute the information or amended information. In fact, other investigatory agencies, of the government such as the Department of Justice, in connection 10 with the charge of sedition, and the Presidential Commission on Good Government, in ill-gotten wealth 11 cases, may conduct the investigation, The Arrest Was petitioner Sanchez arrested on August 13, 1993? "Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Under Section 2 of the same Rule, an arrest is effected by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making the arrest. Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not, required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent onthe part of the other to submit, under the belief and impression that submission is necessary. 12 The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-invitation issued by PNP Commander Rex Piad requesting him to appear at the said camp for investigation. In Babst v. National Intelligence Board 13 this Court declared: Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril. . . . (Emphasis supplied) In the case at bar, the invitation came from a high-ranking military official and the investigation of Sanchez was to be made at a military camp. Although in the guise of a request, it was obviously a command or an order of arrest that the petitioner could hardly he expected to defy. In fact, apparently cowed by the "invitation," he went without protest (and in informal clothes and slippers only) with the officers who had come to fetch him. It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation" are applicable even to a person not formally arrested but merely "invited" for questioning. It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status" after he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993 hearing that, on the basis of the sworn statements of the two state witnesses, petitioner had been "arrested." We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules of Court, providing as follows:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escapes from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. It is not denied that the arresting officers were not present when the petitioner allegedly participated in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither did they have any personal knowledge that the petitioner was responsible therefor because the basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, as the rape and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or forty-six days before the date of the arrest, it cannot be said that the offense had "in fact just been committed" when the petitioner was arrested. The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal. Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the jurisdiction of the court over his person, he may move to quash the information, but only on that ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to have waived that objection and to have submitted his person to the jurisdiction of that court. 14 The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 15 to 93-124637 for violation of R.A No. 6713. Pending the issuance of the warrant of arrest for the rapeslay cases, this first warrant served as the initial justification for his detention. The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. * Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that: Sec, 4. When writ is not allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall, anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment. In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically naming her had been issued, thus validating her detention. While frowning at the tactics of the respondents, the Court said: The, case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies with the requirements of the Constitution and the Rules of Court regarding the particular description of the person to be arrested. While the first warrant was unquestionably void, being a general warrant, release of the petitioner for that reason will be a futile act as it will be followed by her immediate re-arrest pursuant to the new and valid warrant, returning her to the same prison she will just have left. This Court will not participate in such a meaningless charade. The same doctrine has been consistently followed by the Court,
17

more recently in the Umil case. 18

The Informations The petitioner submits that the seven informations charging seven separate homicides are absurd because the two victims in these cases could not have died seven times. This argument was correctly refuted by the Solicitor General in this wise: Thus, where there are two or more offenders who commit rape, the homicide committed on the occasion or by reason of each rape, must be deemed as a constituent of the special complex crime of rape with homicide. Therefore, there will be as many crimes of rape with homicide as there are rapes committed. In effect, the presence of homicide qualifies the crime of rape, thereby raising its penalty to the highest degree. Thus, homicide committed on the occasion or by reason of rape, loses its character as an independent offense, but assumes a new character, and functions like a qualifying circumstance. However,by fiction of law, it merged with rape to constitute an constituent element of a special complex crime of rape with homicide with a specific penalty which is in the highest degree, i.e. death (reduced to reclusion perpetua with the suspension of the application of the death penalty by the Constitution). It is clearly provided in Rule 110 of the Rules of Court that: Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a simple punishment for various offenses. Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the Revised Penal Code. The petitioner and his six co-accused are not charged with only one rape committed by him in conspiracy with the other six. Each one of the seven accused is charged with having himself raped Sarmenta instead of simply helping Sanchez in committing only one rape. In other words, the allegation of the prosecution is that the girl was raped seven times, with each of the seven accused taking turns in abusing her with the assistance of the other six. Afterwards, their lust satisfied, all seven of them decided to kill and thus silence Sarmenta. Every one of the seven accused is being charged separately for actually raping Sarmenta and later killing her instead of merely assisting the petitioner in raping and then slaying her. The separate informations filed against each of them allege that each of the seven successive rapes is complexed by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez by her seven attackers. The separate rapes were committed in succession by the seven accused, culminating in the slaying of Sarmenta. It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven times, but the informations do not make such a suggestion. It is the petitioner who does so and is thus hoist by his own petard. The Alleged Discrimination The charge of discrimination against the petitioner because of the non-inclusion of Teofilo Alqueza and Edgardo Lavadia in the informations must also be dismissed. While the prosecuting officer is required by law to charge all those who in his opinion, appear to be guilty, he nevertheless cannot be compelled to include in the information a person against whom he believes no 19 sufficient evidence of guilt exists. The appreciation of the evidence involves the use of discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the petitioner of a grave 20 abuse of such discretion. The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. 21 But even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him.

The possible exception is where there is an unmistakable showing of a grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is a petition for mandamus, not certiorari or prohibition. 22 Moreover, before resorting to this relief, the party seeking the inclusion of another person as a co-accused in the same case must first 23 avail itself of other adequate remedies such as the filing of a motion for such inclusion. At any rate, it is a preposterous contention that because no charges have been filed against Alqueza and Lavadia, the charges against the petitioner and his co-accused should also be dropped. Jurisdiction of the Sandiganbayan The petitioner argued earlier that since most of the accused were incumbent public officials or employees at the time of the alleged commission of the crimes, the cases against them should come under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention was withdrawn in his Reply but we shall discuss it just the same for the guidance of all those concerned. Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: a) Exclusive original jurisdiction in all cases involving: (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code: (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00. . . . (Emphasis supplied) The crime of rape with homicide with which the petitioner stands charged obviously does not fall under paragraph (1), which deals with graft and corruption cases. Neither is it covered by paragraph (2) because it is not an offense committed in relation to the office of the petitioner. In Montilla v, Hilario,
24

this Court described the "offense committed in relation to the office" as follows:

[T]he relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the offense cannot exist without the office. In other words, the office must be a constituent element of the crime as defined in the statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code. Public office is not of the essence of murder. The taking of human life is either murder or homicide whether done by a private citizen or public servant, and the penalty is the same except when the perpetrator. being a public functionary took advantage of his office, as alleged in this case, in which event the penalty is increased. But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance, its materiality arises not from the allegations but on the proof, not from the fact that the criminals are public officials but from the manner of the commission of the crime There is no direct relation between the commission of the crime of rape with homicide and the petitioner's office as municipal mayor because public office is not an essential element of the crime charged. The offense can stand independently of the office. Moreover, it is not even alleged in the information that the commission of the crime charged was intimately connected with the performance of the petitioner's official 25 functions to make it fall under the exception laid down in People v. Montejo. In that case, a city mayor and several detectives were charged with murder for the death of a suspect as a result of a "third degree" investigation held at a police substation. The appearance of a senator as their counsel was questioned by the prosecution on the ground that he was inhibited by the Constitution from

representing them because they were accused of an offense committed in relation to their office. The Court agreed. It held that even if their position was not an essential ingredient of the offense, there was nevertheless an intimate connection between the office and the offense, as alleged in the information, that brought it within the definition of an offense "committed in relation to the public office." As Chief Justice Concepcion said: It is apparent from these allegations that, although public office is not an element of the crime of murder in abstract, as committed by the main respondents herein, according to the amended information, the offense therein charged is intimately connected with their respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed they had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. The co-defendants of respondent Leroy S. Brown, obeyed his instructions because he was their superior officer, as Mayor of Basilan City. (Emphasis supplied). We have read the informations in the case at bar and find no allegation therein that the crime of rape with homicide imputed to the petitioner was connected with the discharge of his functions as municipal mayor or that there is an "intimate connection" between the offense and his office. It follows that the said crime, being an ordinary offense, is triable by the regular courts and not the Sandiganbayan. Conclusion As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts and the applicable law and jurisprudence. They must, therefore, all be rejected. In consequence, the respondent judge, who has started the trial of the criminal cases against the petitioner and his coaccused, may proceed therewith without further hindrance. It remains to stress that the decision we make today is not a decision on the merits of the criminal cases being tried below. These will have to be decided by the respondent judge in accordance with the evidence that is still being received. At this time, there is yet no basis for judgment, only uninformed conjecture. The Court will caution against such irrelevant public speculations as they can be based only on imperfect knowledge if not officious ignorance. WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to decide them with deliberate dispatch. SO ORDERED. Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ., concur. Narvasa, C.J., took no part. Bellosillo, J., is on leave.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-59378 February 11, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NELIA NICANDRO y VELARMA, accused-appellant. PLANA, J.: This is an appeal from a judgment of the then Court of First Instance of Manila, Branch VIII, convicting the accused Nelia Nicandro y Velarma of violation of Section 4, Article II, in relation to Section 2(e), (f), (1), (m), and (o) Article I, of Republic Act 6425, as amended (Dangerous Drugs Act), upon an information which reads: That on or about November 6, 1981, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell deliver, give away to another or distribute any prohibited drug, did then and there willfully, unlawfully, and knowingly sell or offer for sale four (4) sticks of marijuana cigarettes, marijuana flowering tops wrapped in a piece of newspaper, one (1) roach marijuana cigarette and marijuana seeds and ashes contained in a white plastic bag, which are prohibited drugs. The People's version of the facts is as follows: Not long before November 6,1981, the Drug Enforcement Unit of Police Station No. 5, Western Police District, Metropolitan Police Force, Manila, received complaints from concerned citizens regarding the illegal sale of prohibited drugs by one alias 'Nel' in the Commodore Pension House at Arquiza Street, Ermita, Manila (p. 4, tsn, Dec. 8, 1981). lt was also informed that the use of prohibited drugs in said place was rampant (pp. 3, 1819, tsn, Ibid). Responding to said complaints and reports, Cpl. Salvador Guitan and Pfc. Romeo Joves of the Drug Enforcement Unit of said Police Station No. 5 placed the Commodore Pension House and its surroundings under surveillance for about a week (pp. 4-5, tsn, Ibid.). After the complaints and reports were verified to be true, an entrapment with the confidential informant acting as the buyer of marijuana was organized. (pp. 5-6, 29-30, tsn, Ibid.). At about 9:00 p.m. on November 6, 1981, the police team formed to carry out the entrapment plan was alerted of the presence of the drug pusher, alias 'Nel', at room 301 of the Commodore Pension House, selling marijuana to drug users (pp. 6, 32-33, tsn, Ibid.). Immediately Cpl. Salvador Guitan, Pat. Proceso Federes, Pat. Aurora Gomez and Pfc. Romeo Joves proceeded to the said Commodore Pension House and met the female confidential informant at the corner of Arquiza Street and M.H. del Pilar Street, Ermita, Manila (pp. 6, 23, 33, tsn, Dec. 8, 1981; pp. 15-16, tsn. Dec. 9, 1981). Pfc. Joves gave the informant two (2) P5.00 bills, marked Exhibits "D" and "E", with his initial thereon, marked Exhibits "D-1", and "E-1" (Exhs. "D", "D-1" "E" and "E-1", pp. 3-4, Folio of Exhs.; pp. 6, 8, 35, tsn, Dec. 8, 1981; p. 16, tsn, Dec. 9, 1981). They instructed her to follow them to the Commodore Pension House (p. 33, tsn, Dec. 8, 1981). Following later, the informant went to room 301 of the Commodore Pension House (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Upon a given signal she knocked on the door of the room. Appellant Nelia Nicandro y Velarma, alias 'Nel', opened the door (p. 6, tsn, Dec. 8. 1981). The informant asked to buy some marijuana cigarette and gave appellant the two (2) marked P 5.00 bills (p. 6, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Thereupon, the appellant delivered to informant four (4) sticks of marijuana cigarette (pp. 7, 25, tsn; Dec. 8,1981; p. 8, tsn, Dec. 9, 1981). Immediately the police team closed in and nabbed appellant (p. 7, tsn, Dec. 8, 1981; p. 17, tsn, Dec. 9, 1981). Pat. Gomez frisked appellant and got from the right front pocket of her pants the two (2), marked P5.00 bills (Exhs. "D" & " E ") and from the left pocket of her pants marijuana flowering tops wrapped in a piece of newspaper (pp. 8-9, 12, 34, tsn,

Dec. 8, 1981; pp. 9-10, 17-19, tsn. Dec. 9, 1981). Appellant tried to escape by entering her rented room 301 but was immediately (pp. 8-9, tsn, Dec. 9, 1981). xxx xxx xxx Upon being investigated and after having been duly apprised of her constitutional rights, appellant orally admitted having sold the four (4) sticks of marijuana cigarettes and the ownership of the marijuana flowering tops taken from her pocket, but refused to reduce her confession to writing (pp. 12-13, tan; Dec. 8, 1981. ... (People's Brief, pp. 3-6, 8.) To support the charges, the prosecution relied principally on Pat. Joves, who testified that he saw the accused sell marijuana cigarettes to the unnamed police informant, which allegedly the accused verbally admitted when she was under custodial investigation. Pat. Joves declared: Q Where were you when the informant handed the two P5.00 bills to the accused? A We were hidden within the vicinity of Room 301 sir. Q After your confidential informant have handed the two P5.00 bills to the accused, what happened next? A The accused in turn handed one small plastic bag containing suspected marijuana leaves. I beg to correct sir. I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir. Q What did you do when you saw the accused hand over to the confidential informant the four sticks of cigarettes containing marijuana? A When we saw the accused handed the four sticks of suspected marijuana cigarettes to our confidential informant, and after a pre-a rranged signal was given by the confidential informant that the accused had already sold her the marijuana cigarettes, we immediately nabbed said suspect and at the same time we Identified ourselves as police officers. (TSN, Dec. 8, 1981, p. 7.) xxx xxx xxx Q You also conducted the investigation of this accused and confiscation of the articles of the crime? A Yes, sir. Q How did you conduct the investigation? A The first thing I did was I informed the accused of her constitutional rights. Q What next? A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. Q Did you place that in writing? A The accused refused to place her statement in writing, sir. (Ibid., pp. 12-13.) xxx xxx xxx CROSS EXAMINATION

Q And who were your companions in apprehending the accused? A I was with Police Cpl. Salvador Guitan, Pat. Federis and Policewoman Aurora Gomez, sir. Q When you posted yourselves and other companions at the third floor of Commodore Pensione House, were there any other persons present in the premises, Pat. Joves? A There were other persons passing by or walking in the place from where we were posted sir. Q In fact, there were several or many persons in that place because there is a lodging house Pat. Joves when you posted yourselves there? There were several persons present there? A There are several persons present but they are just passing by or walking towards their rooms, sir. Q And you want this Court to believe that in spite of the presence of these people walking and passing to the place where you made the apprehension, you want this Court to believe that the accuse was then selling the alleged marijuana sticks? WITNESS: Please repeat the questions? ATTY. CARINGAL: Q You want the Court to believe that the accused was selling the prohibited drug in public because according to you there were several persons present then? A There were several persons passing by sir at that place. Q You testified a while ago Pat. Joves that you have seen the accused handing a plastic bag to your confidential informant. How big is that plastic bag.? A It was not a plastic bag, sir but four sticks of marijuana cigarettes, sir. Q Do you want to impress this Honorable Court that the accused was selling this marijuana cigarette in the open? A The accused sold marijuana cigarettes also in a way that she will not be noticed by other persons sir. Q How were you able to say that the things handed by the accused to your confidential informant were four sticks of marijuana cigarettes when you have just said that the transactions was done secretly? A She was handing the marijuana cigarette secretly, sir. Q How were you able to say and how were you able to determine that the things handed to your confidential informant were four sticks of marijuana cigarettes? A We saw and observed that the accused handed sticks of suspected marijuana cigarettes and we also have a prearranged signal from the confidential informant that the marijuana was already sold by the accused, sir. (Ibid., pp. 23-25.)

Policewoman Aurora Gomez also testified but her testimony was limited to events subsequent to the alleged sale of marijuana cigarettes. She did not witness the sale. (TSN, Dec. 9, 1981, pp. 17-18, 21.) Neither did Cpl. Guitan or Pat. Federis. After trial, the trial court convicted the accused as aforesaid and imposed the penalty of reclusion perpetua and a fine of P20,000.00. In the instant appeal, defendant-appellant has assigned the following errors: I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED FOR VIOLATION OF SECTION 4 OF ARTICLE II IN RELATION TO SECTION 2(e), (1), (f) and (o), ARTICLE 1, R.A. 6425, AS AMENDED BY P.D. NO. 44 AND FURTHER AMENDED BY P.D. NO. 1675. II THE COURT A QUO GRAVELY ERRED IN GIVING PROBATIVE VALUE TO THE TESTIMONIES OF ALL POLICE OF OFFICERS WHICH ARE HEARSAY. III THE COURT A QUO GRAVELY ERRED IN ADMITTING PROSECUTION EVIDENCE WHICH WERE OBTAINED IN VIOLATION PETITION OF ACCUSED CONSTITUTIONAL RIGHTS. IV THE CONSTITUTIONAL RIGHTS OF THE ACCUSED MORE PARTICULARLY THE RIGHT TO CONFRONTATION AND TO CROSS-EXAMINE WITNESS AGAINST HER HAS BEEN VIOLATED. Numerous factors combine to make the appeal meritorious. The prosecution evidence leaves much to be desired. It is at best uncertain whether any prosecution witness really saw the alleged sale of marijuana cigarettes. Patrolman Joves allegedly was an eyewitness. He testified that he saw the appellant sell marijuana cigarettes to the police informant, as the transaction took place openly just outside room 301, in the presence of several persons "passing by or walking in the place". But when his attention was called to the improbability that an illegal merchandise would openly be sold, he qualified his story by saying that appellant handed the marijuana cigarettes to appellant "secretly". Pat. Joves was not certain as to what he saw. At first, he said that after the police informant had paid appellant, the latter handed to the former "one small plastic bag containing suspected marijuana leaves." Then he corrected himself by saying: "I think it was four sticks of marijuana cigarettes sir. It is not a plastic bag sir." It is probable that Pat. Joves really did not see either the alleged delivery of the marijuana cigarettes or the supposed payment therefor. After all, according to him, the transaction was effected "secretly". On the other hand, if the sale was made within the view of Pat. Joves and his companions, there would have been no need for them to wait for a signal from the police informant to indicate that the transaction had been completed, before closing in and arresting appellant. With the testimony of Pat. Joves seriously placed in doubt, there is not much left of the prosecution evidence. Note that the police informant was not presented as a witness, prompting the accused to invoke with reason the presumption that evidence willfully suppressed would be adverse if produced. [Rules of Court, Rule 131, Sec. 5(e).] In convicting the appellant, the trial court relied partly on her alleged oral admission declaraciones custodial investigation, as testified to by Pat. Joves. This reliance is assailed as violative of Section 20 of Article IV of the Constitution which reads: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to

counsel and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The above provision is an expanded version of the guarantee against self-incrimination, formally incorporating the doctrine in the landmark American case of Miranda vs. Arizona ... Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self- incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. [384 U.S. 436, 444-445. Incidentally, the Miranda doctrine rests on just one broad guarantee in the U.S. Constitution, i.e., that no person shall be compelled in any criminal case to be a witness against himself. (Fifth Amendment.)] When the Constitution requires a person under investigation "to be informed" of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefor, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. (See People vs. Ramos, 122 SCRA 312: People VS. Caguioa, 95 SCRA 2.) In other words, the right of a person under interrogation "to be informed" implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been "informed" of his rights. Now, since the right "to be informed" implies comprehension, the degree of explanation required will necessary vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the subject is unlettered. Thus, in the cited case of People vs. Ramos, this Court said: In the case at bar, appellant has only finished Grade VI, which means that he is not adequately educated to understand fairly and fully the significance of his constitutional rights to silence and to counsel. As mandated, it is not enough that the police investigator merely informs him of his constitutional rights to silence and to counsel, and then taking his statements down, the interrogating officer must have patience in explaining these rights to him The records do not reveal that these requirements have been fully complied with, nor was there any showing that appellant has been represented by counsel during custodial investigation. In consonance with Section 20 of the Bill of Rights which states that 'any confession obtained in violation of this section shall be inadmissible in evidence,' We hold that the verbal admissions of appellant during custodial investigation may not be taken in evidence against him. (pp. 321-322.) Like other constitutional rights, the right against self-incrimination, including the right of a person under investigation to remain silent and to counsel, and to be informed of such right, may be waived. To be valid, however, a waiver of the right must not only be voluntary; it must be made knowingly and intelligently (People vs. Caguioa, supra), which presupposes an awareness or understanding of what is being waived. It stands to reason that where the right has not been adequately

explained and there are serious doubts as to whether the person interrogated knew and understood his relevant constitutional rights when he answered the questions, it is Idle to talk of waiver of rights. Going to the instant case, Pat. Joves testified that he conducted the custodial investigation of appellant. As to the manner of investigation, he tersely testified: Q How did you conduct the investigation? A The first thing I did was I informed the accused of her constitutional rights. Q What next? A Then I questioned her about the marijuana cigarettes and leaves that were confiscated and also the marked money and she verbally admitted that she sold the four sticks of suspected marijuana cigarettes and possession and ownership of the other marijuana leaves which was confiscated from her possession. (TSN, December 8, 1981, pp. 12-13.) According to Pat. Joves, he informed appellant of her constitutional rights when she was under custodial investigation. What specific rights he mentioned to appellant, he did not say. Neither did he state the manner in which the appellant was advised of her constitutional rights so as to make her understand them. This is particularly significant in the instant case because appellant is illiterate and cannot be expected to be able to grasp the significance of her right to silence and to counsel upon merely hearing an abstract statement thereof. As it is the obligation of the investigating officer to inform a person under investigation of his right to remain silent and to counsel, so it is the duty of the prosecution to affirmatively establish compliance by the investigating officer with his said obligation. Absent such affirmative showing, the admission or confession made by a person under investigation cannot be admitted in evidence. As broadly stated in the Miranda case and quoted with approval by the then Chief Justice Enrique M. Fernando in People vs. Caguioa, supra, ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial investigation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (95 SCRA 2,9. Emphasis supplied.) The reason is not difficult to see. A constitutional guarantee should be liberally construed with a view to promoting its object. ... Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. xxx xxx xxx In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of these rights be assumed on a silent record. ... (Miranda case, 384 U.S. 436, 491, 498-499.) Thus, in People vs. Ramos, supra, the Court ruled that the verbal admission of the accused during custodial investigation was inadmissible, although he had been apprised of his constitutional rights to silence and to counsel, for the reason that the prosecution failed to show that those rights were explained to him, such that it could not be said that "the apprisal was sufficiently manifested and intelligently understood" by the accuse. Similarly, in People vs. Caguioa, the Court sustained the rejection by the trial court of the extrajudicial admission made by the accused during custodial investigation, there being no showing by the prosecution that there was sufficient compliance with the constitutional duty to inform the accused of his rights to silence and to counsel, without which there could be no intelligent waiver of said rights. In said case, the accused a native of Samar was interrogated in Tagalog. The prosecution did not show that the

accused's acquaintance with Tagalog was such that he could fully understand the questions posed to him. All considered, we hold that the guilt of appellant has not been established beyond reasonable doubt. WHEREFORE, the appealed decision is reversed and set aside, and the appellant is hereby acquitted on the basis of reasonable doubt. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-19550 June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners, vs. HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents. Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for respondents. CONCEPCION, C.J.: Upon application of the officers of the government named on the margin1 hereinafter referred to as Respondents-Prosecutors several judges2 hereinafter referred to as Respondents-Judges 3 4 issued, on different dates, a total of 42 search warrants against petitioners herein and/or the 5 corporations of which they were officers, directed to the any peace officer, to search the persons abovenamed and/or the premises of their offices, warehouses and/or residences, and to seize and take possession of the following personal property to wit: Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursements receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers). as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be used as the means of committing the offense," which is described in the applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code." Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of Court because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in an illegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction, and prayed that, pending final disposition of the present case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their agents and /or representatives from using the effects seized as aforementioned or any copies thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants and declaring the same null and void, and commanding the respondents, their agents or representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and cash moneys seized or confiscated under the search warrants in question. In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid and have been issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged illegality of the aforementioned searches and seizures. On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things seized from the offices of the corporations above mentioned are concerned; but,

the injunction was maintained as regards the papers, documents and things found and seized in the 7 residences of petitioners herein. Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split into two (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and (b) those found and seized in the residences of petitioners herein. As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stock or of the interest of each of them in said 8 corporations, and whatever the offices they hold therein may be. Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third 10 parties. Consequently, petitioners herein may not validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations adverted to above, since the right to object to the admission of said papers in evidence belongsexclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in 11 proceedings against them in their individual capacity. Indeed, it has been held: . . . that the Government's action in gaining possession of papers belonging to the corporation did not relate to nor did it affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rights of or any one were invaded, they were the rights of the corporation and not the rights of the other defendants. Next, it is clear that a question of the lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment, when its violation, if any, was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of the evidence based on an alleged unlawful search and seizure does not extend to the personal defendants but embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.) With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by 12 this Court, thereby, in effect, restraining herein Respondents-Prosecutors from using them in evidence against petitioners herein. In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative, whether said documents, papers and things may be used in evidence against petitioners herein.1wph1.t Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that accordingly, the seizures effected upon the authority there of are null and void. In this connection, the Constitution13 provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized. None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical person therein named had committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, nospecific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or

committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," as alleged in the aforementioned applications without reference to any determinate provision of said laws or To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to be remedied by the constitutional provision above quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to wrest it, even though by legal means. Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in 15 its counterpart, under the Revised Rules of Court that "a search warrant shall not issue but upon probable cause in connection with one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue for more than one specific offense." The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description therein made of the effects to be searched for and seized, to wit: Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements. Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights that the things to be seized be particularly described as well as tending to defeat its major objective: the elimination of general warrants. Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if the searches and seizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that the position taken in the Moncado case must be abandoned. Said position was in line with the American common law rule, that the criminal should not be allowed to go free 16 merely "because the constable has blundered," upon the theory that the constitutional prohibition against unreasonable searches and seizures is protected by means other than the exclusion of evidence 17 unlawfully obtained, such as the common-law action for damages against the searching officer, against the party who procured the issuance of the search warrant and against those assisting in the execution of an illegal search, their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as may be provided by other laws. However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. In the language of Judge Learned Hand: As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.18 In fact, over thirty (30) years before, the Federal Supreme Court had already declared: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the

sacrifice of those great principles established by years of endeavor and suffering which have 19 resulted in their embodiment in the fundamental law of the land. This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. 20After reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.): . . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free from unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State. Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as it used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be "a form of words," valueless and underserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to permit this Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that the Court held in Wolf that the amendment was applicable to the States through the Due Process Clause, the cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches state or federal it was logically and constitutionally necessarily that the exclusion doctrine an essential part of the right to privacy be also insisted upon as an essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of the new constitutional Right by Wolf could not tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it" . . . . The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by its Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice. (emphasis ours.) Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence to establish probable cause of the commission of a given crime by the party against whom the warrant is intended, then there is no reason why the applicant should not comply with the requirements of the fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge to find that there is probable cause, and, hence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to establish a probable cause. Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooks the fact that violations thereof are, in general, committed By agents of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under which the minority usually but, understandably finds itself in prosecuting agents of the majority, one must not lose sight of the fact that the psychological and moral

effect of the possibility 21 of securing their conviction, is watered down by the pardoning power of the party for whose benefit the illegality had been committed. In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be included among the premises considered in said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the corporations above referred to include personal belongings of said petitioners and other effects under their exclusive possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts of federal courts of 22 the United States. We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, notin their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be readjustment of that followed in said petitions, to suit the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein. Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and the contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently established the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being best to leave the matter open for determination in appropriate cases in the future. We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with the documents, papers and other effects thus seized in said residences of herein petitioners is hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects so seized in the aforementioned residences are concerned; that the aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied, as regards the documents, papers and other effects seized in the twenty-nine (29) places, offices and other premises enumerated in the same Resolution, without special pronouncement as to costs. It is so ordered. Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. CASTRO, J., concurring and dissenting: From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of the deliberations of the Court on this case, I gather the following distinct conclusions: 1. All the search warrants served by the National Bureau of Investigation in this case are general warrants and are therefore proscribed by, and in violation of, paragraph 3 of section 1 of Article III (Bill of Rights) of the Constitution; 2. All the searches and seizures conducted under the authority of the said search warrants were consequently illegal; 3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is declared, abandoned; 4. The search warrants served at the three residences of the petitioners are expressly declared null and void the searches and seizures therein made are expressly declared illegal; and the writ of preliminary injunction heretofore issued against the use of the documents, papers and effect seized in the said residences is made permanent; and 5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that they have legal standing to move for the suppression of the documents, papers and effects seized in

the places other than the three residences adverted to above, the opinion written by the Chief Justice refrains from expresslydeclaring as null and void the such warrants served at such other places and as illegal the searches and seizures made therein, and leaves "the matter open for determination in appropriate cases in the future." It is precisely the position taken by the Chief Justice summarized in the immediately preceding paragraph (numbered 5) with which I am not in accord. I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search warrants served at places other than the three residences, and the illegibility of the searches and seizures conducted under the authority thereof. In my view even the exacerbating passions and prejudices inordinately generated by the environmental political and moral developments of this case should not deter this Court from forthrightly laying down the law not only for this case but as well for future cases and future generations. All the search warrants, without exception, in this case are admittedly general, blanket and roving warrants and are therefore admittedly and indisputably outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumente, have no legal standing to ask for the suppression of the papers, things and effects seized from places other than their residences, to my mind, cannot in any manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and the intrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners possess legal standing the said warrants are void and remain void, and the searches and seizures were illegal and remain illegal. No inference can be drawn from the words of the Constitution that "legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of the lawfulness or illegality of a search or seizure. On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court the petitioners have the requisite legal standing to move for the suppression and return of the documents, papers and effects that were seized from places other than their family residences. Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth Amendment to the United States Constitution. In the many years of judicial construction and interpretation of the said constitutional provision, our courts have invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by federal courts, especially the Federal Supreme Court and the Federal Circuit Courts of Appeals. The U.S. doctrines and pertinent cases on standing to move for the suppression or return of documents, papers and effects which are the fruits of an unlawful search and seizure, may be summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b) ownership and/or control or possession actual or constructive of premises searched gives "standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn application for search warrant are "primarily" directed solely and exclusively against the "aggrieved person," gives "standing." An examination of the search warrants in this case will readily show that, excepting three, all were directed against the petitioners personally. In some of them, the petitioners were named personally, followed by the designation, "the President and/or General Manager" of the particular corporation. The three warrants excepted named three corporate defendants. But the "office/house/warehouse/premises" mentioned in the said three warrants were also the same "office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in all the other search warrants directed against the petitioners and/or "the President and/or General Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The searches and seizures were to be made, and were actually made, in the "office/house/warehouse/premises" owned by or under the control of the petitioners. Ownership of matters seized gives "standing." Ownership of the properties seized alone entitles the petitioners to bring a motion to return and suppress, and gives them standing as persons aggrieved by an unlawful search and seizure regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized from the defendant's sister but belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the defendant). In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that under the constitutional provision against unlawful searches and seizures, a person places himself or his

property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile: Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment protection. What the Fourth Amendment protects is the security a man relies upon when heplaces himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless other cases which have come to this Court over the years have involved a myriad of differing factual contexts in which the protections of the Fourth Amendment have been appropriately invoked. No doubt, the future will bring countless others. By nothing we say here do we either foresee or foreclose factual situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied). Control of premises searched gives "standing." Independent of ownership or other personal interest in the records and documents seized, the petitioners have standing to move for return and suppression by virtue of their proprietary or leasehold interest in many of the premises searched. These proprietary and leasehold interests have been sufficiently set forth in their motion for reconsideration and need not be recounted here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premises searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the corporate offices (IBMC, USTC); had made improvements or furnished such offices; or had paid for the filing cabinets in which the papers were stored (Room 204, Army & Navy Club); and individually, or through their respective spouses, owned the controlling stock of the corporations involved. The petitioners' proprietary interest in most, if not all, of the premises searched therefore independently gives them standing to move for the return and suppression of the books, papers and affects seized therefrom. In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the interest in the searched premises necessary to maintain a motion to suppress. After reviewing what it considered to be the unduly technical standard of the then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266): We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessarily and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of those distinctions in the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not be determinative in fashioning procedures ultimately referable to constitutional safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961). It has never been held that a person with requisite interest in the premises searched must own the property seized in order to have standing in a motion to return and suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose apartment the corporate records were seized successfully moved for their return. In United States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully moved for the return and suppression is to him of both personal and corporate documents seized from his home during the course of an illegal search: The lawful possession by Antonelli of documents and property, "either his own or the corporation's was entitled to protection against unreasonable search and seizure. Under the circumstances in the case at bar, the search and seizure were unreasonable and unlawful. The motion for the return of seized article and the suppression of the evidence so obtained should be granted. (Emphasis supplied). Time was when only a person who had property in interest in either the place searched or the articles seize had the necessary standing to invoke the protection of the exclusionary rule. But in MacDonald vs.

Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he is under against criminal intrusion." This view finally became the official view of the U.S. Supreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in the apartment unlawfully searched but the Court nonetheless declared that the exclusionary rule protected him as well. The concept of "person aggrieved by an unlawful search and seizure" was enlarged to include "anyone legitimately on premise where the search occurs." Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit held that the defendant organizer, sole stockholder and president of a corporation had standing in a mail fraud prosecution against him to demand the return and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court conclude that the defendant had standing on two independent grounds: First he had a sufficient interest in the property seized, and second he had an adequate interest in the premises searched (just like in the case at bar). A postal inspector had unlawfully searched the corporation' premises and had seized most of the corporation's book and records. Looking to Jones, the court observed: Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an unlawful search and seizure." It tells us that appellant should not have been precluded from objecting to the Postal Inspector's search and seizure of the corporation's books and records merely because the appellant did not show ownership or possession of the books and records or a substantial possessory interest in the invade premises . . . (Henzel vs. United States, 296 F. 2d at 651). . Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police officers seized two notebooks from a desk in the defendant's place of employment; the defendant did not claim ownership of either; he asserted that several employees (including himself) used the notebooks. The Court held that the employee had a protected interest and that there also was an invasion of privacy. Both Henzel and Villanoconsidered also the fact that the search and seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano vs. United States, 310 F. 2d at 683. In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of his files. The Government contended that the petitioner had no standing because the books and papers were physically in the possession of the custodian, and because the subpoena was directed against the custodian. The court rejected the contention, holding that Schwimmer legally had such possession, control and unrelinquished personal rights in the books and papers as not to enable the question of unreasonable search and seizure to be escaped through the mere procedural device of compelling a third-party naked possessor to produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956). Aggrieved person doctrine where the search warrant s primarily directed against said person gives "standing." The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191 (1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers, which attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records at his home in the country and on a farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management." The papers turned out to be private, personal and business papers together with corporate books and records of certain unnamed corporations in which Birrell did not even claim ownership. (All of these type records were seized in the case at bar). Nevertheless, the search in Birrell was held invalid by the court which held that even though Birrell did not own the premises where the records were stored, he had "standing" to move for the return of all the papers and properties seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed out that It is overwhelmingly established that the searches here in question were directed solely and exclusively against Birrell. The only person suggested in the papers as having violated the law was Birrell. The first search warrant described the records as having been used "in committing a violation of Title 18, United States Code, Section 1341, by the use of the mails by one Lowell M. Birrell, . . ." The second search warrant was captioned: "United States of America vs. Lowell M. Birrell. (p. 198)

Possession (actual or constructive), no less than ownership, gives standing to move to suppress. Such was the rule even before Jones. (p. 199) If, as thus indicated Birrell had at least constructive possession of the records stored with Dunn, it matters not whether he had any interest in the premises searched. See also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951). The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the present petitioners; as in Birrell, many personal and corporate papers were seized from premises not petitioners' family residences; as in Birrell, the searches were "PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents were suppressed in Birrell because of the illegal search. In the case at bar, the petitioners connection with the premises raided is much closer than in Birrell. Thus, the petitioners have full standing to move for the quashing of all the warrants regardless whether these were directed against residences in the narrow sense of the word, as long as the documents were personal papers of the petitioners or (to the extent that they were corporate papers) were held by them in a personal capacity or under their personal control. Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners all personaland private papers and effects seized, no matter where these were seized, whether from their residences or corporate offices or any other place or places. The uncontradicted sworn statements of the petitioners in their, various pleadings submitted to this Court indisputably show that amongst the things seized from the corporate offices and other places were personal and private papers and effects belonging to the petitioners. If there should be any categorization of the documents, papers and things which where the objects of the unlawful searches and seizures, I submit that the grouping should be: (a) personal or private papers of the petitioners were they were unlawfully seized, be it their family residences offices, warehouses and/or premises owned and/or possessed (actually or constructively) by them as shown in all the search and in the sworn applications filed in securing the void search warrants and (b) purely corporate papers belonging to corporations. Under such categorization or grouping, the determination of which unlawfully seized papers, documents and things arepersonal/private of the petitioners or purely corporate papers will have to be left to the lower courts which issued the void search warrants in ultimately effecting the suppression and/or return of the said documents. And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal standing to move for the suppression of purely corporate papers as "President and/or General Manager" of the corporations involved as specifically mentioned in the void search warrants. Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions, the great clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of their protection from cases not criminal in origin or nature.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 83988 September 29, 1989 RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP),petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents. Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.: This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for the protection of the people. Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the IBP. The factual background of the case is as follows: On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the 1 social, economic and political development of the National Capital Region. As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila. Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a court order or search warrant. Petitioners further contend that the said checkpoints give the respondents a blanket authority to make searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed. Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military indeed committed specific violations of petitioners' right against unlawful search and seizure or other rights. In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that any of their rights were violated are not qualified to bring the action, as real parties in interest. The constitutional right against unreasonable searches and seizures is a personal right invocable only by 4 those whose rights have been infringed, or threatened to be infringed. What constitutes a reasonable or

unreasonable search and seizure in any particular case is purely a judicial question, determinable from a 5 consideration of the circumstances involved. Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. 6 Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable search. The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is howeverreasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10 WHEREFORE, the petition is DISMISSED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, GrioAquino, Medialdea and Regalado, JJ., concur.

Separate Opinions

CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply

because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious

mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition.

Separate Opinions CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the

search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. L-84921 June 8, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO DURAL (also known as RONNIE JAVELON) and BERNARDO ITUCAL, JR., y BALDERAS, accused. ROLANDO DURAL and BERNARDO ITUCAL, JR., accused appellants.

DAVIDE, JR., J.: An amended information for Double Murder with Assault Upon Agents of Persons In Authority was filed on 15 February 1988 with the Regional Trial Court of Kalookan City charging the accused Rolando Dural, also known as Ronnie Javelon, and Bernardo Itucal Jr. as follows: That on or about the 31st day of January, 1988 at Caloocan City, Metro Manila, Philippines and within the jurisdiction of the Honorable Court, the above-named accused, conspiring together, confederating and mutually aiding one another, without any justifiable cause and with intent to kill with treachery, evident premeditation and abuse of superior strength, did then and there wilfully, unlawfully, and feloniously attack, assault and employ personal violence upon the persons of TSGT. CARLOS PABON PC and CIC RENATO MANGLIGOT PC, as duly appointed and qualified members of the Philippine Constabulary, CAPCOM, Camp Bagong Diwa, Bicutan, Taguig, while the latter were engaged in the performance of their official duties, knowing the said TSGT CARLOS PABON PC and CIC RENATO MANGLIGOT PC, to be agents of persons in authority by then and there shooting TSGT. CARLOS PABON, PC and CIC RENATO MANGLIGOT PC, on the different parts of their bodies, thereby inflicting upon the latter serious physical injuries, which eventually caused their death. Contrary to law.
1

The case was docketed as Criminal Case No. C-30112 and assigned to branch 131 of the said court. Both accused entered a plea of not guilty upon their arraignment on 14 March 1988. 2 Pre-trial was conducted on 30 March 1988 3 and, thereafter, the trial on the merits ensued. The witnesses who testified for the prosecution were Rodrigo Pascual, Sgt. Douglas Tagapulot, Cpl. Angel Floranda, Guillermo Jaramilla, Vicente Rosadio, Pfc. Juanito Abella, Edwin Balag, Rener Ramos, Dennis Santos, Erlinda Pabon and Erlinda Mangligot. The parties agreed to dispense with the testimony of Dr. Desiderio Moralida, whose autopsy reports on the victims were admitted by the defense. The witnesses who testified for the defense were Carmelita Aldaya, Lorelie Itucal, Armando Amba, Nilda Maravilla, Bernardo Itucal, Grace Guevarra and Rolando Dural.
4 On 31 August 1988, the trial court promulgated a decision finding the accused guilty as charged. The dispositive portion thereof reads as follows:

WHEREFORE, the prosecution having proven the guilt of the accused ROLANDO DURAL otherwise known RONNIE JAVELON and BERNARDO ITUCAL, JR. y BALDERAS beyond reasonable doubt, this Court finds both accused GUILTY of the crime of DOUBLE MURDER, qualified by treachery with ASSAULTS UPON AGENTS OF PERSONS IN AUTHORITY and hereby sentences each of them to suffer the penalty of double RECLUSION PERPETUA; to indemnify jointly and severally the heirs of the deceased T/Sgt. Carlos Pabon PC and CIC Renato Mangligot PC in the sum of P30,000.00 each as death indemnity; to pay Mrs. Erlinda Pabon the sum of P23,299.00 representing the amount she spent for the burial and wake of her husband T/Sgt. Carlos Pabon; to pay Mrs. Erlinda Mangligot the sum of P29,550.00 representing the expenses

she incurred for the wake and burial of her husband CIC Renato Mangligot; and to pay the costs. It appearing that both accused are detention prisoners, the period of preventive imprisonment they underwent shall be given full credit in their favor. SO ORDERED.
5

The evidence for the prosecution upon which the judgment of conviction is anchored is summarized by the trial court in this wise: Two prosecution eye witnesses (sic) Rener Ramos and Dennis Santos when presented to (sic) the witness stand corroborated each other's testimony more specifically on material points and testified that: "At about 12 o'clock in the afternoon of January 31, 1988 both of them (prosecution witnesses Rener Ramos and Dennis Santos) were at the Macaneneng Street in Bagong Barrio, Caloocan City as they were supposed to go a (sic) "tupadahan" however, they were not able to arrive at the tupadahan because while on their way or from a distance of twelve (12) arms-length they heard successive gunfires (sic) so they run (sic) and hid themselves in a concrete fence near a store; from the place they were hiding or from a distance of ten (10) arms-length they saw three (3) men each of them armed with .45 (sic) pistol, firing upon at (sic) the two Capcom soldiers on board a Capcom mobile car which was then on a full stop although its engine was still running; two of the gunmen positioned themselves beside each of the side of the mobile car while the third gunman whom they identified as accused Rolando Dural otherwise known as Ronnie Javelon (Dural for brevity) claimed the hood of the mobile car and positioned himself in front of the car; after the two Capcom soldiers were immobilized, the gunman standing near the driver's seat opened the left front door of the car and got the .45 (sic) service pistol and armalite of the Capcom soldiers; thereafter, the three gunmen left; during the shooting incident they also noticed the presence of two persons, one was inside an owner jeep while the other one whom they identified as accused Bernardo Itucal, Jr. (Itucal for brevity) was standing near the scene of the incident with one of his arm (sic) raised while one of his hand (sic) was holding a .45 caliber pistol; immediately after the three (gunmen) who fired at the Capcom soldiers left; (sic) the man who was riding on the owner jeep told accused Itucal that he was leaving and instructed Itucal to take care of everything; witness Dennis Santos even quoted the very word (sic) of the man on board the owner jeep Pare, bahala ka na diyan; after that, the accused Itucal walked away; two days after the incident or on February 3, 1988 eyewitnesses Ramos and Santos voluntarily went at (sic) the Capcom headquarters at Dagat-Dagatan, Caloocan City to narrate what they have witnessed, consequently the investigator brought them at (sic) the Capcom headquarters at Bicutan then at (sic) Camp Panopio Hospital; at the said hospital, they saw one of the three gunmen (referring to accused Dural) who shot the two Capcom soldiers; then they went back at (sic) Bicutan headquarters where they gave their respective statements (Exhs. "D" 6 and "E"). Both Itucal and Dural denied authorship of the crime charged and interposed the defense of alibi. The former, a student of the Guzman Institute of Technology at Rosario Street, Bagong Barrio, Caloocan City, claims that at about 12:00 noon of 31 January 1988, while he was eating inside his house at 63 Rosario Street, Bagong Barrio, Caloocan City, he heard gun reports and shouts and when he peeped through the window, he saw people running or scampering away. He and his sister Lorelie, wanted to go nearby Macaneneng Street from where the gun reports came, but they were not able to reach it because of the presence of many onlookers at the scene of the shooting incident. Before 12:00 noon or in the morning of 31 January 1988, he was at the Chapel conversing with some people there. Accused Rolando Dural, a.k.a. Ronnie Javelon, who admitted that his real name is Rolando Dural, testified thus: that he stayed in his sister's house at Block 10, Lot 4 South City Homes, Bian, Laguna from 29 November 1987 up to 31 January 1988; two (2) days before 1 February 1988, he told his sister, Agnes Javelon, that his stomach and chest were aching and although he was suffering for quite a long time, it was only on 1 February 1988 when he experienced severe pain; as a consequence, his sister got

in touch with Dr. Jeremias de la Cruz; the said doctor first brought him to the latter's clinic in Quezon City where his cyst was removed and his wound at the left side of his body was sutured; the he was brought to the St. Agnes Hospital where he was admitted under the name Ronnie Javelon for the reason that it was 7 his sister who will be shouldering his hospital bills and expenses. The trial court rejected the defense of alibi on the ground that eyewitnesses Rener Ramos and Dennis Santos, whose testimonies "were logical, straightforward and probable" and whose "credibility was not shaken in any manner by the rigorous examination to which they have been exposed," positively identified the accused. 8 It appreciated against the accused only the qualifying circumstance of treachery. Not satisfied with the lower court's decision, accused Dural and Itucal, hereinafter referred to as the 9 Appellants filed their notice of appeal on 1 September 1988. Appellants interpose the following assignment of errors in their Brief: 10 1 The lower court erred in finding conspiracy among and between the accused. 2 The lower court erred in giving weight to the testimonies of the prosecution's witnesses notwithstanding their inconsistencies on relevant and material points. 3 The lower court erred in not considering the defense of alibi interposed by both accused. 4 The lower court erred in not considering the illegality of the arres of both accused in favor of their defenses. 5 The lower court erred in considering the qualifying circumstance of treachery.
11

In the first assigned error, appellants challenge the trial court's finding that conspiracy existed among the accused, with Itucal acting as lookout. They allege that the evidence for the prosecution failed to establish that the appellants knew of the criminal intent of their alleged two (2) unidentified companions. The People maintains, however, that conspiracy was established by the presence of the appellants and their companions at the scene of the crime and their participation in the killing of the victims. Witnesses Ramos and Santos testified that they saw Dural go atop the hood of the CAPCOM car and fire a shot at one of the CAPCOM soldiers seated in the front seat. One Edwin Balag, a witness for the prosecution and a neighbor of Itucal, testified that he had witnessed the shooting of the CAPCOM soldiers and thereafter saw Itucal go atop the hood of the CAPCOM car 13 and shout "Mabuhay and Sparrow." A conspiracy exists when two (2) or more persons to an agreement concerning the commission of a felony and decide to commit it. 14 Direct proof is not essential to prove conspiracy, it may be shown by acts and circumstances from which may be logically inferred the existence of a common design among 15 the accused to commit the crime charged. It is sufficient that the malefactors shall have acted in 16 concert pursuant to the same objective. Confederacy was established beyond cavil in this case among appellant Rolando Dural, a.k.a.Ronnie Javelon, and the two (2) other gunmen. Armed with deadly weapons, they arrived together, each proceeding directly to a pre-assigned spot from where they suddenly and unexpectedly shot their victims. They then fled together toward the same direction after divesting the victims of their firearms. All these acts are eloquent proof of a common plan and design deliberately and carefully executed with precision through coordinated action. There is no doubt in Our minds as to the participation of appellant Dural the evidence for the prosecution sufficiently established his guilt with moral certainty. Appellant Itucal, however, deserves a different treatment. The trial court held him liable as a coconspirator because its finding that he acted as the look-out and was armed with a .45 caliber pistol. Our evaluation of the evidence yields factual foundation for such a finding. It is based on claims, bordering on speculation, of prosecution witnesses Rener Ramos and Dennis Santos that from what they saw, Itucal must have been a look-out. They did not categorically declared that Itucal was such. They only presumed or speculated that he was. The following is the testimony on direct examination of Rener Ramos: Q Now aside from the persons that you have mentioned firing at the soldiers inside the Capcom car, were there any other persons if any? xxx xxx xxx
12

A Yes, sir. Q What were they doing? A I saw two persons, sir, one was inside the owner jeep and the other one was sanding near the scene of the incident. Q How far was this owner jeep parked from the Capcom car? A More or less 2 to arms length (sic) away, sir. Q What about this other person whom you saw standing near the car, how far was he from the capcom car? A More or less two armslength (sic) away, sir. Q What was this person, standing near the car doing at the time? A He was standing there and he had his arm raised and one of his hand (sic) was holding a .45 caliber pistol. Q Will you tell us what was his participation in the killing? xxx xxx xxx A From what I saw, sir, he must have been the look-out. xxx xxx xxx Q Now, you said, where are these two persons that you have mentioned, the one you said was seated on the driver seat of the owner jeep and the one holding a 45 caliber firearm, which (sic) according to you acted as a look-out, if ever you will see them again would you be able to identify them? A Yes sir. Q Will you please look around the court room, and see if they are around, and if they are around please point to them? A Only is here (sic), sir. Q Please point to him? A That person, sir. (Witness pointing to prisoner on left, stood up and gave his name as Bernardo Itucal). Q Now, was he the one holding the firearm standing near the capcom car, mobile car, which refers (sic) to be the look out? A Yes sir. Q Now, after these three persons who actually fired upon the soldiers' car left, what did the other two do, if any? A The one who was riding at the owner jeep told the other person who was standing outside he was leaving the said person to take care of everything. Q To whom (sic) this person addressing?

A The person who was standing, sir, and holding the .45 caliber. Q You were referring to accused Bernardo Itucal? A Yes sir. Q And afterwards what happened? A The person who was carrying 45 pistol walked away, sir and we left, sir, because we fell (sic) nervous at that time, sir. 17 The pertinent portion of the direct testimony of Dennis Santos on the same point is as follows: Q Now, aside from these persons including Rolando Dural whom you saw firing their gun, were there other persons there aside from the three? A Yes sir, there were still other (sic). Q How many? A Two (2), sir. Q What were they doing at that time? A One was boaring (sic) a vehicle and he was sporting a violet standing near the basketball court and from what i saw he acted as a look out, sir. Q How far was this look out from (sic) the capcom car? A About two armslength away, sir. Q How about the owner jeep how far was it parked in relation to the capcom car? A The same distance, sir. Q What did that look out do if, any, that you have mentioned? A The person who was inside the owner jeep shouted in a loud voice and said, "Pare bahala ka na diyan." And the one who acted as a look out followed the three gunmen who entered Rosal Street, sir. Q Now, was this look out that you have mentioned armed at that time or not? A I did not notice, sir. Q If ever you will see this look out again would you able (sic) to identify him? A Yes, sir. Q Will you please look around the courtroom and see if he is inside, and if he is inside please point to him. A Witness pointing to the other prisoner stood up and gave his name as Bernardo Itucal. Q What about the driver of the said owner jeep is he inside the courtroom? A No, sir he was not present. 18

On cross-examination, Rener Ramos categorically admitted that it was only when the three (3) gunmen had swiftly walked away toward Rosal Street that he saw Itucal for the first time: Q In other words, there was only or it was only after the gunmen have fled that you were able to see Bernardo Itucal, isn't? Fiscal: That would be misleading, your honor. Not fled. xxx xxx xxx Q You stated awhile ago that after the gunmen have taken the 45 caliber and the armalite of the soldier, they ran away, isn't? A They walked away fast, sir. Q Away from the sight (sic) where the killing took place, isn't? A Yes sir, they were turning their heads towards a street (sic) Rosal. Q And it was at that point that you were saying that you saw Bernardo Itucal standing with a 45 on his hand and very near the incident, isn't? A Yes, sir. Q And this was the first time that you saw Bernardo Itucal, isn't? A Yes sir. 19 Dennis Santos also admitted on cross-examination that he saw Itucal for the first time only after the gunmen had left the scene, thus: Q You said that the look out was accused Bernardo Itucal, you have seen Bernardo Itucal only after the gunmen have went (sic) away from the scene of the incide (sic), isn't? A Yes sir.
20

and that the only basis for his belief that Itucal was the lookout was the following parting statement of the driver of the owner-type jeep addressed to Itucal: "Pare, bahala ka na diyan." Thus: Q Why did you say that, Mr. Witness, that Bernardo Itucal was a look out? A Because I heard the passenger of the owner jeep bid goodbye, sir, so I gathered that he was his companion and he remarked, "Pare, bahala ka na diyan." 21 If Itucal was the lookout, he had to come either ahead of or simultaneously with the gunmen. By the very nature of his duty or task, a lookout should not come to the scene of the crime after its consummation. There is absolutely no evidence that Itucal came ahead of or simultaneously with the gunmen; on the contrary, as shown above, he was seen for the first time only after the gunmen had walked away. That he was armed, which could have enhanced the prosecution's theory that he was a co-conspirator, was not likewise sufficiently proven. While Rener Ramos testified that he was, his companion, Dennis Santos, who similarly focused his eyes on Itucal and the others and witnessed almost everything that took place, did not notice any weapon in Itucal's possession. According to Rener Ramos, Itucal "had his arm raised and one of his hand (sic) was holding a 45 caliber pistol." If such were indeed the fact, Dennis Santos would not have failed to see it. That is not all to it. Another prosecution witness, Edwin Balag who even 22 testified that he had seen Itucal, his neighbor whom he had known for more than two (2) years, climb atop the hood of the CAPCOM car after the gunmen shot the soldiers and shout "mabuhay ang sparrow" did not state that Itucal was armed. 23 The prosecuting Fiscal did not attempt to extract any information or testimony to that effect from him. It was the court which asked the appropriate question after the re-

direct examination of Balag, but the witness categorically admitted that Itucal was not armed at that time, thus: COURT: Itucal was not armed at that time? A No, sir. 24 That Itucal shouted "mabuhay ang sparrow" and was told by the driver of the owner-type jeep: "Pare, bahala ka na diyan," do not conclusively prove that he was a co-conspirator in the absence of any evidence, as in this case, that he was a member of a subversive organization which operates the sparrow unit and that the driver of the owner-type jeep was also a co-conspirator. Even assuming for the sake of argument that he was a sympathizer of such a subversive organization, mere sympathy is not enough to prove his participation in the conspiracy. The parting statement of the driver of the owner-type jeep could be addressed to anybody at the scene and is susceptible of two (2) interpretations, one of which is inconsistent with the participation of Itucal either in the planning of the crime or in the execution of such plan. In the light of the presumption of innocence guaranteed by the Constitution, and in the absence of credible inculpatory evidence, that interpretation in his favor must prevail. While admittedly the alibi of Itucal is weak, the evidence of the prosecution against him is likewise feeble. The prosecution cannot use the weakness of Itucal's defense to enhance its case; it must rely on the strength of its own evidence. 25 And considering that Itucal's culpability could only be anchored on his participation in a conspiracy, such participation must be proved by clear and convincing evidence. The prosecution has failed to successfully discharge that burden in this case, leaving this Court unconvinced, due to reasonable doubt, of the guilt of Itucal. With the foregoing exposition, resolution of the second and third assigned errors is no longer necessary. However, for the satisfaction of accused Dural, let it be stated that the alleged inconsistencies in the testimonies of the prosecution witnesses as to whether there was a basketball game going on at the time the first gunfire was heard, who among the appellants climbed atop the hood of the CAPCOM car, and which of the two (2) written statements of Ramos and Santos were first made, refer to trivial or minor points. Settled is the rule that discrepancies on minor matters do not impair the essential integrity of the 26 prosecution's evidence as a whole or reflect on the witnesses' honesty. As a matter of fact, there is at all no inconsistency in the testimonies of the witnesses on the second issue. As correctly pointed out by the People, both appellants did in fact climb atop the hood. According to Ramos and Santos, Dural did so 27 and fired at one of the soldier seated in the front seat of the car. According to Balag, Itucal climbed atop the hood only after the three (3) gunmen had fired at their victims. 28 As to alibi, it is a fundamental juridical dictum that it cannot prevail over the positive identification of the accused.29 In the instant case, Dural was positively identified by the principal witnesses for the prosecution. It is equally settled that for alibi to prosper, it must not only be shown that the accused was at some other place at the time of the incident but that it was physically impossible for him to have been at the scene of the crime at the time of its commission. 30 This was not proven by Dural. The fourth assigned error is without merit. It is too late for the appellant to question the illegality of their arrests. The irregularity, if any, was cured when they submitted themselves to the jurisdiction of the trial 31 court by filing a petition for bail, entering a plea of not guilty and actively participating at the pre-trial and trial. Nor is there merit in the fifth assigned error. Per the testimonies of Rener Ramos and Dennis Santos, the victims, who had no opportunity to defend themselves as they were still inside the CAPCOM car which was still maneuvering, were shot at close range immediately after the three (3) gunmen, one of whom is appellant Dural, surrounded the car with each positioning himself, at pre-assigned spots, i.e., the left, right and front portions of the car. The autopsy reports 32 showed that both victims sustained gunshot wounds mostly in the head. The suddenness of the attack on the unwary victims and the simultaneous and coordinated gunfire trained at them insured the execution of the dead without risk to the gunmen arising from any defense which the victims might make. Treachery then attended the commission of the deed. The killing of the two (2) CAPCOM soldiers was thus qualified to murder under Article 248 of the Revised Penal Code. 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 direct and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. 33 There is no doubt in Our minds that appellant Dural and the two (2) other gunmen knew that the victims, T/Sgt. Carlos Pabon and CIC Renato Mangligot, were members of the Philippine Constabulary detailed with the CAPCOM as they were then in uniform and riding an official CAPCOM car. The victims, who were agents of persons in authority, were in the performance of official duty as peace officers and law

enforcers. For having assaulted and killed the said victims, in conspiracy with the other two (2) gunmen, appellant Dural also committed direct assault under Article 148 of the Revised Penal Code. The crimes he committed, therefore, are two (2) complex crimes of murder with direct assault upon an agent of a person in authority. Pursuant then to Article 48 of the Revised Penal Code, the maximum of the penalty for the more serious crime which is murder, should be imposed. The maximum of the penalty prescribed 34 for murder under Article 248 of the Revised Penal Code is death penalty, the proper imposable penalty would be reclusion perpetua. The trial court correctly imposed on appellant Dural two (2) penalties of reclusion perpetua. In conformity with the prevailing jurisprudence, the indemnity for each death shall be increased from P30,000.00 to P50,000.00. WHEREFORE, judgment is hereby rendered: (1) AFFIRMING, insofar as accused-appellant ROLANDO DURAL (also known as RONNIE JAVELON) is concerned, the Decision of Branch 131 of the Regional Trial Court of Kalookan City in Criminal Case No. C-30112, subject to the above modification of the death penalty. (2) ACQUITTING, on the ground of reasonable doubt, accused-appellant BERNARDO ITUCAL, JR.; and (3) Ordering accused-appellant ROLANDO DURAL (also known as RONNIE JAVELON) to pay one-half (1/2) of the costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-68969 January 22, 1988 PEOPLE OF THE PHILIPPINES, petitioner, vs. USMAN HASSAN y AYUN, respondent.

SARMIENTO, J.: This is a pauper's appeal of the decision of the Regional Trial Court of Zamboanga City, Ninth Judicial Region Branch XIII, dated January 25, 1984, which "finds the accused USMAN HASSAN y AYUN guilty beyond reasonable doubt as principal of the Crime of MURDER, and there being neither aggravating nor mitigating circumstance attending the commission of the crime, and pursuant to Paragraph No. 1 of Article 64 of the Revised Penal Code, hereby imposes upon the said accused the penalty of RECLUSION PERPETUA and all its accessory penalties; to indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the amount of P12,000.00 and to pay the costs." 2 Usman Hassan was accused of murder for stabbing to death Ramon Pichel, Jr. y Uro, 24, single, and a resident of Zamboanga City. 3 At the time of his death on July 23,1981, the deceased was employed as manager of the sand and gravel business of his father. On the other hand, Hassan was an illiterate, 154 year-old pushcart cargador. The quality of justice and the majesty of the law shine ever brightest when they are applied with more jealousy to the poor, the marginalized, and the disadvantaged. Usman Hassan, the herein accusedappellant, belongs to this class. At the time of the alleged commission of the crime, he was poor, marginalized, and disadvantaged. He was a flotsam in a sea of violence, following the odyssey of his widowed mother from one poverty-stricken area to another in order to escape the ravages of internicine war and rebellion in Zamboanga del Sur. In the 15 years of Hassan's existence, he and his family had to evacuate to other places for fear of their lives, six times. His existence in this world has not even been officially recorded; his birth has not been registered in the Registry of Births because the Samal tribe, to which he belongs, does not see the importance of registering births and deaths. Usman was convicted on the bases of the testimony of a lone eyewitness for the prosecution and the sloppiness of the investigation conducted by the police investigator, Police Corporal Rogelio Carpio of the Homicide and Arson Section of the Zamboanga City Police Station, who also testified for the prosecution. We rule that Usman Hassan's guilt was not proved beyond reasonable doubt and that Usman Hassan must, therefore, be set free. The lone eyewitness for the prosecution is Jose Samson, 24 years old when he testified, married, and a resident of Zamboanga City. On the day of the killing, he was employed at the sand and gravel business of the father of the deceased but was jobless at the time of his examination-in-chief on February 3, 1982. He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the evening of July 23, 1981; that he was a backrider in the motorcycle of Ramon when they went to buy mangoes at Fruit Paradise near the Barter Trade Zone in Zamboanga City that while he was selecting mangoes, he saw a person stab Ramon who was seated at his red Honda motorcycle which was parked about two or three meters from the fruit stand where he Samson) was selecting mangoes; that he saw the assailant stab Ramon "only once" and that after the stabbing, the assailant ran towards the PNB Building. When asked at the crossexamination if he knew the assailant, Samson said, "I know him by face but I do not know his name." 5 This sole eyewitness recounted the stabbing thus: "While Ramoncito Pichel, Jr. was holding the motorcycle with both of his hands, the assailant come from behind, held his left hand and stabbed him from behind on his chest while the victim was sitting on the motorcycle." He claimed that he was able to see the assailant because it was very bright there that Ramon was facing the light of a petromax lamp, and that all these happened in front of the fruit stand a distance of about 6 to 7 meters from the side of the road.
1

Samson described the assailant as wearing a white, short-sleeved t-shirt and maong pants, but "he did not see if the aggressor was wearing shoes," that the assailant stabbed Ramon with a knife but "he did not exactly see what kind of knife it was, and he did not see how long the knife was He said he brought the wounded Ramon to the Zamboanga City General Hospital in a tricycle. On cross-examination, Samson testified: xxx xxx xxx Q When you rushed Ramon Pichel, Jr. to the hospital you came to know that he was already dead, is that correct? A Yes, sir, I learned that he was already dead. Q In the hospital, were you investigated by the police? A They just asked the description of that person as to his attire and his appearance. Q And it was while in the hospital that you told them the description of the one who stabbed Ramon Pichel, Jr.? A Yes, Sir. Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La Merced? A Yes, sir, Q Can you recall what time was that? A I do not know what time was that. Q And it was all La Merced Funeraria that the police brought to you the accused? A... Q For Identification? A Yes, sir. Q And he was alone when you Identified him? A Yes he was alone. Q Aside from working with the Pichel family in their sand and gravel business, do you have any blood relationship with them? A Yes. sir. 6 (Emphasis supplied) xxx xxx xxx What comes as a surprise is that Samson's statement 7 which was taken only on July 25, 1981, two days after the stabbing, and sworn to only on July 27, 1981, also two days after it was taken, or four days after the killing, was never presented or mentioned by the prosecution at all. The information was practically forced out of Police Corporal Rogelio P. Carpio, a witness for the People, during his cross8 examination. The sworn statement contained the following questions and answers: xxx xxx xxx Q-14. What and please narrate it to me briefly in your own words, the incident you are referring?

A-14. While I was busy selecting some mangoes, I saw unidentified person whom I can recognize by face if seen again embraced my companion Ramon Pitcher Jr. while the latter was aboard his motorcycle parked within the area. That this person without much ado, and armed with a knife suddenly stabbed him (Ramon). That by coincidence to this incident, our eye met each other and immediately thereafter, he fled the area toward the Philippine National Bank (PNB). That this unidentified person was sporting a semi-long hair, dressed in White Polo-Shirt (Short sleeve), maong pants height to more or less 5'5, Dark Complexion. That as this unidentified person fled the area I immediately came to aid my companion, Ramon Pitcher, Jr., and rushed him to Zamboanga General Hospital, on board a Tricycle. That may companion (Ramon) did not whispered (sic) any words to me for he was in serious condition and few minutes later, he expired. Q-15. Was tills unidentified person was with companion when he attack (sic) Ramon Pitcher Jr.? A-15. He was alone Sir. Q-16. Can you really Identified (sic) this person who attacked and stabbed your companion, Ramon Pitcher, Jr., that evening in question? A-16. Yes, Sir, Q-17. Do you still remember that confrontation we made at the Office of La Merced Funeral Homes, wherein you were confronted with one Usman Hassan, whom this Officer brought along? A-17. Yes, Sir. Q-18. Was he the very person, who attacked and stabbed your companion, Ramon Pitcher, Jr.? A-18. Yes, Sir, he was the very person who attacked and stabbed my companion, Ramon Pitcher, Jr., that evening in question. Q-19. Why? A-19. Because his face and other physical appearance were fully noted by me and this I cannot forget for the rest of my life. Q-20. Before this incident, was there any altercation that had ensued while in the process of buying some mangoes in that area? A-20. None Sir. Q-21. Were you able to note what kind of knife used by said Usman Hassan in stabbing your companion, Ramon Pitcher Jr.? A-21: None Sir, Q-22. Well, I have nothing more to ask of you, do you have anything more to say, add or alter in this statement? A-22. No more Sir. Q-23. Are you willing to give a supplemental statement if needed in the future? A-23. Yes, Sir. (Emphasis supplied)
9

xxx xxx xxx The version of the sole eyewitness appearing in his statement 10 is substantially the same as that embodied in the "Case Report," Exhibit it "C", by Police Corporal Carpio, also admitted a s Exhibit "2." This exhibit for the prosecution confirms the sworn statement of witness Samson that an unidentified person, whom he recognized only by face, appeared and without any provocation, the latter embraced the victim and stabbed the same allegedly with a knife." The rest of the Case Report: is also significant in that it confirms the confrontation between the accused and Jose Samson in the funeral parlor arranged by the police Investigator and prosecution witness, Corporal Carpio. xxx xxx xxx From this end, a follow-up was made within the premises of the Old Barter Trade, wherein the person of USMAN HASSAN Y AYUN, of Paso Bolong, this City, was arrested in connection with the above stated incident. That this Officer and companions arrested this person Usman due to his physical appearance, which was fully described by victim's companion. Jose Samson. During his arrest, a knife, measuring to more or less seven (7) inches in blade was confiscated in his possession. The person of Usman Hassan was brought along at the La Merced Funeral Homes for a confrontation with victims companion, Jose Samson and in this confrontation, Jose Samson positively Identified said Usman Hassan as the very person who stabbed the victim. Usman Hassan, on the other hand, denied the charges levelled against hub and admitted ownership of said knife; claiming among other things that he used said knife for slicing mangoes. 11 xxx xxx xxx We hold that the evidence for the prosecution in its entirety does not satisfy the quantum of proof beyond reasonable doubt required by the Constitution, the law, and applicable jurisprudence to convict an accused person. The said evidence denies us the moral certainty which would allow us to pronounce, without uneasiness of conscience. Usman Hassan y Ayun guilty of the killing of the deceased Ramon Pichel, Jr. y Uro, and condemn him to life imprisonment and in effect turning him into a flotsam again in a sea of convicted felons in which he would be a very young stranger. In evaluating the worth of the testimony of the lone eyewitness for the prosecution against the denial and alibi of the accused, value judgment must not be separated from the constitutionally guaranteed presumption of innocence. When the evidence for the prosecution and the evidence for the accused are weighed, the scales must be tipped in favor of the latter. This is because of the constitutional presumtion of innocence the accused enjoys as a counter-foil to the awesome authority of the State that is prosecuting him. The element of doubt, if reasonable in this case, must operate against the inference of guilt the prosecution would draw from its evidence. That evidence, as it happens, consists only of the uncorroborated statement of the two policemen which, as previously 12 observed, is flawed and therefore suspect. The testimony of Jose Samson, the lone eyewitness, is weak and unconvincing. And so with the evidence sought to be introduced by Police Corporal Carpio. We discover, for example, that the expert testimony of the medico-legal officer of the National Bureau of Investigation, Dr. Valentin Bernalez, presented by the prosecution, contradicted, on material points, the testimony of the one eyewitness, Jose Samson. While Samson averred on the witness stand that he saw the assailant stab the deceased "from behind on his chest" 13 only once, the NBI medico-legal officer Identified two stab wounds, one at the front portion of the chest at the level and third rib, (sic) and another stab wound located at the left arm posterior 14 aspect." The same medical expert also concluded from the nature and location of the chest wound, which was the cause of death, that the same was inflicted on the victim while the alleged accused was in front of him." 15 The investigation of this case by the Homicide/Arson Section of the Zamboanga Southern Police 16 Sector, at Zamboanga City, particularly by Police Corporal Rogelio P. Carpio, leaves much to be desired. For one, we are not satisfied with the procedure adopted by the police investigators in the Identification of the accused as the assailant. We have no doubt that Usman Hassan was "presented" alone 17 to Jose Samson by the police investigator and prosecution witness, Police Corporal Carpio, and his police companions, at the office of the La Merced Funeral Homes in Zamboanga City. As correctly

termed by the very evidence 18 of the prosecution, the procedure adopted by the police investigators was a confrontation" between Jose Samson, Jr. and Usman. Earlier, on direct examination, Corporal Carpio testified that Usman was alone when he was brought to Samson for confrontation in the funeral parlor. However, on cross-examination, Carpio made a turnabout by saying that the accused was Identified by Samson in a "police line-up;" this tergiversation we dare say, was an afterthought, more the result of an over or careless cross-examination, augmented by the leading questions 19 of the trial judge rather than a fastidiousness if not sincerity, on the part of the police investigator, to honestly correct erroneous statements in his examination-in-chief. The fact remains that both Samson and the accused testified clearly and unequivocably that Usman was alone when presented to Samson by Carpio. There was no such police line-up as the police investigator, to honestly correct erreoneous statements in his examination-in-chief. The fact remains that both Samson and the accused testified clearly and unequivocably that Usman was alone when presented to Samson by Carpio. There was no such police investigator claimed on second thought. The manner by which Jose Samson, Jr. was made to confront and Identify the accused alone at the funeral parlor, without being placed in the police line-up, was "pointedly suggsestive, generated confidence where there was none, activated visual imagination, and, all told, subserted his reliability as eyewitness. This unusual, coarse, and highly singular method of Identification, which revolts against the accepted principles of scientific crime detection, alienates the esteem of every just man, and commands neither our respect nor acceptance." 20 Moreover, the confrontation arranged by the police investigator between the self-proclaimed eyewitness and the accused did violence to the right of the latter to counsel in all stages of the investigation into the commission of a crime especially at its most crucial stage the Identification of the accused. As it turned out, the method of Identification became just a confrontation. At that critical and decisive moment, the scales of justice tipped unevenly against the young, poor, and disadvantaged accused. The police procedure adopted in this case in which only the accused was presented to witness Samson, in the funeral parlor, and in the presence of the grieving relatives of the victim, is as tainted as an uncounselled confession and thus falls within the same ambit of the constitutionally entrenched protection. For this infringement alone, the accused-appellant should be acquitted. Moreover, aside from this slipshod Identification procedure, the rest of the investigation of the crime and the preparation of the evidence for prosecution were done haphazardly, perfunctorily, and superficially. Samson was not investigated thoroughly and immediately after the incident. As previously mentioned, his statement was taken by the investigator only two days after the murder of Ramon Pichel, Jr. and sworn only two days after it had been taken. Similarly, there is nothing in the record to show that the fruit vendorfrom whom Samson and the deceased were buying mangoes that fateful evening and who certainly must have witnessed the fatal stabbingwas investigated, or why he was not investigated. Nor is any explanation given as to why the companion 21 of the accused at the time Corporal Carpio arrested him (accused) 'sitting on a pushcart " 22 at about 8:00 P.M. (around 7:00 P.M., according to Usman) of that same evening near the scene of the crime, was not also investigated when he could have been a material witness of the killing or of the innocence of the accused. In addition, the knife and its 23 scabbard, Confiscated by Carpio from Usman (tucked on the right side of his waist") at the time of his arrest, were not even subjected to any testing at all to determine the presence of human blood which could be typed and compared with the blood type of the deceased. A crime laboratory test had Carpio or the prosecuting fiscal, or even the trial judge, insisted on it would have revealed whether or not the knife in question (confiscated from the accused by Carpio one hour after the alleged commission of the crime) had indeed been the weapon used to kill Ramon. The police investigator instead nonchalantly dismissed this sin of omission by saying that the knife could have been cleaned or the bloodstain could have been taken away. 24 This presumption of the deadly weapon's having been "cleaned" of bloodstains is tantamount to pronouncing the accused of being guilty. Our doubt about the guilt of the accused is further deepened by a resolution, 25 in a separate case, 26 of Assistant City Fiscal of Zamboanga City and deputized Tanod bayan Prosecutor Pablo Murillo, which clearly reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr., a similar stabbing took place at Plaza Pershing near the place of the earlier incident, with the suspect in that frustrated homicide case being a certain Benhar Isa, 'a notorious and a deadly police character" in Zamboanga City, with a long record of arrests. In that resolution, Fiscal Murillo said the same Benhar Isa was tagged as 'also a suspect in the stabbing of Ramon Pichel, Jr. to death and the stabbing of Pastor Henry Villagracia at the Fruit Paradise, this City." The said resolution further states that "with regards to this incident or witnesses ever testified for fear of possible reprisals." 27 The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself was killed by a policeman on August 28, 1981, while he (Isa) "was apparently under the influence of liquor armed with a knife (was) 28 molesting and extorting money from innocent civilians' and "making trouble." The records of the case at bar do not show any attempt on the part of Corporal Carpio, or any other police officer, to investigate or

question Benhar Isa in connection with the killing of Pichel, Jr. Was it fear of the notorious police character that made the police officers disregard the possible connection between the slaying of Ramon and that of the person (Harun Acan y Arang of the Ministry of National Defense) 29 who was allegedly stabbed by Benhar Isa a day after the killing of Ramon Jr.? And yet questioning Isa might have provided that vital link to the resolution of Usman's guilt or innocence. But why should the police officers investigate Isa when Usman Hassan was already in custody and could be an available fall guy? Usman Hassan, instead, became a victim of a grave injustice. Indeed, Usman Hassan is too poor to wage a legal fight to prove his innocence. And he is so marginalized as to claim and deserve an honest-to-goodness, thorough, and fair police investigation with all angles and leads pursued to their logical, if not scientific, conclusions. Sadly circumstanced as he is, the authority of the State was too awesome for him to counteract. The appealed decision made much ado of the admission by Usman "that he was arrested at the former 30 barter trade, which is a place just across the place of the stabbing at the Fruit Paradise." The trial judge found it "therefore strange that on the very evening of the stabbing incident he was still at the barter trade area by 8:00 o'clock in the evening when he usually comes to the city proper at about 6:00 o'clock in the 31 morning and goes home at past 5:00 o'clock and sometimes 6:00 o'clock in the afternoon." Usman's explanation that, at around 7:00 o'clock P.M., he was waiting for transportation to take him home was found by the trial court as 'flimsy and weak since he did not explain why he had to go home late that evening." 32 But the whole trouble is nobody asked him. The trial judge did not propound any single question to the accused, and only three to his mother on innocuous matters, by way of clarification, if only to put on record what the mother and son could articulate with clarity. Taking into account their poverty and illiteracy, the mother and son needed as much, if not more, help, than the trial judge extended to the prosecution witnesses during their examination by asking them clarificatory and mostly leading questions. In that sense and to that extent, the accused was disadvantaged. A fact that looms large, though mutely to testify on the innocence of the accused but the importance of which was brushed away by the trial judge was the presence of the accused near the scene (about 100 to 150 meters away) soon after the stabbing (he testified at around 7:00 P.M. although Police Corporal Carpio stated it was 8:00 P.M.) where he was found sitting on his pushcart with a companion. If he were the assailant, he would have fled. But the trial court instead indulged in conjecture, foisting the probability that the accused 'was lulled by a false sense of security in returning to the place (of the stabbing), when no police officers immediately responded and appeared at the scene of the crime," adding 'there are numerous cases in the past where criminals return to the scene of their crimes, for reasons only 33 psychologist can explain." It must have escaped the trial court's attention that Usman has no criminal record, and, therefore, he could not be generally classed with criminals. In the second place, the trial court's rationalization ignores the biblical truism recognized by human nature and endorsed with approval by this Court that "(T)he wicked flee when no man pursueth but the righteous are as bold as a lion." 34 And now as a penultimate observation, we could not help but note the total absence of motive ascribed to Usman for stabbing Ramon, a complete stranger to him. While, as a general rule, motive is not essential in order to arrive at a conviction, because, after all, motive is a state of mind, 35 procedurally, however, for purposes of complying with the requirement that a judgment of guilty must stem from proof beyond reasonable doubt, the lack of motive on the part of the accused plays a pivotal role towards his acquittal. This is especially true where there is doubt as to the Identity of the culprit 36 as when 'the Identification is 37 extremely tenuous," as in this case. We can not end this travail without adverting to the cavalier manner in which the trial court disregarded the claimed young age of Usman Hassan. The defense claims that the accused Usman Hassan is a minor, basing such claim on the testimony of Lahunay Hassan, the mother of said accused, who declared that her son Usman Hassan, who is one of her four (4) children, was born in the year 1967. She testified that she was just told by a person coming from their place about the year of the birth of her son Usman. However on cross-examination, Lahunay Hassan cannot even remember the date or year of birth of her other children. The failure of Lahunay Hassan to remember the date or year of birth of her children is of course understandable, considering that she is unschooled and she belongs to a tribe that does not register births, deaths or marriages, however, it is strange that she only took pains to find out the year of birth of her son Usman. For this reason, the Court granted a motion of the defense on September 13, 1982, to have the herein accused examined by a competent dentist to determine his age. However, the findings of the dentist of Zamboanga General Hospital which is marked as Exhibit "5" shows the following: "age cannot be determined accurately under present mouth conditions. Approximately, he can be from 14 to 21 years of age." This simply means that the herein accused could either be 14 years of age or 21 years of age, or any age in between those aforestated years. From the observation of this court, the accused Usman Hassan was about 18 years of age at the time he committed

this crime and this observation is based on his personal appearance, his size and facial features and other personal characteristics, hence he can not be classified as a youthful offender under Article. 189 of Presendential Decree No. 603, as ammended by Presedential Decree No. 1179. In the case of U.S. vs. Mallari, 29 Phil. 13 and People vs. Reyes and Panganiban, CA 48 O.G. 1022, cited in the Edition, Page 680, it was ruled by the Supreme Court that "In cases where the age of the culprit is at issue as a basis for claiming an exempting mitigating circumstance, it is incumbent upon the accused to establish that circumstance ad any other elements of defense. 38 Considering that the age of the accused could exempt him from punishment or cause the suspension of his sentence under Articles 12 and 80, respectively of the Revised Penal Code, if found guilty, more meticulousness and care should have been demanded of medical or scientific sources, and less reliance on the observation of the judge as had happened in this case. The preliminary findings of the dentist that the accused could be anywhere between fourteen to twenty one years, despite the difficulty of arriving at an accurate determination due to Hassan's mouth condition, would have placed the trial judge on notice that there is the probability that the accused might be exempted from criminal liability due to his young age. All the foregoing indicates that the accused had not been granted the concern and compassion with which the poor, marginalized, and disadvantaged so critically deserve. It is when judicial and police processes and procedures are thoughtlessly and haphazardly observed that cries of the law and justice being denied the poor are heard. In any event, all this would not be of any moment now, considering the acquittal of the accused herein ordered. WHEREFORE, the decision is hereby REVERSED, and the accused Usman Hassan y Ayun is ACQUITTED of the crime charged. His release from confinement is hereby Ordered, unless he is held for another legal cause. With costs de oficio. SO ORDERED. Yap (Chairman), Paras and Padilla, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-41462 April 15, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REMY DIO, accused-appellant. The Solicitor General for plaintiff-appellee. Efrain B. Treas for accused-appellant.

MELENCIO-HERRERA, J.: Originally, this was an appeal by the three accused. Remy Dio, Jose Dequito and Salvador Dequito from the Decision of the then Court of First Instance of Iloilo , Branch III, finding each of them guilty of three (3) crimes of Rape with Homicide and sentencing each one to three (3) penalties of reclusion perpetua; to indemnify the heirs of Melinda Boglosa, jointly and severally, in the sum of P12,000.00; and to pay the costs. On November 26, 1985, accused Salvador Dequito and Jose Dequito filed an Urgent Motion to Withdraw Appeal, which was granted by the Court, and entry of judgment in their respect was made on December 13, 1985 (p. 172, Rollo). The evidence for the prosecution is summarized in the People's Brief, thus: Jose and Salvador, both surnamed Dequito, Remy Dio and one Melinda Boglosa were all from the barrio of Tambuelan, Municipality of Dumangas, Iloilo (p. 7, tsn, May 3, 1974). On November 13, 1973 at about noontime, while Roberto Dumancas, a ten-year old boy and a relative of Remy Dio was herding his carabao in a ricefield situated at Sitio Sapa, Barrio Tambuelan, Municipality of Dumangas, Iloilo, he saw Jose and Salvador Dequito and Remy Dio at about a distance of fifty (50) meters away (pp. 5, 6, 17, 26, tsn, May 3, 1974). Shortly after, Roberto Dumancas saw Melinda Boglosa come along (pp. 8, 27, tsn, May 3, 1974). As Melinda neared the group, Salvador Dequito suddenly pulled her down which caused both of them to fall on the rice paddy (p. 8, tsn, May 3, 1974). Remy Dio held the hands of Melinda, while Jose Dequito, held her legs (pp. 8, 9, tsn, May 3, 1974). Thereafter, Salvador Dequito took off his pants and underwear and went on top of Melinda and had carnal knowledge of her (p. 9, tsn, May 3, 1974). Jose Dequito and Remy Dio then took turns ravishing Melinda Boglosa (pp. 11, tsn, May 3, 1974). When the three were through with their beastly act, Salvador Dequito choked Melinda Boglosa and with an engine cranker, struck her on the forehead (pp. 12, 14, t.s.n, May 3, 1974). Then the three dragged Melinda Boglosa and pushed her head on the ground which was knee-deep with water. She was later found dead (p. 14, tsn, May 3, 1974). It appears that at the start of the above-described incident, Roberto Dumancas sought cover behind some talahib from where he witnessed the incident in its entirety (p. 15, tsn, May 3, 1974). After the incident, Roberto Dumancas returned to his carabao, which was a meter away from where he was hiding (p. 15, tsn, May 3, 1974), and then went home. He told a relative named Fe of the incident he had witnessed (pp. 16, 18, 27, tsn, May 3, 1974). Days after the incident, Roberto Dumancas was brought by a PC soldier to Barotac, Nuevo Iloilo where he was investigated regarding the incident (pp. 18, 19, 29, tsn, May 3, 1974). Afterwards, he was brought to Fort San Pedro, Iloilo City, headquarters of the

Philippine Constabulary where he signed a statement (p. 19, tsn, May 3, 1974; Exh. "A" p. 55, Records). Remy Dio also gave a written statement on November 19, 1973, before PC Soldier Ismael Suyo confessing his participation in the crime as well as those of his companions, Salvador and Jose Dequito (pp. 83, 84, 87, tsn May 30, 1974; p. 9, tsn, May 31, 1974; Exh. "C" p. 57, Records). The said confession was sworn to and subscribed before Atty. Salvador Solis, Assistant Clerk of Court of the Court of First Instance, Iloilo (p. 75, tsn, May 30, 1974; pp. 42, 45, 46, tsn, May 31, 1974). (pp. 2-4, Brief for the Appellee). The Necropsy Report of the NBI Medico-Legal Officer gave the following: Post Mortem Findings: Height148 cms. Weight115 lbs. Well developed, healthy victim, froth with blood coming out of both nostrils, around 22 hours dead. WOUND 1 -1/2 cms. x 0.2 cms. 75 degrees perpendicular to the left, right side neck, 128 cms. from the heel of the feet right, 7 cms. from the median line, at the level of hyoid bone of the neck. GENITALIAHymen-laceration, deep at 3:00 blood coming out from the site. Vaginal, filled with viscid, albuminous fluid with faint grayish-yellow color, having the characteristic of fishy odor. MICRO-CHEMICAL EXAMINATION OF THE FLUID CONTENT OF THE VAGINA 1. Positive for seminal fluid 2. Positive for spermatozoa CONCLUSION 1. Sexually abused 2. Died of asphyxia by strangulation and drowning. On the other hand, the evidence for the accused-appellant, Remy Dio, as narrated in his Brief, reads in full as follows: ... the Lower Court found the evidence for the accused Remy Dio which consisted of the testimonies of the following witnesses: Marcelino Dequito, 62 years old, a fishpond watcher and resident of Barrio Tambuelan, Dumangas, Iloilo testified that he knows the accused Remy Dio and the two other accused Salvador Dequito and Jose Dequito since they were small. In the morning of November 13, 1973, he saw Remy Dio in the house of Dominic Doronilla, which was near his house, together with other persons and they were singing. Before lunch on that day, Remy Dio went to his house and he told him to wait for his father (Remy's father) who was arriving from Barotac, Nuevo, Iloilo after lunch and he would be bringing some ice and also to borrow the carabao and cart of Violeta Donguila so that he can load the ice on it to bring it to the fishpond as they were harvesting fish that evening. Remy left to go to the house of Violeta which was also near by and later had lunch at his, house and came back while they were having lunch. In his house then was living an American Peace Corps by the name of Kathleen Hustace. After lunch that day, she (Kathleen) and Remy Dio fed the birds.

After lunch, he (Marcelino Dequito) left for his farm which was about one-half kilometer away and when he left his house he still saw Remy and Kathleen feeding the birds. While going to his farm he saw Simon Dequito who was calling for him and when he went to the place where he was standing, he saw that there was a body of a girl and they both helped each other to place the body on the rice paddy in order to revive her as she was still warm but they found that she was already dead. Simon Dequito called for help from the neighborhood while he went back to the barrio to inform Teopisto Dumayas, the Barrio Captain. The Barrio Captain then requested somebody to inform the authorities in the Poblacion, while he went to his house to rest and later on he went to the fishpond as they were going to harvest fish that evening. In the fishpond he saw the accused Remy Dio, who was then there and who brought the ice together with his father. They harvested the fish that evening and they, together with Remy Dio returned to the barrio the next day (t.s.n., pp. 117-151; Sept. 12, 1974). The next witness Kathleen Hustace testified that she was an American Peace Corps assigned to the Philippines. She arrived in the Philippines in August, 1973 and in the Barrio of Tambuelan, Dumangas, Iloilo in September, 1973. In Barrio Tambuelan, she stayed at the house of Marcelino Dequito (who testified before her). She knows Remy Dio and in the morning of November 13, 1973, she saw Remy in the house of Dominic Doronila, which was nearby, singing with other boys. After lunch, she and Remy Dio fed the birds and a little before one o'clock she went up the house to change and left afterwards as she had an appointment (t.s.n., pp. 151-197; September 12, 1974). The third witness was the accused Remy Dio who testified that he is one of the accused in this case. That in the morning of November 13, 1973, he, together with other boys were singing at the house of Dominic Doronila. Later he went to the house of Marcelino Dequito, which was also nearby and Marcelino told him to borrow the carabao and cart of Violeta Donguila as his father was arriving from Barotac Nuevo, Iloilo, after lunch with the ice which they were going to use to freeze the fish they were going to harvest that evening, and he and his father were supposed to load the ice in said cart to bring it to the fishpond. Because of said request of Marcelino, he borrowed the carabao and cart of Violeta and then went to his house for lunch. After lunch, he went back to the house of Marcelino and found them still having lunch. After lunch, he and Kathleen Hustace, an American Peace Corps living in the house of Marcelino Dequito fed the birds until a little before one o'clock when Kathleen went upstairs to change and later left. In the meantime, he waited for his father who later on arrived at around two o'clock in the afternoon in a tricycle from Barotac Nuevo, Iloilo, with the ice which they loaded in the cart of Violeta and which they brought to Palok Bigki, a distance of about one and a half kilometers away, there to be unloaded and brought to the fishpond by boat. Thereafter, he returned the carabao and cart to Violeta and returned to Palok Bigki and helped his father load the ice to the boat and brought it to the fishpond to be used in the harvest of the bangus fish that evening. That evening he was in the fishpond together with his father, Marcelino Dequito and others harvest bangus and returned to the barrio only the next morning. On November 18, 1973 he was arrested by two PC soldiers, one of whom he came to know as Sgt. Ledesma, together with Salvador Dequito and they were brought to the PC Detachment at Barotac Nuevo, Iloilo at around 10:00 o'clock in the morning of the said date. In the evening they were investigated by Sgt. Ybarzabal in connection with the rape and death of the said girl by the name of Melinda Boglosa but he vehemently denied having anything to do with it. Because of his denial, he was boxed, pushed and kicked by the PC soldiers who wanted him to admit that he committed the crime but he continued to deny that he had any connection with the same.

His companion Salvador Dequito was also investigated. After he was investigated he was set out of the room and told by Sgt. Ledesma to run but he did not run and embraced Sgt. Ledesma as he was afraid to run because he might be shot; on the contrary he insisted that he did not commit the crime that they wanted him to admit. In the next morning he was brought to the PC stockade at Fort San Pedro, Iloilo City where he was again investigated and maltreated and because of the maltreatment he was forced to sign a document that which he was told, if he will sign he will be released. While he was being investigated his companion Salvador Dequito was in the same room and later on investigated and maltreated by the PC soldiers. The next morning, he was brought to the Provincial Building before Atty. Salvador Solis of the Clerk of Court, who notarized his signature. He was afraid to complain to Atty. Solis about the maltreatment as he was accompanied by PC soldiers who warned him not to tell anybody what happened to him; thereafter, he was returned to the PC Stockade where he stayed for about three months where he was transferred to the Provincial Jail. When he was transferred to the Provincial Jail he became ill because of the maltreatment and in fact he was sent several times to the Provincial Hospital as he was spitting blood because of his maltreatment. He categorically denied having to do with the rape and killing of Melinda Boglosa (t.s.n., pp. 163-197; October 8, 1974) and his testimony was corroborated by Salvador Dequito who later on testified of the maltreatment that they suffered from the PC soldiers (t.s.n., pp. 2-20; August 2, 1974; t.s.n., pp. 119-137, October 9, 1974). Thereafter, the three accused presented Teopisto Dumayas, a Barrio Captain of Barrio Tambuelan, Dumangas, Iloilo who testified that after he came to know of the maltreatment of the three accused, the barrio captain and Barrio Council of Barrio Tambuelan, Dumangas, Iloilo, filed a petition, dated December 8, 1973, Exh. "I," addressed to the Provincial Commander complaining of said maltreatment but no action was done on the matter (t.s.n., pp. 19-23; October 29, 1974). The next witness Simon Dequito testified that he knows the accused Remy Dio as well as the other accused since they were small. Remy Dio was in his house in the morning of November 13, 1973 but he (Simon Dequito) left the house after lunch to go to his farm around one (1) kilometer away situated at Sitio Sapa, Barrio Tambuelan, Dumangas, Iloilo, which was planted with palay. It was raining in the morning and when he reached his farm he saw a body lying on the rice paddy. He looked around and saw Paquita Cagison and Marcelino Dequito and he shouted and waved at them to come. When Marcelino arrived he pulled out the head of the victim because the head was submerged in the mud and then Marcelino Dequito helped him to put the body on the top of the rice paddy. As the body was still warm they put her on her side as she might still be alive and the water might come out. He did not then recognize the victim. Later he went to the house of Nicanor Divinagracia which was nearby if they recognized the victim but they did not recognize the deceased. Marcelino Dequito on the other hand went to notify Teopisto Dumayas, the Barrio Captain. Later Teopisto Dumayas, the Barrio Captain arrived and still later the police also arrived. He further stated that he did not request the accused to plow that morning of November 13, 1973 because it was raining and there was deep water in his field (t.s.n., pp. 73-117, Sept. 9, 1974). Dr. Ricardo Jaboneta, medico legal officer of Iloilo City also testified that from his opinion as medico legal officer it is impossible to determine from a specific type of the semen whether it came from two or more persons (t.s.n., pp. 225-247; November 19, 1974). (pp. 5-12, Brief for Accused-Appellant Remy Dio) In this appeal, appellant Remy Dio makes the following Assignments of Error: I. The lower Court (through the Honorable Judge Numeriano G. Estenzo) erred in deciding the case without the transcript of stenographic notes of the testimony of all the accused and their witnesses having been transcribed as he (Judge Estenzo) did not hear the testimony of the witness as all the witnesses (both the prosecution and accused) testified before then Judge Castrense C. Veloso but whose resignation was accepted by the President before he can decide the case.

II. The lower Court likewise erred in giving weight and credence to the unreliable testimony of prosecution witness Roberto Dumancas. III. The lower Court also erred in admit the alleged confession of the accused Remy Dio (Exh. "C") and in not finding the same as secured through force and intimidation. IV. The lower Court further erred in not considering the defense of the accused Remy Dio and in not believing the testimony of Kathleen Hustace, a peace corps assigned in the barrio of the accused, that she and Remy Dio were together at the time the alleged crime was committed. V. The lower Court finally erred in convicting the accused Remy Dio of the crime of rape with homicide and imposing three (3) penalties of reclusion perpetua. The errors assigned are bereft of support from the evidence on record. 1. It is a fact that all the witnesses, both of the prosecution and the defense testified before then Judge Castrense C. Veloso whose resignation, however, was accepted by the President before he could decide the case. It was Judge Numeriano G. Estenzo, assigned temporarily to preside over Branch III, who eventually rendered the Decision on June 30, 1975. Notwithstanding that circumstance, There is no provision of law which would preclude a Judge of the Court of First Instance from deciding a case on the basis of the oral and documentary evidence presented before the first judge who resigned from the service without deciding the case, which oral evidence was taken by a stenographer and was produced before the second judge. This rule is rooted in practical considerations. Sometimes it is an impossibility for the judge who tried the case to be the same judicial officer to decide it. The judge who tried the case may die, resign or retire from the bench before he could render judgment thereon. In that case, We find no legal impediment to his successor's continuing with the trial or rendering judgment on the basis of the evidence submitted if the trial has been terminated. It is sufficient that in such circumstances the judge, in deciding the case, must base it completely on the cold record before him, in the same manner as appellate courts when they review the evidence of the case raised to them on appeal. (Villanueva vs. Estenzo, No. L-30050, June 27, 1975, 64 SCRA 407) While it may be that not all of the stenographic notes had been transcribed at the time the judgment was prepared, the more crucial ones were before the lower Court. Besides, the separate memoranda of the three accused, particularly that of Remy Dio, summarized the major testimonies of witnesses for both the prosecution and the defense and contained an exhaustive discussion of the facts of substance essential to the defense of the respective accused. Thus, it was on the basis of the evidence of both the prosecution and the defense, with reference to stenographic notes when called for, that Judge Estenzo rendered his Decision. 2. No error was committed by the Court in giving weight and credence to the testimony of the only prosecution eyewitness Roberto Dumancas, a ten-year old boy. He had positively identified appellant Remy Dio as one of the malefactors. The error committed in identification of the two other accused was because he did not know them by their full Christian names but only by their nicknames. He had also described clearly and straigthforwardly the particular acts performed by each accused in the commission of the crime. That said witness was familiar with the three accused cannot be doubted, all three being from the same barrio as the witness himself. Roberto's failure to inform his parents of the incident is not "contrary to human conduct," as claimed. He could have been too shocked at what he had witnessed, or he may have had certain inhibitions. He did reveal the incident, however, to a relative "Fe," also from the same barrio, on the same day of the incident (t.s.n., p. 28, May 3, 1974). Roberto's age should not militate against his competence, the records of the proceedings showing that the Court found him a reliable and trusthworthy witness who was fully cognizant of the importance of an oath and of the significance of telling the truth (Decision, pp. 14 & 15). 3. The extra-judicial confession of appellant Remy Dio, executed on November 19, 1973, is challenged on the ground that the same was secured through force and intimidation. It narrated in detail how, when the victim passed by the rice paddies at about 1:00 o'clock P.M., more or less, of November 13, 1973, she was "immediately caught by Badong (Salvador Dequito) and he then kissed her;" that appellant

himself took hold of her two arms; and thereafter the three of them (Salvador Dequito, Alex Dequito and he) took turns in having carnal knowledge of the victim; that appellant did so only once; that the victim was strangled by Salvador so that "she cannot inform the authorities;" and that only the three of them did "the raping and killing of Miss Melinda Boglosa." While the evidence negates that the confession was extracted by force and intimidation, nevertheless, having been obtained after the effectivity of the 1973 Constitution on January 17, 1973, it is inadmissible in evidence, as the accused was not clearly and unequivocally informed of his constitutional rights to remain silent and to counsel, in violation of the prescribed safeguards in Section 20, Article IV of the 1973 1 Constitution. The confession was merely prefaced with the perfectory statement that "the one making a sworn statement was informed of his right under our Constitution and the reason for this investigation," without more. Be that as it may, the testimony of the sole eyewitness, Roberto Dumancas, sufficiently establishes the guilt of appellant, which testimony is corroborated in its material aspects by the postmortem findings and the testimony of the medico-legal officer in respect thereto. 4. No error was committed by the lower Court in not giving credence to the testimony of Kathleen Hustace, a Peace Corps volunteer assigned in the barrio where the crime was committed. She testified that at about the time the crime was perpetrated, she and Remy Dio were together feeding birds. Even granting it to be so, that does not exclude the possibility that Remy Dio could have slipped out either before or after the feeding of the birds in order to commit the crime. Kathleen herself testified that she had to leave around 1:00 P.M. of that fateful day in order to make an appointment. To establish alibi, an accused must show that he was at some other place for such a period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission (People vs. Urgel, No. L-34861, February 25, 1985, 134 SCRA 483). In this case, the place where Kathleen Hustace and Remy Dio were feeding the birds was in the same barrio where the crime was perpetrated. 5. The lower Court correctly rendered a verdict of guilty. The elements of rape that of having carnal knowledge of a woman by using force and depriving her of consciousness are indubitably present. Eyewitness Roberto Dumancas testified that while he was herding his carabao, he saw the victim approaching from a distance; suddenly Salvador Dequito pulled her down causing them both to fall to the ground; appellant Remy Dio then held the hands of the victim while Jose Dequito held her two legs; thereafter Salvador Dequito took off his pants and underwear and had carnal knowledge of the victim; and that thereafter, Jose Dequito and Remy Dio took turns abusing her. The elements of the crime of Homicide are likewise attendant namely, that a person is killed; that the accused are the authors of the killing without justifiable reason; and that the accused had the intention to kill, which is usually the case when death results because the law presumes that they had intended the material consequences of their unlawful act. Citing again from the testimony of Roberto Dumancas, he declared that when the three accused were through abusing the victim, Salvador Dequito choked her, and with an engine cranker, struck her on the head; subsequently, the trio dragged the victim and pushed her head into the rice paddy, which was knee-deep with water. The medico-legal officer corroborated this testimony in his Necropsy Report where he disclosed that the victim had been abused and that she died as asphyxia by strangulation and drowning. The fact that said officer found no wound on the forehead does not necessarily imply that the victim was not so struck as a gaping wound need not necessarily have resulted. Finally, the three penalties of reclusion perpetua were properly imposed. It is evident that conspiracy attended the perpetuation of the crime of Rape with Homicide by the three accused. By their contemporaneous acts it was evident that they were acting in concert and pursuing the same objective and design that of raping the victim and killing her. The act of one is the act of all and each of the conspirators must be held liable for each of the felonious acts committed in conspiracy (People vs. Beltran, Nos. L-37168- 69, September 13, 1985, 138 SCRA 521). The penalty should, in fact, be death since by reason or on the occasion of the rape, a homicide was committed (Article 335, Revised Penal Code), but with the abolition of the death penalty in the 1987 Constitution, the imposable penalty would be reclusion perpetua just the same. So that, instead of three (3) death penalties, the accused Remy Dio should suffer three (3) penalties of reclusion perpetua. WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to the heirs of the victim, Melinda Boglosa, is hereby increased to P20,000.00. With one-third (1/3) of the costs against accused-appellant, Remy Dio.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-33964 December 11, 1971 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners, vs. BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent. G.R. No. L-33965 December 11, 1971 ROGELIO V. ARIENDA, petitioner, vs. SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY, respondents. G.R. No. L-33973 December 11, 1971 LUZVIMINDA DAVID, petitioner, vs. GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C. CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN PONCE ENRILE in his capacity as Secretary, Department of National defense, respondents. G.R. No. L-33982 December 11, 1971 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E. PRUDENTE FELICIDAD G. PRUDENTE, petitioners, vs. GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents. G.R. No. L-34004 December 11, 1971 IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF GERARDO TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association,petitioner, vs. BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY, respondent. G.R. No. L-34013 December 11, 1971 REYNALDO RIMANDO, petitioner, vs. BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent. G.R. No. L-34039 December 11, 1971

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT. FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C. RABAGO, in his capacity as President of the Conference Delegates Association of the Philippines (CONDA),petitioner, vs. BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent. G.R. No. L-34265 December 11, 1971 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR. ANTOLIN ORETA, JR.,petitioner, vs. GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents. G.R. No. L-34339 December 11, 1971 GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner, vs. GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et al., respondents. Ignacio P. Lacsina for petitioners Teodosio Lansang, et al. Ramon A. Gonzales for petitioner Rogelio V. Arienda. E. Voltaire Garcia II for petitioner Luzvimindo David. Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Taada, Fortunato de Leon, R. G. Suntay and Juan T. David for petitioner Felicidad G. Prudente. Ruben L. Roxas for petitioner Reynaldo Rimando. Nuez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc. E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc., et al. Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta, Jr. Domingo E. de Lara for and in his own behalf. Office of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo P. Pardo for respondents.

CONCEPCION, C.J.: In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the general elections scheduled for November 8, 1971, two (2) hand grenades were thrown, one after the other, at the platform where said candidates and other persons were. As a consequence, eight (8) persons were killed and many more injured, including practically all of the aforementioned candidates, some of whom sustained extensive, as well as serious, injuries which could have been fatal had it not been for the timely medical assistance given to them. On August 23, soon after noontime, the President of the Philippines announced the issuance of Proclamation No. 889, dated August 21, 1971, reading as follows:

WHEREAS, on the basis of carefully evaluated information, it is definitely established that lawless elements in the country, which are moved by common or similar ideological conviction, design and goal and enjoying the active moral and material support of a foreign power and being guided and directed by a well trained, determined and ruthless group of men and taking advantage of our constitutional liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of actually staging, undertaking and waging an armed insurrection and rebellion in order to forcibly seize political power in this country, overthrow the duly constituted government, and supplant our existing political social, economic and legal order with an entirely new one whose form of government, whose system of laws, whose conception of God and religion, whose notion of individual rights and family relations, and whose political, social and economic precepts are based on the Marxist-Leninist-Maoist teachings and beliefs; WHEREAS, these lawless elements, acting in concert through front organizations that are seemingly innocent and harmless, have continuously and systematically strengthened and broadened their memberships through sustained and careful recruiting and enlistment of new adherents from among our peasantry, laborers, professionals, intellectuals, students, and mass media personnel, and through such sustained and careful recruitment and enlistment have succeeded in infiltrating almost every segment of our society in their ceaseless determination to erode and weaken the political, social, economic and moral foundations of our existing government and to influence many peasant, labor, professional, intellectual, student and mass media organizations to commit acts of violence and depredations against our duly constituted authorities, against the members of our law enforcement agencies, and worst of all, against the peaceful members of our society; WHEREAS, these lawless elements have created a state of lawlessness and disorder affecting public safety and the security of the State, the latest manifestation of which has been the dastardly attack on the Liberal Party rally in Manila on August 21, 1971, which has resulted in the death and serious injury of scores of persons; WHEREAS, public safety requires that immediate and effective action be taken in order to maintain peace and order, secure the safety of the people and preserve the authority of the State; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby suspend the privilege of the writ of habeas corpus, for the persons presently detained, as well as others who may be hereafter similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith. Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by the following persons, who, having been arrested without a warrant therefor and then detained, upon the authority of said proclamation, assail its validity, as well as that of their detention, namely: 1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the petitioners in Case No. L33964 filed on August 24, 1971 who, on August 22, 1971, between 8 a.m. and 6 p.m., were "invited" by agents of the Philippine Constabulary which is under the command of respondent Brig. Gen. Eduardo M. Garcia to go and did go to the headquarters of the Philippine Constabulary, at Camp Crame, Quezon City, for interrogation, and thereafter, detained; 2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 filed, also, on August 24, 1971 who was picked up in his residence, at No. 55 Road, 3, Urduja Village, Quezon City, by members of the Metrocom and then detained; 3. Soon after the filing of the petition in Case No. L-33965 or on August 28, 1971 the same was amended to include VICENTE ILAO and JUAN CARANDANG, as petitioners therein, although, apart from stating that these additional petitioners are temporarily residing with the original petitioner, Rogelio V. Arienda, the amended petition alleged nothing whatsoever as regards the circumstances under which said Vicente Ilao and Juan Carandang are said to be illegally deprived of their liberty; 4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 filed on August 25, 1971 who was similarly arrested in his residence, at No. 131-B Kamias Road, Quezon City, and detained by the Constabulary;

5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 on August 27, 1971 upon the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at about 8 p.m., been apprehended by Constabulary agents in his house, at St. Ignatius Village, Quezon City, and then detained at the Camp Crame stockade, Quezon City; 6. ANGELO DE LOS REYES, who was allowed on August 30, 1971 to intervene as one of the petitioners in Cases Nos. L-33964, L-33965 and L-33973, he having been arrested by members of the Constabulary on August 22, 1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don Manuel Street, Sta. Mesa Heights, Quezon City, and brought to Camp Crame, Quezon City, where he is detained and restrained of liberty; 7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners in said three (3) cases, upon the ground that, on August 23, 1971, at about 8 a.m., he was, likewise, apprehended at Sta. Rosa, Laguna, by members of the Philippine Constabulary and brought, first to the Constabulary headquarters at Canlubang, Laguna, and, then, to Camp Crame, Quezon City, where he is detained and restrained of liberty; 8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners in the same three (3) cases, he having been arrested in his residence, at 318 Lakandula St., Angeles City, on August 22, 1971, between 6 and 7 p.m., and taken to the PC offices at Sto. Domingo, Angeles City, then to Camp Olivas, San Fernando, Pampanga, and eventually to Camp Crame, Quezon City, where he is restrained and deprived of liberty; 9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college students of St. Louis University, Baguio City, on whose behalf, Domingo E. de Lara in his capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association filed on September 3, 1971, the petition in Case No. L34004, upon the ground that said Gerardo Tomas had, on August 23, 1971, at about 6 a.m., been arrested by Constabulary agents, while on his way to school in the City of Baguio, then brought to the Constabulary premises therein at Camp Holmes, and, thereafter, taken, on August 24, 1971, to Camp Olivas, Pampanga, and thence, on August 25, 1971, to the Constabulary headquarters at Camp Crame, Quezon City, where he is detained; 10. REYNALDO RIMANDO, petitioner in Case No. L-34013 filed on September 7, 1971 a 19-year old student of the U.P. College in Baguio city who, while allegedly on his way home, at Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was joined by three (3) men who brought him to the Burnham Park, thence, to Camp Olivas at San Fernando, Pampanga, and, thereafter, to Camp Crame, Quezon City, where he is detained; 11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO, on whose behalf Carlos C. Rabago as President of the Conference Delegates Association of the Philippines (CONDA) filed the petition in Case No. L-34039 on September 14, 1971 against Gen. Eduardo M. Garcia, alleging that, on August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested, while at Liamzon Subdivision, Rosario, Pasig, Rizal, by agents of the Constabulary, and taken to the PC headquarters at Camp Crame, where, later, that same afternoon, her husband was brought, also, by PC agents and both are detained; 12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 on October 26, 1971 against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero Olivas, Chief of the Central Intelligence Service (CIS), Philippine Constabulary, alleging that, upon invitation from said CIS, he went, on October 20, 1971, to Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines, who referred petitioner to Col. Laroya of the CIS; that the latter, in turn, referred him to CIS Investigator Atty. Berlin Castillo and another CIS against, whose name is unknown to the petitioner; and that, after being interrogated by the two (2), petitioner was detained illegally; and 13. GARY OLIVAR, petitioner in Case No. L-34339 filed on November 10, 1971 who was apprehended, by agents of the Constabulary, in the evening of November 8, 1941, in Quezon City, and then detained at Camp Crame, in the same City. Upon the filing of the aforementioned cases, the respondents were forthwith required to answer the petitions therein, which they did. The return and answer in L-33964 which was, mutatis mutandis, reproduced substantially or by reference in the other cases, except L-34265 alleges, inter alia, that the petitioners had been apprehended and detained "on reasonable belief" that they had "participated in the crime of insurrection or rebellion;" that "their continued detention is justified due to the suspension of the privilege of the writ of habeas corpus pursuant to Proclamation No. 889 of the President of the Philippines;" that there is "a state of insurrection or rebellion" in this country, and that "public safety and the security of the State required the suspension of the privilege of the writ of habeas corpus," as

"declared by the President of the Philippines in Proclamation No. 889; that in making said declaration, the "President of the Philippines acted on relevant facts gathered thru the coordinated efforts of the various intelligence agents of our government but (of) which the Chief Executive could not at the moment give a full account and disclosure without risking revelation of highly classified state secrets vital to its safely and security"; that the determination thus made by the President is "final and conclusive upon the court and upon all other persons" and "partake(s) of the nature of political question(s) which cannot be the subject of judicial inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87, and Montenegro v. Castaeda, 91 Phil. 882; that petitioners "are under detention pending investigation and evaluation of culpabilities on the reasonable belief" that they "have committed, and are still committing, individually or in conspiracy with others, engaged in armed struggle, insurgency and other subversive activities for the overthrow of the Government; that petitioners cannot raise, in these proceedings for habeas corpus, "the question of their guilt or innocence"; that the "Chief of Constabulary had petitioners taken into custody on the basis of the existence of evidence sufficient to afford a reasonable ground to believe that petitioners come within the coverage of persons to whom the privilege of the writ of habeas corpus has been suspended"; that the "continuing detention of the petitioners as an urgent bona fide precautionary and preventive measure demanded by the necessities of public safety, public welfare and public interest"; that the President of the Philippines has "undertaken concrete and abundant steps to insure that the constitutional rights and privileges of the petitioners as well as of the other persons in current confinement pursuant to Proclamation 889 remain unimpaired and unhampered"; and that "opportunities or occasions for abuses by peace officers in the implementation of the proclamation have been greatly minimized, if not completely curtailed, by various safeguards contained in directives issued by proper authority." These safeguards are set forth in: 1. A letter of the President to the Secretary of National Defense, dated August 21, 1971, directing, inter alia, in connection with the arrest or detention of suspects pursuant to Proclamation No. 889, that, except when caught inflagrante delicto, no arrest shall be made without warrant authorized in writing by the Secretary of National Defense; that such authority shall not be granted unless, "on the basis of records and other evidences," it appears satisfactorily, in accordance with Rule 113, section 6(b), of the Rules of Court, that the person to be arrested is probably guilty of the acts mentioned in the proclamation; that, if such person will be charged with a crime subject to an afflictive penalty under the Anti-Subversion Act, the authorization for his arrest shall not be issued unless supported by signed intelligence reports citing at least one reliable witness to the same overt act; that no unnecessary or unreasonable force shall be used in effecting arrests; and that arrested persons shall not be subject to greater restraint than is necessary for their detention; 2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30, 1971, to all units of his command, stating that the privilege of the writ is suspended for no other persons than those specified in the proclamation; that the same does not involve material law; that precautionary measures should be taken to forestall violence that may be precipitated by improper behavior of military personnel; that authority to cause arrest under the proclamation will be exercised only by the Metrocom, CMA, CIS, and "officers occupying position in the provinces down to provincial commanders"; that there shall be no indiscriminate or mass arrests; that arrested persons shall not be harmed and shall be accorded fair and humane treatment; and that members of the detainee's immediate family shall be allowed to visit him twice a week; 3. A memorandum of the Department of National Defense, dated September 2, 1971, directing the Chief of the Constabulary to establish appropriate Complaints and Action Bodies/Groups to prevent and/or check any abuses in connection with the suspension of the privilege of the writ; and 4. Executive Order No. 333, dated August 26, 1971, creating a Presidential Administrative Assistance Committee to hear complaints regarding abuses committed in connection with the implementation of Proclamation No. 889. Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan Carandang had been released from custody on August 31, 1971, "after it had been found that the evidence against them was insufficient." In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations of fact and conclusions of law made in the petition therein and averred that Antolin Oreta, Jr., the petitioner therein, had been and is detained "on the basis of a reasonable ground to believe that he has committed overt acts in furtherance of rebellion or insurrection against the government" and, accordingly, "comes within the class of persons as to whom the privilege of the writ of habeas corpus has been suspended by Proclamation No. 889, as amended," the validity of which is not contested by him. On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation No. 889, so as to read as follows:

WHEREAS, on the basis of carefully evaluated information, it is definitely established that lawless elements in the country, which are moved by common or similar ideological conviction, design and goal and enjoying the active moral and material support of a foreign power and being guided and directed by a well-trained, determined and ruthless group of men and taking advantage of our constitutional liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of [actually] staging, undertaking, [and] wagging and are actually engaged in an armed insurrection and rebellion in order to forcibly seize political power in this country, overthrow the duly constituted government, and supplant our existing political, social, economic and legal order with an entirely new one whose form of government, whose system of laws, whose conception of God and religion, whose notion of individual rights and family relations, and whose political, social and economic precepts are based on the Marxist-Leninist-Maoist teaching and beliefs; WHEREAS, these lawless elements, acting in concert through front organizations that are seemingly innocent and harmless, have continuously and systematically strengthened and broadened their memberships through sustained and careful recruiting and enlistment of new adherents from among our peasantly, laborers, professionals, intellectuals, students, and mass media personnel, and through such sustained and careful recruitment and enlistment have succeeded in infiltrating almost every segment of our society in their ceaseless determination to erode and weaken the political, social, economic and moral foundations of our existing government and influence many peasant, labor, professional, intellectual, student and mass media organizations to commit acts of violence and depredations against our duly constituted authorities, against the members of our law enforcement agencies, and worst of all, against the peaceful members of our society; WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have created a state of lawlessness and disorder affecting public safety and security of the State, the latest manifestation of which has been the dastardly attack on the Liberal Party rally in Manila on August 21, 1971, which has resulted in the death and serious injury of scores of persons; WHEREAS, public safety requires that immediate and effective action be taken in order to maintain peace and order, secure the safety of the people and preserve the authority of the State; NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby suspend the privilege of the writ of habeas corpus for the persons presently detained, as well as all others who may be hereafter similarly detained for the crimes of insurrection or rebellion [,] and [all] other [crimes and offenses] overt acts committed by them in furtherance [or on the occasion] thereof[,]. [or incident thereto, or in 1 connection therewith.] On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard and then the parties therein were allowed to file memoranda, which were submitted from September 3 to September 9, 1971. Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by Proclamation No. 889-B, lifting the suspension of the privilege of the writ of habeas corpus in the following provinces, sub-provinces and cities of the Philippine, namely: A. PROVINCES: 1. Batanes 15. Negros Occ. 2. Ilocos Norte 16. Negros Or. 3. Ilocos Sur 17. Cebu 4. Abra 18. Bohol 5. Abra 19. Capiz 6. Pangasinan 20. Aklan 7. Batangas 21. Antique 8. Catanduanes 22. Iloilo 9. Masbate 23. Leyte 10. Romblon 24. Leyte del Sur 11. Marinduque 25. Northern Samar 12. Or. Mindoro 26. Eastern Samar

13. Occ. Mindoro 27. Western Samar 14. Palawan. B. SUB-PROVINCES: 1. Guimaras 3. Siquior 2. Biliran C. CITIES: 1. Laog 10. Bacolod 2. Dagupan 11. Bago 3. San Carlos 12. Canlaon 4. Batangas 13. La Carlota 5. Lipa 14. Bais 6. Puerto Princesa 15. Dumaguete 7. San Carlos (Negros 16. Iloilo Occ.) 17. Roxas 8. Cadiz 18. Tagbilaran 9. Silay 19. Lapu-lapu 20. Cebu 24. Tacloban 21. Mandaue 25. Ormoc 22. Danao 26. Calbayog 23. Toledo On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege of the writ in the following provinces and cities: A. PROVINCES: 1. Surigao del Norte 8. Agusan del Sur 2. Surigao del Sur 9. Misamis Or. 3. Davao del Norte 10. Misamis Occ. 4. Davao del Sur 11. Zamboanga del Norte 5. Davao Oriental 12. Basilan 6. Bukidnon 13. Pagadian 7. Agusan del Norte B. CITIES: 1. Surigao 8. Tangub 2. Davao 9. Dapitan 3. Butuan 10. Dipolog 4. Cagayan 11. Zamboanga 5. Gingoong 12. Basilan 6. Ozamiz 13. Pagadian. 7. Oroquieta On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. 889-D, in the following places: A. PROVINCES: 1. Cagayan 5. Camarines 2. Cavite 6. Albay 3. Mountain Province 7. Sorsogon 4. Kalinga-Apayao B. CITIES: 1. Cavite City 3. Trece Martires 2. Tagaytay 4. Legaspi

As a consequences, the privilege of the writ of habeas corpus is still suspended in the following eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit: A. PROVINCE: 1. Bataan 10. North Cotabato 2. Benguet 11. Nueva Ecija 3. Bulacan 13. Pampanga 4. Camarines Sur 14. Quezon 5. Ifugao 15. Rizal 6. Isabela 16. South Cotabato 7. Laguna 17. Tarlac 8. Lanao del Norte 18. Zambales 9. Lanao del Norte B. SUB-PROVINCES: 1. Aurora 2. Quirino C. CITIES: 1. Angeles 10. Manila 2. Baguio 11. Marawi 3. Cabanatuan 12. Naga 4. Caloocan 13. Olongapo 5. Cotabato 14. Palayan 6. General Santos 15. Pasay 7. Iligan 16. Quezon 8 Iriga 17. San Jose 9 Lucena 18. San Pablo The first major question that the Court had to consider was whether it would adhere to the view taken in 2 3 Barcelon v. Baker, and reiterated in Montenegro v. Castaeda, pursuant to which, "the authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs to the President and his 'decision is final and conclusive' upon the courts and upon all other persons." Indeed, had said question been decided in the affirmative the main issue in all of these cases, except L-34339, would have been settled, and, since the other issues were relatively of minor importance, said cases could have been readily disposed of. Upon mature deliberation, a majority of the Members of the Court had, however, reached, although tentatively, a consensus to the contrary, and decided that the Court had authority to and should inquire into the existence of the factual bases required by the Constitution for the suspension of the privilege of the writ; but before proceeding to do so, the Court deemed it necessary to hear the parties on the nature and extent of the inquiry to be undertaken, none of them having previously expressed their views thereof. Accordingly, on October 5, 1971, the Court issued, in L-33964, L-33965, L-33973 and L-33982, a resolution stating in part that ... a majority of the Court having tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A (suspending the privilege of the writ of habeas corpus for all persons detained or to be detained for the crimes of rebellion or insurrection throughout the Philippines, which area has lately been reduced to some eighteen provinces, two subprovinces and eighteen cities with the partial lifting of the suspension of the privilege effected by Presidential Proclamations Nos. 889-B, 889-C and 889-D) and thus determine the constitutional sufficiency of such bases in the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par. 2, of the Philippine Constitution; and considering that the members of the Court are not agreed on the precise scope and nature of the inquiry to be made in the premises, even as all of them are agreed that the Presidential findings are entitled to great respect, the Court RESOLVED that these cases be set for rehearing on October 8, 1971 at 9:30 A.M. xxx xxx xxx On October 8, 1971, said four cases were, therefore, heard, once again, but, this time jointly with cases Nos. L-34004, L-34013, and L-34039, and the parties were then granted a period to file memoranda, in amplification of their respective oral arguments, which memoranda were submitted from October 12 to October 21, 1971.

Respondents having expressed, during the oral arguments, on September 1 and October 8, 1971, their willingness to impart to the Court classified information relevant to these cases, subject to appropriate security measures, the Court met at closed doors, on October 28 and 29, 1971, and, in the presence of three (3) attorneys for the petitioners, chosen by the latter, namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General and two (2) members of his staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col. Tagumpay Nanadiego, Judge Advocate General, JAGS (GSC), and other ranking officers of said Armed Forces, on said classified information, most of which was contained in reports and other documents already attached to the records. During the proceedings, the members of the Court, and, occassionally, counsel for the petitioners, propounded pertinent questions to said officers of the Armed Forces. Both parties were then granted a period of time within which to submit their respective observations, which were filed on November 3, 1971, and complemented by some documents attached to the records on November 6, 1971, and a summary, submitted on November 15, 1971, of the aforesaid classified information. In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the parties therein were heard in oral argument on November 4, and 16, 1971, respectively. On November 15, 1971, the Solicitor General filed manifestations motions stating that on November 13, 1971, the following petitioners were: (a) released from custody: (1) Teodosio Lansang -- G.R. No. L-33964 (2) Bayani Alcala -- " " L-33964 (3) Rogelio Arienda -- " " L-33965 (4) Nemesio Prudente -- " " L-33982 (5) Gerardo Tomas -- " " L-34004 (6) Reynaldo Rimando -- " " L-34013 (7) Filomeno M. de Castro -- " " L-34039 (8) Barcelisa de Castro -- " " L-34039 (9) Antolin Oreta, Jr. -- " " L-34264. (b) charged, together with other persons named in the criminal complaint filed therefor, with a violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of Quezon City: (1) Angelo de los Reyes -- G.R. No. L-22982 * (2) Teresito Sison -- " " L-33982 * (c) accused, together with many others named in the criminal complaint filed therefor, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First Instance of Rizal: (1) Rodolfo del Rosario -- G.R. No. L-33969 ** (2) Luzvimindo David -- " " L-33973 (3) Victor Felipe -- " " L-33982 * and continue under detention pursuant to Proclamation No. 889, as amended, and praying that the petitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be dismissed, without prejudice to the resolution of the remaining cases. Copy of the criminal complaint filed, as above stated, with the Court of First Instance of Rizal and docketed therein as Criminal Case No. Q-1623 of said court which was appended to said manifestations-motions of the respondent as Annex 2 thereof shows that Gary Olivar, the petitioner in L-34339, is one of the defendants in said case. Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973, in his comment dated November 23, 1971, urged the Court to rule on the merits of the petitions in all of these cases, particularly on the constitutionality of Presidential Proclamation No. 889, as amended, upon the ground that he is still detained and that the main issue is one of public interest involving as it does the civil liberties of the people. Angelo de los Reyes, one of the petitioners in L-33964, L-33965 and L-33973, Nemesio E. Prudente and Gerardo Tomas, for whose respective benefit the petitions in L-33982 and L34004 have been filed, maintained that the issue in these cases is not moot, not even for the detainees who have been released, for, as long as the privilege of the writ remains suspended, they are in danger of being arrested and detained again without just cause or valid reason. In his reply, dated and filed on November 29, 1971, the Solicitor General insisted that the release of the above-named petitioners rendered their respective petitions moot and academic. I

Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the proclamation suspending the privilege of the writ of habeas corpus. In this connection, it should be noted that, as originally formulated, Proclamation No. 889 was contested upon the ground that it did not comply with the pertinent constitutional provisions, namely, paragraph (14) of section 1, Article III of our Constitution, reading: The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, when the public safety requires it, in any way of which events the same may be suspended wherever during such period the necessity for such suspension shall exist. and paragraph (2), section 10, Article VII of the same instrument, which provides that: The President shall be commander-in-chief of all armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. Regardless of whether or not the President may suspend the privilege of the writ of habeas corpus in case of "imminent danger" of invasion, insurrection or rebellion which is one of the grounds stated in said paragraph (2), section 10 of Art. VII of the Constitution, but not mentioned in paragraph (14), section 1 of its Bill of Rights petitioners maintained that Proclamation No. 889 did not declare the existence of actual "invasion insurrection or rebellion or imminent danger thereof," and that, consequently, said Proclamation was invalid. This contention was predicated upon the fact that, although the first "whereas" in Proclamation No. 889 stated that "lawless elements" had "entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of actually staging, undertaking and waging an armed insurrection and rebellion," the actuality so alleged refers to the existence, not of an uprising that constitutes the essence of a rebellion or insurrection, but of the conspiracyand the intent to rise in arms. Whatever may be the merit of this claim, the same has been rendered moot and academic by Proclamation No. 889-A, issued nine (9) days after the promulgation of the original proclamation, or on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter alia, the first "whereas" of the original proclamation by postulating the said lawless elements "have entered into a conspiracy and have in fact joined and banded their forces together for the avowed purpose of staging, undertaking, waging and are actually engaged in an armed insurrection and rebellion in order to forcibly seize political power in this country, overthrow the duly constituted government, and supplant our existing political, social, economic and legal order with an entirely new one ...." Moreover, the third "whereas" in the original proclamation was, likewise, amended by alleging therein that said lawless elements, "by their acts of rebellion and insurrection," have created a state of lawlessness and disorder affecting public safety and the security of the State. In other words, apart from adverting to the existence of actual conspiracy and of theintent to rise in arms to overthrow the government, Proclamation No. 889-A asserts that the lawless elements "areactually engaged in an armed insurrection and rebellion" to accomplish their purpose. It may not be amiss to note, at this juncture, that the very tenor of the original proclamation and particularly, the circumstances under which it had been issued, clearly suggest the intent to aver that there was and is, actually, a state of rebellion in the Philippines, although the language of said proclamation was hardly a felicitous one, it having in effect, stressed the actuality of the intent to rise in arms, rather than of the factual existence of the rebellion itself. The pleadings, the oral arguments and the memoranda of respondents herein have consistently and abundantly emphasized to justify the suspension of the privilege of the writ of habeas corpus the acts of violence and subversion committed prior to August 21, 1971, by the lawless elements above referred to, and the conditions obtaining at the time of the issuance of the original proclamation. In short, We hold that Proclamation No. 889-A has superseded the original proclamation and that the flaws attributed thereto are purely formal in nature. II Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the abovequoted provisions of the Constitution, two (2) conditions must concur for the valid exercise of the authority to suspend the privilege to the writ, to wit: (a) there must be "invasion, insurrection, or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution "imminent danger thereof," and (b) "public safety" must require the suspension of the privilege. The Presidential Proclamation under consideration declares that there has been and there is actually a state of rebellion and 4 that "public safety requires that immediate and effective action be taken in order to maintain peace and order, secure the safety of the people and preserve the authority of the State."

Are these findings conclusive upon the Court? Respondents maintain that they are, upon the authority of 5 6 Barcelon v. Baker and Montenegro v. Castaeda. Upon the other hand, petitioners press the negative view and urge a reexamination of the position taken in said two (2) cases, as well as a reversal thereof. The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it relied heavily 7 upon Martin v. Mott involving the U.S. President's power to call out the militia, which he being the commander-in-chief of all the armed forces may be exercised to suppress or prevent any lawless violence, even without invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly, much broader than his authority to suspend the privilege of the writ of habeas corpus, jeopardizing as the latter does individual liberty; and (b) the privilege had been suspended by the American GovernorGeneral, whose act, as representative of theSovereign, affecting the freedom of its subjects, can hardly be equated with that of the President of the Philippines dealing with the freedom of the Filipino people, in whom sovereignty resides, and from whom all government authority emanates. The pertinent ruling in the Montenegro case was based mainly upon the Barcelon case, and hence, cannot have more weight than the same. Moreover, in the Barcelon case, the Court held that it could gointo the question: "Did the Governor-General" acting under the authority vested in him by the Congress of the United States, to suspend the privilege of the writ of habeas corpus under certain conditions "act in conformance with such authority?" In other words, it did determine whether or not the Chief Executive had acted in accordance with law. Similarly, in the Montenegro case, the Court held that petitioner therein had "failed to overcome the presumption of correctness which the judiciary accords to acts of the Executive ...." In short, the Court considered the question whether or not there really was are rebellion, as stated in the proclamation therein contested. Incidentally, even the American jurisprudence is neither explicit nor clear on the point under 8 consideration. Although some cases purport to deny the judicial power to "review" the findings made in the proclamations assailed in said cases, the tenor of the opinions therein given, considered as a whole, strongly suggests the court's conviction that the conditions essential for the validity of said proclamations 9 or orders were, in fact, present therein, just as the opposite view taken in other cases had a backdrop permeated or characterized by the belief that said conditions were absent. Hence, the dictum of Chief Justice Taney to the effect that "(e)very case must depend on its own circumstances." 10 One of the important, if not dominant, factors, in connection therewith, was intimated in Sterling v. Constantin, 11 in which the Supreme Court of the United States, speaking through Chief Justice Hughes, declared that: .... When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression. To such a case the Federal judicial power extends (Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its 12 exercise. .... In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A ... and thus determine the constitutional sufficiency of such basesin the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of the Philippine Constitution...." Upon further deliberation, the members of the Court are now unanimous in the conviction that it has the authority to inquire into the existence of said factual bases in order to determine the constitutional sufficiency thereof. Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended ...." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" or, under Art VII of the Constitution, "imminent danger thereof" "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such 13 suspension shall exist." For from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political system is essentially democratic and republican in character and that the suspension of the privilege affects the most fundamental element of that system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the practices of the government and the party in power that he deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is objectively correct or not. The untrammelled enjoyment and exercise of such right which, under certain conditions, may be a civic duty of the highest order is vital to the democratic system and essential to its successful operation and wholesome growth and development. Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of the social order established by the Constitution and the context of the Rule of Law. Accordingly, when individual freedom is used to destroy that social order, by means of force and violence, in defiance of the Rule of Law such as by rising publicly and taking arms against the government to overthrow the same, thereby committing the crime of rebellion there emerges a circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we must be forewarned against mistaking mere dissent no matter how emphatic or intemperate it may be for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse when the existence of such rebellion or insurrection has been fairly established or cannot reasonably be denied to uphold the finding of the Executive thereon, without, in effect, encroaching upon a power vested in him by the Supreme Law of the land and depriving him, to this extent, of such power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize. As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must be "invasion, insurrection or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution "imminent danger thereof"; and (b) public safety must require the aforementioned suspension. The President declared in Proclamation No. 889, as amended, that both conditions are present. As regards the first condition, our jurisprudence attests abundantly to the Communist activities in the Philippines, especially in Manila, from the late twenties to the early thirties, then aimed principally at incitement to sedition or rebellion, as the immediate objective. Upon the establishment of the Commonwealth of the Philippines, the movement seemed to have waned notably; but, the outbreak of World War II in the Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed firearms concomitant with the military occupation of the Philippines and its subsequent liberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as to be able to organize and operate in Central Luzon an army called HUKBALAHAP, during the occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMP) after liberation which clashed several times with the armed forces of the Republic. This prompted then President Quirino to issue Proclamation No. 210, dated October 22, 1950, suspending the privilege of the writ of habeas corpus, the validity of which was upheld in Montenegro v. Castaeda. 15 Days before the promulgation of said Proclamation, or on October 18, 1950, members of the Communist Politburo in the Philippines were apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they served their respective sentences. 16 The fifties saw a comparative lull in Communist activities, insofar as peace and order were concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-Subversion Act, was approved, upon the ground stated in the very preamble of said statute that. ... the 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; ... the continued existence and activities of the Communist Party of the Philippines 17 constitutes a clear, presentand grave danger to the security of the Philippines; and ... in 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 the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad Hoc Committee of Seven copy of which Report was filed in these cases by the petitioners herein
14

The years following 1963 saw the successive emergence in the country of several mass organizations, notably the Lapiang Manggagawa (now the Socialist Party of the Philippines) among the workers; the Malayang Samahan ng mga Magsasaka (MASAKA) among the peasantry; the Kabataang Makabayan (KM) among the youth/students; and the Movement for the Advancement of Nationalism (MAN) among the intellectuals/professionals. The PKP has exerted all-out effort to infiltrate, influence and utilize these organizations in promoting its radical brand of nationalism. 18 Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of which composed mainly of young radicals, constituting the Maoist faction reorganized the Communist Party of the Philippines early in 1969 and established a New People's Army. This faction adheres to the Maoist concept of the "Protracted People's War" or "War of National Liberation." Its "Programme for a People's Democratic Revolution" states, inter alia: The Communist Party of the Philippines is determined to implement its general programme for a people's democratic revolution. All Filipino communists are ready to sacrifice their lives for the worthy cause of achieving the new type of democracy, of building a new Philippines that is genuinely and completely independent, democratic, united, just and prosperous ... xxx xxx xxx The central task of any revolutionary movement is to seize political power. The Communist Party of the Philippines assumes this task at a time that both the international and national situations are favorable of asking the road of armed revolution ... 19 In the year 1969, the NPA had according to the records of the Department of National Defense conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over 230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its records of violent incidents was about the same, but the NPA casualties more than doubled. At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional group or to the Maoist faction, believe that force and violence are indispensable to the attainment of their main and ultimate objective, and act in accordance with such belief, although they may disagree on the means to be used at a given time and in a particular place; and (b) there is a New People's Army, other, of course, that the arm forces of the Republic and antagonistic thereto. Such New People's Army is per se proof of the existence of a rebellion, especially considering that its establishment was announced publicly by the reorganized CPP. Such announcement is in the nature of a public challenge to the duly constituted authorities and may be likened to a declaration of war, sufficient to establish a war status or a condition of belligerency, even before the actual commencement of hostilities. 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. In fact, the thrust of petitioners' argument is that the New People's Army proper is too small, compared with the size of the armed forces of the Government, that the Communist rebellion or insurrection cannot so endanger public safety as to require the suspension of the privilege of the writ of habeas corpus. This argument does not negate, however, the existence of a rebellion, which, from the constitutional and statutory viewpoint, need not be widespread or attain the magnitude of a civil war. This is apparent from 20 the very provision of the Revised Penal Code defining the crime of rebellion, which may be limited in its scope to "any part" of the Philippines, and, also, from paragraph (14) of section 1, Article III of the Constitution, authorizing the suspension of the privilege of the writ "wherever" in case of rebellion "the necessity for such suspension shall exist." In fact, the case of Barcelon v. Baker referred to a proclamation suspending the privilege in the provinces of Cavite and Batangas only. The case of In re Boyle 21 involved a valid proclamation suspending the privilege in a smaller area a country of the state of Idaho. The magnitude of the rebellion has a bearing on the second condition essential to the validity of the suspension of the privilege namely, that the suspension be required by public safety. Before delving, however, into the factual bases of the presidential findings thereon, let us consider the precise nature of the Court's function in passing upon the validity of Proclamation No. 889, as amended.

Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpusunder specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise of such authority, the function of the Court is merely to check not to supplant the Executive, or to ascertain merely whether he had gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the contested proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of the court of origin. Under the principle of separation of powers and the system of checks and balances, the judicial authority to review decisions of administrative bodies or agencies is much more limited, as regards findings of fact made in said decisions. Under the English law, the reviewing court determines only whether there is some evidentiary basis for the contested administrative findings; no quantitative examination of the supporting evidence is undertaken. The administrative findings can be interfered with only if there is no evidence whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases, in bothjurisdictions, have applied the "substantial evidence" rule, which has been construed to mean "more than a mere scintilla" or "relevant 23 evidence as a reasonable mind might accept as adequate to support a conclusion," even if other minds equally reasonable might conceivably opine otherwise. Manifestly, however, this approach refers to the review of administrative determinations involving the exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general rule, neither body takes evidence in the sense in which the term is used in judicial proceedings before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute, the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New York, 24 the view that: ... If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and areneither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio ... With the wisdom of the policy adopted, with the adequacy or practically of the law enacted to forward it, the courts are both incompetent andunauthorized to deal ... Relying upon this view, it is urged by the Solicitor General ... that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the President's decision is correct and that public safety was endanger by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily. No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of coordinate branches of the Government, under our constitutional system, seems to demand that the test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper standard is not correctness, but arbitrariness. Did public safety require the suspension of the privilege of the writ of habeas corpus decreed in Proclamation No. 889, as amended? Petitioners submit a negative answer upon the ground: (a) that there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege, the Government was functioning normally, as were the courts; (c) that no untoward incident, confirmatory of an alleged JulyAugust Plan, has actually taken place after August 21, 1971; (d) that the President's alleged apprehension, because of said plan, is non-existent and unjustified; and (e) that the Communist forces in the Philippines are too small and weak to jeopardize public safety to such extent as to require the suspension of the privilege of the writ of habeas corpus.
22

As above indicated, however, the existence of a rebellion is obvious, so much so that counsel for several petitioners herein have admitted it. With respect to the normal operation of government, including courts, prior to and at the time of the suspension of the privilege, suffice it to say that, if the conditions were such that courts of justice no longer functioned, a suspension of the privilege would have been unnecessary, there being no courts to issue the writ of habeas corpus. Indeed, petitioners' reference to the normal operation of courts as a factor indicative of the illegality of the contested act of the Executive stems, perhaps, from the fact that this circumstance was adverted to in some American cases to justify the invalidation therein decreed of said act of the Executive. Said cases involved, however, the conviction by military courts of members of the civilian population charged with common crimes. It was manifestly, illegal for military courts to assume jurisdiction over civilians so charged, when civil courts were functioning normally. Then, too, the alleged absence of any untoward incident after August 21, 1971, does not necessarily bear out petitioners' view. What is more, it may have been due precisely to the suspension of the privilege. To be sure, one of its logical effects is to compel those connected with the insurrection or rebellion to go into hiding. In fact, most of them could not be located by the authorities, after August 21, 1971. The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory that, according to Professor Egbal Ahman of Cornell University, "guerrilla use of terror ... is sociological and psychologically selective," and that the indiscriminate resort to terrorism is bound to boomerang, for it tends to alienate the people's symphaty and to deprive the dissidents of much needed mass support. The fact, however, is that the violence used is some demonstrations held in Manila in 1970 and 1971 tended to terrorize the bulk of its inhabitants. It would have been highly imprudent, therefore, for the Executive to discard the possibility of a resort to terrorism, on a much bigger scale, under the July-August Plan. We will now address our attention to petitioners' theory to the effect that the New People's Army of the Communist Party of the Philippines is too small to pose a danger to public safety of such magnitude as to require the suspension of the privilege of the writ of habeas corpus. The flaw in petitioners' stand becomes apparent when we consider that it assumes that the Armed Forces of the Philippines have no other task than to fight the New People's Army, and that the latter is the only threat and a minor one to our security. Such assumption is manifestly erroneous. The records before Us show that, on or before August 21, 1971, the Executive had information and reports subsequently confirmed, in many respects, by the abovementioned Report of the Senate Ad25 Hoc Committee of Seven to the effect that the Communist Party of the Philippines does not merely adhere to Lenin's idea of a swift armed uprising; that it has, also, adopted Ho Chi Minh's terrorist tactics and resorted to the assassination of uncooperative local official; that, in line with this policy, the insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila Area in 1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that, soon after the Plaza Miranda incident, the NAWASA main pipe, at the Quezon City-San Juan boundary, was bombed; that this was followed closely by the bombing of the Manila City Hall, the COMELEC building, the Congress Building and the MERALCO substation at Cubao, Quezon City; and that the respective residences of Senator Jose J. Roy and Congressman Eduardo Cojuangco were, likewise, bombed, as were the MERALCO main office premises, along Ortigas Avenue, and the Doctor's Pharmaceuticals, Inc. Building, in Caloocan City. Petitioners, similarly, fail to take into account that as per said information and reports the reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of protracted people's war, aimed at the paralyzation of the will to resist of the government, of the political, economic and intellectual leadership, and of the people themselves; that conformably to such concept, the Party has placed special emphasis upon a most extensive and intensive program of subversion by the establishment of front organizations in urban centers, the organization of armed city partisans and the infiltration in student groups, labor unions, and farmer and professional groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor organizations; that it has exploited the youth movement and succeeded in making Communist fronts of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30) mass organizations actively advancing the CPP interests, among which are the Malayang Samahan ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM) and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of August, 1971, the KM had two hundred forty-five (245) operational chapters throughout the Philippines, of which seventy-three (73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these actions were organized, coordinated or led by the aforementioned front organizations; that the violent demonstrations were generally instigated by a small,

but well-trained group of armed agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of fifteen (15) persons and the injury of many more. Subsequent events as reported have also proven that petitioners' counsel have underestimated the threat to public safety posed by the New People's Army. Indeed, it appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid, in consequence of which seven (7) soldiers lost their lives and two (2)others were wounded, whereas the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group of NPA, trained by defector Lt. Victor Corpus, attacked the very command port of TF LAWIN in Isabela, destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the side of the Government, one (1) BSDU killed and three (3) NPA casualties; that in an encounter at Botolan, Zambales, one (1) KM-SDK leader, an unidentified dissident, and Commander Panchito, leader of the dissident group were killed; that on August 26, 1971, there was an encounter in the barrio of San Pedro. Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM members were killed; that the current disturbances in Cotabato and the Lanao provinces have been rendered more complex by the involvement of the CPP/NPA, for, in mid1971, a KM group, headed by Jovencio Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay, Misamis Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as conducted teach-ins in the reservation; that Esparagoza an operation of the PC in said reservation; and that there are now two (2) NPA cadres in Mindanao. It should, also, be noted that adherents of the CPP and its front organizations are, according to intelligence findings, definitely capable of preparing powerful explosives out of locally available materials; that the bomb used in the Constitutional Convention Hall was a "clay-more" mine, a powerful explosive device used by the U.S. Army, believed to have been one of many pilfered from the Subic Naval Base a few days before; that the President had received intelligence information to the effect that there was a July-August Plan involving a wave of assassinations, kidnappings, terrorism and mass destruction of property and that an extraordinary occurence would signal the beginning of said event; that the rather serious condition of peace and order in Mindanao, particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with the situation; that a sizeable part of our armed forces discharge other functions; and that the expansion of the CPP activities from Central Luzon to other parts of the country, particularly Manila and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required that the rest of our armed forces be spread thin over a wide area. Considering that the President was in possession of the above data except those related to events that happened after August 21, 1971 when the Plaza Miranda bombing took place, the Court is not prepared to hold that the Executive had acted arbitrarily or gravely abused his discretion when he then concluded that public safety and national security required the suspension of the privilege of the writ, particularly if the NPA were to strike simultaneously with violent demonstrations staged by the two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance and cooperation of the dozens of CPP front organizations, and the bombing or water mains and conduits, as well as electric power plants and installations a possibility which, no matter how remote, he was bound to forestall, and a danger he was under obligation to anticipate and arrest. He had consulted his advisers and sought their views. He had reason to feel that the situation was critical as, indeed, it was and demanded immediate action. This he took believing in good faith that public safety required it. And, in the light of the circumstances adverted to above, he had substantial grounds to entertain such belief. Petitioners insist that, nevertheless, the President had no authority to suspend the privilege in the entire Philippines, even if he may have been justified in doing so in some provinces or cities thereof. At the time of the issuance of Proclamation No. 889, he could not be reasonably certain, however, about the placed to be excluded from the operation of the proclamation. He needed some time to find out how it worked, and as he did so, he caused the suspension to be gradually lifted, first, on September 18, 1971, in twentyseven (27) provinces, three (3) sub-provinces and twenty six (26) cities; then, on September 25, 1971, in order fourteen (14) provinces and thirteen (13) cities; and, still later, on October 4, 1971, in seven (7) additional provinces and four (4) cities, or a total of forty-eight (48) provinces, three (3) sub-provinces and forth-three (43) cities, within a period of forty-five (45) days from August 21, 1971. Neither should We overlook the significance of another fact. The President could have declared a generalsuspension of the privilege. Instead, Proclamation No. 889 limited the suspension to persons detained "for crimes of insurrection or rebellion, and all other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith." Even this was further limited by Proclamation No. 889-A, which withdrew from the coverage of the suspension persons detained for other crimes and offenses committed "on the occasion" of the insurrection or rebellion, or

"incident thereto, in or connection therewith." In fact, the petitioners in L-33964, L-33982 and L-34004 concede that the President had acted in good faith. In case of invasion, insurrection or rebellion or imminent danger thereof, the President has, under the Constitution, three (3) courses of action open to him, namely: (a) to call out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part thereof under martial law. He had, already, called out the armed forces, which measure, however, proved inadequate to attain the desired result. Of the two (2)other alternatives, the suspension of the privilege is the least harsh. In view of the foregoing, it does not appear that the President has acted arbitrary in issuing Proclamation No. 889, as amended, nor that the same is unconstitutional. III The next question for determination is whether petitioners herein are covered by said Proclamation, as amended. In other words, do petitioners herein belong to the class of persons as to whom privilege of the writ of habeas corpus has been suspended? In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964, Gerardo Tomas, petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013, were, on November 13, 1971, released "permanently" meaning, perhaps, without any intention to prosecute them upon the ground that, although there was reasonable ground to believe that they had committed an offense related to subversion, the evidence against them is insufficient to warrant their prosecution; that Teodosio Lansang, one of the petitioners in L-33964, Rogelio Arienda, petitioner in L-33965, Nemesio Prudente, petitioner in L-33982, Filomeno de Castro and Barcelisa C. de Castro, for whose benefit the petition in L-34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on said date, "temporarily released"; that Rodolfo del Rosario, one of the petitioners in L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-33973, as well as Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, are still under detention and, hence, deprived of their liberty, they together with over forty (40) other persons, who are at large having been accused, in the Court of First Instance of Rizal, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act); and that Angelo delos Reyes and Teresito Sison, intervenors in said L-33964, L33965 and L-33973, are, likewise, still detained and have been charged together with over fifteen (15) other persons, who are, also, at large with another violation of said Act, in a criminal complaint filed with the City Fiscal's Office of Quezon City. With respect to Vicente Ilao and Juan Carandang petitioners in L-33965 who were released as early as August 31, 1971, as well as to petitioners Nemesio Prudente, Teodosio Lansang, Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C. de Castro, Reynaldo Rimando, Gerardo Tomas and Bayani Alcala, who were released on November 13, 1971, and are no longer deprived of their liberty, their respective petitions have, thereby, become moot and academic, as far as their prayer for release is concerned, and should, accordingly, be dismissed, despite the opposition thereto of counsel for Nemesio Prudente and Gerardo Tomas who maintain that, as long as the privilege of the writ remains suspended, these petitioners might be arrested and detained again, without just cause, and that, accordingly, the issue raised in their respective petitions is not moot. In any event, the common constitutional and legal issues raised in these cases have, in fact, been decided in this joint decision. Must we order the release of Rodolfo del Rosario, one of the petitioners in L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964, L-33965 and L33973, Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who are still detained? The suspension of the privilege of the writ was decreed by Proclamation No. 889, as amended, for persons detained "for the crimes of insurrection or rebellion and other overt acts committed by them in furtherance thereof." The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe, Angelo de los Reyes, Teresito Sison and Gary Olivar are accused in Criminal Case No. Q-1623 of the Court of First Instance of Rizal with a violation of the Anti-Subversion Act and that the similar charge against petitioners Angelo de los Reyes and Teresito Sison in a criminal complaint, originally filed with the City Fiscal of Quezon City, has, also, been filed with said court. Do the offenses so charged constitute one of the crimes or overt acts mentioned in Proclamation No. 889, as amended? In the complaint in said Criminal Case No. 1623, it is alleged:

That in or about the year 1968 and for sometime prior thereto and thereafter up to and including August 21, 1971, in the city of Quezon, Philippines, and elsewhere in the Philippines, within the jurisdiction of this Honorable Court, the above-named accused knowingly, wilfully and by overt acts became officers and/or ranking leaders of the Communist Party of the Philippines, a subversive association as defined by Republic Act No. 1700, which is an organized conspiracy to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a communist totalitarian regime subject to alien domination and control; That all the above-named accused, as such officers and/or ranking leaders of the Communist Party of the Philippines conspiring, confederating and mutual helping one another, did then and there knowingly, wilfully, and feloniously and by overt acts committed subversive acts all intended to overthrow the government of the Republic of the Philippines, as follows: 1. By rising publicly and taking arms against the forces of the government, engaging in war against the forces of the government, destroying property or committing serious violence, exacting contributions or diverting public lands or property from the law purposes for which they have been appropriated; 2. By engaging by subversion thru expansion and requirement activities not only of the Communist Party of the Philippines but also of the united front organizations of the Communist Party of the Philippines as the Kabataang Makabayan (KM), Movement for the Democratic Philippines (MDP), Samahang Demokratikong Kabataan (SDK), Students' Alliance for National Democracy (STAND), MASAKA Olalia-faction, Student Cultural Association of the University of the Philippines (SCAUP), KASAMA, Pagkakaisa ng Magbubukid ng Pilipinas (PMP) and many others; thru agitation promoted by rallies, demonstration and strikes some of them violent in nature, intended to create social discontent, discredit those in power and weaken the people's confidence in the government; thru consistent propaganda by publications, writing, posters, leaflets of similar means; speeches, teach-ins, messages, lectures or other similar means; or thru the media as the TV, radio or newspapers, all intended to promote the Communist pattern of subversion; 3. Thru urban guerilla warfare characterized by assassinations, bombings, sabotage, kidnapping and arson, intended to advertise the movement, build up its morale and prestige, discredit and demoralize the authorities to use harsh and repressive measures, demoralize the people and weaken their confidence in the government and to weaken the will of the government to resist. That the following aggravating circumstances attended the commission of the offense: a. That the offense was committed in contempt of and with insult to the public authorities; b. That some of the overt acts were committed in the Palace of the Chief Executive; c. That craft, fraud, or disguise was employed; d. That the offense was committed with the aid of armed men; e. That the offense was committed with the aid of persons under fifteen(15) years old. Identical allegations are made in the complaint filed with the City Fiscal of Quezon City, except that the second paragraph thereof is slightly more elaborate than that of the complaint filed with the CFI, although substantially the same. 26 In both complaints, the acts imputed to the defendants herein constitute rebellion and subversion, of in the language of the proclamation "other overt acts committed ... in furtherance" of said rebellion, both of which are covered by the proclamation suspending the privilege of the writ. It is clear, therefore, that

the crime for which the detained petitioners are held and deprived of their liberty are among those for which the privilege of the writ ofhabeas corpus has been suspended. Up to this point, the Members of the Court are unanimous on the legal principles enunciated. After finding that Proclamation No. 889, as amended, is not invalid and that petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison are detained for and actually accused of an offense for which the privilege of the writ has been suspended by said proclamation, our next step would have been the following: The Court, or a commissioner designated by it, would have received evidence on whether as stated in respondents' "Answer and Return" said petitioners had been apprehended and detained "on reasonable belief" that they had "participated in the crime of insurrection or rebellion." It is so happened, however, that on November 13, 1971 or two (2) days before the proceedings 27 relative to the briefing held on October 28 and 29, 1971, had been completed by the filing of the summary of the matters then taken up the aforementioned criminal complaints were filed against said petitioners. What is more, the preliminary examination and/or investigation of the charges contained in said complaints has already begun. The next question, therefore, is: Shall We now order, in the cases at hand, the release of said petitioners herein, despite the formal and substantial validity of the proclamation suspending the privilege, despite the fact that they are actually charged with offenses covered by said proclamation and despite the aforementioned criminal complaints against them and the preliminary examination and/or investigations being conducted therein? The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion, and, so hold, that, instead of this Court or its Commissioner taking the evidence adverted to above, it is best to let said preliminary examination and/or investigation to be completed, so that petitioners' released could be ordered by the court of first instance, should it find that there is no probable cause against them, or a warrant for their arrest could be issued, should a probable cause be established against them. Such course of action is more favorable to the petitioners, inasmuch as the preliminary examination or investigation requires a greater quantum of proof than that needed to establish that the Executive had not acted arbitrary in causing the petitioners to be apprehended and detained upon the ground that they had participated in the commission of the crime of insurrection or rebellion. And, it is mainly for the reason that the Court has opted to allow the Court of First Instance of Rizal to proceed with the determination of the existence of probable cause, although ordinarily the Court would have merely determined the existence of the substantial evidence of petitioners' connection with the crime of rebellion. Besides, the latter alternative would require the reception of evidence by this Court and thus duplicate the proceedings now taking place in the court of first instance. What is more, since the evidence involved in the same proceedings would be substantially the same and the presentation of such evidence cannot be made simultaneously, each proceeding would tend to delay the other. Mr. Justice Fernando is of the opinion in line with the view of Mr. Justice Tuason, in Nava v. Gatmaitan, 28 to the effect that "... if and when formal complaint is presented, the court steps in and the executive steps out. The detention ceases to be an executive and becomes a judicial concern ..." that the filing of the above-mentioned complaint against the six (6) detained petitioners herein, has the effect of the Executive giving up his authority to continue holding them pursuant to Proclamation No. 889, as amended, even if he did not so intend, and to place them fully under the authority of courts of justice, just like any other person, who, as such, cannot be deprived of his liberty without lawful warrant, which has not, as yet, been issued against anyone of them, and that, accordingly, We should order their immediate release. Despite the humanitarian and libertarian spirit with which this view had been espoused, the other Members of the Court are unable to accept it because: (a) If the proclamation suspending the privilege of the writ of habeas corpus is valid and We so hold it to be and the detainee is covered by the proclamation, the filing of a complaint or information against him does not affect the suspension of said privilege, and, consequently, his release may not be ordered by Us; (b) Inasmuch as the filing of a formal complaint or information does not detract from the validity and efficacy of the suspension of the privilege, it would be more reasonable to construe the filing of said formal charges with the court of first instance as an expression of the President's belief that there are sufficient evidence to convict the petitioners so charged and that hey should not be released, therefore, unless and until said court after conducting the corresponding preliminary examination and/or investigation shall find that the prosecution has not established the existence of a probable cause. Otherwise, the Executive would have released said accused, as were the other petitioners herein; (c) From a long-range viewpoint, this interpretation of the act of the President in having said formal charges filed is, We believe, more beneficial to the detainees than that favored by Mr. Justice Fernando. His view particularly the theory that the detainees should be released immediately, without

bail, even before the completion of said preliminary examination and/or investigation would tend to induce the Executive to refrain from filing formal charges as long as it may be possible. Manifestly, We should encourage the early filing of said charges, so that courts of justice could assume jurisdiction over the detainees and extend to them effective protection. Although some of the petitioners in these cases pray that the Court decide whether the constitutional right to bail is affected by the suspension of the privilege of the writ of habeas corpus, We do not deem it proper to pass upon such question, the same not having been sufficiently discussed by the parties herein. Besides, there is no point in settling said question with respect to petitioners herein who have been released. Neither is necessary to express our view thereon, as regards those still detained, inasmuch as their release without bail might still be decreed by the court of first instance, should it hold that there is no probable cause against them. At any rate, should an actual issue on the right to bail arise later, the same may be brought up in appropriate proceedings. WHEREFORE, judgment is hereby rendered: 1. Declaring that the President did not act arbitrarily in issuing Proclamation No. 889, as amended, and that, accordingly, the same is not unconstitutional; 2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013, L-34039 and L-34265, insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda, Vicentellao, Juan Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo Rimando, Filomeno M. de Castro, Barcelisa C. de Castro and Antolin Oreta, Jr. are concerned; 3. The Court of First Instance of Rizal is hereby directed to act with utmost dispatch in conducting the preliminary examination and/or investigation of the charges for violation of the Anti-Subversion Act filed against herein petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison, and to issue the corresponding warrants of arrest, if probable cause is found to exist against them, or, otherwise, to order their release; and 4. Should there be undue delay, for any reason whatsoever, either in the completion of the aforementioned preliminary examination and/or investigation, or in the issuance of the proper orders or resolution in connection therewith, the parties may by motion seek in these proceedings the proper relief. 5. Without special pronouncement as to costs. It is so ordered. Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Separate Opinions

CASTRO and BARREDO, JJ., concurring: While concurring fully in the opinion of the Court, we nevertheless write separately to answer, from our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we understand it, is that while an individual may be detained beyond the maximum detention period fixed by law when the privilege of the writ ofhabeas corpus is suspended, such individual is nevertheless entitled to be released from the very moment a formal complaint is filed in court against him. The theory seems to be that from the time the charge is filed, the court acquires, because the executive officials abdicate, jurisdiction.
1 This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs. Gatmaitan. Justice Tuason, in part, said:

All persons detained for investigation by the executive department are under executive control. It is here where the Constitution tells the court to keep their hands off unless the cause of the detention be for an offense other than rebellion or insurrection, which is another matter.

By the same token, if and when a formal complaint is presented, the court steps in and the executive steps out. The detention ceases to be an executive and becomes a judicial concern... But the issue to which the Supreme Court Justices in Nava individually addressed themselves is radically disparate from that raised in these cases. There the question was whether after the detainees had been formally charged in court and an order for their arrest had been issued, they were entitled to bail. It was on that question that the Court was split 5 to 4, and it was the opinion of Justice Tuason, one of the five, that after the detainees had been accused in court, the question of release on bail was a matter that the court should decide. Upon the other hand, the question here presented is whether the detainees should be released forthwith upon the filing of charges against them in court and cannot thereafter be re-arrested except only by court order. This is a totally different question. It is our submission that they are not entitled to be released. The dissent is, we believe, based on the fallacy that when a formal charge is filed against a person he is thereby surrendered to the court and the arresting officer is thereby divested of custody over him. Except in a metaphorical sense, the detainee is not delivered or surrendered at all to the judicial authorities. What the phrase "delivered to the court" simply means is that from the time a person is indicted in court, the 2 latter acquires jurisdiction over the subject-matter. The detainee remains in the custody of the detaining officer, under the same authority invoked for the detention, until the court decides whether there is probable cause to order his arrest. Under ordinary circumstances, when a person is arrested without a warrant and is charged in court, he is not released. He is held until the judicial authority orders either his release or his confinement. It is no argument to say that under Article III, section 1 (3) of the Constitution only a court can order the arrest of an individual. Arrests without warrant are familiar occurrences, and they have been upheld as constitutional. 3 What is more, the privilege of the writ was suspended precisely to authorize the detention of persons believed to be plotting against the security of the State until the courts can act on their respective cases. To require their peremptory release upon the mere filing of charges against them, without giving the proper court opportunity and time to decide the question of probable cause, would obviously be to defeat the very basic purpose of the suspension. We think our role as judges in the cases at bar is clear. After finding that the Presidential decree was validly issued, we should give it effect. To uphold its validity and then try to dilute its efficacy in the name of personal liberty is, we believe, actually to doubt the constitutionality of the exercise of the Presidential prerogative. Not only that. If the rule were that the detainees must be released upon the mere filing of charges against them in court, it is unlikely that the executive officials would have filed the charges because of their awareness of the continuing danger which in the first place impelled the arrest of the detainees, and the end result would be to inflict on the latter a much longer period of deprivation of personal liberty than is warranted. Whatever our personal views may be of the power to suspend, the fact remains that the power is there, writ large and indubitable in the Constitution. It is far too easy to write anthologies on the side of civil liberties or on the side of governmental order, depending on one's inclination or commitment. But that is not our function. Constitutional issues, it has been said, do not take the form of right versus wrong, but of right versus right. And the Court's function, as we see it, is, fundamentally to moderate the clash of values, and not to inflate them into constitutional dimensions. Where it is possible, we should avoid passing on a constitutional question. But where there is no escape from the duty of abstention, our further duty is to decide the question of constitutional validity on a less heroic plane. And that is what we have tried to do in pointing out that the ordinary rules of criminal procedure provide an adequate answer to Mr. Justice Fernando's problem. That solution is for the arresting officer to hold the person detained until the court can act, with the only difference that where the privilege of the writ of habeas corpus is available, the arresting officer must release the detainee upon the expiration of the maximum detention time allowed by law, if he has not delivered the detainee to the court within that period. To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after all, no less to be libertarian. Insistence on it is, to us, and in point of fact, one of the cornerstone of liberalism. FERNANDO, J., concurring and dissenting:

The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal. Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under detention should not be set free. It is for me a source of deep regret that having gone quite far in manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go farther. Candor induces the admission though that the situation realistically viewed may not justify going all the way. Nonetheless the deeply-rooted conviction as to the undoubted primacy of constitutional rights, even under circumstances the least propitious, precludes me from joining my brethren in that portion of the decision reached. Nor should I let this opportunity pass without acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the Chief Justice. 1. The function of judicial review fitly characterized as both delicate and awesome is never more so than when the judiciary is called upon to pass on the validity of an act of the President arising from the exercise of a power granted admittedly to cope with an emergency or crisis situation. More specifically, with reference to the petitions before us, the question that calls for prior consideration is whether the suspension of the privilege of the writ ofhabeas corpus is tainted by constitutional infirmity. What the President did attested to an executive determination of the existence of the conditions that warranted such a move. For one of the mandatory provisions of the Bill of Rights 1 is that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the public safety requires, and, 2 even, then, only in such places and for such period of time as may be necessary. There is the further 3 provision that the constitutional official so empowered to take such a step is the President. The exceptional character of the situation is thus underscored. The presumption would seem to be that if such a step were taken, there must have been a conviction on the part of the Executive that he could not, in the fulfillment of the responsibility entrusted to him, avoid doing so. That decision is his to make; it is not for the judiciary. It is therefore encased in the armor of what must have been a careful study on his part, in the light of relevant information which as Commander-in-Chief he is furnished, ordinarily beyond the ken of the courts. When it is considered further that the Constitution does admit that the sphere of individual freedom contracts and the scope of governmental authority expands during times of emergency, it becomes manifest why an even greater degree of caution and circumspection must be exercised by the judiciary when, on this matter, it is called upon to discharge the function of judicial review. 2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if it maintains that the existence of rebellion suffices to call for the disregard of the applicable constitutional guarantees. Its implication would be that the Constitution ceases to be operative in times of danger to national safety and security. Well has the American Supreme Court in the leading case of Exparte Milligan 4 stated: "The Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances." This ringing affirmation should at the very least give pause to those troubled by the continuing respect that must be accorded civil liberties under crisis conditions. The fact that the Constitution provides for only one situation where a provision of the Bill of Rights may be suspended, emphasizes the holding in the abovecited Milligan case that the framers of the Constitution "limited the suspension to one great right and left the rest to remain forever inviolable." While perhaps at times likely to give rise to difficulties in the disposition of cases during a troubled era where a suspension has been decreed, such a view is to be taken into careful consideration. 3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to apply its provisions in the determination of actual cases and controversies before it. Nor is this all. The protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the judiciary. 5The exercise thereof according to Justice Laurel requires that it gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive action. 6 The supreme mandates of the Constitution are not to be loosely brushed aside. 7 Otherwise, the Bill or Rights might be emasculated into mere expressions of sentiment. 8 Speaking of this Court, Justice Abad Santos once pertinently observed: "This court owes its own existence to that great instrument and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the provisions of 9 the Constitution." Justice Tuason would thus apply the constitutional rights with undeviating rigidity: "To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called 'judicial statesmanship.' The Legislature itself can not infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound to protect and maintain undiluted individual rights." 10

It is in that context, to my mind, that the petitions before us should be appraised, for in terms of physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas corpus occupies a place second to none. As was stressed in Gumabon v. Director of Prisons: 11 "Rightly then could Chafee refer to the writ 'as the most important human rights provision' in the fundamental law." Care is to be taken then lest in the inquiry that must be undertaken to determine whether the constitutional requisites justifying a suspension are present, the effects thereof as to the other civil liberties are not fully taken into account. It affords no justification to say that such a move was prompted by the best motives and loftiest of intentions. Much less can there be acceptance of the view, as contended by one of the counsel for respondents, that between the safety of the overwhelming majority of Filipinos and the claims of the petitioners to liberty, the former must prevail. That is to indulge in the vice of over simplification. Our fundamental postulate is that the state exists to assure individual rights, to protect which governments are instituted deriving their just powers from the consent of the governed. "The cardinal article of faith of our civilization," according to Frank further, "is the inviolable character of the individual." 12 4. With all the admitted difficulty then that the function of judicial review presents in passing upon the executive determination of suspending the privilege of the writ, there is still no way of evading such a responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did, challenge its validity. To repeat, this Court, even if denied the fullness of information and the conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by virtue of its competence but by the force of its commission a function authenticated by history. 13 That would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of liberty and equally against the erosion of possible 14 encroachments, whether minute or extensive. Even if there be no showing then of constitutional infirmity, at least one other branch of the government, that to which such an awesome duty had been conferred has had the opportunity of reflecting on the matter with detachment, with objectivity, and with full awareness of the commands of the Constitution as well as the realities of the situation. 5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance on the doctrine of political questions. The term has been made applicable to controversies clearly nonjudicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to which deference must be paid. 15 It has likewise been employed loosely to characterize a suit where the party proceeded 16 against is the President or Congress, or any branch thereof. If to be de-limited with accuracy, "political questions" should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary authority is vested either in the Presidency or Congress. It is thus beyond the competence of the judiciary to pass upon. 17 Unless, clearly falling within the above formulation, the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into play if there is an appropriate proceeding that may be filed only after either coordinate branch has acted. Even when the Presidency or Congress possesses plenary power, its improvidence exercise or the abuse thereof, if shown, may give rise to a justiciable controversy. 18 For the constitutional grant of authority is not usually unrestricted. There are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than political. So it is in the matter before us so clearly explained in the opinion of the Chief Justice. 6. The doctrine announced in Montenegro v. Castaeda 19 that such a question is political has thus been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v. Baker, a 1905 decision. 20This Court was partly misled by an undue reliance in the latter case on what it considered to be authoritative pronouncements from such illustrious American jurists as Marshall, Story, and Taney. That is to misread what was said by them. This is most evidence in the case of Chief Justice 21 Marshall, whose epochal Marbury v. Madison was cited. Why that was so is difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the function of judicial review owes its origin notwithstanding the absence of any explicit provision in the American Constitution empowering the courts to do so. Thus: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, the, the courts are to regard the constitution, and the

constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, 22 must govern the case to which they both apply." Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v. Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve during the War of 1812. His property was taken to satisfy the judgment. He brought an action of replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia" in certain cases, and Congress did provide that in those cases the President should have authority to make the call. All that Justice Story did in construing the statute in the light of the language and purpose of her Constitution was to recognize the authority of the American President to decide whether the exigency has arisen. In stating that such power was exclusive and thus had a conclusive effect, he relied on the language employed, impressed with such a character. The constitutional provision on the suspension of the privilege of the writ is, as shown, anything but that. 24 Chief Justice Taney, in Luther v. Borden, 25 likewise had to deal with a situation involving the calling out of the militia. As a matter of fact, an eminent commentator speaking of the two above decisions had this apt observation: "The common element in these opinions would seem to be a genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard, could not have any effect. More than this, both Story and Taney seem to share the suspicion, unusual in them, that under a popular form of government there are certain questions that the political branches must be trusted to answer with finality." 26 What was said next is even more pertinent. Thus: "It would be dangerous and misleading to push the principles of these cases too far, especially the doctrine of 'political questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously injured citizen relief from a palpably unwarranted use of presidential or military power, especially when the question at issue falls in the penumbra between the 'political' and the 'justiciable', the Court will act as if it had never heard of this doctrine and its underlying assumption that there are some powers against which the judiciary 27 simply cannot be expected to act as the last line of defense." It would thus seem evidence that support for the hitherto prevailing Montenegro ruling was rather frail. Happily, with our decision, it is no longer capable of the mischief to which it does lend itself of an undue diminution of judicial power to the prejudice of constitutional rights. 7. With such presidential determination of the existence of the conditions required by the Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other branches, this Court may thus legitimately inquire into its validity. The question before us, it bears repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is valid. The starting point must be a recognition that the power to suspend the privilege of the writ belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited then to the ascertainment of whether or not such a suspension, in the light of the credible information furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is not the correctness but the reasonableness of the action taken. One who is not the Executive but equally knowledgeable may entertain a different view, but the decision rests with the occupant of the office. As would be immediately apparent even from a cursory perusal of the data furnished the President, so impressively summarized in the opinion of the Chief Justice, the imputation of arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where the suspension operates as well as his instructions attested to a firm resolve on his part to keep strictly within the bounds of his authority. Under the circumstances, the decision reached by the Court that no finding of unconstitutionality is warranted commends itself for approval. The most that can be said is that there was a manifestation of presidential power well-nigh touching the extreme border of his conceded competence, beyond which a forbidden domain lies. The requisite showing of either improvidence or abuse has not been made. 8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes of an executive action which if valid binds all who are within its operations. The function of enacting a legal norm general in character appertains to either Congress or the President. Its specific application to particular individuals, like petitioners here, is however a task incumbent on the judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid, any one may seek judicial determination as to whether he is embraced within its terms. After our declaration of the validity of the Proclamation No. 889 as amended, the next question is its applicability to petitioners. I am the first to recognize the meticulous care with which the Chief Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter to face. There is thus as assurance that as far as human foresight can anticipate matters, the possibility of abuse is minimized. The matter, for me, could be viewed independently of whether or not petitioners, by the conduct imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For admittedly, a supervening fact, the Executive's determination to have them charged according to the ordinary procedural rules, did present itself. There was thus introduced an element decisive in its consequences. They are entitled to treatment no different from that accorded any other individual facing possible criminal

charges. The opinion of the Chief Justice is correct in pointing out that such an approach follows the 28 dictum of Justice Tuason, speaking for himself in Nava v. Gatmaitan, where a majority of five, lacking just one vote to enable this Court to reach a binding decision, did arrive at the conclusion that the suspension of the privilege of the writ does not suspend the right to bail. Thus: "By the same token, if and when formal complaint is presented, the court steps in and the executive steps out. The detention ceases to be an executive and becomes a judicial concern. Thereupon the corresponding court assumes its role and the judicial process takes its course to the exclusion of the executive or the legislative departments. Hence forward, the accused is entitled to demand all the constitutional safeguards and privileges essential to due process." 29 Parenthetically, it may be observed that the above view reflects the stand taken by Justice Recto, fortified by Justice Laurel, drawing heavily on continental juristic thought, both of whom, having retired from the bench and thereafter having been elected to the Senate, were invited to appear as amici curiae in the Nava case. It would follow to my way of thinking then that the petitioners still detained ought not to be further deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held to answer, to be issued by a judge after a finding of probable cause. That is to comply with the constitutional 30 requirement against unreasonable search and seizure. Moreover, to keep them in confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer for a criminal offense without due process of law. 31 That would explain why with full recognition of the sense of realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach the same conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo, David, Gary Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the operation of the proclamation suspending the privilege of the writ of habeas corpus and are thus entitled to their liberty. I am reinforced in my conviction by the well-settled principle of constitutional construction that if there are two possible modes of interpretation, that one which raises the least constitutional doubt should be preferred. Certainly, to my way of thinking, the choice is obvious. That interpretation which would throw the full mantle of protection afforded by the Constitution to those unfortunate enough to be caught in the meshes of criminal law is more in keeping with the high estate accorded constitutional rights. There is another consideration that strengthens my conviction on the matter. The language of the Constitution would seem to imply at the most that the suspension of the privilege of the writ renders it unavailable for the time being. Still there are authorities sustaining the view that preventive detention 32 subject to the test of good faith is allowable. Such a doctrine is no doubt partly traceable to AngloAmerican legal history where as pointed out by Maine: "Substantive law has at first the look of being gradually secreted in the interstices of procedure." 33 The writ of habeas corpus then is more than just an efficacius device or the most speedy means of obtaining one's liberty. It has become a most valuable substantive right. It would thus serve the cause of constitutional rights better if the Tuason dictum as to the judicial process supplanting executive rule the moment charges are filed be accorded acceptance. Thereby the number of individuals who would have to submit to further detention, that may well turn out to be unjustified, would be reduced. What is more, greater fidelity is manifested to the principle that liberty is the rule and restraint the exception. I am not of course insensible to the observation in the opinion of the Court that this concept could be an obstacle to the early resumption of the ordinary judicial process as the Executive might be minded to postpone resort to it, considering that there would necessarily be an end to the detention at that early stage of individuals who continue to pose risk to the safety of the government. It does occur to me, however, that the presumption should be that the high executive dignitaries can be trusted to act in accordance with the dictates of good faith and the command of the Constitution. At least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or even from less worthy motives might make a mockey of the other constitutional rights. That is as it should be. It should continue to be so even if there be acceptance of the doctrine enunciated by Justice Tuason. There is, for me at least, no undue cause for pessimism. These is to my mind another reinforcement to this approach to the question before us, perhaps one based more on policy rather than strictly legal considerations. The petitioners who have not been released are youth leaders, who for motives best known to them, perhaps excess of idealism, impatience with existing conditions, even overweening ambition, clamor for change, apparently oblivious at times that it could be accomplished through means of which the law does not disapprove. It would be premature at this stage to say whether or not their activities have incurred for them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even they should recognize that the existing order has the right to defendant itself against those who would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free way of life seems to me, even at this stage, not without its beneficent influence on their future course of conduct. This is not by any means to intimate that my brethren view matters differently. Far from it. Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the Chief Justice stresses the importance of the rule of law. It is to be

hoped that with a proper understanding of what has been decided by the Court today, there would be a diminution of the wholesale condemnation of the present system of government by some sectors of the youth and perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if from all appearances their commitment and dedication are plain for all to see. More than that, such a response will go a long way towards a keener appreciation of the merits of a constitutional democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor do I close my eyes to the risk that such an attitude towards those who constitute a source of danger entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable. Repose, in the oftenquoted aphorism of Holmes, is not the destiny of man. 9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate constitutional rights for all, more especially so for those inclined and disposed to differ and to be vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the desirability of removing from the President his power to suspend the privilege of the writ of habeas corpus as well as the power to declare martial law. Nor would the government be lacking in authority to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as commander-in-chief can summon the aid of the armed forces to meet the danger posed to public safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the President to declare, there is a greater likelihood as far as the rights of the individual are concerned, of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would not be proper for the courts not to accord recognition to its exercise, if there be observance of the limitations imposed by the Constitution. At the most, they can only through construction nullify what would amount to an unconstitutional application. How desirable it would be then, to my way of thinking, if the Constitution would strip the President of such power. That would be constitutionalism triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong for the liberties of the people nor too weak to maintain its existence. This is a matter though appropriately addressed to the Constitutional Convention. On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as pointed out at the outset, is possessed of a high degree of merit.

Separate Opinions CASTRO and BARREDO, JJ., concurring: While concurring fully in the opinion of the Court, we nevertheless write separately to answer, from our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we understand it, is that while an individual may be detained beyond the maximum detention period fixed by law when the privilege of the writ ofhabeas corpus is suspended, such individual is nevertheless entitled to be released from the very moment a formal complaint is filed in court against him. The theory seems to be that from the time the charge is filed, the court acquires, because the executive officials abdicate, jurisdiction. This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs. Gatmaitan. 1 Justice Tuason, in part, said: All persons detained for investigation by the executive department are under executive control. It is here where the Constitution tells the court to keep their hands off unless the cause of the detention be for an offense other than rebellion or insurrection, which is another matter. By the same token, if and when a formal complaint is presented, the court steps in and the executive steps out. The detention ceases to be an executive and becomes a judicial concern... But the issue to which the Supreme Court Justices in Nava individually addressed themselves is radically disparate from that raised in these cases. There the question was whether after the detainees had been formally charged in court and an order for their arrest had been issued, they were entitled to bail. It was on that question that the Court was split 5 to 4, and it was the opinion of Justice Tuason, one of the five,

that after the detainees had been accused in court, the question of release on bail was a matter that the court should decide. Upon the other hand, the question here presented is whether the detainees should be released forthwith upon the filing of charges against them in court and cannot thereafter be re-arrested except only by court order. This is a totally different question. It is our submission that they are not entitled to be released. The dissent is, we believe, based on the fallacy that when a formal charge is filed against a person he is thereby surrendered to the court and the arresting officer is thereby divested of custody over him. Except in a metaphorical sense, the detainee is not delivered or surrendered at all to the judicial authorities. What the phrase "delivered to the court" simply means is that from the time a person is indicted in court, the 2 latter acquires jurisdiction over the subject-matter. The detainee remains in the custody of the detaining officer, under the same authority invoked for the detention, until the court decides whether there is probable cause to order his arrest. Under ordinary circumstances, when a person is arrested without a warrant and is charged in court, he is not released. He is held until the judicial authority orders either his release or his confinement. It is no argument to say that under Article III, section 1 (3) of the Constitution only a court can order the arrest of an individual. Arrests without warrant are familiar occurrences, and they have been upheld as 3 constitutional. What is more, the privilege of the writ was suspended precisely to authorize the detention of persons believed to be plotting against the security of the State until the courts can act on their respective cases. To require their peremptory release upon the mere filing of charges against them, without giving the proper court opportunity and time to decide the question of probable cause, would obviously be to defeat the very basic purpose of the suspension. We think our role as judges in the cases at bar is clear. After finding that the Presidential decree was validly issued, we should give it effect. To uphold its validity and then try to dilute its efficacy in the name of personal liberty is, we believe, actually to doubt the constitutionality of the exercise of the Presidential prerogative. Not only that. If the rule were that the detainees must be released upon the mere filing of charges against them in court, it is unlikely that the executive officials would have filed the charges because of their awareness of the continuing danger which in the first place impelled the arrest of the detainees, and the end result would be to inflict on the latter a much longer period of deprivation of personal liberty than is warranted. Whatever our personal views may be of the power to suspend, the fact remains that the power is there, writ large and indubitable in the Constitution. It is far too easy to write anthologies on the side of civil liberties or on the side of governmental order, depending on one's inclination or commitment. But that is not our function. Constitutional issues, it has been said, do not take the form of right versus wrong, but of right versus right. And the Court's function, as we see it, is, fundamentally to moderate the clash of values, and not to inflate them into constitutional dimensions. Where it is possible, we should avoid passing on a constitutional question. But where there is no escape from the duty of abstention, our further duty is to decide the question of constitutional validity on a less heroic plane. And that is what we have tried to do in pointing out that the ordinary rules of criminal procedure provide an adequate answer to Mr. Justice Fernando's problem. That solution is for the arresting officer to hold the person detained until the court can act, with the only difference that where the privilege of the writ of habeas corpus is available, the arresting officer must release the detainee upon the expiration of the maximum detention time allowed by law, if he has not delivered the detainee to the court within that period. To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after all, no less to be libertarian. Insistence on it is, to us, and in point of fact, one of the cornerstone of liberalism. FERNANDO, J., concurring and dissenting: The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal. Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under detention should not be set free. It is for me a source of deep regret that having gone quite far in manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go farther. Candor induces the admission though that the situation realistically viewed may not justify going all the way. Nonetheless the deeply-rooted

conviction as to the undoubted primacy of constitutional rights, even under circumstances the least propitious, precludes me from joining my brethren in that portion of the decision reached. Nor should I let this opportunity pass without acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the Chief Justice. 1. The function of judicial review fitly characterized as both delicate and awesome is never more so than when the judiciary is called upon to pass on the validity of an act of the President arising from the exercise of a power granted admittedly to cope with an emergency or crisis situation. More specifically, with reference to the petitions before us, the question that calls for prior consideration is whether the suspension of the privilege of the writ ofhabeas corpus is tainted by constitutional infirmity. What the President did attested to an executive determination of the existence of the conditions that warranted 1 such a move. For one of the mandatory provisions of the Bill of Rights is that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the public safety requires, and, even, then, only in such places and for such period of time as may be necessary. 2There is the further provision that the constitutional official so empowered to take such a step is the President. 3The exceptional character of the situation is thus underscored. The presumption would seem to be that if such a step were taken, there must have been a conviction on the part of the Executive that he could not, in the fulfillment of the responsibility entrusted to him, avoid doing so. That decision is his to make; it is not for the judiciary. It is therefore encased in the armor of what must have been a careful study on his part, in the light of relevant information which as Commander-in-Chief he is furnished, ordinarily beyond the ken of the courts. When it is considered further that the Constitution does admit that the sphere of individual freedom contracts and the scope of governmental authority expands during times of emergency, it becomes manifest why an even greater degree of caution and circumspection must be exercised by the judiciary when, on this matter, it is called upon to discharge the function of judicial review. 2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if it maintains that the existence of rebellion suffices to call for the disregard of the applicable constitutional guarantees. Its implication would be that the Constitution ceases to be operative in times of danger to national safety and security. Well has the American Supreme Court in the leading case of Exparte Milligan 4 stated: "The Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances." This ringing affirmation should at the very least give pause to those troubled by the continuing respect that must be accorded civil liberties under crisis conditions. The fact that the Constitution provides for only one situation where a provision of the Bill of Rights may be suspended, emphasizes the holding in the abovecited Milligan case that the framers of the Constitution "limited the suspension to one great right and left the rest to remain forever inviolable." While perhaps at times likely to give rise to difficulties in the disposition of cases during a troubled era where a suspension has been decreed, such a view is to be taken into careful consideration. 3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to apply its provisions in the determination of actual cases and controversies before it. Nor is this all. The protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and 5 privileges of the judiciary. The exercise thereof according to Justice Laurel requires that it gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive action. 6 The 7 supreme mandates of the Constitution are not to be loosely brushed aside. Otherwise, the Bill or Rights 8 might be emasculated into mere expressions of sentiment. Speaking of this Court, Justice Abad Santos once pertinently observed: "This court owes its own existence to that great instrument and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the provisions of the Constitution." 9 Justice Tuason would thus apply the constitutional rights with undeviating rigidity: "To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called 'judicial statesmanship.' The Legislature itself can not infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the 10 repository of civil liberty are bound to protect and maintain undiluted individual rights." It is in that context, to my mind, that the petitions before us should be appraised, for in terms of physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas corpus occupies a place second to none. As was stressed in Gumabon v. Director of Prisons: 11 "Rightly then could Chafee refer to the writ 'as the most important human rights provision' in the fundamental law." Care is to be taken then lest in the inquiry that must be undertaken to determine whether the constitutional requisites justifying a suspension are present, the effects thereof as to the other civil liberties are not fully taken into account. It affords no justification to say that such a move was prompted by the best motives and loftiest of intentions. Much less can there be acceptance of the view, as contended by one of the counsel for respondents, that between the safety of the overwhelming majority of Filipinos and the claims of the

petitioners to liberty, the former must prevail. That is to indulge in the vice of over simplification. Our fundamental postulate is that the state exists to assure individual rights, to protect which governments are instituted deriving their just powers from the consent of the governed. "The cardinal article of faith of our 12 civilization," according to Frank further, "is the inviolable character of the individual." 4. With all the admitted difficulty then that the function of judicial review presents in passing upon the executive determination of suspending the privilege of the writ, there is still no way of evading such a responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did, challenge its validity. To repeat, this Court, even if denied the fullness of information and the conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by virtue of its competence but by the force of its commission a function authenticated by history. 13 That would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of liberty and equally against the erosion of possible encroachments, whether minute or extensive. 14 Even if there be no showing then of constitutional infirmity, at least one other branch of the government, that to which such an awesome duty had been conferred has had the opportunity of reflecting on the matter with detachment, with objectivity, and with full awareness of the commands of the Constitution as well as the realities of the situation. 5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance on the doctrine of political questions. The term has been made applicable to controversies clearly nonjudicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to which deference 15 must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress, or any branch thereof. 16 If to be de-limited with accuracy, "political questions" should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary authority is vested either in the Presidency or Congress. It is thus beyond the competence of the judiciary to pass upon. 17 Unless, clearly falling within the above formulation, the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into play if there is an appropriate proceeding that may be filed only after either coordinate branch has acted. Even when the Presidency or Congress possesses plenary power, its improvidence exercise or the abuse 18 thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is not usually unrestricted. There are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than political. So it is in the matter before us so clearly explained in the opinion of the Chief Justice. 6. The doctrine announced in Montenegro v. Castaeda 19 that such a question is political has thus been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v. Baker, a 20 1905 decision. This Court was partly misled by an undue reliance in the latter case on what it considered to be authoritative pronouncements from such illustrious American jurists as Marshall, Story, and Taney. That is to misread what was said by them. This is most evidence in the case of Chief Justice Marshall, whose epochal Marbury v. Madison 21was cited. Why that was so is difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the function of judicial review owes its origin notwithstanding the absence of any explicit provision in the American Constitution empowering the courts to do so. Thus: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, the, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, 22 must govern the case to which they both apply." Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v. Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve during the War of 1812. His property was taken to satisfy the judgment. He brought an action of replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia" in certain cases, and Congress did provide that in those cases the President should have authority to make the call. All that Justice Story

did in construing the statute in the light of the language and purpose of her Constitution was to recognize the authority of the American President to decide whether the exigency has arisen. In stating that such power was exclusive and thus had a conclusive effect, he relied on the language employed, impressed with such a character. The constitutional provision on the suspension of the privilege of the writ is, as 24 25 shown, anything but that. Chief Justice Taney, in Luther v. Borden, likewise had to deal with a situation involving the calling out of the militia. As a matter of fact, an eminent commentator speaking of the two above decisions had this apt observation: "The common element in these opinions would seem to be a genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard, could not have any effect. More than this, both Story and Taney seem to share the suspicion, unusual in them, that under a popular form of government there are certain questions that the political branches must be 26 trusted to answer with finality." What was said next is even more pertinent. Thus: "It would be dangerous and misleading to push the principles of these cases too far, especially the doctrine of 'political questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously injured citizen relief from a palpably unwarranted use of presidential or military power, especially when the question at issue falls in the penumbra between the 'political' and the 'justiciable', the Court will act as if it had never heard of this doctrine and its underlying assumption that there are some powers against which the judiciary simply cannot be expected to act as the last line of defense." 27It would thus seem evidence that support for the hitherto prevailing Montenegro ruling was rather frail. Happily, with our decision, it is no longer capable of the mischief to which it does lend itself of an undue diminution of judicial power to the prejudice of constitutional rights. 7. With such presidential determination of the existence of the conditions required by the Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other branches, this Court may thus legitimately inquire into its validity. The question before us, it bears repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is valid. The starting point must be a recognition that the power to suspend the privilege of the writ belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited then to the ascertainment of whether or not such a suspension, in the light of the credible information furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is not the correctness but the reasonableness of the action taken. One who is not the Executive but equally knowledgeable may entertain a different view, but the decision rests with the occupant of the office. As would be immediately apparent even from a cursory perusal of the data furnished the President, so impressively summarized in the opinion of the Chief Justice, the imputation of arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where the suspension operates as well as his instructions attested to a firm resolve on his part to keep strictly within the bounds of his authority. Under the circumstances, the decision reached by the Court that no finding of unconstitutionality is warranted commends itself for approval. The most that can be said is that there was a manifestation of presidential power well-nigh touching the extreme border of his conceded competence, beyond which a forbidden domain lies. The requisite showing of either improvidence or abuse has not been made. 8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes of an executive action which if valid binds all who are within its operations. The function of enacting a legal norm general in character appertains to either Congress or the President. Its specific application to particular individuals, like petitioners here, is however a task incumbent on the judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid, any one may seek judicial determination as to whether he is embraced within its terms. After our declaration of the validity of the Proclamation No. 889 as amended, the next question is its applicability to petitioners. I am the first to recognize the meticulous care with which the Chief Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter to face. There is thus as assurance that as far as human foresight can anticipate matters, the possibility of abuse is minimized. The matter, for me, could be viewed independently of whether or not petitioners, by the conduct imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For admittedly, a supervening fact, the Executive's determination to have them charged according to the ordinary procedural rules, did present itself. There was thus introduced an element decisive in its consequences. They are entitled to treatment no different from that accorded any other individual facing possible criminal charges. The opinion of the Chief Justice is correct in pointing out that such an approach follows the dictum of Justice Tuason, speaking for himself in Nava v. Gatmaitan, 28 where a majority of five, lacking just one vote to enable this Court to reach a binding decision, did arrive at the conclusion that the suspension of the privilege of the writ does not suspend the right to bail. Thus: "By the same token, if and when formal complaint is presented, the court steps in and the executive steps out. The detention ceases to be an executive and becomes a judicial concern. Thereupon the corresponding court assumes its role and the judicial process takes its course to the exclusion of the executive or the legislative departments. Hence forward, the accused is entitled to demand all the constitutional safeguards and privileges 29 essential to due process." Parenthetically, it may be observed that the above view reflects the stand

taken by Justice Recto, fortified by Justice Laurel, drawing heavily on continental juristic thought, both of whom, having retired from the bench and thereafter having been elected to the Senate, were invited to appear as amici curiae in the Nava case. It would follow to my way of thinking then that the petitioners still detained ought not to be further deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held to answer, to be issued by a judge after a finding of probable cause. That is to comply with the constitutional requirement against unreasonable search and seizure. 30 Moreover, to keep them in confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer for a criminal offense 31 without due process of law. That would explain why with full recognition of the sense of realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach the same conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo, David, Gary Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the operation of the proclamation suspending the privilege of the writ of habeas corpus and are thus entitled to their liberty. I am reinforced in my conviction by the well-settled principle of constitutional construction that if there are two possible modes of interpretation, that one which raises the least constitutional doubt should be preferred. Certainly, to my way of thinking, the choice is obvious. That interpretation which would throw the full mantle of protection afforded by the Constitution to those unfortunate enough to be caught in the meshes of criminal law is more in keeping with the high estate accorded constitutional rights. There is another consideration that strengthens my conviction on the matter. The language of the Constitution would seem to imply at the most that the suspension of the privilege of the writ renders it unavailable for the time being. Still there are authorities sustaining the view that preventive detention subject to the test of good faith is allowable. 32 Such a doctrine is no doubt partly traceable to AngloAmerican legal history where as pointed out by Maine: "Substantive law has at first the look of being 33 gradually secreted in the interstices of procedure." The writ of habeas corpus then is more than just an efficacius device or the most speedy means of obtaining one's liberty. It has become a most valuable substantive right. It would thus serve the cause of constitutional rights better if the Tuason dictum as to the judicial process supplanting executive rule the moment charges are filed be accorded acceptance. Thereby the number of individuals who would have to submit to further detention, that may well turn out to be unjustified, would be reduced. What is more, greater fidelity is manifested to the principle that liberty is the rule and restraint the exception. I am not of course insensible to the observation in the opinion of the Court that this concept could be an obstacle to the early resumption of the ordinary judicial process as the Executive might be minded to postpone resort to it, considering that there would necessarily be an end to the detention at that early stage of individuals who continue to pose risk to the safety of the government. It does occur to me, however, that the presumption should be that the high executive dignitaries can be trusted to act in accordance with the dictates of good faith and the command of the Constitution. At least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or even from less worthy motives might make a mockey of the other constitutional rights. That is as it should be. It should continue to be so even if there be acceptance of the doctrine enunciated by Justice Tuason. There is, for me at least, no undue cause for pessimism. These is to my mind another reinforcement to this approach to the question before us, perhaps one based more on policy rather than strictly legal considerations. The petitioners who have not been released are youth leaders, who for motives best known to them, perhaps excess of idealism, impatience with existing conditions, even overweening ambition, clamor for change, apparently oblivious at times that it could be accomplished through means of which the law does not disapprove. It would be premature at this stage to say whether or not their activities have incurred for them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even they should recognize that the existing order has the right to defendant itself against those who would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free way of life seems to me, even at this stage, not without its beneficent influence on their future course of conduct. This is not by any means to intimate that my brethren view matters differently. Far from it. Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper understanding of what has been decided by the Court today, there would be a diminution of the wholesale condemnation of the present system of government by some sectors of the youth and perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if from all appearances their commitment and dedication are plain for all to see. More than that, such a response will go a long way towards a keener appreciation of the merits of a constitutional democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor do I close

my eyes to the risk that such an attitude towards those who constitute a source of danger entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable. Repose, in the oftenquoted aphorism of Holmes, is not the destiny of man. 9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate constitutional rights for all, more especially so for those inclined and disposed to differ and to be vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the desirability of removing from the President his power to suspend the privilege of the writ of habeas corpus as well as the power to declare martial law. Nor would the government be lacking in authority to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as commander-in-chief can summon the aid of the armed forces to meet the danger posed to public safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the President to declare, there is a greater likelihood as far as the rights of the individual are concerned, of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would not be proper for the courts not to accord recognition to its exercise, if there be observance of the limitations imposed by the Constitution. At the most, they can only through construction nullify what would amount to an unconstitutional application. How desirable it would be then, to my way of thinking, if the Constitution would strip the President of such power. That would be constitutionalism triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong for the liberties of the people nor too weak to maintain its existence. This is a matter though appropriately addressed to the Constitutional Convention. On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as pointed out at the outset, is possessed of a high degree of merit.