Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. 150185

May 27, 2004

TERESITA TANGHAL OKABE, petitioner, vs. HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, respondents.

DECISION

CALLEJO, SR., J.: Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that part of the Decision 1 of the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of the respondent judge in Criminal Case No. 00-0749.

The Antecedents Cecilia Maruyama executed a fifteen-page affidavit-complaint2 and filed the same with the Office of the City Prosecutor of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she entrusted Y11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged in the business of "door-to-door delivery" from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money as agreed upon, and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal.

During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit, Setsu alleged that the money which was entrusted to the petitioner for delivery to the Philippines belonged to her and her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a reply 3 to the petitioners counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came out with a resolution dated March 30, 2000, finding probable cause forestafa against the petitioner.4 Attached to the resolution, which was submitted to the city prosecutor for approval, was the Information5 against the petitioner and Maruyamas affidavit-complaint. The city prosecutor approved the resolution and the Information dated March 30, 2000 attached thereto.6

On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was raffled to Branch 119 of the court presided by Judge Pedro de Leon Gutierrez. 7 The accusatory portion of the Information reads:

That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused defrauded Cecilia Maruyama and Conchita Quicho, complainant herein, in the following manner, to wit: said accused received in trust from Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso equivalent to P3,839,465.00 under obligation to deliver the money to Conchita Quicho at the NAIA International Airport, Pasay City, immediately upon accused arrival from Japan, but herein accused once in possession of the same, did, then and there willfully, unlawfully and feloniously misappropriate and convert to her own personal benefit the said amount, and despite demands accused failed and refused to do so, to the damage and prejudice of the complainants in the aforesaid amount. Contrary to law.8

Appended to the Information was the affidavit-complaint of respondent Maruyama and the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the trial court issued a warrant for the arrest of the petitioner with a recommended bond of P40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City, who forthwith recalled the said warrant. The approved personal bail bond of the petitioner was transmitted to the RTC of Pasig City on June 21, 2000. Upon her request, the petitioner was furnished with a certified copy of the Information, the resolution and the criminal complaint which formed part of the records of the said case. The petitioner left the Philippines for Japan on June 17, 2000 without the trial courts permission, and returned to the Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and returned on July 12, 2000. On July 14, 2000, the trial court issued an Order setting the petitioners arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion for the issuance of the hold departure order, alleging as follows:

3. It has come to the knowledge of private complainant that there is an impending marriage within the Philippines of either the son or daughter of the above-named accused and that the above-named accusedwho has businesses in Japan, and is presently in Japanwill soon exit Japan and enter the Philippines to precisely attend said wedding;

4. Given [a] the bail was fixed at merely P40,000.00 and [b] the considerable financial capability of the accused, it is a foregone conclusion that the above-named accused will, upon arrest, readily and immediately post bond, and leave for Japanthereby frustrating and rendering inutile the administration of criminal justice in our country. The speed with which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japaneffectively evading arraignment and pleathus necessitates the immediate issuance of a Hold Departure Order even before her arrival here in the Philippines; 9

The trial court issued an order on the same day, granting the motion of the private prosecutor for the issuance of a hold departure order and ordering the Commission on Immigration and Deportation (CID) to hold and prevent any attempt on the part of the petitioner to depart from the Philippines.10 For her part, the petitioner filed on July 17, 2000 a verified motion for judicial determination of probable cause and to defer proceedings/arraignment, alleging that the only documents appended to the Information submitted by the investigating prosecutor were respondent Maruyamas affidavit-complaint for estafa and the resolution of the investigating prosecutor; the affidavits of the witnesses of the complainant, the respondents counter-affidavit and the other evidence adduced by the parties were not attached thereto. The petitioner further alleged that the documents submitted by the investigating prosecutor were not enough on which the trial court could base a finding of probable cause for estafaagainst her. She further averred that conformably to the rulings of this Court in Lim v. Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the investigating prosecutor to submit the following to the trial court to

enable it to determine the presence or absence of probable cause: (a) copies of the affidavits of the witnesses of the complainant; (b) the counter-affidavit of Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken during the preliminary investigation; and, (d) other documents presented during the said investigation.

On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan alleging, thus:

3. Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are still minors, namely:

3.1. Okabe, Jeffrey-18 years old born on 13 August 1981.

3.2. Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.

3.3. Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804.

3.4. The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki High School where her two (2) minor sons aforesaid are presently enrolled and studying because Okabe, Masatoshis graduation will take place on 26 July 2000.

3.5. The two (2) minor children of the accused absolutely depend their support (basic necessities) for foods, clothings, medicines, rentals, schooling and all other expenses for their survival to their legitimate mother who is the accused herein.

3.6. The issuance of the hold departure order (HDO) will impair the inherent custodial rights of the accused as the legitimate mother over these two (2) minor children which is repugnant to law.

3.7. The issuance of the hold departure order (HDO) will unduly restrict the accused to her custodial rights and visitation over her aforesaid minor children who are permanently living in Japan.

3.8. The issuance of the hold departure order (HDO) will unduly deprived (sic) these minor children to their right to obtain education and survival. 4. Accuseds only source of income and livelihood is door-to-door delivery from Japan to the Philippines and vice versa which has been taking place for a very long period of time and in the process she has been constantly departing from the Philippines on a weekly basis and arriving in Japan on the same frequency, as evidenced by xerox copies of the pages of her Philippine Passports which are hereto attached as Annexes "A," "A-1," "A-2" up to "A-30," respectively. To deprive her of this only source of her livelihood to which the aforesaid two (2) minor children are deriving their very survival in a foreign land will (sic) tantamount to oppression rather than prosecution and depriving the said minor sons of their right to live even before trial on the merits of this case that will (sic) tantamount to the destruction of the future of these minor children. 13 The private prosecutor opposed the petitioners motions during the hearing on July 21, 2000 which was also the date set for her arraignment. The hearing of the motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the said date, the petitioner filed a manifestation objecting to her arraignment prior to the resolution of her pending motions. She alleged that her arraignment for the crime charged should not be made a condition for the granting of her motion to recall the hold departure order issued against her. The arraignment of the petitioner was again reset to 2:00 p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the petitioner filed a motion for the postponement of her arraignment alleging that, in case the trial court ruled adversely thereon, she would refuse to enter a plea and seek relief from the appellate court. The court denied the petitioners motions on the following grounds:

(a) Based on its personal examination and consideration of the Information, the affidavit-complaint of respondent Maruyama and the resolution of the investigating prosecutor duly approved by the city prosecutor, the court found probable cause for the petitioners arrest. Since the petitioners motion for a determination of probable cause was made after the court had already found probable cause and issued a warrant for the petitioners arrest, and after the latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage; (b) When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to question the courts finding of the existence of probable cause for her arrest and submitted herself to the jurisdiction of the court, more so when she filed the motion for the lifting of the hold departure order the court issued, and the motion to defer the proceedings and her arraignment; and

(c) The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.14 When the case was called for the petitioners arraignment at 2:00 p.m., on August 28, 2000, she refused to plead. 15 Her counsel advised her, in open court, not to enter a plea and, with leave of court, left the courtroom. The court then entered a not guilty plea for the petitioner. 16 It also issued an order, on the said date, setting the pre-trial and initial presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000. 17

The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the following errors to the trial court:

RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST DESPITE OF (SIC) LACK OF PROBABLE CAUSE

II

RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO DUE PROCESS

III

RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE PETITIONER FOR ESTAFA

IV

RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS THE PROSECUTION AND AGAINST THE PETITIONER

RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR.

VI

RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION

VII

RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ISSUED THE QUESTIONED ORDERS18 On January 31, 2001, the CA rendered a Decision19 partially granting the petition in that the assailed order of the trial court denying the petitioners motion to lift/recall the hold departure order was set aside. However, the petitioners motion for reconsideration of the trial courts decision was denied and her petition for the nullification of the August 25, 2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail and praying for reliefs from the trial court, the petitioner waived her right to assail the respondent judges finding of the existence of probable cause. The appellate court cited the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the appellate court affirmed the assailed order of the RTC, based on the respondent judges personal examination of respondent Maruyamas affidavit-complaint, the resolution of the investigating prosecutor and the Information approved by the city prosecutor, a finding of probable cause was in order. However, the appellate court allowed the petitioner to travel to Japan under the following conditions:

(1) That petitioner post a bond double the amount of her alleged monetary liability under the Information filed against her, as recommended by the Office of the Solicitor General;

(2) That petitioner inform respondent Court of each and all of her travel itinerary prior to leaving the country;

(3) That petitioner make periodic reports with respondent Court;

(4) That petitioner furnish respondent Court with all the addresses of her possible place of residence, both here and in Japan; and (5) Such other reasonable conditions which respondent Court may deem appropriate under the circumstances. 21

The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the prosecution. The decretal portion of the decision of the CA reads: WHEREFORE, premises considered, the instant special civil action for certiorari is hereby PARTIALLY GRANTED insofar as the denial of petitioners Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the accused to Regularly Travel to Japan is concerned. In all other respect, the same is hereby DENIED. SO ORDERED.22

On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA contending that the appellate court erred in applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals23 instead of Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which took effect on December 1, 2000, before the court rendered its decision, had superseded the ruling of this Court in the Cojuangco case. However, the appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised Rules on Criminal Procedure took effect.

Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of the CA and praying that after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due proceedings judgment be rendered in favor of the petitioner and against the respondents as follows:

(a) GIVING DUE COURSE to the instant petition;

(b) ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001 (Annex "A" hereof) of the Honorable Court of Appeals in CA-G.R. SP No. 60732 as well as its Resolution promulgated on 27 September 2001 (Annex "B" hereof);

(c) ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause;

(d) DECLARING the entire proceedings in Crim. Case No. 00-0749 as null and void;

(e) ORDERING the private respondents to pay the petitioners the following amount:

(i) at least P1,000,000.00 as moral damages;

(ii) at least P1,000,000.00 as exemplary damages; (iii) at least P500,000.00 as attorneys fees and for other expenses of litigation.

(f) ORDERING the private respondent to pay the costs of this suit. (g) Petitioner further prays for such other reliefs just and equitable under the premises. 24

The petitioner asserts that the CA committed the following reversible errors:

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED.

II

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT "WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION dated 31 January 2001)."

III

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER APPLICABLE.

IV

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND (iii) CRIMINAL INFORMATION.

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS RIGHT TO DUE PROCESS.

VI

THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA ENTITLED "PEOPLE VS. SHEILA OKABE"; CIVIL CASE NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT ENTITLED "CONCHITA SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE"; AND CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED "PEOPLE VS. TERESITA TANGHAL OKABE" CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25 By way of comment, the Office of the Solicitor General refuted the petitioners assigned errors, contending as follows:

The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure.

II

The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the issuance by the respondent Judge of the warrant of arrest against petitioner was cured when petitioner voluntarily submitted to the trial courts jurisdiction when she posted bail and filed motions seeking for affirmative reliefs from the trial court, such as the motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan.

III

The Court of Appeals did not commit a reversible error in applying the ruling in the Cojuangco case.

IV

The Court of Appeals did not commit a reversible error in finding that respondent Judge complied with the constitutional requirements on the issuance of a warrant of arrest.

The Court of Appeals did not commit a reversible error when it did not rule on the partiality of the respondent Judge in handling Criminal Case No. 00-0749.

VI The Honorable Court of Appeals did not commit a reversible error when it did not rule on petitioners claim of forum shopping.26

The Court shall resolve the assigned errors simultaneously as they are interrelated.

The petitioner asserts that the respondent judge could not have determined the existence of probable cause for her arrest solely on the resolution of the investigating prosecutor and the undated affidavit-complaint of respondent Maruyama. She posits that the respondent judge should have ordered the investigating prosecutor to submit the affidavits of the witnesses of respondent Maruyama and the latters documentary evidence, as well as the counter-affidavit of the petitioner and the transcripts of the stenographic notes, if any, taken during the preliminary investigation. The petitioner adds that the respondent judge should have personally reviewed the said documents, conformably to the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v. People,29 before determining the presence or absence of probable cause. She posits that the respondent judge acted with grave abuse of discretion amounting to excess or lack of jurisdiction in denying her motion for a determination of probable cause, and the alternative motion for a dismissal of the case against her for lack of probable cause.

The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent judge that, by posting a personal bail bond for her provisional liability and by filing several motions for relief, she thereby voluntarily submitted herself to the jurisdiction of the trial court and waived her right to assail the infirmities that infected the trial courts issuance of the warrant for her arrest. She avers that the appellate courts reliance on the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan30 is misplaced, and submits that the appellate court should have applied Section 26, Rule 114 of the Revised Rules of Court retroactively, as it rendered the ruling of this Court in the Cojuangco, Jr. case obsolete.

The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not commit any grave abuse of discretion when he found probable cause against the petitioner for estafa, and thereafter issued a warrant for her arrest. It argues that the respondent judge personally determined the existence of probable cause independently of the certification of the investigating prosecutor, and only after examining the Information, the resolution of the investigating prosecutor, as well as the affidavit-complaint of the private complainant. It asserts that such documents are sufficient on which to anchor a finding of probable cause. It insists that the appellate court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the respondent judge complied with both the requirements of the constitution and those set forth in the Rules of Court before issuing the said warrant.31

We agree with the contention of the petitioner that the appellate court erred in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz: SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.

It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon.32 The new rule has reverted to the ruling of this Court in People v. Red.33 The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application. 34Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity.35 Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behooved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion for partial reconsideration.

Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause.36 When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible.37 In this case, the records show that a warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the issuance of the said warrant, she posted a personal bail bond to avert her arrest and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond and issued an order recalling the warrant of arrest against the petitioner. Thus, the posting of a personal bail bond was a matter of imperative necessity to avert her incarceration; it should not be deemed as a waiver of her right to assail her arrest. So this Court ruled in People v. Red:38 The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque. Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042. 39

Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true copies of the Information, the resolution of the investigating prosecutor, the affidavit-complaint of the private complainant, respondent Maruyama, and a certification from the branch clerk of court that only the Information, resolution and affidavitcomplaint formed part of the entire records of the case. The next day, June 17, 2000, the petitioner, through counsel, filed a verified motion for judicial determination of probable cause and to defer the proceedings and her arraignment. All the foregoing are inconsistent with a waiver of her right to assail the validity of her arrest and to question the respondent judges determination of the existence of probable cause for her arrest.

Neither can the petitioners filing of a motion for the lifting of the hold departure order and for leave to go to Japan be considered a waiver of her right to assail the validity of the arrest warrant issued by the respondent judge. It bears stressing that when the petitioner filed the motion to lift the hold departure order issued against her by the respondent judge, her motion for a determination of probable cause was still unresolved. She sought a lifting of the hold departure order on July 14, 2000 and filed a motion for leave to go to Japan, to give the respondent judge an opportunity to reconsider the said order, preparatory to assailing the same in the appellate court in case her motion was denied.

The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order. By grave abuse of discretion is meant such patent and gross abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reasons of passion or personal hostility.40 Hence, when the court has jurisdiction over the case, its questioned acts, even if its findings are not correct, would at most constitute errors of law and not abuse of discretion correctible by the extraordinary remedy of certiorari. 41 We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court42 in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the existence or non-existence of probable cause for the arrest of the accused. The duty to make such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the certification of the investigating prosecutor that he had conducted a preliminary investigation in accordance with law and the Rules of Court, as amended, and found probable cause for the filing of the Information.

Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial. 43

If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of the Information that from the evidence presented, there is a reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused.44

In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. 45 In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. 46 A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction. 47

The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial:

It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly administration of justice. The constitutional duty of this Court in criminal litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of the strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless. Innocence ought to be enough and the business of this Court is to shield the innocent from senseless suits right from the start.48

In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge may rely on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for the filing of the Information. After all, as the Court held in Webb v. De Leon,49 the judge just personally reviews the initial determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial evidence. 50 However, in determining the existence or non-existence of probable cause for the arrest of the accused, the judge should not rely solely on the said report.51 The judge should consider not only the report of the investigating prosecutor but also the affidavit/affidavits and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.52 Indeed, in Ho v. People,53 this Court held that:

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.54

The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure which provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence of the resolution: SEC. 8. Records. (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counteraffidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case.

If the judge is able to determine the existence or non-existence of probable cause on the basis of the records submitted by the investigating prosecutor, there would no longer be a need to order the elevation of the rest of the records of the case. However, if the judge finds the records and/or evidence submitted by the investigating prosecutor to be insufficient, he may order the dismissal of the case, or direct the investigating prosecutor either to submit more evidence or to submit the entire records of the preliminary investigation, to enable him to discharge his duty. 55 The judge may even call the complainant and his witness to themselves answer the courts probing questions to determine the existence of probable cause.56 The rulings of this Court in Soliven v. Makasiar 57 andLim v. Felix58 are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with modifications, viz: SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In

case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his preliminary investigation of the case and the affidavit-complaint of the private complainant, and failed to include the affidavits of the witnesses of the private complainant, and the latters reply affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant as required by case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically the fax message of Lorna Tanghal and the document signed by her covering the amount of US$1,000, are of vital importance, as they would enable the respondent judge to properly determine the existence or non-existence of probable cause.

First. When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a document acknowledging receipt of the amount. The petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in Japanese Yen to her without even requiring her to sign a receipt therefor, especially since respondent Maruyama was not even the owner of the money;

Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based on information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit any counter-affidavit to the investigating prosecutor;

Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was based on information relayed to her by Thelma Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a fax message from Lorna Tanghal, implicating the petitioner in the crime charged. Barbiran did not execute any affidavit;

Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner received the fax message of Lorna Tanghal;

Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her affidavit-complaint that the document evidencing the remittance was signed by Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had to remit US$1,000 to respondent Maruyama because the latter made it appear to Tanghal that the police authorities were about to arrest the petitioner, and Tanghal was impelled to give the amount to respondent Maruyama to avert her arrest and incarceration; Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her because the crime charged in the latters affidavit-complaint was the same as that filed against her in the Metropolitan Trial Court of Bulacan, which was withdrawn by the complainant herself;

Seventh. The investigating prosecutor stated in his resolution that the private complainant established the element of deceit. However, the crime charged against the petitioner as alleged in the Information is estafa with abuse of confidence.

In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioners arrest in the absence of copies of the affidavits of the witnesses of the private complainant and her reply affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary investigation before the investigating prosecutor.

In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court of Appeals isREVERSED and SET ASIDE. The assailed Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the Regional Trial Court of Pasay City, Branch 119. The respondent judge is hereby DIRECTED to determine the existence or non-existence of probable cause for the arrest of the petitioner based on the complete records, as required under Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure.

SO ORDERED. Puno*, Quisumbing**, Austria-Martinez, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-2508

October 27, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff -appellee, vs. MAMERTO ABNER, ET AL., defendants. ROBERTO SOLER AND DOMINGO ABELLA, bondsmen-appellants.

Reyes and Dy-Liacco for appellants. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Luis R. Feria for appellee.

PARAS, J.:

In a complaint signed by Lt. Fernando G. Regino, P. A., with the heading "In the Justice of the Peace Court of Tinambac, Camarines Sur," Mamerto Abner was charged, with others, with robbery in band with rape committed in the municipality of Tinambac, Province of Camarines Sur. Upon motion of the assistant provincial fiscal of September 6, 1946, alleging that the justice of the peace of Tinambac was absent and the municipal mayor refused to receive the complaint, the Court of First Instance of Camarines Sur

directed the Justice of the Peace of Naga, the capital, to conduct the necessary preliminary investigation. Mamerto Abner was thereafter admitted to bail and the herein appellants, Roberto Soler and Domingo Abella, executed the necessary bail bond for P15,000 dated October 4, 1946, and approved by the Justice of the Peace of Naga on the same date. Notwithstanding notice, the accused Abner and his bondsmen failed to appear at the preliminary investigation set for March 26, 1947. On April 2, 1947, Abner, through counsel, filed a petition waiving the right to a preliminary investigation. By order of April 5, 1947, the Justice of the Peace of Naga forwarded the case in respect to Abner to the Court of First Instance of Camarines Sur. On May 8, 1947, the provincial fiscal filed the corresponding information in the Court of First Instance of Camarines Sur. The trial originally set for November 25, 1947, was postponed to January 16, 1948, but upon motion of appellants, the trial was set for March 2, 1948. On February 28, 1948, the appellants filed a motion for another extension of thirty days within which to produce the body of Abner, which was granted, and the trial was again postponed to March 29, 1948. On this date, Abner and the appellants failed to appear. The provincial fiscal accordingly filed a petition for the confiscation of the bail bond executed by the herein appellants, and the same was granted by the Court of First Instance of Camarines Sur in its order of March 31, 1948. From this order the bondsmen have appealed.

Appellants contend that the court of first instance did not acquire jurisdiction, because no complaint was filed in the Justice of Peace Court of Tinambac, and reliance is placed on the allegation of the fiscal, in his motion of September 6, 1946, that the complaint signed by Lieutenant Regino was not so filed in view of the absence of the justice of the peace and the refusal of the municipal mayor of Tinambac to receive said complaint. It appears, however, that the bond executed by the appellants on October 4, 1946, contained the following recital: "A complaint having been filed on September 17, 1946 in the justice of the Peace Court of Tinambac, Camarines Sur .." This admission, which is subsequent to the motion of the fiscal of September 6, 1946, is inconsistent with appellants' contention. Moreover, the proceedings had before the Justice of the Peace of Naga and the Court of First Instance of Camarines Sur, in relation to the measures taken by the appellants prior to the confiscation of their bond, carry the implication that the complaint was duly filed. The presumption that official duty was performed has not been destroyed. Although the Justice of the peace has jurisdiction to conduct preliminary investigations only of offenses committed within his municipality, the justice of the peace of the provincial capital, when, as in the case at bar, directed by the court of the first instance, may conduct such preliminary investigation of any offense committed anywhere within his province. (Sec. 2, Rule 108, Rules of Court.)

It appears that the bond in question was not signed by the accused Abner as principal; and it is contended by the appellants that it is accordingly void. Section 1, Rule 110, of the Rules Court, provides that "bail is the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." Under this, there are two methods of taking bail: (1) by bail bond and (2) by recognizance. A bail bond is an obligation given by the accused with one or more sureties, with the condition to be void upon the performance by the accused of such acts as he may legally be required to perform. A recognizance is an obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial. (Moran, Comments on the Rules of Court, 2d ed., Vol. II, page 592.) In U. S. vs. Sunico et al., 48 Phil., 826, 834, this court, citing Lamphire vs. State, 73 N. H., 462; 62 Atl., 786; 6 Am. & Eng. Ann. Cas., 615, defined a recognizance as "a contract between the sureties and the State for the production of the principal at the required time." The bail bond executed by the appellants, though so denominated, is essentially a recognizance, an "obligation" contracted with the State by the appellants, not requiring as an indispensable condition for its validity, the signature of the accused. In addition, under the circumstances of this case, the appellants were estopped from assailing the effectiveness of their bail contract. If, as contended by appellants, it would be difficult, without the accused Abner having signed as principal, for them to obtain indemnity from or to have power and control over him, They are solely to blame. Neither is there merit in the argument that the obligation of appellants under the bond is merely to pay P15,000 in case the accused should fail to pay that amount, because the latter, who has not signed it, is of course not bound thereby.

Appellants allege that the Government had launched a campaign for the capture of Abner, dead or alive, as a result of which he is forced to remain in hiding. Thus the appellants are allegedly unable to produce him in court, due to an act of the Government. In the order of the trial court denying appellants' motion for reconsideration, however, it is recited that "if the government launched the campaign against Abner and his followers in Tinambac and Partido during the months of July up to, December, 1947, it was because Mamerto Abner and his gang have turned out brigands who threatened to disturb the peace and tranquillity of the people in that part of the Province of Camarines Sur." Hence the alleged search for Abner was motivated by his own voluntary act and cannot, therefore, be invoked by appellants. (U. S. vs. Sunico, supra.)
lawphil.net

The appealed order is affirmed with costs against the appellants. So ordered.

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

Separate Opinions

FERIA, J., concurring:

I concur in the decision with the following modification in connection with the necessity of defendant's signature in his bail bond.

A bail bond in criminal cases is an obligation subscribed, not by the accused, but by two or more sureties for the release of the defendant who is in the custody of the law, conditioned upon that the latter will appear before any court in which his appearance may be required. It is not different from recognizance, and for that reason Rule 110 of the Rules of Court uses the word bail bond and recognizance interchangeably. That the law does not require that the bail be subscribed or signed by the accused is shown by the provisions of section 9 which require that, "in case there are only two sureties, each must be worth the amount specified in the undertaking over and above all just debts etc."; by section 15 which provides that, when the appearance of the defendant is required by the court, his sureties, and not the accused, shall be notified to produce him or a given date in compliance with their obligation stipulated in the bail bond. And if the defendant fails to appear as required, the bond is declared forfeited and the bondsmen are given thirty days within which to produce the accused, and to show cause why a judgment shall not be rendered against them for the amount of their bond; and "failing in these two requisites, a judgement shall be rendered against the bondsmen" (not against the accused); by section 17 which provides that, "for the purpose of surrendering the defendant, that bailors may arrest him, or on a written authority endorsed on a certified copy of the undertaking may cause him to be arrested" and specially by the form or bail bond found in General Order No. 58, which has not been modified or repealed by the Rules of Court. (Bandoy vs. Judge of First Instance of Laguna 14 Phil., 620, 625.)

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. 129670

February 1, 2000

MANOLET O. LAVIDES, petitioner, vs. HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107, RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION, AND OTHER PURPOSES). His arrest was made without a warrant as a result of an entrapment conducted by the police. It appears that on April 3, 1997, the parents of complainant Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been contacted by petitioner for an assignation that night at petitioner's room at the Metropolitan Hotel in Diliman, Quezon City. Apparently, this was not the first time the police received reports of petitioner's activities. An entrapment operation was therefore set in motion. At around 8:20 in the evening of April 3, 1997, the police knocked at the door of Room 308 of the Metropolitan Hotel where petitioner was staying. When petitioner opened the door, the police saw him with Lorelie, who was wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the sworn statement of complainant and the affidavits of the arresting officers, which were submitted at the inquest, an information for violation of Art. III, 5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the Regional Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-97-70550.
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On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful Warrantless Arrest; and (3) In the Event of Adverse Resolution of the Above Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law on Which He is Charged.1

On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn Talingting. The cases were docketed as Criminal Case Nos. Q-97-70866 to Q-97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations, petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . . given money [by petitioner] as payment for the said [acts of] sexual intercourse."

No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine cases.

On May 16, 1997, the trial court issued an order resolving petitioner's Omnibus Motion, as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that:

1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under detention, his arrest having been made in accordance with the Rules. He must therefore remain under detention until further order of this Court;

2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right to post bail in the amount of P80,000.00 for each case or a total of P800,000.00 for all the cases under the following conditions:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases;

b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia;

c) The hold-departure Order of this Court dated April 10, 1997 stands; and

d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; 3. Let these cases be set for arraignment on May 23, 1997 at 8:30 o'clock in the morning. 2

On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed in Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial court to suspend the arraignment scheduled on May 23, 1997.3 Then on May 22, 1997, he filed a motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and that the same be done prior to his arraignment. 4

On May 23, 1997, the trial court, in separate orders, denied petitioner's motions to reduce bail bonds, to quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned during which he pleaded not guilty to the charges against him and then ordered him released upon posting bail bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997 order and the "hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7, 1997.

On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of Appeals, assailing the trial court's order, dated May 16, 1997, and its two orders, dated May 23, 1997, denying his motion to quash and maintaining the conditions set forth in its order of May 16, 1997, respectively.

While the case was pending in the Court of Appeals, two more informations were filed against petitioner, bringing the total number of cases against him to 12, which were all consolidated.

On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads: WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b),5 of the May 23 [should be May 16], 1997 Order, are separable, and would not affect the cash bond which petitioner posted for his provisional liberty, with the sole modification that those aforesaid conditions are hereby ANNULLED and SET ASIDE, the May 16, May 23 and May 23, 1997 Orders are MAINTAINED in all other respects. 6

The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the grant of bail to petitioner but ruled that the issue concerning the validity of the condition making arraignment a prerequisite for the approval of petitioner's bail bonds to be moot and academic. It noted "that petitioner has posted the cash bonds; that when

arraigned, represented by lawyers, he pleaded not guilty to each offense; and that he has already been released from detention." The Court of Appeals thought that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III, 14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable."

With respect to the denial of petitioner's motion to quash the informations against him, the appellate court held that petitioner could not question the same in a petition for certiorari before it, but what he must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the decision be adverse to him. Hence this petition. Petitioner contends that the Court of Appeals erred 7

1. In ruling that the condition imposed by respondent Judge that the approval of petitioner's bail bonds "shall be made only after his arraignment" is of no moment and has been rendered moot and academic by the fact that he had already posted the bail bonds and had pleaded not guilty to all the offenses;

2. In not resolving the submission that the arraignment was void not only because it was made under compelling circumstance which left petitioner no option to question the respondent Judge's arbitrary action but also because it emanated from a void Order;

3. In ruling that the denial of petitioner's motion to quash may not be impugned in a petition for certiorari; and

4. In not resolving the legal issue of whether or not petitioner may be validly charged for violation of Section 5(b) of RA No. 7610 under several informations corresponding to the number of alleged acts of child abuse allegedly committed against each private complainant by the petitioner.

We will deal with each of these contentions although not in the order in which they are stated by petitioner.

First. As already stated, the trial court's order, dated May 16, 1997, imposed four conditions for the grant of bail to petitioner:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases;

b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia;

c) The hold-departure Order of this Court dated April 10, 1997 stands; and

d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused;

The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue with the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of the trial court which makes petitioner's arraignment a prerequisite to the approval of his bail bonds. His contention is that this condition is void and that his arraignment was also invalid because it was held pursuant to such invalid condition.

We agree with petitioner that the appellate court should have determined the validity of the conditions imposed in the trial court's order of May 16, 1997 for the grant of bail because petitioner's contention is that his arraignment was held in pursuance of these conditions for bail.

In requiring that petitioner be first arraigned before he could be granted bail, the trial court apprehended that if petitioner were released on bail he could, by being absent, prevent his early arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his presence at the arraignment, approval of petitioner's bail bonds should be deferred until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as long as he is notified of the date of hearing and his failure to appear is unjustified, since under Art. III, 14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of the trial court in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment.

This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the proper court whenever so required by the court or these Rules," while under Rule 116, 1(b) the presence of the accused at the arraignment is required.

On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accused's constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail. 8

It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be made only after arraignment," which the Court of Appeals should instead have declared void. The condition imposed in the trial court's order of May 16, 1997 that the accused cannot waive his appearance at the trial but that he must be present at the hearings of the case is valid and is in accordance with Rule 114. For another condition of bail under Rule 114, 2(c) is that "The failure of the accused to appear at the trial without justification despite due notice to him or his bondsman shall be deemed an express waiver of his right to be present on the date specified in the notice. In such case, trial shall proceed in absentia."

Art. III, 14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of innocence or of guilt,9 (b) during trial whenever necessary for identification purposes, 10 and (c) at the promulgation of sentence, unless it is for a light offense, in which case the accused may appear by counsel or representative. 11 At such stages of the proceedings, his presence is required and cannot be waived. As pointed out in Borja v. Mendoza,12 in an opinion by Justice, later Chief Justice, Enrique Fernando, there can be no trial in absentia unless the accused has been arraigned.

Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought that to ensure petitioner's presence at the arraignment, petitioner should be denied bail in the meantime. The fly in the ointment, however, is that such court strategy violates petitioner's constitutional rights.

Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on May 23, 1997 was also invalid. Contrary to petitioner's contention, the arraignment did not emanate from the invalid condition that "approval of the bail bonds shall be made only after the arraignment." Even without such a condition, the arraignment of petitioner could not be omitted. In sum, although the condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings against him are valid.

Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is denied is not to file a petition for certiorari but to proceed to trial without prejudice to his right to reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an adverse judgment is rendered against him. However, he argues that this case should be treated as an exception. He contends that the Court of Appeals should not have evaded the issue of whether he should be charged under several informations corresponding to the number of acts of child abuse allegedly committed by him against each of the complainants. In Tano v. Salvador,13 the Court, while holding that certiorari will not lie from a denial of a motion to quash, nevertheless recognized that there may be cases where there are special circumstances clearly demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the appellate court to raise the issue decided against him. This is such a case. Whether petitioner is liable for just one crime regardless of the number of sexual acts allegedly committed by him and the number of children with whom he had sexual intercourse, or whether each act of intercourse constitutes one crime is a question that bears on the presentation of evidence by either party. It is important to petitioner as well as to the prosecution how many crimes there are. For instance, if there is only one offense of sexual abuse regardless of the number of children involved, it will not matter much to the prosecution whether it is able to present only one of the complainants. On the other hand, if each act of sexual intercourse with a child constitutes a separate offense, it will matter whether the other children are presented during the trial.

The issue then should have been decided by the Court of Appeals. However, instead of remanding this case to the appellate court for a determination of this issue, we will decide the issue now so that the trial in the court below can proceed without further delay.

Petitioner's contention is that the 12 informations filed against him allege only one offense of child abuse, regardless of the number of alleged victims (four) and the number of acts of sexual intercourse committed with them (twelve). He argues that the act of sexual intercourse is only a means of committing the offense so that the acts of sexual intercourse/lasciviousness with minors attributed to him should not be subject of separate informations. He cites the affidavits of the alleged victims which show that their involvement with him constitutes an "unbroken chain of events," i.e., the first victim was the one who introduced the second to petitioner and so on. Petitioner says that child abuse is similar to the crime of large-scale illegal recruitment where there is only a single offense regardless of the number of workers illegally recruited on different occasions. In the alternative, he contends that, at the most, only four informations, corresponding to the number of alleged child victims, can be filed against him.

Art. III, 5 of R.A. No. 7160 under which petitioner is being prosecuted, provides: Sec. 5 Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

xxx

xxx

xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse.

The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, 14 whether male or female, is or is deemed under 18 years of age. Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate, or group.

Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned in Air. III, 5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct should be the subject of a separate information. This conclusion is confirmed by Art. III, 5(b) of R.A. No. 7160, which provides:

[t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period;

WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107, Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby declared void.
1wphi1.nt

SO ORDERED.

Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 148468

January 28, 2003

ATTY. EDWARD SERAPIO, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents.

x---------------------------------------------------------x

G.R. No. 148769

January 28, 2003

EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

x---------------------------------------------------------x

G.R. No. 149116

January 28, 2003

EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents.

CALLEJO, SR., J.:

Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose "Jinggoy" P. Estrada and several others.

The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists.

Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis "Chavit" Singson through the latter's assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundation's treasurer who later deposited it in the Foundation's account with the Equitable PCI Bank.

In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known asjueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757.

Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder.

On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads:

"That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR

LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK. CONTRARY TO LAW."1

On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation. 2 Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accused's Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.3

On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan.4

In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of petitioner. 5 When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge.

The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001.6 For his part, petitioner's co-accused Jose "Jinggoy" Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right.

During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heardbefore petitioner's arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioner's petition for bail on May 21 to 25, 2001.

On May 17, 2001, four days before the hearing on petitioner's petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioner's) petition for bail.

The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioner's petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecution's pending motions as well as petitioner's motion that his petition for bail be heard as early as possible, which motion the prosecution opposed.

On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for trial.7 Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution.

On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.8

However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001. 9

On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioner's motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute "ill-gotten wealth" as defined in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling.10 By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioner's motion to quash the amended Information was antithetical to his petition for bail.

The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari,docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioner's guilt of plunder, that he be granted provisional liberty on bail after due proceedings.11

Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail.

On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion to quash the amended Information. Petitioner, through counsel, received on said date a copy of said resolution.12 The motion to fix bail filed by Jose "Jinggoy" Estrada was also resolved by the Sandiganbayan.

On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayan's rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner

to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him.

On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose "Jinggoy" Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail.

On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayan's Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution.

Re: G.R. No. 148769

Petitioner avers that:

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIO'SMOTION TO QUASH NOTWITHSTANDING THAT

THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER.

A The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder.

B The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy.

C The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute 'ill-gotten wealth' as defined in Section 1(d), Republic Act No. 7080, as amended.

II THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE."13

Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads:

"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"14

Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a "combination or series of overt or criminal acts" constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege "a pattern of criminal acts." He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite "combination or series of acts" for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada "on several occasions" does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder.

Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080.

We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that: "Sec. 6 Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information." 15

The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his defense. 16 Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same offense. 17 The use of derivatives or synonyms or allegations of basic facts constituting the offense charged is sufficient. 18

In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder "through any or a combination or a series of overt or criminal acts or similar schemes or means." And in paragraph (a) of the amended Information, petitioner and his coaccused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division), et al.,19we held that the word "series" is synonymous with the clause "on several instances"; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word "combination" contemplates the commission of at least any two different predicate acts in any of the

said items. We ruled that "plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law" and that:

"x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x." 20

It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information.21 The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17.

Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them.23 Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all.24

Petitioner asserts that he is charged under the amended information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder:

"THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE

According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713.

This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder.

It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation', 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees."25

This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed.

Re: G.R. No. 149116

Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that:

"GROUNDS FOR THE PETITION

THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIO'S URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO."26

Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as against him. 27 Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money which started in 199828 and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and legitimate private foundation.29 More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the Foundation came from jueteng.30

Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute "ill-gotten wealth" as defined in Section 1(d) of R.A. No. 7080;31 (2) there is no evidence linking him to the collection and receipt of jueteng money;32 (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.33 Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for plunder as against him,34 and hence he should be spared from the inconvenience, burden and expense of a public trial.35

Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to

the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance. 36 Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been prejudicial to his interest.37 He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein were also used against him, although he was only charged in the plunder case.38

The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioner's omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that "a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt or innocence of the accused," and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be determined.39

The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioner's omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsman's joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for reconsideration may be filed.40 The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada.41

This Court does not agree with petitioner. Case law has it that the Court does not interfere with the Ombudsman's discretion in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan42 , the Court ruled:

"x x x. In the performance of his task to determine probable cause, the Ombudsman's discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said:

'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish 'probable cause' for filing of information against the supposed offender." In Cruz, Jr. vs. People,43 the Court ruled thus:

"Furthermore, the Ombudsman's findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsman's appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari."

Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioner's motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus:

"In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas." 44

Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused.45 It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsman's Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsman's resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsman's resolution may be granted.46 It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.47 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.48 If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation.

The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial. 49 As the Court held in Webb vs. De Leon, "[a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.''50

Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officer's finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor. 51 The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary.

Certiorari will not lie to invalidate the Sandiganbayan's resolution denying petitioner's motion for reinvestigation since there is nothing to substantiate petitioner's claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case. 52 The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment. 54In sum then, the petition is dismissed.

Re: G.R. No. 148468

As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus.

On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, be heard immediately.55 Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman. 56 Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution, 57 and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are automatically reproduced during the trial.58 Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be granted bail. 59

The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial.60 Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accused's flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned.61 The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecution's evidence before he pleads guilty for purposes of penalty reduction. 62

Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioner's case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar. 63

The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. 64 An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial court's imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that "in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash."66

However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him.67 The Court's pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail. 68

It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail.

With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed.69 He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised Rules of Court. 70

The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court.71 Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial.72 As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender. 73

On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information. 74 An accused may file a motion to quash the Information, as a general rule, before arraignment.75

These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic.

We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly.

Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on the merits by the prosecution. 76

For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime of plunder.77

In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated:

" x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding." 78

There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion.

It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About them, this Court dares not become careless or complacent when that fashion has become rampant over the earth.79 It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing.

A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioner's petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose "Jinggoy" Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other coaccused named in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling.81 Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioner's petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioner's bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatiseConstitutional Limitations, thus:

"For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person, while as yet it is not determined that he has not committed any crime." 82

While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered "to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case," 83 the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the "pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved . . . without unnecessary delay,"84 only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose "Jinggoy" Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioner's petition for bail to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioner's petition for bail with the trial of the case against former President Joseph E. Estrada on its merits.

With respect to petitioner's allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the Sandiganbayan.85 They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings which was on May 2125, 2001.86 They argue further that bail is not a matter of right in capital offenses. 87 In support thereof, they cite Article III, Sec 13 of the Constitution, which states that

"All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpusis suspended. Excessive bail shall not be required."88

The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide: "Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Sec. 4 Bail, a matter of right, exception. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment."89

Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court. 90 Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states: "Sec. 8 Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify." 91

Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong. 92 The prosecution shall be accorded the opportunity to present all the evidence it may deem necessary for this purpose.93 When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the court's duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right. 94

In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioner's claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioner's application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001.

The delay in the conduct of hearings on petitioner's application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution:

Motions filed by petitioner: Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause;

Motion for Early Resolution, dated May 24, 2001;

Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001;

Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001;

Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time;

Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001;

Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and Motion to Quash, dated June 26, 2001.95

Motions filed by the prosecution: Motion for Earlier Arraignment, dated May 8, 2001;96 Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy" Estrada and Edward Serapio, dated May 8, 2001;97 Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment, dated May 25, 2001;98 and Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.99

The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions: Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed; Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1)excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail; Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case;

Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;

Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada;

Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case; Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) days within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions;

Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada;

Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest;

Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada;

Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada;

Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada;

Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay;

Motion to charge as Accused Luis "Chavit" Singson, filed by Joseph Estrada;

Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy;

Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada;

Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapio's hearing for bail be reconsidered;

Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;

Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest;

Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors; Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada;

Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada;

Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro Manila.100

Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application. 101 The rationale for such requirement was explained in Narciso vs. Sta. RomanaCruz (supra), citing Basco vs. Rapatalo:102

"When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of

things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal." 103

Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail.

Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecution's refusal to present evidence and by the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched "a seemingly endless barrage of obstructive and dilatory moves" to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioner's arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioner's motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies.104 He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law. 105

Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioner's right to bail.106 He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy ofhabeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,107 where the Court held thathabeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary. 108 However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court, 109 the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities. 110

As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so.111 In exceptional circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" due to "its ability to cut through barriers of form and procedural mazes."112 Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid,113 and even though the persons praying for its issuance were not completely deprived of their liberty.114

The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule thathabeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same 115 applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioner's application for bail has yet to commence. As stated earlier, they delay in the hearing of petitioner's petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting one's right to bail.117 It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail, 118 or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed.

The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayan's resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail.

IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows:

1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and

2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of petitioner's petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE.

No costs.

SO ORDERED.

Davide, Jr., C .J ., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Austria-Martinez, Corona, Carpio-Morales and Azcuna, JJ ., concur. Vitug, J ., see separate opinion. Ynares-Santiago, J ., joins the dissent of Justice Sandoval-Gutierrez. Sandoval-Gutierrez, J ., see dissenting opinion. Carpio, J ., no part, prior inhibition in plunder cases.

Separate Opinions

VITUG, J.: I fully subscribe to the ponencia in G.R. No. 148468 that

a) The arraignment of an accused is not a prerequisite to the conduct of hearings on a petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender.

b) There is no inconsistency between an application of an accused for bail and his filing of a motion to quash, these two reliefs not being necessarily antithetical to each other.

c) The joinder of hearing of herein petitioner's bail petition with the trial of former President Joseph Estrada indeed could unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty.

d) The claim of petitioner that the prosecution has refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon hardly finds substantiation. Neither has the prosecution waived, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner.

e) There is no basis for the issuance of a writ of habeas corpus in favor of petitioner. Habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court having jurisdiction thereover.

In G.R. No. 148769 and G.R. No. 149116, the issues for resolution are analogous to those posed in G.R. No. 148965, entitled "Jose 'Jinggoy' Estrada vs. Sandiganbayan [Third Division], People of the Philippines and Office of the Ombudsman," decided by the Court on 26 February 2002. Petitioner Atty. Edward Serapio stands indicted with the former President, Mr. Joseph E. Estrada, for plunder. Petitioner is charged with exactly the same degree of culpability as that of Mr. Jose "Jinggoy" Estrada, thusly:

"AMENDED INFORMATION

"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a.'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE', TOGETHER WITH Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. 7080, as amended by Sec. 12 of R.A. 7659, committed as follows:

"That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself, AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR a series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00) MORE OR LESS, FROM ILLEGAL GAMBLING, IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT BY HIMSELF AND/OR in connivance with coaccused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"

Atty. Serapio, in G.R. No. 148769, questions the denial by the Sandiganbayan of his motion to quash the Amended Information on the ground that, among other things, it alleges, at least as to him, neither a combination or series of overt acts constitutive of plunder nor a pattern of criminal acts indicative of an overall unlawful scheme in conspiracy with others. In G.R. No. 149116, petitioner claims that the Sandiganbayan has committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest, as well as the proceedings in Criminal Case No. 26558), to conduct a determination of probable cause, and to direct the Ombudsman to conduct a reinvestigation of the charges against him.

In my separate opinion in G.R. No. 148965, which I now reiterate, I have said:

"Plunder may be committed by any public officer either by himself or "in connivance" with other persons; it may also be committed by a person who participates with a public officer in the commission of an offense contributing to the crime of plunder. A person may thus be held accountable under the law by conniving with the principal co-accused or by participating in the commission of "an offense" contributing to the crime of plunder. The term "in connivance" would suggest an agreement or consent to commit an unlawful act or deed with or by another, to connive being to cooperate secretly or privily with another. 1 Upon the other hand, to participate is to have a part or a share in conjunction with another of the proceeds of the unlawful act or deed.

"The amended Information alleged "connivance" and would assume that petitioner and his co-accused had a common design in perpetrating the violations complained of constitutive of "plunder." The Supreme Court in Estrada vs. Sandiganbayan2 has declared the anti-plunder law constitutional for being neither vague nor ambiguous on the thesis that the terms "series" and "combination" are not unsusceptible to firm understanding. "Series" refers to two or more acts falling under the same category of the enumerated acts provided in Section 1(d)3 of the statute; "combination" pertains to two or more acts falling under at least two separate categories mentioned in the same law. 4

"xxx

xxx

xxx

"The government argues that the illegal act ascribed to petitioner is a part of the chain that links the various acts of plunder by the principal accused. It seems to suggest that a mere allegation of conspiracy is quite enough to hold petitioner equally liable with the principal accused for the latter's other acts, even if unknown to him, in paragraph (a) of the indictment. This contention is a glaring bent. It is, to my mind, utterly unacceptable, neither right nor just, to cast criminal liability on one for the acts or deeds of plunder that may have been committed by another or others over which he has not consented or acceded to, participated in, or even in fact been aware of. Such vicarious criminal liability is never to be taken lightly but must always be made explicit not merely at the trial but likewise, and no less important, in the complaint or information itself in order to meet the fundamental right of an accused to be fully informed of the charge against him. It is a requirement that cannot be dispensed with if he were to be meaningfully assured that he truly has a right to defend himself. Indeed, an unwarranted generalization on the scope of the anti-plunder law would be a fatal blow to maintaining its constitutionality given the ratio decidendi in the pronouncement heretofore made by the Court upholding the validity of the statute.

"Given the foregoing exegesis, the petitioner, although ineffectively charged in the Amended Information for plunder, could still be prosecuted and tried for a lesser offense, for it is a recognized rule that an accused shall not be discharged even when a mistake has been made in charging the proper offense if he may still be held accountable for any other offense necessarily included in the crime being charged. It is, however, the Sandiganbayan, not this Court, which must make this determination on the basis of its own findings."

WHEREFORE, I accept the ponencia in G.R. No. 148468 but, as regards G.R. No. 148769 and G.R. No. 149116, I vote for the remand of the case to the Sandiganbayan for further proceedings on the bail application of petitioner and urge that the incident be resolved with dispatch.

Dissenting Opinion

SANDOVAL-GUTIERREZ, J.,: Once again, the Amended Information dated April 18, 2001 in Criminal Case No. 26558 1 is subjected to judicial scrutiny, this time, via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure (G.R. No. 148769) filed by petitioner Edward S. Serapio. For easy reference, let me quote the Amended Information, thus:

"The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada a.k.a. 'Asiong Salonga'and a.k.a. 'Jose Velarde,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

'That during the period from June 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other persons, by taking undue advantage of his official position, authority, relationship, connection, or influence, did then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines through any or a combination or a series of overt OR criminal acts, or similar schemes or means, described as follows:

a) by receiving or collecting, directly or indirectly, an aggregate amount of Five Hundred Forty-Five Million Pesos (P545,000,000.00), more or less, from illegal gambling in the form of gift, share, percentage kickback or any form of pecuniary benefit, by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for his or their personal gain and benefit, public funds in the amount of one hundred thirty million pesos (P130,000,000.00) more or less, representing a portion of the Two Hundred Million Pesos (P200,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with coaccused Charlie 'Atong' Ang, Alma Alfaro, John Doe a.k.a. Eleuterio Tan Or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas, and other John Does and Jane Does;

c) by directing, ordering and compelling, for his personal gain and benefit, the Government Service Insurance System (GSIS) to purchase, 351,878,000 shares of stock, more or less and the Social Security System (SSS), 329,855,000 shares of stock, more or less, of the Belle Corporation in the amount of more or less One Billion One Hundred Two Million Nine Hundred Sixty Five Thousand Six Hundred Seven Pesos and Fifty Centavos [P1,102,965,607.50] and more or less Seven Hundred Forty Four Million Six Hundred Twelve Thousand Four Hundred Fifty Pesos (P744,612,450.00], respectively, or a total of a more or less One Billion Eight Hundred Forty Seven Million Five Hundred Seventy Eight Thousand Fifty Seven Pesos and fifty centavos [P1,847,578,057.50]; and by collecting or receiving, directly or indirectly, by himself and/or in connivance with John Does and Jane Does, Commissions or percentages by reason of said purchases of shares of stock in the amount of One Hundred Eighty-Nine Million Seven Hundred Thousand Pesos [P189,700,000], more or less, from the Belle Corporation, which became part of the deposit in the EquitablePCI Bank under the account of "Jose Velarde";

d) by unjustly enriching himself FROM COMMISSIONS, gifts, shares, percentages, kickbacks, or any form of pecuniary benefits, in connivance with John Does and Jane Does, in the amount of more or less Three Billion Two Hundred Thirty-Three Million One Hundred Four Thousand One Hundred Seventy Three Pesos and Seventeen Centavos [P3,233,104,173.17] and depositing the same under his account name "Jose Velarde" at the Equitable-PCI Bank. CONTRARY TO LAW.'"2 In G.R. No. 148965,3 I stood apart from the majority of my brethren in denying the Petition for Certiorari and Mandamus filed by Jose "Jinggoy," E. Estrada against the Sandiganbayan, People of the Philippines and Office of the Ombudsman. I articulated in my Dissent the various reasons why I could not join the majority in sustaining the aforequoted Amended Information. Now, I am taking this second occasion to reiterate them, hoping that the majority will have a change of mind and resolve to re-examine its Decision.

Consistent with my previous Dissent, it is my view that petitioner Edward S. Serapio, like Jose "Jinggoy" Estrada, may not be validly prosecuted for the crime of plunder under the Amended Information.

To be forthright, the obvious error in the foregoing Information lies in the fact that it joined together four distinct conspiracies in a single continuing conspiracy of plunder and indiscriminately accused all the persons who participated therein of the said resulting crime. Simply put, the Amended Information is a mere fusion of separate conspiracies. It is akin to that of "separate spokes meeting at a common center, without the rim of the wheel to enclose the spokes." This is legally impermissible. Such kind of information places the accused's primary right to be informed of the nature and cause of the accusation against him in jeopardy.

I must reiterate what I have pointed out in G.R. No. 148965.

There exists a distinction between separate conspiracies, where certain parties are common to all the conspiracies, but with no overall goal or common purpose; and one overall continuing conspiracy with various parties joining and terminating their relationship at different times. 4 Distinct and separate conspiracies do not, in contemplation of law, become a single conspiracy merely because one man is a participant and key figure in all the separate conspiracies. 5 The present case is a perfect example. The fact that former President Estrada is a common key figure in the criminal acts recited under paragraphs (a), (b), (c) and (d) of the Amended Information does not automatically give rise to a single continuing conspiracy of plunder, particularly, with respect to petitioner Serapio whose participation is limited to paragraph (a). To say otherwise is to impute to petitioner or to any of the accused the acts and statements of the others without reference to whether or not their acts are related to one scheme or overall plan. It could not have been the intention of the Legislature, in drafting R.A. No. 7080, to authorize the prosecution to chain together four separate and distinct crimes when the only nexus among them lies in the fact that one man participated in all. There lies a great danger for the transference of guilt from one to another across the line separating conspiracies. The principle laid down above is no longer novel in other jurisdictions. Various American decisions had expounded on the matter. In Battle vs. State,6 a judgment of conviction was reversed on the ground that the allegation of conspiracy in the indictment was insufficient, thus:

"Among the requirements for the allegations in an indictment to be sufficient are (1) the specificity test, i.e., does the indictment contain all the elements of the offense pleaded in terms sufficient enough to apprise the accused of what he must be prepared to meet, and (2) is the indictment pleaded in such a manner as to enable the defendant to plead prior jeopardy as a defense if additional charges are brought for the same offense. x x x Further, our Supreme Court has recently considered the criteria for sufficiency in conspiracy cases in Goldberg vs. State, 351 So. 2d 332 (Fla. 1977),7 as this court has likewise done in State vs. Giardino, 363 So. 2d 201 (Fla. 3d DCA 1978).8 Applying the principles developed in the above cases to the instant cause, we are of the opinion that Count I of the indictment was insufficient. It is impossible to ascertain whether the indictment charges that appellant conspired with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons unknown. Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or severally, or whether appellant conspired entirely with persons unknown. Also, it is impossible to tell whether appellant met with Acuna and Hernandez jointly or severally, or whether appellant met with persons unknown to plan the murder of Torres. Because appellant was left to guess who these other conspirators might be and because the vagueness of the allegations did nothing to protect him from further prosecution, we are of the opinion that they were too vague and indefinite to meet the requirements set forth above. Accordingly, in our opinion the trial court erred in failing to dismiss Count I of the indictment for conspiracy against appellant." (Footnote supplied) In State vs. Harkness,9 a demurrer to the information was sustained on the ground that an information charging two separate conspiracies is bad for misjoinder of parties where the only connection between the two conspiracies was the fact that one defendant participated in both. The Supreme Court of Washington ruled:

"[W]e see no ground upon which the counts against both the Harknesses can be included in the same information. While they are charged with crimes of the same class, the crimes are alleged to have been committed independently and at different times. The crimes are related to each other only by the fact that the prescriptions used were issued by the same physician. x x x We find ourselves unable to agree with the appellant that the misjoinder is cured by the conspiracy charge. It is doubtful if the count is sufficient in form to charge a conspiracy. x x x Reference is made in the count, to counts one to six, inclusive, for a specification of the acts constituting the conspiracy. When these counts are examined, it will be seen that they charge separate substantive offenses without alleging any concert of action between the Harknesses."

Thus, when certain persons unite to perform certain acts, and some of them unite with others who are engaged in totally different acts, it is error to join them in an information.10 Otherwise stated, defendants charged with two separate conspiracies having one common participant are not, without more, properly joined, and similarity of acts alone is insufficient to indicate that series of acts exist. 11 Joinder may be permitted when the connection between the alleged offenses and the parties is the accused's awareness of the identity and activity of the other alleged participants. 12 There must be a showing of one overall common goal to which the participants bind themselves.

Apparently, the factual recitals of the Amended Information fail to sufficiently allege that petitioner Serapio deliberately agreed or banded with the rest of the accused for the purpose of committing Plunder. There is no averment that he conspired with them in committing the crimes specified in paragraphs (b), (c) and (d) of the Amended Information, such as misappropriation of the tobacco excise tax share of Ilocos Sur; receipt of commissions by reason of the purchase of shares of stock from the Belle Corporation; and acquisition of unexplained wealth.

To my mind, the Amended Information only makes out a case of bribery "in toleration or protection of illegal gambling." While he is being charged for the "crime of Plunder, defined and penalized under R.A. No. 7080," his alleged participation therein is limited to what is specified under paragraph (a) of the Amended Information.

The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts." The determining factor of R.A. No. 7080, as can be gleaned from the Record of the Senate, is the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos, a person cannot be prosecuted for the crime of plunder if he performs only a single criminal act. 13

It is the majority's position that since there is an allegation of conspiracy at the inception of the Amended Information, the criminal acts recited in paragraphs (b), (c) and (d) pertain to petitioner as well, the act of one being the act of all. This is an obvious non sequitur. Even the Amended Information, on its face, cannot admit such a construction.

First, it bears noting that the Amended Information named the co-conspirators of former President Estrada individually and separately in each of the four predicate offenses. Paragraph (a) named petitioner Jose "Jinggoy" Estrada, "Atong" Ang, Yolanda T. Ricaforte, Edward Serapio, John Does and Jane Does as co-conspirators in the crime of bribery. Paragraph (b) named Alma Alfaro, "Atong" Ang, Eleuterio Ramos Tan, Delia Rajas and other John Does and Jane Does as co-conspirators in the crime of malversation of public funds representing a portion of the tobacco excise tax share allocated to the Province of Ilocos Sur. Paragraph (c) and (d) named John Does and Jane Does as co-conspirators in the purchase of the Belle's shares and in the acquisition of ill-gotten wealth in the amount of P3,233,104,173.17 under the account name "Jose Velarde."

Is it logical to infer from the Amended Information the existence of a single continuing conspiracy of plunder when the factual recital thereof individually and separately named the co-conspirators in each of the predicate offenses? I must reecho my answer in G.R. No. 148965, i.e., an outright no. A single agreement to commit several crimes constitutes one conspiracy. By the same reasoning, multiple agreements to commit separate crimes constitute multiple conspiracies. To individually and separately name the co-conspirators in each of the predicate offenses is to reveal the absence of a common design. The explicit clustering of co-conspirators for each predicate offense thwarts the majority's theory of a single continuing conspiracy of plunder. It reveals a clear line segregating each predicate offense from the other. Thus, the act of one cannot be considered as the act of all.

Second, the allegation of conspiracy at the inception of the Amended Information basically pertains to former President Estrada as the common key figure in the four predicate offenses. Allow me to quote the pertinent portion, thus:

"That during the period from June 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other persons, by taking undue advantage of his official position, authority, relationship, connection, or influence, did then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Filipino people and the Republic of the Philippines through any or a combination or a series of overt OR criminal acts, or similar schemes or means, described as follows: x x x."

From the foregoing allegation, it can be reasonably construed that former President Estrada conspired with all the accused in committing the four predicate offenses. However, whether his co-accused conspired with him jointly orindividually for the commission of all, or some or one of the predicate offenses is a question that may be answered only after a reading of the entire Amended Information. I note with particularity the phrase in the Amended Information stating, "by himself and/or14 in connivance/conspiracy with his coaccused." The phrase indicates that former President Estrada did not, in all instances, act in connivance with the other accused. At times, he acted alone. Consequently, as alleged in the succeeding paragraphs (a), (b), (c) and (d), his co-accused conspired with him individually and not jointly. Petitioner Serapio cannot therefore be associated with the former President in all the latter's alleged criminal activities.

Of course, I cannot ignore the use of the phrase "on several instances" and "aggregate amount of P545,000,000.00" in paragraph (a) of the Amended Information. At first glance, this may be construed as attributing to petitioner Serapio a "combination or series of overt act." However, a reading of the Amended Information, in its entirety, readily reveals that the said phrases pertain to former President Estrada, the principal accused in the case. Allegedly, the former President, on several instances, received or collected an aggregate amount of P545,000,000.00, more or less from illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit "by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda T. Ricaforte, petitioner Serapio and John Does and Jane Does. We have already explained the implication of the phrase "by himself and/or in connivance." Consequently, the acts committed by former President Estrada on the several instances referred to cannot automatically be attributed to petitioner.

Third, petitioner's criminal intent to advance the unlawful object of the conspiracy (plunder) is not sufficiently alleged in the factual recitals of the Amended Information. Corollarily, the intent required is the intent to advance or further the unlawful object of the conspiracy. 15 This means that so far as the relevant circumstances are concerned, both parties to the agreement must have mens rea.16 There is no conspiracy to commit a particular crime unless the parties to the agreement intend that the consequences, which are ingredients of that crime, shall be caused.17 In the present case, while there is an allegation that former President Estrada "willfully, unlawfully and criminally"18 amassed ill-gotten wealth in the aggregate amount of P4,097,804,173.17, none is mentioned with regard to petitioner. There is nothing in the Amended Information that suggests whether or not petitioner has the mens rea to engage in the commission of the serious crime of plunder. Indeed, there are no allegations that he "willfully, unlawfully or criminally" joined with the rest of the accused to amass ill-gotten wealth. This renders the Amended Information fatally defective with respect to petitioner. Every crime is made up of certain acts and intent: these must be set forth in the complaint with reasonable particularity.19 Imperatively, an information charging that a defendant conspired to commit an offense must allege that the defendant agreed with one or more persons to commit the offense.20

And fourth, the statement in the accusatory portion of the Amended Information cumulatively charging all the accused of the crime of Plunder cannot be given much weight in determining the nature of the offense charged. It is a jurisprudentially-embedded rule that what determines the "nature and cause of accusation" against an accused is the crime described by the facts stated in the information or complaint and not that designated by the fiscal in the preamble thereof.21 In the recent En Banc ruling in Lacson vs. Executive Secretary,22 citing the 1954 case of People vs. Cosare23 and People vs. Mendoza,24 this Court held:

"The factor that characterizes the charge is the actual recital of the facts. The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information."25

Thus, in the event that the appellation of the crime charged, as determined by the public prosecutor, does not exactly correspond to the actual crime constituted by the criminal acts described in the information to have been committed by the accused, what controls is the description of the said criminal acts and not the technical name of the crime supplied by the public prosecutor.26

There is a caveat that an information under the broad language of a general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable. 27

Let it be stressed that guilt should remain individual and personal, even as respect conspiracies. It is not a matter of mass application. There are times when of necessity, because of the nature and scope of a particular federation, large numbers of persons taking part must be tried by their conduct. The proceeding calls for the use of every safeguard to individualize each accused in relation to the mass. Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by their conduct. True, this may be inconvenient for the prosecution. But the government is not one of mere convenience or efficiency. It too has a stake with every citizen, in his being afforded the individual protections, including those surrounding criminal trials. 28 The shot-gun approach of a conspiracy charge could amount to a prosecution for general criminality resulting in a finding of guilt by association. The courts should, at all times, guard against this possibility so that the constitutional rights of an individual are not curbed or clouded by the web of circumstances involved in a conspiracy charge. 29

Corollarily, petitioner prays in G.R. No. 148468 for this Court to issue a writ of habeas corpus. The Amended Information being fatally defective, it is imperative that petitioner be dropped from the Amended Information and proceeded against under a new one charging the proper offense. In the absence of a standing case against him, the issuance of a writ of habeas corpus is in order."30

WHEREFORE, I vote to GRANT the petitions in G.R. No. 148769 and G.R. No. 148468.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-62100 May 30, 1986

RICARDO L. MANOTOC, JR., petitioner, vs. THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as Commissioner of Immigration, and the Chief of the Aviation Security Command (AVSECOM), respondents.

FERNAN, J.:

The issue posed for resolution in this petition for review may be stated thus: Does a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel?

Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of the latter into the hands of professional men, he holds no officer-position in said business, but acts as president of the former corporation.

Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction, petitioner, who was then in the United States, came home, and together with his co-stockholders, filed a petition with the Securities and Exchange Commission for the appointment of a management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management committee was organized and appointed.

Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the Immigration Regulation Division.

When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU Instance Corporation as surety.

On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave the country," stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities." The prosecution opposed said motion and after due hearing, both trial judges denied the same. The order of Judge Camilon dated March 9, 1982, reads:
1

Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing ground that his trip is ... relative to his business transactions and opportunities.

The Court sees no urgency from this statement. No matter of any magnitude is discerned to warrant judicial imprimatur on the proposed trip.

In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in the future until these two (2) cases are terminated . 2
On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:

6.-Finally, there is also merit in the prosecution's contention that if the Court would allow the accused to leave the Philippines the surety companies that filed the bail bonds in his behalf might claim that they could no longer be held liable in their undertakings because it was the Court which allowed the accused to go outside the territorial jurisdiction of the Philippine Court, should the accused fail or decide not to return.

WHEREFORE, the motion of the accused is DENIED. 3

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or withdrawal of the latter's memorandum dated February 4, 1980, but said request was also denied in a letter dated May 27, 1982.

Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as the communication-request of the Securities and Exchange Commission, denying his leave to travel abroad. He likewise prayed for the issuance of the appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation Security Command (AVSECOM) to clear him for departure.
4

On October 5, 1982, the appellate court rendered a decision dismissing the petition for lack of merit.
5

Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on certiorari. Pending resolution of the petition to which we gave due course on April 14, 1983 petitioner filed on August 15, 1984 a motion for leave to go abroad pendente lite. In his motion, petitioner stated that his presence in Louisiana, U.S.A. is needed in connection "with the obtention of foreign investment in Manotoc Securities, Inc." He attached the letter dated August 9, 1984 of the chief executive officer of the Exploration Company of Louisiana, Inc., Mr. Marsden W. Miller requesting his presence in the United States to "meet the people and companies who would be involved in its investments." Petitioner, likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati (formerly Nos. 45542-45545) had been dismissed as to him "on motion of the prosecution on the ground that after verification of the records of the Securities and Exchange Commission ... (he) was not in any way connected with the Manotoc Securities, Inc. as of the date of the commission of the offenses imputed to him." Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati, however, remained pending as Judge Camilon, when notified of the dismissal of the other cases against petitioner,
6 7 8 9 10

instead of dismissing the cases before him, ordered merely the informations amended so as to delete the allegation that petitioner was president and to substitute that he was "controlling/majority stockholder,'' of Manotoc Securities, Inc. On September 20, 1984, the Court in a resolution en banc denied petitioner's motion for leave to go abroad pendente lite.
11 12

Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his liberty, could prevent him from exercising his constitutional right to travel.

Petitioner's contention is untenable.

A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him. 13
The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404 (1935).

... the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction.

Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts.

The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials who have him in their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person of the principal and have the right to prevent the principal from leaving the state. 14
If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the country, for he would not have filed the motion for permission to leave the country in the first place, if it were otherwise.

To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage:

... The law obliges the bondsmen to produce the person of the appellants at the pleasure of the Court. ... The law does not limit such undertaking of the bondsmen as demandable only when the appellants are in the territorial confines of the Philippines and not demandable if the appellants are out of the country. Liberty, the most important consequence of bail, albeit provisional, is indivisible. If granted at all, liberty operates as fully within as without the boundaries of the granting state. This principle perhaps accounts for the absence of any law or jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country.

The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country, it is not for the reason suggested by the appellate court.

Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties to the proposed travel thereby satisfying the court that she would comply with the conditions of her bail bond. in contrast, petitioner in this case has not satisfactorily shown any of the above. As aptly observed by the Solicitor General in his comment:

A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is solely predicated on petitioner's wish to travel to the United States where he will, allegedly attend to some business transactions and search for business opportunities. From the tenor and import of petitioner's motion, no urgent or compelling reason can be discerned to justify the grant of judicial imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to travel abroad. Petitioner's motion bears no indication that the alleged business transactions could not be undertaken by any other person in his behalf. Neither is there any hint that petitioner's absence from the United States would absolutely preclude him from taking advantage of business opportunities therein, nor is there any showing that petitioner's non-presence in the United States would cause him irreparable damage or prejudice. 15

Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The

court cannot allow the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance, the government impliedly agrees "that it will not take any proceedings with the principal that will increase the risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result has been reached as to a stipulation or agreement to postpone the trial until after the final disposition of other cases, or to permit the principal to leave the state or country." Thus, although the order of March 26, 1982 issued by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the criminal cases pending before said judge, We see the rationale behind said order.
16

As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial discretion in their having denied petitioner's motion for permission to leave the country, in much the same way, albeit with contrary results, that We found no reversible error to have been committed by the appellate court in allowing Shepherd to leave the country after it had satisfied itself that she would comply with the conditions of her bail bond.

The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health.

To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as contemplated by the above-quoted constitutional provision.

Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court finds that no gainful purpose will be served in discussing the other issues raised by petitioner.

WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

SO ORDERED.

Teehankee, C.J., Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and Paras, JJ., concur.

Feria, J., took no part.

Republic of the Philippines SUPREME COURT Manila

EN BANC

A.M. No. 99-8-126-MTC September 22, 1999

ISSUANCE OF HOLD DEPARTURE ORDER OF JUDGE LUISITO T. ADAOAG, MTC, Camiling, Tarlac.

MENDOZA,

J.:

This refers to the indorsement, dated March 31, 1999, of the Secretary of Justice concerning a "hold-departure" order issued on January 29, 1999 by Judge Luisito T. Adaoag, Municipal Trial Court, Camiling, Tarlac, in Criminal Case Nos. 98-131 and 98-132, entitled "People of the Philippines v. Nestor Umagat y Campos." The Secretary of Justice calls attention to the fact that the order in question is contrary to Circular No. 39-97, dated June 19, 1997, of this Court.
1wphi1.nt

Indeed, the said circular limits the authority to issue hold departure orders to the Regional Trial Courts in criminal cases within their exclusive jurisdiction. It provides the following guidelines on the issuance of hold departure orders:

In order to avoid the indiscriminate issuance of Hold-Departure Orders resulting in inconvenience to the parties affected, the same being tantamount to an infringement on the right and liberty of an individual to travel and to ensure that the Hold-Departure Orders which are issued contain complete and accurate information, the following guidelines are hereby promulgated:

1. Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts;

2. The Regional Trial Courts issuing the Hold-Departure Order shall furnish the Department of Foreign Affairs (DFA) and the Bureau of Immigration (BI) of the Department of Justice with a

copy each of the Hold-Departure Order issued within twenty-four (24) hours from the time of issuance and through the fastest available means of transmittal;

3. The Hold-Departure Order shall contain the following information:

a. The complete name (including the middle name), the date and place of birth and the place of last residence of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined;

b. The complete title and the docket number of the case in which the Hold-Departure Order was issued;

c. The specific nature of the case; and

d. The date of the Hold-Departure Order.

If available, a recent photograph of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined should also be included.

4. Whenever (a) the accused has been acquitted; (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the HoldDeparture Order issued. The courts concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal twenty-four (24) hours from the time of promulgation/issuance and through the fastest available means of transmittal.

All Regional Trial Courts which have furnished the Department of Foreign Affairs with their respective lists of active Hold-Departure Orders are hereby directed to conduct an inventory of the Hold-Departure Orders included in the said lists and inform the government agencies concerned of the status of the Orders involved.

In his comment, Judge Adaoag admits his mistake and pleads ignorance of the circular. He explains:

1. The order of the court dated January 29, 1999 is a mere request from the Commission on Immigration to issue a Hold Departure Order;

2. The questioned order was issued in two criminal cases within the Jurisdiction of the Court and was issued with malice towards none and in the interest of the state upon motion of the Department of Justice thru its Assistant Prosecutor Venancio Ovejera, Office of the Provincial Prosecutor, Tarlac, Tarlac;

3. The court was misled into believing that the court could issue an order requesting the Bureau of Immigration for a Hold Departure Order because the motion for the issuance of a hold departure order was filed and prayed for by the Office of the Provincial Prosecutor at Tarlac, Tarlac;

4. The court has no copy of Circular No. 39-97 and upon research, it found out for the first time that Hold Departure Orders shall be issued only in criminal cases within the exclusive Jurisdiction of the Regional Trial Courts.

How about criminal cases within the exclusive Jurisdiction of first level courts?

Rest assured that from this moment and thereafter, the court will no longer issue such order. The Code of Judicial Conduct 1 enjoins judges to be "faithful to the law and maintain professional competence." They can live up to their duties only by diligent effort to keep themselves abreast of developments in our legal system. The process of learning the law is a never ending and ceaseless one. In two recent cases 2 involving similar violations, this Court imposed the penalty of reprimand on the offending judges. Hence, the same penalty should be imposed on Judge Adaoag.

WHEREFORE, Judge Luisito T. Adaoag is hereby REPRIMANDED with the WARNING that a repetition of the same or similar act will be dealt with more severely.

1wphi1.nt

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. Nos. 101127-31 August 7, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRESENCIA C. REYES, accused-appellant.

The Solicitor General for plaintiff-appellee.

Rosendo C. Ramos for accused-appellant.

REGALADO, J.:

In its resolution of May 13, 1992, the First Division of this Court referred en consulta to the Court En Banc the question as to whether herein accused-appellant who was convicted, inter alia, of estafa under paragraph 2(d), Article 315 of the Revised Penal Code and sentenced therefor to serve twenty-two years of reclusion perpetua, with its accessory penalties and liability for indemnification, may be allowed to remain on bail during the pendency of her appeal from said conviction. A definitive disposition of this issue, which is of first impression, gains added significance in light of our resolutionen banc in People vs. Ricardo C. Cortez 1 which, for the guidance of the bench and bar, laid down policies concerning the effectivity of the bail of the accused and which are reproduced hereunder for ready reference:

xxx xxx xxx

1) When an accused is charged with an offense which under the law existing at the time of its commission and at the time of the application for bail is punishable by a penalty lower than reclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged or of a lesser offense than that charged in the complaint or information, he may be allowed to remain free on his original bail pending the resolution of his appeal, unless the proper court directs otherwise pursuant to Rule 114, Sec. 2(a) of the Rules of Court, as amended;

2) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail is punishable byreclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or information, the same rule set forth in the preceding paragraph shall be applied;

3) When an accused is charged with a capital offense or an offense which under the law at the time of its commission and at the time of the application for bail as punishable byreclusion perpetua and is out on bail, and after trial is convicted by the trial court of the offense charged. his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal.

As to criminal cases covered under the third rule above cited, which are now pending appeal before this Court where the accused is still on provisional liberty, the following rules are laid down:

1) This Court shall order the bondsman to surrender the accused, within ten (10) days from notice, to the court of origin. The bondsman, thereupon, shall inform this Court of the fact of surrender, after which the cancellation of the bond shall be ordered by this Court.

2) RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the Philippine National Police as the accused shall remain under confinement pending resolution of his appeal.

3) If the accused-appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this Court. The appeal taken by the accused shall also be dismissed under Section 8, Rule 124 of the Revised Rules of Court as he shall be to have jumped bail. In the cases at bar, appellant was charged in the Regional Trial Court of Manila, Branch 37, in three cases for violations of Batas Pambansa Blg. 22 2 and two cases of estafa. 3 These cases were jointly tried and a decision thereon was rendered by Judge Angelina S. Gutierrez on March 12, 1991. 4

On the three cases for violations of Batas Pambansa Blg. 22, appellant was convicted and sentenced to a total penalty of two years of imprisonment and to pay a total fine of P96,290.00.

On the two indictments for estafa, in Criminal Case No. 86-51209 she was found guilty and sentenced to twenty-two years of reclusion perpetua with its accessory penalties, to indemnify the complaining witness in the sum of P80,540.00 and to pay the costs; and in Criminal Case No. 86-51210, she was likewise convicted and imposed an indeterminate sentence of six years and one day of prision mayor, as minimum, to fourteen years, eight months and one day of reclusion temporal, as maximum, together with the accessory penalties, as well as to indemnify the offended party in the sum of P15,750.00 and to pay the costs.

Elevated to the Court of Appeals for appellate review, said cases were forwarded by said court to this Court in view of the penalty of reclusion perpetua involved therein. In the meantime, it appears that appellant is under provisional liberty on bail in the aforesaid criminal cases, including Criminal Case No. 86-51209, under a corporate surety bond posted by Oriental Assurance Corporation in the amount of P86,000.00. 5 The Court notes that said bond was provided pursuant to the order of the trial court dated May 16, 1991, 6 hence prior to our resolution of October 15, 1991 quoted in limine.

As earlier stated, the issue presented now is whether, under the considerations in the foregoing discussion, appellant should be permitted to remain on bail. A chronological flashback into the constitutional and statutory changes relevant to this issue, in juxtaposition with the state of the penal laws during the periods material thereto, would accordingly be desirable and instructive.

On October 22, 1975, Presidential Decree No. 818 introduced the following amendment to Article 315 of the Revised Penal Code:

Sec. 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by:

1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua;

xxx xxx xxx

Preliminarily, it may be asked whether a penalty higher than reclusion temporal but less than thirty (30) years may properly be categorized and considered as embraced within the penalty of reclusion perpetua, as has been provided in said amendatory decree, the common praxis being to attribute to reclusion perpetua and the other perpetual penalties a duration of thirty (30) years.

We hold that there is legal basis, both in law and logic, for Presidential Decree No. 818 to declare that any penalty exceeding twenty (20) years, or the maximum duration of reclusion temporal, is within the range of reclusion perpetua. It will be observed that Article 27 of the Code 7 provides for the minimum and maximum ranges of all the penalties in the Code (except bond to keep the peace which shall be for such period of time as the court may determine) from arresto menor to reclusion temporal, the latter being specifically from twelve years and one day to twenty years. For reclusion perpetua, however, there is no specification as to its minimum and maximum range, as the aforesaid article merely provides that "(a)ny person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon."

The other applicable reference to reclusion perpetua is found in Article 70 of the Code which, in laying down the rule on successive service of sentences where the culprit has to serve more than three penalties, provides, that "the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him," and "(i)n applying the provisions of this rule the duration of perpetual penalties (pena perpetual) shall be computed at thirty years."

The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. Since, however, in all the graduated scales of penalties in the Code, as set out in Articles 25, 70 and 71,reclusion perpetua is the penalty immediately next higher to reclusion temporal, it follows by necessary implication that the minimum of reclusion perpetua is twenty (20) years and one (1) day with a maximum duration thereafter to last for the rest of the convict's natural life although, pursuant to Article 70, it appears that the maximum period for the service of penalties shall not exceed forty (40) years. it would be legally absurd and violative of the scales of penalties in the Code to reckon the minimum of reclusion perpetua at thirty (30) years since there would thereby be a resultant lacuna whenever the penalty exceeds the maximum twenty (20) years of reclusion temporal but is less than thirty (30) years.

On the main issue now, it will be recalled that before the ratification of the present Constitution on February 2, 1987, the rule on non-bailability of a criminal offense was singularly in the case of a capital offense where the evidence of guilt is strong. 8 Thus, as late as the 1985 Rules on Criminal Procedure effective on January 1, 1985, bail was a matter of right, except in a capital offense when the evidence of guilt thereof is strong 9 and, following the traditional concept, a capital offense, as the term is used in said Rules, is an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, may be punished with death. 10 Offenses punishable with reclusion perpetua, were accordingly bailable. With the prohibition in the 1987 Constitution against the imposition of the death penalty, 11 a correlative provision therein categorically declared the unavailability of bail to persons charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. 12 Correspondingly, the aforecited Section 3 of Rule 114 was amended to provide that no bail shall be granted to those charged with "an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong." 13 There can be no pretense that such unequivocal and explicit provisions in the Constitution and the Rules of Court would admit of any exception, qualification or distinction.

With such developmental antecedents, it may not be said that the framers of the 1987 Constitution, a number of whom were lawyers and who can plausibly be credited even by the censorious with at least a working knowledge of criminal law and procedure, were unaware of the felonies under the Revised Penal Code which were already punishable with the penalty of reclusion perpetua and which, with the amendments introduced by the present Constitution, would become non-bailable offenses as a consequence. Specifically with respect to the offense of estafa involved in the present case, the members of the Constitutional Commission could not have been oblivious of Presidential Decree No, 818, which took effect as early as 1975 and was given extensive media coverage at the instance or with the cooperation of the banking community, providing for the penalty of reclusion perpetua where bouncing checks of the requisite amount are involved.

For that matter, as will hereafter be demonstrated, there are other crimes involving government and private funds or property which theretofore were also already punished with reclusion perpetua. Hence, under the rule ofcontemporanea expositio and since the felony of estafa was not expressly or impliedly excluded from the aforestated provisions on non-bailability, we see no reason why an accused charged with estafa punishable byreclusion perpetua should now be given the exceptional and favored treatment of being admitted to bail. The same may be said of any accused charged with any offense so punished, whether the penalty of reclusion perpetua is by direct statutory prescription or is imposed as a consequence of the interplay of related provisions of the Code.

It is suggested that since estafa is a crime against property and supposedly not as "heinous" as crimes against persons or chastity, such as murder or rape, it should not be equated with the latter felonies in justifying the denial of bail to the accused. From the preceding disquisition, the obvious riposte is that this is a matter which should properly be addressed to the legislature. It is not for this Court, by judicial legislation, to amend the pertinent provisions of the Revised Penal Code, much less the Constitution. Nor is it for us to intrude into the policy considerations, absent blatant abuse of legislative power or capricious exercise thereof, which impelled the legislative categorization of an offense as being so abominable or execrable as to call for a denial of the right to bail. On this score, we can take judicial notice that multimillion or large-scale estafa cases and inveterate or professional swindlers have inflicted untold damages and misery not only on one or two but on countless victims in this country.

It will further be observed that Presidential Decree No. 818 does not apply to all forms of estafa but only to estafa by means of deceit under paragraph 2(d) of Article 315, that is, estafa through the use of so-called bouncing checks. 14 The preambular clauses of said decree duly express the rationale for the amendment introduced thereby in this wise:

WHEREAS, reports received of late indicate an upsurge of estafa (swindling) cases committed by means of bouncing checks;

WHEREAS, if not checked at once, these criminal acts would erode the people's confidence in the use of negotiable instruments as a medium of commercial transaction and consequently result in the retardation of trade and commerce and the undermining of the banking system of the country;

WHEREAS, it is vitally necessary to arrest and curb the rise in this kind of estafa cases by increasing the existing penalties provided therefor;

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Now, as earlier stated, on analogous considerations in the formulation of punitive policies, the penalty of reclusion perpetua is imposed in one felony under the title on crimes committed by public officers and in three felonies under the title on crimes against property. These provisions have been in the Revised Penal Code long before Presidential Decree No. 818 was effected and may have been the bases for the amendments introduced by the latter.

Thus, in malversation of public funds or property, if the amount involved exceeds P22,000.00, the penalty shall bereclusion temporal in its maximum period to reclusion perpetua. 15

In robbery, when by reason or on the occasion of which any of the physical injuries penalized in subdivision 2 of Article 263 is committed (which includes mere incapacity from the victim's habitual work for more than ninety days), the penalty is reclusion temporal. 16 However, if in said robbery the property taken is mail matter or large cattle, the offender shall suffer the penalty next higher in degree, that is, reclusion perpetua. 17

In the crime of theft, if the value of the thing stolen exceeds P22,000.00, the penalty shall be prision mayor in its maximum period and one year for each additional P10,000.00, but the total penalty shall not exceed twenty years or reclusion temporal. 18 However, if that crime of theft is attended by any of the qualifying circumstances which convert the taking into qualified theft, the penalty next higher by two degrees shall be imposed, 19 that is, at leastreclusion perpetua.

The felony of destructive arson, which includes the burning of any building where people usually gather or congregate for a definite purpose is now punished by reclusion temporal in its maximum period to death 20regardless of the resultant effects or amount of damages. The same increased penalty is imposed on other forms of arson formerly defined in paragraph l(c) and (d) of Article 321, which have now been incorporated by Presidential Decree No. 1744 in Article 320 as destructive arson, regardless of the damages caused or whether or not the purpose is attained.

From the foregoing discussion, it is evident that the legislative criteria for the imposition of reclusion perpetua in said offenses took into account not only the inherent odious or outrageous nature of the crime, such as the taking of a life or an assault against chastity, but also either the moral depravity or criminal perversity shown by the acts of the accused, or the necessity for protection of property in the governmental, financial or economic interests of the country. The objectives of Presidential Decree No. 818 are indubitably within the ambit of the same legislative intendment and the foregoing justifications for the imposition of higher penalties and the consequent denial of bail to the malefactor.

ACCORDINGLY, the Court hereby RESOLVES (1) to ORDER the bondsman, Oriental Assurance Corporation, to surrender accused-appellant Cresencia C. Reyes within ten (10) days from notice to the Regional Trial Court of Manila, Branch 37, and to immediately inform this Court of such fact of surrender; and (2) to REQUIRE said Regional Trial Court, immediately after such surrender, to order the transmittal of the accused-appellant to the Bureau of Corrections through the Philippine National Police and to forthwith report to this Court its compliance therewith.

S0 ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-439

August 20, 1946

EDUARDO OCAMPO, petitioner, vs. JOSE BERNABE, EMILIO RILLORAZA, and ANGEL GAMBOA, Judges of People's Court (Fourth Division),respondents.

Felicisimo S. Ocampo and Alberto V. J. Francisco for petitioner. First Assistant Solicitor General Reyes and Assistant Solicitor Gianzon for respondents.

MORAN, C.J.:

This is a petition for certiorari filed by Eduardo Ocampo to set aside an order issued by the Fourth Division of the People's court denying his application for bail.

The petitioner was arrested by the Counter Intelligence Coprs of the Armed Forces of the United States and confined in Muntinglupa Prisons since July 30, 1945, and pursuant to Executive Order No. 6555 he was turned over to the Commonwealth of the Philippines and later on filed with the Peoples Court his application for bail under Act No. 682. At the hearing of the application, the special prosecutor stated that petitioner with having pointed out Placido Trinidad as a guerilla to the Japanese and for that reason Placido Trinidad was shot to death. No evidence, however, was presented by the special prosecutor and all that he did at the hearing was to recite the contents of an affidavit which has no referrence to count No. 4, and to state further that he had 27 more affidavits. Petitioner made an objection stating that a mere recital is not a evidence and that evidence cannot be considered strong which has not been subjected to the test of cross-examination. He testified in his own behalf in denying all the charges preferred against him and stated that said charges are mere intrigues of his political enemy Marcelo Trinidad. He presented two affidavits, one of Leoncia Nario and the other of Eugenio Trinidad, mother and uncle, respectively, of Placido Trinidad, wherein it is stated that Placido Trinidad was killed by the Japanese because of his having attempted to wrest a revolver from a foreman in charge of a detail at work under orders of the Japanese and that petitioner had nothing to do with such killing.

Under all these circumstances, the Fourth division of the People's Court composed of Judges Jose Bernabe, Emilio Rilloraza and Angel Gamboa, issued an order dated February 23, 1946, denying the application for bail. Hence, this petition for certiorari, predicated upon the theory that no proof having been presented by the special prosecutor to show that the evidence of guilt is strong, the People's Court committed a grave abuse of discretion in denying the application for bail.

We have held in Herras Teehankee vs. Director of Prisons (76 Phil., 756), that all persons shall before conviction be bailable except when charge is a capital offense and the evidence of guilt is strong. the general rule, therefore, is that all persons, whether charged or not yet charges, are, before their conviction, entitled to provisional release on bail, the only exception being where the charge is a capital offense and the evidence of guilt is found to be strong. At the hearing of the application for bail, the burden of showing that the case falls within the exception is on the prosecution, according to Rule 110, section 7. The determination of whether or not the evidence of guilt is strong is, as stated in

Herras Teehankee case, a matter of judicial discretion. This discretion, by the very nature of things, may rightly be exercise only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence cannot properly be weighed if not duly exhibited or produced before the court (Ramos vs. Ramos, 45 Phil., 362), it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal. Mere affidavits or recital of their contents are not sufficient since they are mere hearsay evidence, unless the petitioner fails to object thereto.

And this is the prevailing doctrine in the United States according to authorities to be quoted later. In some states of the American union, the burden of showing that proof is evident or the presumption great, lies on the prosecution while in others on the petitioner, but the rule seems to be uniform to the effect that no matter which side bears the burden of proof, the evidence of guilt should be adduced before the court for a proper determination of its probative force. In American Jurisprudence the following appears:

. . . The English rule is, however, by no means uniformly followed in the United States. In some jurisdictions the case is heard de novo, the solicitor and prosecutor are notified to attend, and witnesses are subpoenaed both for the state and for the defendant and are examined before the court. This practice seems generally to be followed, and it may be laid down as abroad principle that where bail is not a matter of right, the burden is upon the petitioner to produce facts sufficient to entitle him to bail at the hearing. He is therefore both required and permitted to introduce evidence doing to the merits of the case against him. Ordinarily, the presumption is with the state, and it is proper to require the prisoner to introduce evidence in the first instance, although it imposes upon him the necessity of producing evidence upon which the state intends to rely for his conviction on the final trial. the accused will not, by this procedure, be denied the opportunity of cross-examining the people's witnesses. However, in some jurisdictions, the courts have gone so far as to hold that the duty is upon the prosecuting attorney, in resisting an application, to begin the proceedings by the introduction of evidence showing that the applicant is not entitled to bail. (6 Am. Jur., section 47, p. 70.).

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The general rule followed in the United States is more liberal than that of the common law, and the mere fact that a grand jury has found an indictment for murder will not generally preclude the court from inquiry into the facts of the case. On this inquiry the witnesses for the prosecution may be called, and the accused is not required to produce the testimony of any other witnesses. Furthermore, the accused is entitled to go behind the indictment and introduce evidence going to the merits of the case. The inquiry should not be limited to determining the probable degree of the homicide, but should include the determination of the character of the proof or the strength of the presumption respecting whether or not the defendant did the killing or was connected with it as a guilty agent. A case for the allowance of bail after indictment may also be presented where the public prosecutor admits that under the evidence obtainable no conviction of a capital offense can be had, or where there has been a failure to convict, or where a verdict of guilty has been reversed by reason of the insufficiency of the evidence. (6 Am. Jur., section 50, p. 71.)

In corpus Juris Secundum the rule is summarized as follows:

Unless the presumption from an indictment for a capital offense is conclusive against accused which has been considered in section 34 b(2) (b)the determination as to whether the proof is evident or the presumption great must, on an original application, be determined from the evidence adduced on the application no matter which side bears the burden of proof. Where accused under a capital indictment bears the burden of proof he should offer the witnesses whose names are endorsed on the indictment, although he is not imited to such witnesses.

The court should hear all material and relevant evidence offered by either party, such as the grand jury minutes, and should consider the evidence as a whole. (8 C.J.S., section 46 [b], p. 94.).

See also the following authorities:

Under the 17th section of the Alabama Bill of Rights, which declares that "all persons shall, before conviction, be bailable by sufficient securities, except for capital offenses where the proof is evident or the presumption great," and under the Alabama statutes upon the hearing of applications for bail, either before or after indictment, the court is not, as according to the practice in England, confined to the written evidence taken down before the committing magistrate; but the case is heard de novo the solicitor and prosecutor are notified to attend, and witnesses are subpoenaed both for the state and for the defendant, and examined before the court, which is to decide the application upon the evidence produced. Code sections 3721, 3722,3732, 3733, 3745, 3746, 3669, 3673. Ex parte Bryant, 34 Ala., 270. (Re Thomas, 20 Okla., 167; 93 Pac., 980; 39 L. R. A., New Series, pp. 752, 775.).

In capital case, application for bail calls for exercise of judicial discretion in determining probability of defendant's guilt which requires submission of evidence. (Shaw vs. State, 47 S.W. [2d], 92; 164 Tenn., 192; 8 C.J.S., p. 94, fn. 80.).

Applicant for bail under Burns' St. Annot. (1914), section 2025, seeking to overcome presumption of truth of indictment, must introduce the evidence of witnesses as indicated by indictment, and also such witnesses as state indicates it relies on. (McAdams vs. State, 147 N.E., 764; 196 Ind., 184; 8 C.J.S., p. 94, fn. 80.)

When names of state witnesses are placed upon the indictment the presumption is that all should not be required to produce the testimony of any other witnesses on behalf of the state. Where no witnesses are placed on the indictment, it is incumbent on the state attorneys, on application for bail, to furnish the accused with a list of the witnesses relied on by the state in due time to secure their presence or testimony; otherwise he could not know what was the testimony upon which the state relied. In case no witnesses are placed upon the indictment and a list is duly furnished by the prosecuting officer, the accused should produce the witnesses for the state in connection with his own, if he had any, in order that the judge may determine from all the testimony in the case whether the proof was not evident or the presumption not great.

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Upon the hearing it is proper to require the prisoner to begin the evidence, although it imposes upon him the necessity of producing evidence upon which the state intended to rely for his conviction on the final trial. But the accused will not by this procedure be denied the opportunity of cross-examining the people's witnesses. (Ex parteHeffren, 27 Ind., 87. To the same effect, Rigdon vs. State, 41 Fla., 308; 26 So., 711; ex parte Nathan[Fla.]; 50 so., 38." (39 L. R. A., New Series, pp. 752, 774, 775.).

The evidence for the state, as well as that for the accused, should be presented (1) by the petitioner in an application for bail. (Ex parte Tully [Fla.], 66 S., 296; Rigdon vs. State, 41 Fla., 308; 26 S., 711; Ex parte Heffren, 27 Ind., 87. (2) But the petitioner, by proper procedure, may test the probative force of the testimony for the state in order to fully present his case for the purposes of the hearing. Ex parte Tully, supra; Ex parte Heffren, supra. (6 C.J., p. 984, fn. 50 [a], section 214.).

Where on a motion to admit to bail after the indictment, the evidence of the witnesses who testified before the grand jury does not make a prima facie case against the accused, he is entitled to bail, and it is an error to refuse bail upon the statement of the district attorney that he has other evidence which he will not disclose for fear of weakening the state's case. (In ex parte Reynald, 37 Texas, 1.)

And this is in conformity with the former rulings of this Court. In Marcos vs. Cruz (67 Phil., 82), we said:

Se arguye que el Juez recurrido, antes de expedir el mandamiente de arresto de los acusados, examino a los dos testigos de cargo que presento el fiscal y que estas pruebas establecieron asimismo la presuncion de culpabilidad de los acusados y el requerimiento adicional de que las pruebas de culpabilidad deben ser evidentes. No podemos prestar nuestro asentimiento a esta pretension. No debe olvidarse que tales pruebas se recibieron en ausencia de los acusados y estos no tuvieron oportunidad de verles declarar ni de repreguntarles. . . . Otras razones que impiden el que tales pruebas puedan tener en cuenta contra los acusados son; que el fiscal no las produjo ni ofrecio en la vista de las peticiones de libertad bajo fianza. . .. En tales circunstancias era deber del Juez recurrido requerir al fiscal que presente sus pruebas para demostrar que el delito imputado era capital, que las pruebas eran evidentes y que la presuncion de culpabilidad era fuerte.

In Herras Teehankee vs. Director of Prisons, supra, we said:

When the first proviso of section 19 of Commonwealth Act No. 682 and Article III, section 1, paragraph 16, of the Constitution, refer to the case where the court finds that there is strong 'evidence' of the commission of a capital offense, they necessarily mean evidence properly adduced by the parties or any of them before it, in the manner and from prescribed by the laws and rules of judicial procedure. . . .

True that in the same case of Herras Teehankee vs. Director of Prisons, supra, we said that the hearing of an application for bail should be summary or otherwise in the discretion of the court. By "summary hearing" we meant such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for purposes of bail. On such hearing, the court "does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted." (8 C. J. S., 93,94.) The course of the inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing.

Objection has been made long ago to this method of hearing wherein the regular trial is anticipated though to a limited extent at least. but the objection was dismissed as follows:

The second objection is more serious, and, if the courts possessed entire freedom of action in regard to the matter, would be very persuasive. The regular trial is, to a limited extent at least, anticipated. While the guilt or innocence of the accused is not to be determined, the quantity and character of the proofs on this point are, for the special purpose in hand, necessarily considered. Occasionally much time is thus consumed, and the court's attention is correspondingly diverted from other business. But these objections cannot avail against a positive constitutional command; if the Constitutional requires the court to determine for itself whether or not the proof is evident or presumption great in a given case, all considerations of expediency or convenience, however potent they might be at the common law, must give way. (Re Losasso, 10 L.R.A. [1890], 847, 850.)

It appearing in the instant case that on the hearing of the application for bail filed by the petitioner no proof was offered by the prosecution to show that the evidence of guilt is strong, the Fourth Division of the People's Court committed a grave abuse of discretion in denying the bail applied for.

In view of the foregoing, the order of the fourth Division of the People's court dated February 23, 1946, denying the application for bail filed by the petitioner, is hereby set aside, and if appearing that said order is but a misconception of the procedure to be followed in this kind of cases, the respondent court is hereby ordered to hold another hearing in the manner herein described and within seven days from notice for the purpose of determining whether petitioner may be released on bail. Without costs.

Paras, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ., concur. Pablo M., conforme con la parte dispositiva.

Separate Opinions

PERFECTO, J., dissenting:

There should not be any disagreement that at the hearing of the application for bail in capital offenses "the burden of showing that the case falls within the exception is on the prosecution"; that the determination of whether or not the evidence of guilt is strong is a matter of judicial discretion; that this discretion may rightly be exercised "only if the evidence is submitted to the court at the hearing"; that petitioner had the "right of cross-examination and to introduce his own evidence in rebuttal"; that contrary to the wrong doctrine set up in Duran vs. Abad Santos (74 Phil., 410), "mere affidavits or recital of their contents are not sufficient since they are mere hearsay evidence," which, in our opinion, even if not objected to, are inadmissible, because the omission can not turn a bad evidence into a good one.

Upon the facts of this case, we fully concur in the following pronouncement in the majority opinion:

It appearing in the instant case that on the hearing of the application for bail filed by the petitioner no proof was offered by the prosecution to show that the evidence of guilt is strong, the Fourth Division of the People's court committed a grave abuse of discretion in denying the bail applied for.

The natural and logical consequence of the above pronouncement, to any one's mind, will be that the "grave abuse" of denial should be corrected by a reverse action, that is, ordering the People's court to grant the bail applied for, by following the short-cut procedure adopted by this Court in Herras Teehankee vs. Director of Prisons (76 Phil., 630), that of directly granting the bail, a prompt procedure wholly justified in view of the fact that petitioner Ocampo has already been deprived of his liberty for more than one year (since July 30, 1945), and the delay in granting him bail, notwithstanding that he is entitled to it, is in great measure, due to the lower court's "grave abuse."

We can not but be painfully surprised by the fact that the majority add more delay in the granting of bail, in giving the prosecution further chance to correct its error and the lower court additional opportunity, in an unnecessary procedure, to commit more errors and grave abuses as those four ones committed by the same People's Court in the two Herras Teehankee cases (75 Phil., 634 and 76 Phil., 630), by disposing of the case as follows:

In view of the foregoing, the order of the Fourth Division of the People's Court dated February 23, 1946, denying the application for bail filed by the petitioner, is hereby set aside, and it appearing that said order is but a misconception of the procedure to be followed in this kind of cases, the respondent court is hereby ordered to hold another hearing in the manner herein-described and within seven days from notice for the purpose of determining whether the evidence of guilt is strong and, therefore, whether petitioner may be released on bail. Without costs.

It was since October 5, 1945, more than ten months ago, when petitioner filed his original application for bail. It was denied on October 18. On October 30, petitioner prayed for its reconsideration and at the same time asked the People's Court to set the case for hearing and to require the prosecution to show that there was strong evidence of petitioner guilt. On November 10 the motion for reconsideration was denied, the People's Court stating that it granted an ex parte hearing to the special prosecutor. On November 26 petitioner filed a pleading alleging that, contrary to what was stated in the lower court's order of November 10, neither the Solicitor General nor any of the special prosecutors appeared at the hearing of the motion for reconsideration in spite of the fact that their office had been notified beforehand of the hearing. On December 28 petitioner moved that a day be set for the hearing of this petition dated October 30, in which both parties should be present and the prosecution should adduce evidence, with the corresponding right of the petitioner to prove that he was entitled to be released on bail, in accordance with the ruling in Herras Teehankee vs. Rovira (75 Phil., 634). The inaction of the People's Court upon the motion of December 28, compelled petitioner to file another motion on January 18, 1946, reiterating his request that hearing be granted. The People's Court set the petition for hearing, which took place on February 18, and which the prosecution, instead of proving the existence of strong evidence of petitioner's guilt, merely informed the court, over petitioner's objection, that it was in possession of a number of affidavits against the petitioner and gave an idea of the contents thereof. None of said affidavits was, however, presented. In order to counteract whatever influence the statements of the prosecution might bring to bear upon the court, petitioner took the witness stand and denied under oath all the charges imputed against him by the prosecution. To rebut the reputation that he caused the death of guerrilla, Placido Trinidad, he presented affidavits of the mother and uncle of the alleged victim showing that petitioner had nothing to do with his death, because the deceased was killed by the Japanese for his attempt to wrest a revolver from a foreman in charge of a work under orders of the Japanese. On February 23, 1946, more than four months after the original petition for bail was filed, the lower court denied petitioner's prayer to be bailed.

In April, 1946, the petition was filed before this Supreme Court. It is regrettable that on so urgent a matter as the present one, affecting as it does the personal freedom of a citizen, the Supreme Court had to need more than four months to render a decision. The situation is aggravated by the fact that, delaying further the granting of petitioner's bail, the People's court is ordered to hold another hearing.

If in the Herras Teehankee case (supra), the Supreme Court, losing patience for the errors, grave abuses and dillydallying of the People's Court, ordered directly the granting of bail to Mrs. Teehankee, the petitioner in the present case has a better claim to a similar relief, not only because the prosecution did not present any evidence to show petitioner's guilt, a situation identical to the one in Herras Teehankee, but petitioner volunteered evidence showing, without any contradiction, that he is innocent of the charges against him. In the Herras Teehankee case, there was only an absence of evidence of guilt; whereas in the present case, there is the presence of evidence of innocence.

In view of all the foregoing, and because the dispositive part of the majority decision is irreconcilably inconsistent with the premises of fact and law in the same decision, we dissent and vote that petitioner should be released on bail upon the filing of a bond in the amount of P10,000.

Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

April 21, 1958

G.R. No. L-10724 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. MELQUIADES RABA, ET AL., defendants. CLEMENTE TALANTOR, defendant-appellee.

Office of the Solicitor General Ambrosio Padilla and Solicitor Meliton G. Soliman for appellant. M.F. Zamora, Eduardo S. Dayot and Serafin L. Abogado for appellee. , J.: Clemente Talantor and Melquiades Raba were charged with murder before the Court of First Instance of Antique and the bail for each was fixed by the court at P30,000 as recomended by the provincial fiscal.

On April 26, 1956, after the arraignment of the acccused at which both pleaded not guilty to the charge, Talantor filed with the court an urgent motion praying that the amount of the bond fixed for his provisional liberty be reduced from P30,000 to P14,000 in order to enable him to go on bail. While the motion setting the hearing thereof in the morning of the same date, contains a notification to the provincial fiscal, however, the latter was actually notified at 9:40 oclock in the morning of the same day. Despite this lack of due notice, the court promptly granted the motion for the reduction of bail one hour later.

On April 28, 1956, the provincial fiscal presented a motion for reconsideration of the order granting the reduction of the bail to P14,000 on the ground that it is irregular because no proper notice of the hearing of the motion for such reduction was given to him as required by the rule to enable him to prove that there exist strong evidence which would warrant the denial of the motion. The motion was denied, hence this appeal.

There is merit in this appeal. The Rules of Court make it a duty of a movant to serve notice of his motion on all parties concerned at least three days before the hearing thereof (section 4, Rule 26). This requirement is more imperative in a criminal case where a person is accused of a capital offense for in such a case admission to bail is a matter of discretion which can only be exercised after the fiscal has been heard regarding the nature of the evidence he has in his possession. Thus, it is provided that When admission to bail is a matter of discretion the court must require that reasonable notice of the hearing of the application for bail be given to the fiscal (section 8, Rule 110), and such notice is necessary because the burden of showing that evidence of guilt is strong is on the prosecution (section 7, Rule 110). Here Talantor is charged with a capital offense and while the fiscal fixed a bail of P30,000 for his provisional liberty, its further reduction could not be granted without hearing him because the evidence in his possession may not warrant it.

It has been held that The determination of whether or not the evidence of guilt is strong is a matter of judicial discretion. This discretion, by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence and since evidence cannot properly be weighed if, not duly exhibited or produced before the court (Ramos vs. Ramos, 45 Phil. 362), it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal. (Ocampo vs. Bernabe, 77 Phil. 55, 56; Emphasis supplied.)

Considering that Talantor did not serve notice of his motion to reduce bail on the provincial fiscal at least three days before the hearing thereof and the court failed to require that a reasonable notice thereof be given to said fiscal, it is evident that the court acted improperly in reducing the bail without giving the fiscal an opportunity to be heard.

We wish however to state that the remedy the fiscal should have availed of is certiorari and not appeal considering that the orders herein involved are interlocutory in nature (Rule 41, Section 2). The orders of April 26, 1956 reducing the bond of Talantor to P14,000, as well as that approving the bail bond as thus reduced, are hereby set aside.

Bengzon, Montemayor, Reyes, A., Labrador, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Paras, C.J., concurs in the result.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-56158-64 March 17, 1981

PEOPLE OF THE PHILIPPINES, petitioner, vs. MAYOR PABLO SOLA, SANGGUNIANG BAYAN MEMBER FRANCISCO (ECOT) GARCIA, RICARDO (CADOY) GARCIA, JOSE BETHOVEN (ATSONG) CABRAL, CAPTAIN FLORENDO BALISCAO, JOHN, PETER, OSCAR, OMAR, JACK, RICHARD, JAMES, DONALD, WILLIAM, ROBERT, HOMER, JESSIE, ANDY, PAUL, all surnamed DOES respondents.

FERNANDO, C.J.: The power of this Tribunal, constitutionally mandated, 1 to order a change of venue to avoid any miscarriage of justice as well as the procedure ordained in the implementation of the right to bail 2 are involved in this petition which, even if not so denominated, partakes of the nature of a certiorari. It must have been the zeal of private prosecutors Francisco Cruz and Renecio Espiritu, 3 no doubt under the conviction that there was no time to lose, that must have led them to devote less than that full measure of attention to certain fundamentals. They ignored the principle that the responsibility for the conduct of the prosecution is with the public officials concerned. Nonetheless, the importance of the questions raised, the need for a change of venue and the cancellation of the bail bonds, necessitated that further action be taken. Accordingly, in a resolution dated February 12, 1981, one day after the filing of the petition, the Court required the comment of the Solicitor General as well as of the private respondents, 4 the accused in six pending criminal cases before the Court of First Instance of Negros Occidental. On March 4, 1981, the Comment was submitted by Solicitor General Estelito P. Mendoza. 5 It opened with this preliminary statement: "The present petition was filed by the private prosecutors in Criminal Cases Nos. 1700-1706, People v. Pablo Sola, et al., pending trial before the Court of First Instance of Negros Occidental. Rightly, any petition before this Honorable Court on behalf of the People of the Philippines can, under the law, be instituted only by the Solicitor General. The assertion of the petitioner private prosecutors that they are instituting the action 'subject to the control and supervision of the Fiscal' will not, therefore, improve their legal standing." 6Nonetheless, it did not press the legal point but instead adopted "the two-pronged trusts of the petition: 1. the setting aside, by certiorari, of the order of the Municipal Court of Kabankalan, presided over by

Judge Rafael Gasataya, granting bail to the accused in the criminal cases mentioned above, and 2. the petition for a change of venue or place of trial of the same criminal cases to avoid a miscarriage of justice. 7

The facts were therein narrated thus: "On September 15, 1980, acting on the evidence presented by the Philippine Constabulary commander at Hinigaran, Negros Occidental, the Court of First Instance of that province issued a search warrant for the search and seizure of tile deceased bodies of seven persons believed in the possession of the accused Pablo Sola in his hacienda at Sta. Isabel, Kabankalan, Negros Occidental. * * * On September 16, 1980 armed with the above warrant, elements of the of the 332nd PC/INP Company proceeded to the place of Sola. Diggings made in a canefield yielded two common graves containing the bodies of Fernando Fernandez, Mateo Olimpos, Alfredo Perez, Custodio Juanica, Arsolo Juanica, Rollie Callet and Bienvenido Emperado. On September 23 and October 1, 1980, the PC provincial commander of Negros Occidental filed seven (7) separate complaints for murder against the accused Pablo Sola, Francisco Garcia, Ricardo Garcia, Jose Bethoven Cabral, Florendo Baliscao and fourteen (14) other persons of unknown names. The cases were docketed as Criminal Cases No. 4129, 4130, 4131, 4137, 4138, 4139 and 4140 of the Municipal Court of Kabankalan. After due preliminary examination of the complainant's witnesses and his other evidence, the municipal court found probable cause against the accused. It thus issued an order for their a. rest. However, without giving the prosecution the opportunity to prove that the evidence of guilt of the accused is strong, the court granted them the right to post bail for their temporary release. The accused Pablo Sola, Francisco Garcia, and Jose Bethoven Cabral availed themselves of this right and have since been released from detention. In a parallel development. the witnesses in the murder cases informed the prosecution of their fears that if the trial is held at the Court of First Instance branch in Himamaylan which is but 10 kilometers from Kabankalan, their safety could be jeopardized. At least two of the accused are officials with power and influence in Kabankalan and they have been released on bail. In addition, most of the accused remained at large. Indeed, there have been reports made to police authorities of threats made on the families of the witnesses." 8 The facts alleged argue strongly for the remedies sought, namely a change of venue and the cancellation of the bail bonds.

On the very next day, March 15, 1981, this Court issued the following resolution: "The Court Resolved to: (a) [Note] the comment of the Solicitor General on the urgent petition for change of venue and cancellation of bail bonds, adopting the plea of the petition, namely, (1) the setting aside, by certiorari, of the order of the Municipal Court of Kabankalan, presided over by Judge Rafael Gasataya, granting bail to the accused in Criminal Cases Nos. 4129, 4130, 4131, 4137, 4138, 4139 and 4140, all entitled "People of the Philippines v. Mayor Pablo Sola. et al."; (2) the petition for a change of venue or place of trial of the same criminal cases to avoid a miscarriage of Justice; (b) [Transfer] the venue of the aforesaid criminal cases to Branch V of the Court of First Instance of Negros Occidental at Bacolod City, presided by Executive Judge Alfonso Baguio, considering that District Judge Ostervaldo Emilia of the Court of First Instance, Negros Occidental, Branch VI at Himamaylan has an approved leave of absence covering the period from January 12 to March 12, 1981 due to a mild attack of cerebral thrombosis and that the said Branch V is the nearest court station to Himamaylan: and (c) [Await] the comment of respondents on the petition to cancel bail, without prejudice to the public officials concerned taking the necessary measures to assure the safety of the witnesses of the prosecution." 9 Thus, the issue of a change of venue has become moot and academic. The comments respectively submitted by respondent Florendo Baliscao on March 5, 1981, respondent Francisco Garcia on March 11, 1981 and respondent Pablo Sola on March 16, 1981, dealt solely with the question of the cancellation of the bail bonds. Such comments were considered as answers, with the case thereafter deemed submitted for decision.

The sole remaining issue of the cancellation of the bail bonds of respondents, there being a failure to abide by the basic requirement that the prosecution be heard in a case where the accused is charged with a capital offense, prior to bail being granted, must be decided in favor of petitioner. The bail bonds must be cancelled and the case remanded to the sala of Executive Judge Alfonso Baguio for such hearing. So we rule.

1. It may not be amiss to say a few words on the question of transferring the place of trial, in this case, from Himamaylan to Bacolod City. The Constitution is quite explicit. The Supreme Court could order "a change of venue or place of trial to avoid a miscarriage of justice." 10 The Constitutional Convention of 1971 wisely incorporated the ruling in the landmark decision of People v. Gutierrez, 11 where Justice J. B. L. Reyes as ponente vigorously and categorically affirmed: "In the particular case before Us, to compel the prosecution to proceed to trial in a locality where its witnesses will not be at liberty to reveal what they know is to make a mockery of the judicial process, and to betray the very purpose for which courts have been established." 12 Why a change of venue is imperative was made clear in the Comment of the Solicitor General. Thus: "The exercise by this Honorable Court of its above constitutional power in this case will be appropriate. The witnesses in the case are fearful for their lives. They are afraid they would be killed on their way to or from Himamaylan during any of the days of trial. Because of qqqts fear, they may either refuse to testify or testimony falsely to save their lives. 13 Respondent Florendo Baliscao was not averse to such transfer, but his preference is for a court anywhere in Metro Manila. 14 Respondent Francisco Garcia confined his comment to the question of the cancellation of the bail bonds. Respondent Pablo Sola made clear that he had "no objection to the transfer. 15 It may be added that there may be cases where the fear, objectively viewed, may, to some individuals, be less than terrifying, but the question must always be the effect it has on the witnesses who will testify. The primordial aim and intent of the Constitution must ever be kept in mind. In case of doubt, it should be resolved in favor of a change of venue. As a matter of fact, there need not be a petition of this character filed before this Court. Such a plea could have been done administratively. In this particular case, however, there is justification for the procedure followed in view of the fact that along with the change of venue, the cancellation of the bail bonds was also sought.

2. Equally so the cancellation of the bail bonds is more than justified. Bail was granted to the accused in the Order of the Municipal Court without hearing the prosecution That is to disregard the authoritative doctrine enunciated in People v. San Diego. 16 As pointed out by Justice Capistrano, speaking for the Court: "The question presented before us is, whether the prosecution was deprived of procedural due process. The answer is in the affirmative. We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground." 17 These words of Justice Cardozo come to mind: "The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." 18 This norm which is of the very essence of due process as the embodiment of justice requires that the prosecution be given the opportunity to prove that there is strong evidence of guilt. It does not suffice, as asserted herein, that the questions asked by the municipal judge before bail was granted could be characterized as searching. That fact did not cure an infirmity of a jurisdictional character. 19

WHEREFORE, the assailed order of Judge Rafael Gasataya granting bail to private respondents is nullified, set aside, and declared to be without force and effect. Executive Judge Alfonso Baguio of the Court of First Instance of Negros Occidental, to whose sala the cases had been transferred by virtue of the resolution of this Court of March 5, 1981, is directed forthwith to hear the petitions for bail of private respondents, with the prosecution being duly heard on the question of whether or not the evidence of guilt against the respondents is strong. This decision is immediately executory. No costs.

Teehankee, Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera JJ., concur.

Barredo and Abad Santos, JJ., are on leave.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 78162 April 19, 1991

DIRECTOR J. ANTONIO M. CARPIO of the National Bureau of Investigation and PEOPLE OF THE PHILIPPINES, petitioners, vs. JUDGE ROMEO G. MAGLALANG of Regional Trial Court, Branch 2 at Balanga, Bataan and BENJAMIN S. ESCAO, respondents.

Rolando T Cainoy for private respondent.

FERNAN, C.J.:p

In the instant special civil action for certiorari, petitioner Director of the National Bureau of Investigation (NBI) charges respondent judge with grave abuse of discretion for having granted bail to Benjamin S. Escao, an accused in the ambush-slaying of Mayor Jose C. Payumo, Jr. of Dinalupihan, Bataan and for having taken petitioner to task for his alleged refusal to release said accused to the custody of the Dinalupihan police.

On December 7, 1986, a few months after the ambuscade of Mayor Payumo on August 20, 1986, Escao, assisted by citizens attorney Diosdado S. Savellano, executed before supervising NBI agent Bienvenido G. Gonzales and senior agent Celso P. Abesamis a sworn statement admitting that he was one of the seven persons who gunned down Mayor Payumo in barangay San Jose, Dinalupihan, Bataan; identifying some of his companions as Agerico Cayananda, Ernesto Presto and Alex Serrano, and pointing to Mayor Payumo's political rival, Reynaldo Muli, alias Tikboy, as the person who summoned him to his house to discuss the killing of Mayor Payumo and who gave him P500 before the ambush. 1 On January 8, 1987, an information for murder 2 was filed against Escao and ten other unindentified persons by the provincial fiscal in the Regional Trial Court of Bataan at Balanga (Criminal Case No. 4014). Four days later, the Acting Executive Judge of said court issued an order of arrest against Escao recommending no bail for his provisional liberty. 3 In a certification dated January 14, 1987, NBI agent Gonzales stated that Escao was placed under arrest and detained at the NBI detention cell by virtue of said order of arrest. 4 Two days later, in his return to the warrant of arrest, patrolman Cesar B. Diego of the Balanga police, informed the court that the NBI refused to turn over to the Balanga police the custody of Escao because according to agent Gonzales, Escao was still under investigation. 5

On January 20, 1987, through counsel Rolando T. Cainoy, Escao filed in court an urgent ex-parte motion for his commitment at the provincial jail of Bataan on the ground that he wanted to be where his family and counsel could have easy access to him He alleged therein that his detention at the NBI headquarters in Manila was irregular and in defiance of the warrant of arrest issued by the court. 6

In its order of January 27, 1987, the court, claiming that it had acquired jurisdiction over Escao as early as January 12, 1987, ordered the Director of the National Bureau of Investigation to deliver the person of Escao to the provincial warden of Bataan within five days from notice. 7

In his ex-parte motion for the reconsideration of said order, Director Carpio admitted that the court had jurisdiction over Escao but alleged that "effective dispensation of justice to the victim dictates that the accused be placed under the physical custody of the National Bureau of Investigation in view of the continuing further investigation pursued by the Bureau on the case": that the NBI needed physical custody of Escao for the identification of the other accused in the case who were still the objects of a manhunt by NBI agents; that in view of the finding of NBI agents that the other accused and suspects in the case were subversive elements or members of the New People's Army, it was for the best interest of Escao that he be detained at the NBI lock-up cell where security measures were adequate; and that the NBI would produce the person of Escao before the court whenever required and every time that there would be a hearing on the case. 8

Escao's counsel opposed said motion for reconsideration alleging that the same was contrary to Escao's desire to be detained at the Bataan provincial jail; that Escao had time and again maintained that he had nothing to do with the ambush-slaying and that he had been forced to sign the affidavit (before the NBI agents); that the provincial jail at Bataan had adequate security measures being only a few meters away from the Philippine Constabulary headquarters; and that the NBI's undertaking to take Escao to the court during hearings would entail a lot of expenses on his part. 9

On March 11, 1987, Escao, assisted by Atty. Ignacio M. Jungco, executed another sworn statement before NBI agents Doroteo L. Rocha and Celsa P. Abesamis, affirming the contents of his December 7, 1986 statement and stating that he preferred detention at the NBI cell because his life would be endangered at the provincial jail in Balanga. 10

Six days later, Escao wrote the presiding judge of the Regional Trial Court Branch II at Balanga stating that he had not authorized Atty. Rolando Cainoy or anybody to represent him and to request the court to transfer him to the provincial jail in Bataan, and reiterating that he preferred to stay at the NBI detention cell for his personal safety in view of his confession which implicated "big names in local politics" in the murder of Mayor Payumo. 11

Before the court could act on Director Carpio's motion for reconsideration of the order requiring him to transfer custody of Escao to the Balanga police, Escao's counsel Rolando T. Cainoy filed an application for bail stating that Escao was arrested by NBI agents on December 7, 1986 without a warrant having been presented to him and that since then he had been detained in the lock-up cell of the NBI; that said agents, also without a warrant, searched his house when he was arrested; that he was subjected to inhuman torture and forced to admit participation in the killing of Mayor Payumo and to implicate other persons, and that during the custodial investigation, he was not represented by counsel.

In opposing said application, the public prosecutor averred that the accused was charged with a capital offense for which no bail may be availed of, that the reasons advanced in said application would be overcome by strong and sufficient evidence; and that during the custodial investigation, he was represented by counsel.

On April 2, 1987, the court granted the application for bail fixing the same at P30,000. The order reads:

ORDER Accused Benjamin S. Escao filed on 5 March through counsel an application for admission to bail and, in support thereof, alleges that

(a) As early as 7 December 1986, he had been arrested without benefit of any warrant of arrest and has since then been locked up in the lock-up cell of the National Bureau of Investigation in Manila.

(b) His house was also searched on the occasion of his arrest without any search warrant by agents of said Bureau.

(c) On the very date of his forcible arrest without any warrant therefor, he was subjected to inhuman tortures and thereafter made to admit participation in the killing of Mayor Jose Payumo and to implicate persons as responsible for said killing despite his being unaware of said killing or the culprits therein.

(d) During such custodial investigation, Escao was not represented by counsel, a violation of his constitutional right.

(e) The evidence of guilt is not strong. "In opposition to such application, the public prosecutor countered on 6 March 1987 that

(1) The accused is charged with capital offense, for which no bail may be availed of.

(2) The reasons advanced in id application would be overcome by strong and sufficient evidence to be presented by the prosecution.

(3) Considering the nature of the offense, bail should not be allowed.

At the hearing set last 10 March 1987 on said application, the Court set the next day, 11 March 1987, for the reception of evidence by the state to show the strength of its evidence on the guilt of the applying accused. However, such hearing was reset, upon motion of the prosecution on grounds of lack of time to notify its witnesses, to 23 and 27 March 1987. It actually continued on 30 March 1987, after the said two days. The state presented four witnesses one alleged eyewitness to the killing, two investigators and a lawyer who witnessed the taking of the second written statement appearing to have been given by the applying accused.

It was agreed between the prosecution and the defense that whatever evidence would be presented during the hearing on the application for bail would be considered as part of the evidence in chief to be adduced later during the trial proper by the state. Hence, a fulldress cross-examination of each of the four witnesses presented by the government was afforded the defense counsel.

It must be pointed out that, with the approval by the Filipino people of the Constitution of 1986 during the plebiscite held last 2 February 1987, all death penalties already imposed have been reduced, by virtue of Section 19 (1) of Article III thereof, to reclusion perpetua and the death penalty may no longer be imposed, unless, for compelling reasons involving heinous crimes, the Congress shall hereafter provide for it. However, since elections for members of that legislative body have yet to be elected (sic) on 11 May 1987, no such legislation has been and cannot yet be expected to be enacted as of the present. Consequently, Section 4 of Rule 114 of the 1985 Rules of Criminal Procedure has been impliedly repealed, and the phrase "a capital offense" in Section 3 of the same Rule has been amended to "reclusion perpetua."

A careful scrutiny of the evidence adduced by the prosecution convinces the Court that the evidence of guilt as against accused Benjamin S. Escao is not sufficiently strong as to override his constitutional right to be bailable by sufficient sureties. The very state evidence already presented shows very clearly proof of the allegations in the application for bail, except the charge of inhuman tortures.

WHEREFORE, the Court hereby grants the application for bail filed by accused Benjamin S. Escao and fixes the amount thereof at Thirty Thousand Pesos (P30,000), to be posted either in cash or by a surety company enjoying good standing in this Branch of the Court in respect to its obligations in other criminal cases.

SO ORDERED.

Done this 2nd day of April 1987 at Balanga, Bataan.

S g d . R O M E O C . M A G L A L A N G

J u d g e
1 2

It appears that on April 2, 1987, the court also required Director Carpio to justify in writing why he should not be punished for contempt within three days from notice. The court was apparently acting on a motion dated February 10, 1987 of Escao's counsel to cite Director Carpio for contempt of court for allegedly defying the order of January 27, 1987. 13 The motion was opposed by Director Carpio. 14

However, before the court could rule on the motion for contempt, on April 8, 1987, Judge Alicia L. Santos of the Regional Trial Court, Branch LXXIII at Olongapo City, issued an order approving the bail bond of P30,000 for the provisional release of Escao. 15 Hence, on April 11, 1987, the NBI released Escao from its custody. 16

On April 22, 1987, the court issued the following order:

O RD E R

Per order dated 2 April 1987, Director J. Antonio M. Carpio of the National Bureau of Investigation was given three days from notice thereof within which to justify in writing why he should not be punished for contempt of court for his continued disregard of the orders of this Court and defiance of its authority. He received copy of such order on 7 April 1987.

Although the three-day period granted him expired last 10 April 1987, said Director did not make any explanation of any kind. On 14 April 1987 or four (4) days after the expiration of such period granted a telegram purported to have been sent to him to this Court, which was received last 15 April 1987, reading thus:

In re your order dated two "April 87 personally seen by me due to exigencies April ten aye have directed and (sic) investigation as to why incident mentioned therein prejudicial to administration of justice happened hence need at least fifteen days extension within which to give rational comment justification as required written pleading follows.

It is quite clear that when the telegram was sent there was no more period to extend, the same having expired four days before. But just the same, said official is given an additional period (not an extension) up to 25 April 1987 for the submission of his written justification.

Whatever investigation said official intends to make on the matter concerns only the internal administration of his bureau, a matter totally apart from his liability to this Court. However, should he intend to shift the liability to one or some of his subordinates, he must identify him or them by full name(s) and position occupied in the bureau so that they may have their respective share of such liability. Failure to make such particular identification would only result in the Director assuming full responsibility for such disregard and defiance something characterizing the principle of command responsibility.

The subject Director should also remind himself of his obligation to produce before this Court on 27 April 1987 the person of the accused Benjamin Escao for his arraignment.

The Court makes it very emphatic that it will brook no further withholding on said date by said Director of the production of said accused. No selfserving medical certificate of any supposed illness or any equally self-serving spurious letter supposedly signed by the accused which flimsy attempts have been resorted to before will be entertained.

Continued defiance to be resorted to by said Director will only exacerbate his liability already incurred.

The Court is fully aware that, despite the claim of the subject Director that he fears for the life of the subject accused, if detained in the provincial jail of Bataan at Balanga, his agents have on several occasions brought said accused to Olongapo City, to Dinalupihan, Bataan (where the alleged murder took place) even after 5:00 P.M. to a private residence there. These facts are part of the evidence already adduced by the prosecution. Just last Tuesday of last week, said accused was brought to Balanga. The only place where the subject accused has not beep brought is this Court, despite the fact that the Office of the Provincial Fiscal (where he has been brought) is not more than fifty meters from this Court.

WHEREFORE, Director J. Antonio M. Carpio of the National Bureau of Investigation is required to seriously consider the foregoing facts and circumstances before continuing his serious affront to the dignity of this Court.

SO ORDERED.

Done this 30th day of April 1987 at Balanga, Bataan.

( S g d . ) R O M E O G . M A G L A

L A N G

J u d g e
1 7

On April 30, 1987, petitioner Carpio, in his capacity as Director of the NBI, filed the instant special civil action forcertiorari. Inasmuch as the People of the Philippines might be prejudiced by the admission to bail of Escao, on June 27, 1987, the Court required that the People be formally impleaded as petitioner and that the Solicitor General, who appears in criminal cases or their incidents before this Court, 18 should represent both petitioners in this case.

As earlier stated, the instant petition has a two-pronged aim: to nullify the order granting bail to Escao and to divest the trial court of its jurisdiction over Criminal Case No. 4014 including the contempt incident involving petitioner Carpio.

The order granting bail had been rendered moot not only by the fact that he had been released from NBI custody, but also because Escao jumped bail and did not appear on the date set for his arraignment. Hence, on May 20, 1987, the lower court ordered the arrest of Escao and the confiscation of his bail bond, directed the surety company to produce Escao and to justify why the bond should not be forfeited, and reset the arraignment. 19 On June 22, 1987, noting the non-appearance of the accused "for the reason that according to the INP station commander at Subic Zambales, he (was) in the custody of agents of the National Bureau of Investigation," the court postponed indefinitely the arraignment of Escao. 20 And, after the surety company had failed to comply with the court's order of May 20, 1987, the court ordered the forfeiture of the bail bond in the amount of P30,000. 21These facts notwithstanding, we shall resolve the issue of the legality of the order granting bail to Escao.

Although the right to bail is principally for the benefit of the accused, in the judicial determination of the availability of said right, the prosecution should be afforded procedural due process. Thus, in the summary proceeding on a motion praying for admission to bail, the prosecution should be given the opportunity to present evidence and, thereafter, the court should spell out at least a resume of the evidence on which its order granting or denying bail is based. Otherwise, the order is defective and voidable. In the often-cited decision in People vs. San Diego, 22this Court said:

The court's discretion to grant bail in capital offenses must be exercised in the light of a summary of the evidence presented by the prosecution; otherwise, it could be uncontrolled and might be capricious or whimsical. Hence, the court's order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is strong. The orders of October 7, 9 and 12, 1968, granting bail to the five defendants are defective in form and substance because they do not contain a summary of the evidence presented by the prosecution. They only contain the court's conclusion that the evidence of guilt is not strong. Being thus defective in form and substance, the orders complained of cannot, also on this ground, be allowed to stand.

A reading of the April 2, 1987 order convinces us that the court below was remiss in its duty as enunciated inPeople vs. San Diego. Without summarizing the factual basis of its order granting bail, the court merely stated the number of prosecution witnesses but not their respective testimonies, and concluded that the evidence presented by the prosecution was not "sufficiently strong" to deny bail to Escao.

On this point alone, the April 2, 1987 order granting bail to Escao should be invalidated. There is, however, another point which has not escaped the Court's scrutiny. Said order appears to be premised on the notion that since the death penalty has been constitutionally abolished and reclusion perpetua has replaced it, bail may be granted to Escao inasmuch as at that particular point, no legislative enactment had as yet been made restoring the death penalty. This premise is invalid and reflects the lower court's reckless application of the provisions of the Constitution and the Rules of Court. Under Rule 114, Section 3 23 of the 1985 Rules on Criminal Procedure, persons charged with a capital offense when the evidence of guilt is strong are not entitled to bail. Section 4 of the same Rule defines a capital offense as "an offense which, under the law existing at the time of its commission and at the time of the application to be admitted to bail, may be punished with death." It should be noted that the crime involved must be punishable by death during two points of time: the time of its commission and the time of the application for bail. 24

The facts, however, that Mayor Payumo was killed on August 20, 1986 when the 1973 Constitution allowing the death penalty was still in force and that the application for bail was made on March 5, 1987 during the effectivity of the 1987 Constitution which abolished the death penalty, should not have gotten in the way of resolving the application for bail in accordance with the Constitution and procedural rules.

Section 13, Article III of the Constitution explicitly provides that "(a)ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law." As the phrase "capital offenses" has been replaced by the phrase "offenses punishable by reclusion perpetua, 25 crimes punishable by reclusion perpetuainstead of those punishable by the death penalty, when evidence of guilt is strong, are the exceptions to the rule that the right to bail should be made available to all accused. 26 As the court itself acknowledged in its order of April 2, 1987 that "capital punishment" in Section 4, Rule 114 has been amended to reclusion perpetua, the court should have proceeded accordingly: i.e., resolved the application for bail pursuant to Section 13, Article III of the Constitution. It did not have to invoke the abolition of the death penalty and the lack of legislative enactment restoring it in justifying the grant of bail. All it had to do was to determine whether evidence of guilt is strong in the light of the provision of Section 13, Article III.

Undeniably, the lower court has the discretion in the consideration of the strength of the evidence at hand. However, in the exercise of said discretion, the court is controlled by the following: first, the applicable provisions of the Constitution and the statutes; second, by the rules which this Court may promulgate; and third, by those principles of equity and justice that are deemed to be part of the laws of the land. 27 The lower court not only failed to properly apply the pertinent provisions of the Constitution and the Rules but it also disregarded equity and justice by its failure to take into account the factual milieu surrounding the detention of Escao.

The NBI, through Director Carpio, wanted to keep Escao in its custody because he was an asset in their effort to track down the other suspects in the ambush-slaying of Mayor Payumo. Admittedly, Director Carpio had failed to comply immediately with the lower court's order of January 27, 1987 requiring him to deliver custody of Escao to the Bataan provincial warden. However, the court should not have precipitately taken it as a brazen defiance as to warrant a strongly worded order merely warning Director Carpio to obey its directives. It should have taken into account certain factors like the distance between the court and the NBI headquarters which appears to have hampered communication between them and that, as a government agency performing a task towards the same goal as the courts, the NBI would perform its functions within the bounds of law.

The court's later insistence in effecting such transfer of custody, notwithstanding the reasons given by Director Carpio in his motion for reconsideration which reasons appear to this Court to be reasonable, constitutes a flagrant attempt to thwart the NBI's efforts to investigate the case and to identify all the suspects in the crime. Considering that both the

court and the NBI were working toward the same end, to bring to justice the killers of Mayor Payumo, the court could do no less than give due credit to Director Carpio's allegations if not the respect due a fellow worker for justice.

But as it were, the tug and pull between the lower court and the NBI over the custody of Escao became a battle of wills with the People as the eventual loser. While the NBI had its own shortcomings by its failure to give immediate attention to the court's orders and even to inform the court that Escao had been released on bail, which practices this Court cannot condone, the lower court, which is supposed to be beyond reproach, displayed an uncharacteristic propensity to prejudge even before the actual occurence of facts as demonstrated by its order of April 20, 1987. Indeed, the court might not have in fact cited Director Carpio in contempt of court but the manner by which he took him to task and warned him in said order was totally uncalled for.

WHEREFORE, the orders of April 2, 1987 and April 20,1987 are hereby declared void for hanging been issued in grave abuse of discretion. Criminal Case No. 4014 shall be transferred to the Regional Trial Court in Dinalupihan, Bataan pursuant to the resolution dated March 10, 1987 in Administrative Matter No. 87-3- 381-RTC. 28 Said court shall immediately issue a warrant for the rearrest of Benjamin S. Escao and thereafter, proceed with dispatch in the disposition of said case. This decision is immediately executory.

SO ORDERED.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

ALEJANDRO C. SIAZON, SENIOR STATE PROSECUTOR, DEPARTMENT OF JUSTICE, PETITIONER, VS. HON. PRESIDING JUDGE OF THE CIRCUIT CRIMINAL COURT, 16TH JUDICIAL DISTRICT, DAVAO CITY, JOSE ESCRIBANO, RENAN PADILLA, TIMOTEO SUPEN, ALIAS TIMOT ALIAS, EMOT AND ALFREDO SUPEN, ALIAS PEDONG, RESPONDENTS.
DECISION
MAKALINTAL, J.:
Challenged as a grave abuse of discretion is an order of respondent Judge Constante E. Evangelista, presiding the Circuit Criminal Court, 16th Judicial District, Davao City, issued on September 23, 1971 in connection with the petition for bail of respondents Jose Escribano and Renan Padilla, accused with two others who are still at large, in three murder cases pending in said Court and numbered CCC-XVI-9-CC, CCC-XVI-10-CC and CCCXVI-12-CC, respectively. Also originally accused with them was one Angelico Najar, who was subsequently discharged upon motion of the prosecution so that he could be utilized as State witness. At the outset it should be mentioned that the instant petition is formally defective in that the petitioner appears to be the State Prosecutor handling the case below instead of the People of the Philippines, who should properly be represented in this proceeding by the Solicitor General. The defect being merely formal, however, we have chosen to overlook it in the interest of a speedy disposition of this case, involving as it does a question of some urgency.

The order sought to be reviewed and set aside, which contains a concise statement of what transpired before the respondent Court, reads as follows: This is an urgent supplementary petition for bail dated September 20, 1971, filed by the accused thru counsel, wherein it is prayed that the prosecution be ordered to close its evidence in support of its opposition to the applications for bail on September 23, 1971, or, in the alternative, that it be ordered to present the state witness Angelico Najar on said date. The prosecution filed its opposition to said supplementary petition. At the outset, let it be stated that after the arraignment of the accused and before the commencement of the trial, the applications for bail, dated February 8 and July 2, 1971, were heard. After hearing both parties and with the announcement made by the Fiscal that he has between 40 and 50 witnesses to present, the Court ruled and ordered a joint hearing of the cases on the merits and of the applications for bail. On this same occasion the Court also considered the motion filed by the prosecution to discharge the defendant Angelico Najar. Without any objection on the part of the defense, said motion to discharge was granted and accused Najar was discharged to become state witness pursuant to Sec. 11, Rule 119 of the Rules of Court. As the trial progressed, with the prosecution presenting several witnesses whose testimonies have not established evidence directly linking the accused Escribano and Padilla to the conspiracy alleged in the informations in these cases, the defense on August 2, 1971 filed an urgent motion for the reconsideration of the order given in open Court ordering a joint hearing of the cases on the merits and of the applications for bail, to which the prosecution also filed its opposition. After hearing the arguments of both parties and realizing that it should give paramount importance to the constitutional provision regarding the right to bail, specially before conviction, and considering the announcement of the prosecution that it has about 50 witnesses to present, and considering further that this Court has also to travel to other provinces to try other cases, the Court reconsidered its previous order and ordered that the applications for bail be first heard to which the prosecution gave its assent. Going now to the urgent motion under consideration, after hearing the arguments of both parties and going over the authorities cited by them in support of their respective contentions, it is the opinion of the Court that the only principal issue in this matter is whether or not a proceeding in an application for bail is still summary in nature as it was under the old rule, and whether or not we should give meaning to the spirit of the constitutional provision regarding the right to bail. The Court takes the stand that this proceeding is still summary in nature and that the Court has the power to limit, in the exercise of wise discretion, the number of witnesses to be presented if in its judgment it can foresee that said right to bail may be defeated due to an unnecessary delay in the presentation of witnesses showing strong evidence of guilt. While it is true that the Fiscal has control over the presentation of evidence as he deems should fit the right of the accused to know whether he is entitled to bail within a reasonable time should not be overlooked. The prosecution has already presented some 27 witnesses but their testimonies, in the opinion of the Court, have not established evidence directly linking the accused to the conspiracy on the basis of which the Court can determine whether strong evidence of guilt exists or not. The defense has manifested that accused Jose Escribano is a candidate for Mayor of Tacurong Cotabato and should be given some special because of the proximity of the coming local elections. This matter of the accused being a candidate is only incidental and the Court refrains from making any comment of whether to consider it as a special circumstance or not. The main basis upon which the Court issues this order is simple and not compartmentalized justice. IN VIEW OF THE FOREGOING, the Court hereby orders the prosecution to present its witness Angelico Najar during the next scheduled dates of hearing on September 30 and October 1, 1971, and if it fails to do so without justifiable cause the Court will be compelled to declare the evidence already presented closed and order the defense to present its evidence only in so far as this bail proceedings is concerned.

The petitioner charges the respondent Court with having gravely abused its discretion in interfering with what he submits is the right of the prosecution to present as many witnesses as it considers necessary, and in the order it chooses to do so, in order to show that the evidence of the guilt of the accused is strong, in support of its opposition to their petition for bail. Specifically, the petitioner states that aside from the 27 prosecution witnesses he had already presented over a period of three months since the hearing on the petition for bail started on July 2, 1971, he intends to present many more some 13 of them* before he calls Angelico Najar to the stand; and that since the testimonies of all these 40 witnesses are circumstantial and corroborative in nature and are intended to establish a basis for the testimony to be given by Angelico Najar, who is the only one who can testify directly as to the connection of the accused to the offenses charged, all the said witnesses should be presented before Najar himself is called. The issue, as stated by the respondent Court in the order now sought to be set aside, is whether or not a proceeding in an application for bail is still summary in nature as it was under the old rule. and whether or not the court has the power to limit, in the exercise of wise discretion, the number of witnesses to be presented if in its judgment it can foresee that said right to bail may be defeated due to an unnecessary delay in the presentation of witnesses showing strong evidence of guilt. The respondent Judge in effect ruled on both questions in the affirmative. The petitioner contends that the ruling is erroneous and constitutes a grave abuse of discretion in this case. As a general proposition, all persons shall before conviction be bailable except when the charge is a capital offense and the evidence of guilt is strong.[1]At the hearing of the application for bail the burden of showing that the case falls within the exception is on the prosecution, according to Section 7, Rule 114 of the Rules of Court. The determination of whether or not the evidence of guilt is strong is a matter of judicial discretion, which in the very nature of things may rightly be exercised only aft the evidence is submitted to the court at the hearing.[2] Neither under the old nor under the new Rules is there any specific provision defining what kind of hearing it should be, but in the two cases cited at the footnote hereof it was stated that the hearing should be summary or otherwise in the discretion of the court. By summary hearing, this Court added, we mean such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. (8 C.J.S. 93,94.) The course of the inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to a reasonable minimum at the amount of corroboration particularly on details that are not essential to the purposes of the hearing. The petitioner submits that the nature of the hearing on a petition for bail has been changed and that it is now no longer summary in view of the addition to the former Section 7, Rule 110, which now appears as Section 7, Rule 114, of the following provision: SECTION 7. Capital offenses Burden of proof. x x x

The evidence presented during such hearing in the Court of First Instance shall be considered automatically reproduced at the trial, without need of retaking the same; but, upon motion of either party, the Court may recall any witness for additional examination unless the witness is dead, outside the Philippines or otherwise unable to testify.

We do not see that the addition of the provision aforequoted has materially changed the nature of the hearing on a petition for bail to the extent of depriving the Court of its discretion to confine the evidence to the extent necessary for the proper determination of the question of whether or not the evidence of guilt is strong. The only change that has been introduced is that such evidence shall be considered automatically reproduced at the trial in order to avoid unnecessary repetition. The proviso that any witness may be recalled at the trial for additional examination underscores, if anything, the difference between the hearing for purposes of the petition for bail and the trial on the merits. This is as it should be, because one has for its purpose, from the standpoint of the prosecution, to show that strong evidence of guilt exists while the other contemplates proof beyond reasonable doubt. After going over the pleadings before Us and their accompanying annexes We fail to find any grave abuse of discretion committed by the respondent Judge. The prosecution had had three months since the hearing started until the questioned order was issued and had called 27 witnesses just to lay a sufficient corroborative basis for the testimony of its principal witness, Angelico Najar. The plea that this witness will reveal the names of persons who have some knowledge of circumstances which tend to connect the two accused with the crimes and who presumably will also be called to testify, and whose willingness to do so may thereby be adversely influenced by such revelation, does not appear to be convincing, since the record of the cases below already contains the testimony which Najar gave at the preliminary investigation, aside from his three sworn statements consisting of 16 pages typed single-space in question and answer form. The right of the prosecution to control the quantum of evidence and the order of presentation of the witnesses, while not to be disregarded, must nevertheless be equated with the purpose of the hearing, which is to determine whether the accused falls within the exception to the general rule that he is constitutionally entitled to bail before conviction. To allow the prosecution to conduct the hearing as if it were a full-dress trial on the merits would defeat the purpose of the proceeding. In view of the foregoing, the petitions is dismissed and the temporary restraining order issued by this Court is lifted, with instructions to the respondent Court to resume the hearing forthwith for the presentation of Angelico Najar as witness for the prosecution, without prejudice to said Courts allowing, in the exercise of its discretion, the presentation of such other prosecution witnesses as it may deem advisable, in the interests of justice. Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Barredo, Villamor, and Makasiar, JJ., concur. Teehankee, J., files a separate concurrence.

Republic of the Philippines SUPREME COURT Manila

EN BANC

A.M. No. RTJ-93-936 September 10, 1993

ALBINA BORINAGA, complainant, vs. JUDGE CAMILO E. TAMIN, Regional Trial Court, Branch 23, Molave, Zamboanga del Sur, respondent.

REGALADO, J.:

In a sworn letter-complaint 1 dated November 20, 1992 filed by Albina Borinaga, herein respondent Judge Camilo E. Tamin of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 was charged with grave incompetence and ignorance of the law in connection with Criminal Case No. 92-10-300 for murder, entitled "People vs. Antonio Ruaya, et al.," which is now pending before said court.

On January 26, 1993, this Court required respondent judge to file his comment and, upon receipt thereof, the matter was referred to the Office of the Court Administrator for evaluation, report and recommendation. On July 28, 1993, Deputy Court Administrator Juanito A. Bernad submitted a memorandum 2 with the corresponding evaluation and recommendation, duly approved by the Court Administrator.

The records show that an amended criminal complaint for murder 3 dated March 4, 1992, or the killing of herein complainant's husband, Regino Borinaga, was filed by the Chief of Police of Dumingag, Zamboanga del Sur against Antonio Ruaya, alias Tony Ruaya; Roberto J. Rada, alias Totoy; Edwin Rada, alias Negger; and Jojo Valenzuela before the 27th Municipal Circuit Trial Court of Dumingag-Mahayag, Zamboanga del Sur, for preliminary investigation.

It appears that while the case was pending with the said lower court, a petition for bail 4 dated March 25, 1992 was filed by one of the accused, Antonio Ruaya, before respondent Judge Camilo E. Tamin in Branch 23 of the Regional Trial Court of Molave where it was docketed as Special Civil Case No. 92-50,005. In said petition, accused Ruaya averred that he was a detention prisoner at the Municipal Jail of Dumingag, Zamboanga del Sur; that he was charged with murder; that no bail was fixed by the investigating judge who issued a warrant of arrest against him; that he had waived the second stage of the preliminary investigation, with a reservation to challenge the criminal action against him; and that the evidence of guilt against him was not strong, hence he was entitled to bail as a matter of right. Accused Ruaya prayed that the bail be fixed at P20,000.00.

In an order 5 dated March 25, 1992, respondent judge ordered the public prosecutor "to appear on March 30, 1992 at 8:30 in the morning to present evidence that the guilt of the petitioner for the crime charged (is) strong." At the scheduled hearing, the public prosecutor failed to appear, by reason of which respondent judge issued an order 6 dated March 30, 1992, granting bail to accused Ruaya in the amount of P20,000.00 and holding that: Under Section 13 of Article III of our Constitution it (is) provided that "All persons, except those charged with offenses punishable by Reclusion Perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties."

Under this provision of law, if the prosecutor fails to present evidence that the guilt of the accused is strong, then the accused would be entitled to the constitutional right to bail. No evidence have (sic) been introduced by the prosecution to prove that the guilt of the accused of the crime charged is strong. Necessarily, this court find (sic) that the accused is entitled to bail under Section 13, Article III of our Constitution.

WHEREFORE, finding that the accused has the right to bail, the provisional liberty of the accused is set at P20,000.00 bail (sic) as prayed for in the petition.

On the same day, March 30, 1992, Judge Dionisio C. Arriesgado of the 27th Municipal Circuit Trial Court of Dumingag-Mahayag, who conducted the preliminary investigation, issued a resolution recommending the filing of an information for murder against, among others, Antonio Ruaya, after said accused failed to file his counter-affidavit and other evidence in his defense. The resolution was affirmed by the Provisional Prosecutor, as a consequence of which an information for murder was later filed against all the accused with no bail recommended.

Subsequently, the public prosecutor, together with complainant's counsel, filed a "Motion to Cancel Bailbond (sic) and to Arrest the Accused," on the ground that said accused is charged with a capital offense, the evidence of guilt is strong, and no bail was recommended in the information. However, on October 7, 1992, respondent Judge issued an order denying said motion without conducting a hearing thereon.

In his comment, wherein he essayed his position on the controversy and which we quote at length to demonstrate his line of thought and mode of ratiocination, respondent judge averred:

1. That on March 25, 1992, accused Antonio Ruaya filed a petition for bail with the court of respondent in SPL Civ. Case No. 40,013 (sic), a true copy of which, together with the annexes, are hereto attached as Annexes "1" to "1-I", based on the ground that the evidence of guilt is not strong.

2. That on the date of receipt of said petition, the respondent issued an order, a true copy whereof is attached as annex "2", requiring the public prosecutor to appear on March 30, 1992 at 8:30 in the morning to present evidence that the guilt of the petitioner-accused for the crime charged is strong. A copy of this order was actually received by the Office of the Public Prosecutor on March 27, 1992. The respondent also noted that the office of the Public Prosecutor was likewise served with a copy of the said petition for bail, on March 25, 1992 by the petitioner-accused;

3. That on March 30, 1992, at the hearing of the petition for bail, the Public Prosecutor did not appear. It did not also send any public prosecutor, despite the fact that the office of the Provincial Prosecutor of Zamboanga del Sur had plenty of public prosecutors. Neither was there also any request to reset the hearing of the petition for bail to another date;

4. That for failure to present any evidence of guilt against the petitioner-accused, the respondent issued his order, dated March 30, 1992, a true copy of which is hereto attached as annex "3", finding that the petitioner-accused has the constitutional right to bail, and set the bail bond for the provisional liberty at P20,000, as prayed for in the petition;

5. That on the same day, March 30, 1992, the petitioner-accused posted a cash bond of P20,000 for his provisional liberty;

6. That before proceeding further with his comment, the respondent would like first to state the following relevant facts:

6.1) That the accused Antonio Ruaya has not jump (sic) bail but has been present in court every time his case is called and is asking for a speedy hearing of the criminal charge against him;

6.2) The the only evidence against the accused Antonio Ruaya is the extra-judicial statement of his co-accused Roberto J. Rada, alias "Totoy" who, when duly arraigned in open court with the assistance of counsel, entered a plea of not guilty;

6.3) That as the co-accused Roberto J. Rada, cannot be compelled to testify in court, the prosecutor (both the public and private prosecutor) admitted in open court that the prosecution does not have any admissible evidence against the accused Antonio Ruaya;

6.4) That the co-accused Roberto J. Rada, the only witness against the accused Antonio Ruaya, is a prisoner convicted for life for the commission of robbery with homicide (a crime involving moral turpitude) in Valencia, Bukidnon, and presently serving sentence at the Davao Prison and Penal Farm, Panabo, Davao del Norte;

6.5) That the respondent is particularly wary of uncorroborated statements of prisoners, specially of those convicted for life, because it is notoriously easy to let a prisoner sign any document for a fee as low as P100;

6.6) That considering the prevailing depressed economic condition in his judicial district, the respondent has adopted as a standard for granting bail at the rate of P1,000 for every year of probable imprisonment for common crimes, except when the offenses involved kidnapping for ransom, rebellion and prohibited drugs, in which cases, the respondent set the bail bond at P10,000 for every probable years (sic) of imprisonment. The respondent has consistently adhered to this standard in other cases situated, which standard is also followed by other Regional Trial Courts in the area;

6.7) That co-accused Edwin Rada, alias "Negger", subsequently also filed a similar petition for bail which was not opposed by the prosecution, and so the respondent likewise granted bail to said accused, also in the amount of P20,000;

7. That when the petition for bail was filed by accused Ruaya with the court of the respondent, the said accused has already waived his right to the second stage of the preliminary investigation, leaving nothing further to be done by the municipal trial court but the performance of the ministerial duty to forward the case to the office of the Provincial Prosecutor with its recommendations;

8. That as alleged in the ninth paragraph of the letter-complaint, the case against the accused Ruaya was forwarded to the Office of the Provincial Prosecutor on March 30, 1992, with the recommendation to file an information for murder against said accused. In other words, the case against accused Ruaya was no longer pending preliminary investigation in the municipal court on March 30, 1992, when the respondent granted bail to said accused in his order on the same day (Annex "3");

9. That the prosecution is making much of its argument in paragraph 4 and 9 of the complaint that the respondent granted bail when the case against the accused Ruaya was "still under preliminary investigation" in the Municipal Trial Court. The prosecution was given the opportunity to put up said argument on March 30, 1992 when it was ordered by the respondent to appear and present evidence that the guilt of the accused was strong. But despite due notice, the prosecution did not appear and thereby forfeit (sic) the opportunity to invoke said argument. The failure of the prosecution to invoke the aforesaid argument at the proper opportunity given to it constitute (sic) a waiver on its part to invoke the said argument and it is legally already under estoppel to rely on the same;

10. That not only did the prosecution not file a written opposition to, or a request to postpone the hearing of the application for bail, it did not even honor the hearing of the petition with its presence, despite the fact, that there are plenty of prosecutors in the office of the Provincial Prosecutor. Clearly, the prosecution was remissed (sic) in the performance of its duty and now it is asking the respondent to be punished because it (prosecution) failed to do its duty properly;

11. That it is now too late and unfair for the prosecution to invoke the argument that the respondent granted bail when the case was still under preliminary investigation in the lower court. It is too late because the prosecution is under estoppel and has already effectively waived to invoke (sic) said argument when it chose not to appear in the hearing of the petition for bail despite due notice given to it. The said argument is clearly an afterthought and the prosecution should be the one to suffer the consequences of its own negligence and not pass the matter unfairly to the respondent. It is unfair, because after the court has conferred upon the accused the right to bail at the proper hearing with due notice, the right to bail becomes thereafter a vested constitutional right which is already beyond the power and authority of the respondent to recall unless there is a violation of the condition of the bail. The respondent, therefore, cannot recall the right already vested, even if he wants to, without violating the right of the accused to due process. The prosecution did not then give the respondent an opportunity to rule upon said argument at the proper time before the right to bail becameirrevocably vested upon (sic) the accused. The actuations of the prosecution is (sic) nothing else but laying (sic) in ambush at and stabbing the respondent at the back after the prosecution neglected to perform its duty properly.

12. That contrary to the misinterpretation in paragraph 8 of the complaint, the MOTION TO CANCEL BAILBOND AND TO ARREST THE ACCUSED, dated September 22, 1992 was properly heard by the respondent on September 22, 1992, and the prosecution even submitted its MEMORANDUM, dated October 5, 1992. However, since the motion involved purely a question of law, particularly, as to whether or not, the right to bail given to an accused charged for murder, pursuant to the provisions of sections 5, 6, 7 and 8 of Rule 114 of the Rules, can still be recalled by the court after its conferral, the respondent resolved the same in the negative under its order of October 7, 1992, and which is attached as Annex "A" to the instant complaint;

13. That judicial remedy exists to correct any error of judgment committed by the respondent;

14. That it is unkind for the counsel of the complaint (sic) to make the gratuitous, barb (sic) and snipping (sic) remark that the respondent is the counsel of the accused. Respondent vehemently denies it. The respondent only acted in accordance with what he then saw as the right and proper thing to do under the circumstances. (Emphasis supplied.)
7

The 1987 Constitution provides that all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong shall, before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law. Corollarily, the Rules of Court, under Section 3, Rule 114 thereof, provides that all persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.

As now revised in the 1985 Rules of Criminal Procedure and provided in Rule 114 thereof, the rules on availability of bail to an accused may be restated as follows: 1. Admission to bail is a matter of right at any stage of the action where the charge is not for a capital offense or is not punishable by reclusion perpetua. 8

2. Regardless of the stage of the criminal prosecution, no bail shall be allowed if the accused is charged with a capital offense or of an offense punishable by reclusion perpetua and the evidence of guilt is strong; 9

3. Even if a capital offense is charged and the evidence of guilt is strong, the accused may still be admitted to bail in the discretion of the court if there are strong grounds to apprehend that his continued confinement will endanger his life or result in permanent impairment of health,
10

but only before judgment in the regional trial court; and

4. No bail shall be allowed after final judgment, unless the accused has applied for probation and has not commenced to serve sentence, 11 the penalty and offense being within the purview of the probation law.

On the foregoing bases, it is evident that bail is a matter of discretion where the accused is charged with a capital offense or an offense punishable by reclusion perpetua and the evidence of guilt is strong. This precept gains added significance from the fact that the situation it envisages determines the particular court where an application for bail should be filed.

Section 14 of Rule 114 pertinently provides: Sec. 14. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may be filed also with any regional trial court of said place, or, if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein.

(b) Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application therefor may be filed only in the particular court where the case is pending whether for preliminary investigation, trial, or on appeal.

(c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held. (Emphasis ours.)

Paragraph (a) allows the accused to post bail in certain specified courts, other than that where his case is pending, under the circumstances stated therein. On the other hand, paragraph (c) allows the detainee to post bail with any court in the province, city or municipality where he is held, if no complainant or information has as yet been filed against him. The situations contemplated under these two provisions of the rules clearly do not obtain in the case at bar.

In the present case, accused Ruaya, who applied for bail, was charged with murder in an amended complaint filed before the municipal circuit trial court where he was named as the mastermind, which in all probability is the reason why no bail was recommended by the investigating judge who issued the warrant of arrest against him, in addition to the fact that murder is a capital offense punishable by reclusion perpetua. Perforce, bail in this case is a matter of discretion and the application therefor should have been filed in the court where the preliminary investigation was then pending, that is, before the Municipal Circuit Trial Court of Dumingag-Mahayag, Zamboanga del Sur, pursuant to paragraph (b), Section 14 of Rule 114 above quoted. The reason for the rule is that the court wherein the case against the accused is pending is assumed to be in a better position to pass upon the propriety and conditions for granting bail to the accused, since it is more conversant with the facts of said case and the representations of the prosecution therein. Furthermore, should the accused jump bail, the primary responsibility rests with the court where his case is pending.

Although, as alleged by respondent judge, the order granting the petition for bail was issued on the same day that the preliminary investigation was supposedly terminated in the lower court, this did not cure the infirmity which attended the issuance thereof. Of greater import is the fact that the petition for bail was filed with the regional trial court, as a socalled "special civil case," while the preliminary investigation was still pending before the municipal circuit trial court. Hence, respondent judge had no jurisdiction to entertain the same, as the situation of the accused definitely did not fall under any of those contemplated in paragraphs (a) and (c), Section 14 of Rule 14. Further, respondent judge acted without jurisdiction in taking cognizance of and eventually granting the petition for bail there having been no information filed in his court against the accused-applicant. Actually, it was only on March 30, 1992 when the records of the criminal case were forwarded by the lower court to the Office of the Provincial Prosecutor with the recommendation that an information for murder be filed against accused Ruaya.

On the other hand, even assuming arguendo that respondent judge had jurisdiction to hear the petition for bail, under the circumstances attendant to the case he should nonetheless be held liable for granting the same without benefit of a hearing. This requirement is so basic and fundamental that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof.

It is true that at the hearing of an application for admission to bail, where admission to bail is a matter of discretion, the prosecution has the burden of showing that evidence of guilt is strong. 12 However, we have held that admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. The prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness. 13

Accordingly, while the determination of whether or not the evidence of guilt is strong is a matter of judicial discretion, this discretion, by the nature of things, may rightly be exercised only after the evidence is submitted to the court at such hearing. 14 Whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court may resolve the motion for bail. If the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. 15

Consequent to the foregoing considerations, an order granting or refusing bail must contain a summary of the evidence by the prosecution. On the basis thereof, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate guilt and thereby cause the continued detention of the accused. Otherwise, the accused must be released on bail. 16

In the case at bar, the petition for bail was granted by respondent judge on the simple reason that the prosecution failed to appear and present evidence despite due notice. Forthwith, he concludes that by reason of the failure of the prosecution to appear at the scheduled hearing, the applicant is entitled to bail as a matter of right. He aggravated this flagrant error when in his aforequoted comment, he justified his subsequent denial of the prosecution's motion for the cancellation of the bail bond and the arrest of the accused on the incredible theory that the prosecution's failure to appear was a "waiver on its part . . . .and it is allegedly already in estoppel" to challenge the grant of bail since that right to bail "became irrevocably vested" in the accused who had thereby acquired "a vested constitutional right beyond the power and authority of the respondent to recall."

In the first place, respondent judge did not have the authority to set the petition for bail for hearing in view of the fact that he had not even acquired jurisdiction over the criminal case since the information therefor had not yet been filed in the trial court. In doing so, he acted with grave abuse of discretion and in wanton disregard of established rules and

jurisprudence. Secondly, it has been held that even where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the state's evidence or judge the adequacy of the amount of bail. 17 Here, the non-appearance of the prosecution at the hearing scheduled by respondent judge on March 30, 1992 was obviously justified since, to repeat, respondent had no authority to schedule and/or conduct the same.

It is at once apparent, even from a cursory glance of the assailed order of respondent judge that, to say the least, there is much to be desired. It is utterly defective in form and substance; there is no recital of any evidence presented by the prosecution, much less a conclusion therefrom or a pronouncement therein that the requisite proof of guilt of the accused is not evident. As such, the challenged order of respondent judge cannot be sustained or be given a semblance of validity. right" theory of respondent judge does not merit judicial review and is best disregarded.
18

Parenthetically, the "vested constitutional

It is apropos to repeat here what we explicated in the aforecited case of Libarios vs. Dabalos:

. . . Generally, a judge cannot be held liable to account, or answer criminally, civilly or administratively, for an erroneous judgment or decision rendered by him in good faith. However, good faith may be negated by the circumstances on record.

In the absence of fraud, dishonesty or corruption, the acts of a judge done in his judicial capacity are not subject to disciplinary action, even though such acts may be erroneous. But, while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet, it is highly imperative that they should be conversant with basic legal principles.

In every case, a judge should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism. Respondent judge should not have allowed himself to be swayed into issuing an order fixing bail for the temporary release of the accused charged with murder, without a hearing, which is contrary to established principles of law. A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of deficiency in their grasp of legal principles. (Emphases ours.)

In resum, what stamps this case with a unique feature and makes the actuations of respondent judge more distressing is the fact that, aside from granting bail without a hearing and denying the prosecution procedural due process, such irregularity was committed in connection with a criminal case over which respondent judge had not at that instance acquired jurisdiction. Furthermore, through that unauthorized procedure which he had adopted, respondent judge illegally granted bail not only to accused Ruaya but also to the latter's co-accused, Edwin Rada. On these environmental facts, the sanction to be imposed on respondent judge should not be less than that which we approved in Libarios.

WHEREFORE, respondent Judge Camilo A. Tamin is hereby ordered to pay a fine of P20,000.00, with a stringent warning that the commission of a similar offense in the future will be dealt with more severely. This decision is without prejudice to whatever action the public prosecutor may deem appropriate with respect to Criminal Case No. 92-10-300 and Special Civil Case No. 92-50,005.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Grio-Aquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur.

Feliciano, J., is on leave.

Republic of the Philippines SUPREME COURT Manila

EN BANC

A.M. No. RTJ-93-1052 October 27, 1994

ENRICA B. AGUIRRE and NENITA A. DELA CRUZ, complainants, vs. JUDGE CANDIDO R. BELMONTE, Regional Trial Court, Branch 22, Malolos, Bulacan, respondent.

REGALADO, J.:

The instant administrative matter stems from a verified complaint of herein complainants Enrica B. Aguirre and Nenita A. dela Cruz, dated July 22, 1993, against Judge Candido R. Belmonte of the Regional Trial Court, Branch 22, Malolos, Bulacan, for gross ignorance of the law, evident partiality and dishonesty in the performance of his duties.

Complainants were the offended parties in two criminal cases for murder, both entitled "People of the Philippines vs. Estelita Hipolito, et al.," docketed as Criminal Cases Nos. 1024-M-91 and 1025-M-91, filed with the Regional Trial Court of Malolos, Bulacan and respectively raffled to Branches 20 and 22 thereof.

Accused Estelita Hipolito, together with ten others, were indicted for the ambush-slaying on March 2, 1988 of then Officer-in-Charge Bernardo Aguirre of San Jose del Monte and his driver, Avelino Cruz. Judge Nicasio Bartolome of the Municipal Trial Court of Sta. Maria, Bulacan, conducted the preliminary investigation and, after finding the existence of probable cause, ordered the arrest of all the accused with no bail fixed for their provisional liberty. The Office of the Provincial Prosecutor, on review, ordered the release of the accused in the belief that there was no probable cause. On appeal to the Department of Justice, the latter found that, except for one of the accused, there was reasonable ground to hold all of them for trial and accordingly directed the Office of the Provincial Prosecutor to file the corresponding informations with no bail recommended.

Two informations for murder were then filed in the Regional Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos. 1024-M-91 and 1025-M-91, respectively, the latter case being raffled to Branch 22 presided over by respondent judge.

Complainants allege, and most of their allegations find support in the records, that since the two informations arose from one and the same incident, respondent directed the consolidation of the two cases in his branch even without any motion therefor being filed by either the accused or the prosecution. After the consolidation was effected, in his order of June 18, 1991 respondent judge directed the issuance of warrants of arrest against the accused. At the same time and on his own motion, he also authorized their provisional release on bail, which he set at P100,000.00 for every accused in each criminal charge. 1 Pursuant thereto, the accused posted their bail bonds, were then arraigned, and thereafter went to trial.

As the Office of the Provincial Prosecutor of Bulacan was ordered disqualified by the Department of Justice to prosecute the aforementioned cases, at the instance of the offended parties a state prosecutor was designated as acting provincial prosecutor. This state prosecutor, for one reason or another, repeatedly failed to appear during the trial, prompting respondent judge to issue an order on August 18, 1992 2 for the provisional dismissal of the two cases notwithstanding the presence of the private prosecutor and the fact that a witness was then undergoing cross-examination. On motion of the prosecution, however, the cases were reinstated. The accused later sought the reconsideration of this reinstatement on the ground that the provisional dismissal of the cases although with their consent was tantamount to an acquittal, there being a violation of their right to a speedy trial. Respondent found merit in the contentions of the accused and granted their motion for reconsideration in an order dated December 15, 1992. 3

Meanwhile, another state prosecutor was designated in place of the first one who had been appointed to the judiciary. The new designee filed a motion for respondent's inhibition and another motion for reconsideration of the order dismissing the two cases. The motion for inhibition was granted by respondent judge and the cases were re-raffled to Branch 16 of the Regional Trial Court of Malolos, Bulacan presided over by Judge Andres S. Maligaya. 4

On this state of things, complainants have come to us, impugning the orders of respondent, berating his actuations, and seeking his dismissal from the service. On September 15, 1993, this Court required respondent to comment on the aforementioned complaint November 26, 1993. 6
5

and, after he was furnished a copy of the same, he submitted his answer dated

While respondent admits the factual antecedents as mentioned in the complaint, he submits that insofar as the consolidation of the cases is concerned, it was Judge Amante M. Laforteza of Branch 20 who transferred Criminal Case No. 1025-M-91 to his sala in an order dated June 14, 1991. 7 Moreover, he avers that the consolidation of related cases to the branch bearing the lower number is a common practice.

Respondent contends that he granted bail to the accused based on our "Decision entitled 'Vicente Lim, et al.,' (sic) G.R. No. 94054-57 dated February 19, 1991, requiring and empowering the Judge to study the evidence before him before issuing a warrant of arrest." 8 From this he argues "that the obligation to go over the evidence necessarily carries with it the right to refuse to issue the warrant w(h)ere he disagrees with the finding of the prosecutor who filed the information." Under that premise, he concluded "that if he can legally refuse to issue a warrant, he must necessarily have the power to reduce or give bail, even without hearing and even without any motion (for) bail being filed. This is on the theory that the whole is bigger than its parts. The whole here is to refuse to issue the warrant, the parts being to grant or reduce bail." 9

He then asseverates that before the Lim case, there was absolutely no evidence submitted from which a judge could conclude that the evidence of guilt is not strong, unlike in cases subsequent thereto wherein the evidence of the prosecution is attached to the information, so that the judge can, by studying it, reasonably conclude whether the evidence of guilt is strong, for the denial of bail, or not strong, for the grant or reduction of bail.

He further claims that his order granting bail was not posited on the Rules of Court or the other decisions of this Court "requiring petition for bail, no bail and hearing on bail" which he did not consider applicable, but on the decision of this Court in the Lim Case. It was supposedly only much later when he read in the newspapers about the Court's warning to judges against granting bail in capital offenses without hearing that he realized that he could have made a mistake.

Respondent also explains that while many witnesses were mentioned in the information, only one was a relevant witness, a policeman who claimed to have been a bodyguard of one of the accused and had allegedly heard conversations of the accused at one time or another wherein they conspired to kill the victims. Respondent avers that he found it hard to believe that a bodyguard who is not part of the conspiracy would be so privileged or trusted as to be allowed to hear and witness said conversations and/or actuations on conspiracy to kill without being inculpated in the plan so as to silence him.

In any event, he submits that any error on his part in interpreting this Court's ruling in the Lim case was deemed corrected when the prosecution did not file any motion to cancel the bail he had granted, nor any motion for clarification if, indeed, his aforesaid order granting bail was improper.

On the provisional dismissal of the cases against two of the accused, respondent asserts that the same was premised on the constitutional right of the accused to a speedy trial and was occasioned by the frequent absences of the state prosecutor, resulting in the cancellation of the hearings and causing undue hardship on the defense lawyers coming from Metro Manila. This caused him to issue an order on July 22, 1992 citing the state prosecutor for contempt. The presence of the private prosecutor was of no moment, considering that no valid hearing could be had without the presence of the public prosecutor. The fact that a witness was still under cross-examination at that time was only a minor technicality.

Lastly, he professes that, contrary to complainants allegations, the motion for reconsideration of his order of December 15, 1992 which, it may be recalled, declared the order dismissing the cases against two accused as equivalent to an acquittal and not merely a provisional dismissal, had already been denied by Branch 16 of the same court to which the cases had been re-raffled, thereby upholding his aforesaid order.

There being no serious dispute on or controversion of the facts of this administrative matter as would affect our disposition thereof, pursuant to revised Rule 140 the Court resolved on June 15, 1994 to refer the matter to the Office of the Court Administrator for evaluation, report and recommendation. 10 Deputy Court Administrator Reynaldo L. Suarez, thereafter submitted to the Court his memorandum dated August 5, 1994. 11

The resolution of the instant proceeding hinges on the legal propriety of the orders issued by respondent regarding the consolidation of the two murder cases in Branch 22, the granting of bail motu propio to the accused, and the subsequent dismissal, which was later declared to be in fact an acquittal, with regard to accused Estelita Hipolito and Alfredo Bolsico in both cases.

After a thorough review of the records of this administrative matter and the memorandum thereon, we find that the consolidation of the two murder cases in Branch 22 presided over by respondent was proper. As respondent correctly explained, it was Judge Amante M. Laforteza of Branch 20 of the court below who ordered the consolidation of the cases pursuant to a motion therefor of counsel for the accused in one of the cases. consolidated therein.
12

The case assigned to Branch 22 had the lower docket number, hence it was properly

Anent the issue on the sua sponte grant of bail, without any motion or application therefor by any of the accused and without any notice to the prosecution or any hearing conducted therein, complainants have valid cause to complain. The fundamental law on bail as found in Section 13, Article III of the 1987 Constitution provides:

All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law. . . .

Complementary thereto, Section 3, Rule 114 of the governing 1985 Rules on Criminal Procedure, 13 as amended, reiterated that:

All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.

A capital offense is defined as an offense which, under the law existing at the time of its commission, and at the time of the application to be admitted to bail, may be punished with death. 14 The grant of bail, therefore, becomes a matter of discretion if the accused is charged with a capital offense. In order to determine whether bail should be granted or withheld, the court must necessarily satisfy itself whether or not the evidence of guilt is strong, and the order granting or refusing the same should contain a summary of the evidence presented by the prosecution. 15

In the present administrative matter, the accused were charged with murder, a capital offense, in two cases. Hence, the issue of whether or not they should be admitted to bail lies on the strength of the prosecution's evidence as to their guilt. The question to be resolved now, in view of the submissions of respondent judge, is whether in the determination of the strength of the evidence of guilt, the trial judge should first conduct a hearing or just rely on whatever documentary evidence is attached to the information or appears in the record of the case before him. This is not a novel question.

In Libarios vs. Dabalos, 16 Judge Rosarito F. Dabalos granted provisional liberty to two of the accused on a bail of P50,000.00 each on the ground that they were not charged as co-principals by cooperation or inducement, and that the evidence of guilt against them was merely circumstantial. It was argued therein that Section 5, Rule 114 of the 1985 Rules on Criminal Procedure which requires a hearing of an application for admission to bail is applicable only to cases where the accused is already in custody.

In rejecting his arguments, the Court held that:

It has been an established legal principle or rule that in cases where a person is accused of a capital offense, the trial court must conduct a hearing in a summary proceeding, to allow the prosecution an opportunity to present, within a reasonable time, all evidence it may desire to produce to prove that the evidence of guilt against the accused is strong, before resolving the issue of bail for the temporary release of the accused. Failure to conduct a hearing before fixing bail in the instant case amounted to a violation of the process. Irrespective of respondent judge's opinion that the evidence of guilt against herein accused is not strong, the law and settled jurisprudence demanded that a hearing be conducted before bail was fixed for the temporary release of accused Calo, Jr. and Allocod, if bail was at all justified. Respondent judge's disregard of an established rule of law by depriving the prosecution of the opportunity to prove that the evidence of guilt against the accused was strong, amounted to gross ignorance of the law, which is subject to disciplinary action.

In the more recent case of Borinaga vs. Tamin, 17 an amended criminal complaint for murder was filed before the municipal circuit trial court for preliminary investigation. While the case was pending with the said court still on preliminary investigation, a petition for bail was filed by the accused in the regional trial court. Pursuant to this petition, respondent Judge Camilo E. Tamin set the case for hearing. On the scheduled date of hearing, the public prosecutor failed to appear, presumably because no information had yet been filed in the trial court, but respondent judge nonetheless issued an order granting bail to the accused.

In the meantime, the municipal circuit trial court which conducted the preliminary investigation issued a resolution recommending the filing of an information for murder against the accused, which resolution was affirmed by the provincial prosecutor. As a consequence thereof, an information for murder was filed against all the accused, with no bail recommended. Subsequently, the public prosecutor therein filed a motion for the cancellation of the bail and the arrest of the accused on the ground that the accused was charged with a capital offense, the evidence of guilt was strong, and no bail was recommended in the information. Respondent judge, however, issued an order denying said motion without conducting a hearing thereon.

Repudiating his acts, this Court held:

. . . (B)ail is a matter of discretion where the accused is charged with a capital offense or an offense punishable by reclusion perpetua and the evidence of guilt is strong.

xxx xxx xxx

. . ., (W)here admission to bail is a matter of discretion, the prosecution has the burden of showing that evidence of guilt is strong. . . . (A)dmission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. The prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after evaluation of the evidence submitted by the prosecution. . ..

xxx xxx xxx

In the first place, respondent judge did not have the authority to set the petition for bail for hearing in view of the fact that he had not even acquired jurisdiction over the criminal case since the information therefor had not yet been filed in the trial court. In doing so, he acted with grave abuse of discretion and in wanton disregard of established rules and jurisprudence. Secondly, it has been held that even where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the state's evidence or judge the adequacy of the amount of bail. Here, the non-appearance of the prosecution at the hearing scheduled by respondent judge on March 30, 1992 was obviously justified since, to repeat, respondent had no authority to schedule and/or conduct the same.

In the aforecited case of Lim, Sr., et al. vs. Felix, et al., the primary issue was whether or not a judge may issue a warrant of arrest by simply relying on the prosecutor's certification or recommendation that a probable cause exists. The Court resolved the issue following established doctrines and procedures that a judge, in personally determining the existence of probable cause, is not required to personally examine the complainant and his witnesses. Rather, he may personally evaluate the certification as

well as the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or if, on the basis thereof, he finds no probable cause, he may disregard the prosecutor's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Whether wittingly or unwittingly, respondent's reliance on the Lim case is sorely misplaced. He could not have failed to apprehend that what was involved therein was the appreciation of evidence initially presented by the prosecution for the determination by the trial court as to whether the filing of an information was justified. What is involved in such a situation is the commencement of a criminal action. The quantum of evidence required therefor is only such evidence as suffices to engender a well founded belief as to the fact of the commission of a crime and the therein respondent's probable guilt thereof. 18

In contrast, the question of the propriety of the commencement of the criminal actions is not involved herein. The issue, as earlier mentioned, refers to the propriety of the order of respondent issued ex parte which granted bailex mero muto to the accused who were charged with non-bailable offenses, without said accused having filed a motion therefor, without notice to the prosecution, and without any hearing having been conducted to determine the strength of the prosecution's evidence which involves an evidential quantum different from that required in preliminary investigations. Compounding the responsibility of respondent judge is the fact that the accused were not even in the custody of the law.

We do not subscribe to respondent's supposedly belated realization of the mistake he committed after reading in the newspapers about this Court's warning against the grant of bail in capital offenses without the benefit of a hearing. Even before its pronouncement in the Lim case, this Court already ruled in People vs. Dacudao, etc., et al. 19 that a hearing is mandatory before bail can be granted to an accused who is charged with a capital offense, in this wise:

The respondent court acted irregularly in granting bail in a murder case without any hearing on the motion asking for it, without bothering to ask the prosecution for its conformity or comment, as it turned out later, over its strong objections. The court granted bail on the sole basis of the complaint and the affidavits of three policemen, not one of whom apparently witnessed the killing. Whatever the court possessed at the time it issued the questioned ruling was intended only for prima faciedetermining whether or not there is sufficient ground to engender a well-founded belief that the crime was committed and pinpointing the persons who probably committed it. Whether or not the evidence of guilt is strong for each individual accused still has to be established unless the prosecution submits the issue on whatever it has already presented. To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled as the accused to due process.

xxx xxx xxx

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other cases. (Section 6, Rule 114, Rules of Court) It is highly doubtful if the trial court can appreciate these guidelines in an ex-parte determination where the Fiscal is neither present nor heard.

What magnifies the aforementioned procedural misfeasance and nonfeasance of respondent judge is the fact that when he issued his order granting bail, the accused were admittedly still at large. This, of course, he knew as he even had to direct their arrest right in the same order where he simultaneously granted them bail. It is incredible that he could have been unaware that as early as 1961, it was explicitly clarified in Feliciano vs. Pasicolan, etc., et al. 20 that since bail is intended to obtain the provisional liberty of the accused, the same cannot be authorized or posted before custody of said accused has been acquired by the judicial authorities by his arrest or voluntary surrender.

It is self-evident that a court cannot authorize provisional liberty to one who is then actually in the enjoyment of his liberty, or as the Court quoted therein, "it would be incongruous to grant bail to one who is free." The pernicious practice which such ruling was intended to prevent, whereby the accused can just send someone to post his bail without recognizing the authority of the court by his personal appearance therein and compliance with the requirements therefor, appears to have been resuscitated by respondent judge.

Respondent postulated that any error he committed in granting bail was deemed corrected by the failure of the prosecution to file in either of the two criminal cases any motion for the cancellation thereof or a clarification of his order. This is a strained and illogical theory. It has long been held that even if the prosecution fails to adduce evidence in opposition to an application for bail of an accused, the court may still require that it answer questions in order to ascertain not only the strength of the state's evidence but also the adequacy of the amount of bail. 21The same rationale for that doctrine applies to and refutes the aforesaid proposition of respondent.

Clearly, therefore, respondent's act of granting bail to the accused, under the circumstances earlier catalogued and ramified, indubitably amounts to such a whimsical and arbitrary exercise of jurisdiction which calls for this Court's exercise of its disciplinary power. Respondent should be aware that since he is to administer the law and apply it to the facts, he should endeavor diligently to ascertain the facts and the applicable law. 22 A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of a deficiency in their grasp of legal principles. 23

On the issue of the propriety of the respondent's order provisionally dismissing the two murder cases, this Court is not in a position to pass upon its correctness since the records of the instant case do not show the reasons why and the exact number of times the state prosecutor concerned was absent as would justify a dismissal of the criminal cases for the alleged violation of the right to speedy trial of two of the accused. Moreover, the motion for reconsideration of the order of unconditional dismissal of December 15, 1992 is still pending resolution before Branch 16 of the Regional Trial Court of Malolos, Bulacan, contrary to respondent's allegation that the same had already been denied.

Respondent must have been misled by the fact that there were actually two motions for reconsideration for resolution by Branch 16. The first was directed against his order dated March 10, 1992 granting the prosecution's motion for inhibition, while the second motion sought the reconsideration of his order of December 15, 1992 declaring the provisional dismissal against two of the accused in the murder cases as amounting to an acquittal. The first motion was denied by Branch 16 in its order of August 24, 1993 for being moot and academic since the movant was deemed to have recognized the jurisdiction of the court over the case with the filing of several pleadings seeking affirmative relief. 24 The second motion has not yet been resolved and should not be passed upon by the Court in this administrative matter. In any event, the present contents of the record do not clearly show that respondent acted with manifest partiality or culpable duplicity.

In the administrative matters of Libarios and Borinaga which involved virtually the same charges, the erring judges were fined in the amount of P20,000.00. We believe, however, that respondent judge herein should be meted a fine in a higher amount since his actuations complained of in the present proceeding are of a nature graver than those committed in the two cases aforementioned. For, in addition to the errors common to all these three administrative matters as hereinbefore explained, the accused in the criminal cases involved in Libarios andBorinaga had at least filed petitions for their provisional liberty. Here, there was no application for bail filed by any of the accused in either of the two criminal cases hence, as complainants put it, respondent judge was not only the grantor of the bail but likewise the applicant therefor. 25 On top of that, in Borinaga, the accused therein had already been apprehended when he applied for and was granted bail, albeit erroneously. In the present proceeding before us, respondent judge granted bail to the accused who were all at large.

ON THE FOREGOING CONSIDERATIONS, respondent Judge Candido R. Belmonte of the Regional Trial Court, Branch 22, Malolos, Bulacan is hereby ORDERED to pay a FINE of Twenty-Five Thousand Pesos (P25,000.00), with the warning that a repetition of the same or similar acts in the future will be dealt with more severely. Let a copy of this decision be attached to the personal record of said respondent.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ. concur.

Feliciano, J., is on leave.

Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

May 14, 1948

G.R. No. L-1801 THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. FERNANDO ALANO, accused.

Eugenio S. Estayo for appellant. Mariano Santa Romana for appellee. Bocobo, J.: The complain in this case, which prays for the reconveyance of lot No. 692 of the Cuyapo cadastre in Nueva Ecija, alleges that the plaintiff is the owner of said lot; and that in the course of the cadastral proceedings, plaintiff being illiterate, asked Domingo Sumangil to claim the same for her (plaintiff) but Sumangil committed a breach of trust by claiming the lot for himself, so it was adjudicated in favor of Sumangil. The defendant is the special administrator of the estate of Juana Ringor, to whom the parcel of land in question was assigned by partition in the intestate estate of Domingo Sumangil and Honorata Duque.

The Court of First Instance of Nueva Ecija found that the plaintiff is the real owner of the lot which she had acquired in 1914 by donation propter nuptias from Pablo Ringor; that plaintiff had since that year been in possession of the land; and that the same had been decreed in the cadastral proceedings in favor of Domingo Sumangil. The trial court, while recognizing that the plaintiff had the equitable title and the defendant the legal title, nevertheless dismissed the complaint because the period of one year provided for in section 38 of the Land Registration Act (No. 496) for the review of a decree had elapsed, and the plaintiff had not availed herself of this remedy. The trial court plainly erred. The complaint did not seek the review of the decree or the reopening of the cadastral case, but the enforcement of a trust. Hence, section 38 of Act No. 496 does not apply. The estate of Juana Ringor as the successor in interest of the trustee, Domingo Sumangil, is in equity bound to execute a deed of conveyance of this lot to the cestui que trust, the plaintiff-appellant. The remedy herein prayed for has been upheld by this Court in previous cases, one of which is Severino vs. Severino (44 Phil. 343, year 1923) in which it was said among other things: Turning to our own Land Registration Act. we find no indication there of an intention to cut off, through the issuance of a decree of registration, equitable rights or remedies such as those here in question. On the contrary, section 70 of the Act provides: Registered lands and ownership therein, shall in all respects be subject to the same burdens and incidents attached by law to unregistered land. Nothing contained in this Act shall in any way be construed to relieve registered land or the owners thereof from any rights incident to the relation of husband and wife, or from liability to attachment on mesne process or levy on execution, or from liability to any lien of any description established by law on land and the buildings thereon, or the interest of the owner in such land or buildings, or to change the laws of descent, or the rights of partition between coparceners, joint tenants and other cotenants, or the right to take the same by eminent domain, or to relieve such land from liability to be appropriated in any lawful manner for the payment of debts, or to change or affect in any other way any other rights or liabilities created by law and applicable to unregistered land, except as otherwise expressly provided in this Act or in the amendments hereof.

SEC. 102 of the Act, after providing for actions for damages in which the Insular Treasurer, as the custodian of the Assurance Fund is a party, contains the following proviso: Provided, however, That nothing in this Act shall be construed to deprive the plaintiff of any action which he may have against any person for such loss or damage or deprivation of land or of any estate or interest therein without joining the Treasurer of the Philippine Archipelago as a defendant therein.

That an action such as the present one is covered by this proviso can hardly admit of doubt.

A trust such as that which was created between the plaintiff and Domingo Sumangil is sacred and inviolable. The Courts have therefore shielded fiduciary relations against every manner of chicanery or detestable design cloaked by legal technicalities. The Torrens system was never calculated to foment betrayal in the performance of a trust.

The judgment appealed from is hereby reverse, and the defendant is ordered to convey that lot in question to the plaintiff within fifteen days from the entry of final judgment herein; and upon his failure or refusal to do so, this judgment shall constitute sufficient authorization for the Register of Deeds of Nueva Ecija, in lieu of a deed of conveyance, to transfer the certificate of title for said lot No. 692 to the plaintiff Eusebia Escobar. The defendant shall pay the costs of both instances. So ordered.

Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-15584

October 27, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PACIFICO PECZON, ET AL., accused, PEDRO REBADULLA, ET AL., bondsmen-appellants.

Pablo G. Rebadulla for bondsmen-appellants. Office of the Solicitor General for plaintiff-appellee.

BAUTISTA ANGELO, J.:

On November 13, 1956, a complaint for robbery in band was filed against five persons before the Justice of the Peace Court of Japapad, Samar. Having been allowed to enjoy provisional liberty, 19 persons put up the requisite bail bond in their behalf in the total amount of P40,000.00. And because of the constant failure of the accused to appear on the various dates set for the preliminary investigation of the case, the justice of the peace court considered their failure as a waiver thereof and elevated the case to the Court of First Instance of Oras, Samar, for its subsequent prosecution.

After the formal charge was filed by the fiscal, the case was set for trial on August 22, 1958. Of the 19 bondsmen only 8 received notice of the hearing even if two of them informed their counsel Pablo G. Rebadulla of the date of trial to be held at Oras, Samar. Believing, however, that the appearance of the accused was only required for the preliminary investigation of the case, Atty. Rebadulla advised them that their presence was not necessary it being sufficient that their waiver, as they manifested to him, he made of record. But upon learning later that the scheduled hearing was for trial on the merits, Atty. Rebadulla wired the clerk of court entering his appearance and asking for its postponement to the first week of November, 1958. Counsel also sent by registered mail a written motion for postponement wherein he justified his request by stating that as he has just been engaged and has not had sufficient time to study the case the intervening period was too short for him to prepare the defense of the accused more so considering that the trial would be held at Oras, Samar. This motion having been denied and the accused having failed to appear at the trial, the court directed their arrest and the confiscation of their bond, giving the bondsmen 30 days within which to produce the persons of said accused and to explain why their bond should not be forfeited.

On October 6, 1958, counsel Rebadulla filed an urgent motion to lift the order of confiscation alleging that if the bondsmen were not able to present the accused at the trial it was because of the advice he gave them not to appear due to his mistaken belief that the same was only for preliminary investigation which the accused can waive and that if the bondsmen failed to surrender them within the 30-day period given them it was because the accused had already been arrested and lodged in jail by virtue of a previous order of the court. Finding this explanation unsatisfactory coupled by the fact that the motion was not supported by any affidavit, the court denied the motion. Counsel filed a motion for reconsideration attaching this time the requisite affidavits in justification of his request for the lifting of the confiscation of the bond, but far from acceding to it, the court rendered judgment ordering the bondsmen to pay to the Government the amounts specified in their respective bonds, which judgment was made immediately executory. Hence, the bondsman interposed the present appeal.

The main error assigned by appellants is that the lower court abused its discretion in not finding satisfactory the explanation or reasons given by them for their failure to produce the accused either at the trial or within the 30-day period they were required to do so thus ordering the confiscation of their respective bonds.

We find merit in this appeal. Section 15, Rule 110, of the Rules of Court provides:

SEC. 15. Forfeiture of bail. When the appearance of the defendant is required by the court, his sureties shall be notified to produce him before the court on a given date. If the defendant fails to appear as required, the bond is declared forfeited and the bondsmen are given thirty days within which to produce their principal and to show cause why a judgment should not be rendered against them for the amount of their bond. Within the said period of thirty days, the bondsmen (a) must produce the body of their principal or give the reason for its non-production; and (b) must explain satisfactorily why the defendant did not appear before the court when first required so to do. Failing in these two requisites, a judgment shall be rendered against the bondsmen. (Emphasis supplied)

As the record shows that 11 of the 19 bondsmen were not given notice of the date of hearing, it is evident that in the light of the foregoing provisions of our rules they cannot be held liable for their failure to produce the persons of the accused as required by the court and hence their bonds cannot be forfeited on that ground.

Neither are we prepared to affirm the ruling of the lower court relative to the confiscation of the bonds of the 19 bondsmen, including those who were notified of the trial, even if they failed to produce the body of their principals at the trial or within the 30-day period given them to do so, for the simple reason that upon receipt of the order of the court ordering the confiscation of their bonds and requiring them to show cause why judgment should not be rendered against them for their failure to comply with their commitment, they submitted within a reasonable period a written explanation of the reasons for their failure not only to produce said principals on the date of the hearing but also during the period given them to do so as a justification for their exoneration.

Thus, in their motion to lift the order of confiscation submitted on October 6, 1958, they explained that their failure to present the accused on the date of trial was due to the erroneous advice given them by their counsel who told them that their presence was not necessary because of his mistaken belief that it referred merely to a preliminary investigation, and that their further failure to produce their principals within the 30-day period was due to the fact that they had already been arrested and lodged in jail in view of a previous order of the court. These reasons remain undisputed, for as matter of fact the trial of said accused took place immediately thereafter which eventually resulted in their exoneration. Considering that the hearing was apparently being held for the first time and upon being informed of the mistake committed by their counsel they immediately informed the court of the reasons why they failed to comply with the order of the court relative to the appearance of their principals, we are inclined to consider the reasons thus given as sufficient justification that may warrant the setting aside of the order of confiscation issued by the trial court. In other words, the steps taken by appellants with regard to their failure to comply with their commitment under their bonds constitute a substantial compliance with the requirement of our rules on the matter.

WHEREFORE, the judgment appealed from is reversed, without pronouncement as to costs.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Paredes and De Leon, JJ., concur. Barrera, J., took no part.

PEOPLE VS TAN 101 PHIL 324

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-29226 September 28, 1973

GIMENO V. VALLANGCA, MARIA TOMANENG, BLAS VILLASIN, DOLORES AYONAYON, FLAVIANA RENON, PETRA GOROSPE, PEDRO TORRIDA and HONORATO LANIA, petitioners-appellants, vs. HON. CRISPIN G. ARIOLA, in his capacity as Municipal Judge of Buguey, Cagayan; HON. NARCISO A. AQUINO, in his capacity as Provincial Fiscal of Cagayan; and NEMESIO T. ONATE, in his capacity as Deputy Sheriff, respondents-appellees.

Alfredo J. Donato for petitioners-appellants.

Gimeno V. Vallangca in his own behalf and for other appellants.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Pio P. Cordero for respondents-appellees.

FERNANDO, J.:

In this appeal from a lower court decision denying a petition for certiorari with preliminary writ of injunction to annul a municipal court judgment ordering the confiscation of a bail bond, there is a reiteration of what had been unsuccessfully pleaded below, namely, the alleged dismissal of the case against the accused whose non-appearance brought grief to the bondsmen. 1 Such a claim would have sufficed had there really been such an order, but unfortunately for appellants, they were unable to produce a shred of evidence in support of such a plea. How else could the lower court act then, except as it did, considering that the accused failed to appear not only at the trial but all the while this suit was pending? We have to affirm. The facts are not open to dispute. People v. Honorato Lania, a criminal case for illegal possession of firearms, 2was set for hearing on July 21, 1964. As far back as July 7 of that year, a subpoena was issued by such court to notify the bondsmen to produce the person of the accused at the scheduled trial. The bondsmen did not accept service of such subpoena. Moreover, they did not produce the accused in court on the scheduled date of July 21. Neither were they present. Then came an order of such court on July 30, 1964, requiring such bondsmen to explain within fifteen days why bail should not be forfeited. There was such a memorandum of explanation or a motion for reconsideration of August 19, 1964, which the municipal court of Buguey, Cagayan considered unsatisfactory. Nonetheless, they were given an additional period of fifteen days to produce the person of the accused. Again, the bondsmen were unable to do so. On September 23, 1964, the aforesaid Vallangca filed a motion asking a period of thirty days within which to comply with the obligation to have the accused appear before the court.

It was granted but with the same negative result. The municipal court therefore had no choice except to decree the forfeiture, as set forth in an order of October 27, 1964, the dispositive portion of which reads: " "[In view of all the foregoing premises], and the period given by this court to all the bondsmen to produce the person of the accused to court and to make explanations for the non-production of the said accused, and to show cause why their properties given as bailbond for the accused should not be declared forfeited in favor of the government, having lapsed; with the further lapsing of 30-day period extension of time within which to bring the accused to court as contained in counsel's motion dated September 21, 1964; and for the cause of efficient administration of justice, it is hereby ordered that judgment be rendered against the principal and of all the bondsmen for the amount of the bail bond in sum of P2,000.00 and in default of the same, let all the real properties, as described and bounded in the bail bond undertaking, of the bondsmen, be confiscated in favor of government." " 3 When it became final and executory, Provincial Fiscal of Cagayan, respondent Narciso Aquino, filed a motion dated October 11, 1965 for the issuance of a writ of execution against the real properties of the bondsmen. The municipal court judge, respondent Crispin G. Ariola, granted said motion. The third respondent, Deputy Sheriff Nemesio Onate, after posting the notice of sale and after proper publication, sold such property at public auction on August 21, 1967 to the Government of the Republic of the Philippines, as the highest bidder.

What transpired next is set forth in the brief of respondents-appellees thus: "On August 18, 1967, the petitioners filed a petition for certiorari in the court a quo assailing the judgment of the municipal court dated October 27, 1964 in Criminal Case No. 1060 forfeiting their bonds in favor of the government. They also impugned the validity of the motion for execution filed by provincial fiscal Narciso A. Aquino, the writ of execution issued by judge Crispin G. Ariola and the sale of the properties at public auction by deputy sheriff Nemesio T. Onate. They further prayed for the issuance of a writ of preliminary injunction to restrain said respondents from executing and causing the sale at public auction of their properties ... . On August 19, 1967, the petitioners also filed an ex-parte motion for the issuance of a writ of preliminary injunction against deputy sheriff Nemesio Onate to restrain him from selling at public auction their properties under the bail bond ... . The order of said court issued on August 21, 1967 enjoining deputy sheriff Nemesio Onate not to proceed with the sale at public auction ... was returned unserved on that date for lack of material time ..., because the properties had already been sold at public auction as scheduled to the highest bidder, the Government of the Republic of the Philippines ... . The petitioners in this case claim that former judge Ernesto Furugganan of the municipal court had already dismissed Criminal Case No. 1060 against Honorato Lania on June 27, 1962, when he granted in open court the motion to quash filed by assistant provincial fiscal Gabriel O. Valle, Jr. However, there is no order of dismissal found in the records of said case." 4 After respondents filed their answers, the petition was set for hearing on October 27, 1967, but was only heard on December 11, 1967. The decision, as noted at the outset, was a denial of such petition. Hence the appeal to us.

It was not a wise step. They were mistaken in having the matter looked over by us, with the facts as found by the lower court arguing against their pretension that there was such a dismissal of a criminal case. If it were so, it would have freed them as bondsmen from the liability assumed. The lower court did not so find. As set forth in the decision now on appeal: "The allegation of the petitioners that Criminal Case No. 1060 of Buguey Municipal Court was dismissed by Judge Ernesto P. Furugganan in open court on June 27, 1962 is not supported by the record of the case. As rightly alleged by the First Assistant Provincial Fiscal and Judge Ariola in their answers, nowhere in the record of the case could be found that dismissal. The same is not also found in the criminal docket of the Municipal Court of Buguey, Cagayan. Such a very important proceeding which gave a final determination to a case must at least appear in some form of writing. The Court cannot presume the existence of so vital a document as an order of dismissal without concrete evidence." 5 How can petitioners expect a reversal then? The only question before us is one of law, namely, whether the decision of the lower court has support in the appropriate rule of court as authoritatively expounded. Necessarily then, the dismissal by the lower court of this petition for certiorarimust be sustained.

1. The specific provision of the Rules of Court is quite explicit. It reads thus: "When the appearance of the defendant is required by the court, his sureties shall be notified to produce him before the court on a given date. If the defendant fails to appear as required, the bond is declared forfeited and the bondsmen are given thirty (30) days within which to produce their principal and to show cause why a judgment should not be rendered against them for the amount of their bond. Within the said period of thirty (30) days, the bondsmen (a) must produce the body of their principal or give the reason for its non-production; and (b) must explain satisfactorily why the defendant did not appear before the court when first required so to do. Failing in these two requisites, a judgment shall be rendered against the bondsmen." 6 This is one of those cases where hardly any room is left for interpretation. All that a judicial body can do is to apply it as worded. 7 That is what the lower court did. What is more, authoritative doctrines from United States v. Carmen, 8 a 1909 decision, the present provision being a restatement of Section 76 of the former Code of Criminal Procedure, 9 to People v. Franklin, 10 decided in 1971, have been notable for their consistency. 11

That such a rule calls for application is most evident, considering that the lower court, on the very day of the appealed decision on February 20, 1968, could take note of the fact that from October 27, 1964, the date of the order for the confiscation of the bail bond, up to March 6, 1967, when the order of execution of the bond was issued, there was no surrender of the person of the accused. If it were otherwise, then leniency or mitigation of liability would have been appropriate. As noted by Justice Malcolm in People v. Reyes: 12 The record, however, discloses that on the same day that the court issued its order to show cause, the accused was turned over to the deputy sheriff and was the day following placed in Bilibid Prison. Had the bondsmen presented the accused to the court at the time set for the hearing and explained his failure previously to produce her, undoubtedly the court would have been much more lenient. This mistake should nevertheless not be held too strongly against the bondsman. The law, it will be recalled, provides for a discharge of the forfeiture upon such terms as may be considered just. In other words, whether a bail bond upon which there is a default should be declared forfeited to its full amount or in a lesser amount, rests largely in the discretion of the court and depends on the circumstances of each particular case." 13 In the abovecited People v. Franklin, 14 Justice Dizon rejected a contention that a bondsman should be released from liability as his failure to produce and surrender the accused was due to the negligence of the Government itself in issuing a passport to her, thereby enabling her to leave the country. As was pointed out by him: "That the accused in this case was able to secure a Philippine passport which enabled her to go to the United States was, in fact, due to the surety company's fault because it was its duty to do everything and take all steps necessary to prevent that departure. This could have been accomplished by seasonably informing the Department of Foreign Affairs and other agencies of the government of the fact that the accused for whose provisional liberty it had posted a bail bond was facing a criminal charge in a particular court of the country. Had the surety company done this, there can be no doubt that no Philippine passport would have been issued to Natividad Franklins." 15 It only remains to be added that, as Justice Laurel pointed out in Luzon Surety Co. v. Montemayor," 16 there may be instances where not even the production of the body of the principal would suffice, there being the added requirement of a satisfactory explanation of the failure to appear when first required to do so. Thus: "It will thus be seen that while the surrender or the appearance of the accused is a prerequisite to relief from, or remission of, a forfeiture of bail, the sureties cannot exonerate themselves simply by a surrender of him after a forfeiture, and hence, they are not as a matter of right, released from their obligations under a forfeited recognizance by the mere surrender of their principal or by his voluntary appearance after forfeiture ... ." 17

It is thus clear that the contention of appellants imputing error to the lower court for sustaining the forfeiture of the bond in question is devoid of merit. The highly-strained interpretation given by petitioners in the four pages devoted to such an alleged error can hardly avail to blunt the force of the above unbroken line of decisions.

2. The exhaustive brief submitted by the then Solicitor General, now Associate Justice, Felix Makasiar, and former Assistant Solicitor General Antonio G. Ibarra, likewise stressed another ground that leads to the same conclusion. The petition for certiorari, as therein noted, was filed after two years, counted from the denial of the last motion for reconsideration. As made mention of therein: "The failure of the petitioners to file an appeal within the reglementary period provided for by law is either intentional or a gross negligence on their part and certioraricannot be a substitute for that appeal. Moreover, once a judgment becomes final the winning party should not be deprived of the fruits of the verdict by some clever scheme or device not sanctioned by law. In the instant case, the judgment of the lower Court forfeiting the bail bond of the petitioners became final and executory on January 6, 1965. To grant this petition for certiorari, therefore, would set at naught the final verdict rendered by the Municipal Court of Buguey which to all appearances is in accordance with law." 18 Reference was then made to the leading case of Lee Kim Tho v. Go Siu Kao, 19 where it was stressed: "Litigation must end and terminate sometime and somewhere, and it is essential to an effective and efficient administration of justice that once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that result. Constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them." 20

WHEREFORE, the lower court decision of February 20, 1968 is affirmed. Costs against petitioners.

Makalintal, Actg. C.J., Zaldivar, Castro, Teehankee, Antonio and Esguerra, JJ., concur.

Makasiar, J., is on leave.

Separate Opinions

BARREDO, J., concurring:

I concur.

The only issue raised by petitioners is that the order of confiscation of bail bond they had filed with the court of origin had no legal basis inasmuch as the criminal case against the accused, Honorato Lania, the principal in the bond, had already been dismissed at the time the order of confiscation was made. The trial court having found that no such order of dismissal had ever been issued, it necessarily follows that petitioners' pose is entirely groundless. Their attempt to show that such a dismissal exists is in effect an admission that without it their liability is inevitable. Having failed to prove its existence, no extended elucidation is needed for Us to affirm the appealed decision dismissing their petition for certiorari seeking the annulment of the order of confiscation and the proceeding subsequent thereto. Even a mere passing reference to the governing rule, Section 15 of Rule 114, would suffice to place the correctness of Our decision beyond cavil.

Separate Opinions

BARREDO, J., concurring:

I concur.

The only issue raised by petitioners is that the order of confiscation of bail bond they had filed with the court of origin had no legal basis inasmuch as the criminal case against the accused, Honorato Lania, the principal in the bond, had already been dismissed at the time the order of confiscation was made. The trial court having found that no such order of dismissal had ever been issued, it necessarily follows that petitioners' pose is entirely groundless. Their attempt to show that such a dismissal exists is in effect an admission that without it their liability is inevitable. Having failed to prove its existence, no extended elucidation is needed for Us to affirm the appealed decision dismissing their petition for certiorari seeking the annulment of the order of confiscation and the proceeding subsequent thereto. Even a mere passing reference to the governing rule, Section 15 of Rule 114, would suffice to place the correctness of Our decision beyond cavil.

Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION

G.R. Nos. L-36721-27 August 29, 1980

COMMUNICATIONS INSURANCE COMPANY, INCORPORATED, petitioner, vs. HON. ONOFRE A. VILLALUZ, in his capacity as Presiding judge of the Circuit Criminal Court, ANTONIO MARINAS, Deputy Sheriff of Rizal, and the PEOPLE OF THE PHILIPPINES, respondents.

DE CASTRO, J.:

Petitioner filed this petition for certiorari and prohibition against the Order of the respondent Judge issued in Criminal Cases Nos. CCC-VII-481, 487 to 492-P.C. an against Nestor Evangelista, with three or four co-accused, for seven (7) cases of estafa through falsification of commercial documents. The Order complained of denied the moti on filed by petitioner for the reduction of its liability under the seven (7) bail bonds it posted for the temporary release of Nestor Evangelista, which were declared forfeited on May 11, 1972 in an order which gave petitioner thirty (30) days within which to produce the body of Nestor Evangelista who failed to appear during the trial on April 12, 1972, and to show cause why judgments should not be rendered against it on its bonds.

Petitioner failed to comply with the aforecited order, so on June 8, 1972, on order of respondent judge, a writ of execution was issued for the total amount of the seven (7) bail bonds in the sum of P134,000.00. 1 Invoking the "three-fold" rule under Art. 70 of the Revised Penal Code, as amended, petitioner filed the motion for the reduction of its liability under the bonds it posted, setting the motion for hearing on April 14, 1973. Respondent judge denied the motion in an order dated April 6, 1973. 2

It is in denying the motion aforecited, even before the date set for its hearing, allegedly contrary to prevailing jurisprudence and "a clear policy mandated by law relative to confiscation of bail bonds, particularly as to the amount thereof," that the respondent judge is alleged to have gravely abused his discretion for which the petitioner took the present recourse. In the resolution of this Court of May 30, 1973 3 after the Solicitor General has filed its comment to the petition, 4petitioner was required to pay to the Clerk of Court of the Supreme Court the amount of P90,000.00, equivalent to three times the highest amount of bail bond (P30,000) offered by petitioner on behalf of accused Nestor Evangelista, as a condition precedent to the giving of due course to the petition as regards the balance of P44,000.00 of the total bail bond of P134,000.00. Petitioner having paid the P90,000.00 to the Clerk of Court of this Court, respondents were required to file their answer to the petition which was given due course as regards the balance of P44,000.00. 5

Respondents, through the Solicitor General, filed their Answer on July 26, 1973, after which the case was set for hearing on August 24, 1973. 6 At the hearing, only the representative of the Solicitor General emorandum in lieappeared, petitioner filing instead a motion to file Mu of oral argument, for which he was given 30 days to file, and the Solicitor General, also given 30 days to reply thereto. 7

The seven cases of estafa through falsification of commercial documents, the amounts involved, the imposable penalties and the amounts of the bail bonds in each are as follows:

Case.No.

Amount Involved

Maximum Penalty Imposable 8 years

Amount of Bond

1)481

P 20,000.00 200,000.00 50,000.00 25,000.00 150,000.00 30,000.00 100,000.00 TOTALS

P14,000.00

(2)487 (3)488 (4)489 (5)490 (6)491 7)492

20 years 10 years 8 years 20 years 8 years 15 years 89 years

30,000.00 17,000.00 14,000.00 25,000.00 14,000.00 20,000.00 P134,000.00

As earlier stated, the bail bonds were ordered confiscated on May 11, 1972, and a writ of execution was issued on June 8, 1972. It was only on April 5, 1973, but without having surrendered the person of Nestor Evangelista, that petitioner filed a motion asking the Criminal Circuit Court to reduce its liability under its bonds principally basing its request on the so-called "three-fold" rule under Art. 70 of the Revised Penal Code whereby the convict would be made to serve not more than three-fold the length of time corresponding to the most severe of the penalties imposed on him, which in no case shall exceed forty (40) years.

Petitioner seeks also to apply, by analogy, Circular No. 29, May 7,1972 which reads:

When the accused is charged of three or more offenses arising from the same incident, the crime not being complex the bail bonds shall not exceed three-fold that which is required under this Circular for the most severe offense.

Finally petitioner invokes the ruling in the case of People vs. Puyat, G. R. No. L-8091, February 17, 1956, 98 Phil. 415, which reduced the liability of the confiscated bond of P10,000.00 to P3,000.00, the Court taking into account the sentence imposed which was five (5) years, five (5) months and eleven (11) days, in order to make the surety's liability proportional to the sentence. The ruling invoked, which was similarly applied in another case,People vs. Daisin, G. R. No. L-6713, April 29, 1957, can have no application to the case at bar, for while in the case cited the accused was subsequently surrendered, here the petitioners have not up to the present produced the accused before the court. It is obvious that, without the accused being rendered for trial and to serve sentence if convicted, judicial process as should apply to the seven cases involving serious offenses is completely thwarted. There is a complete failure of justice, due not only to society but also to the private parties upon whom prejudice and damage have been inflicted. These circumstances and the grievous consequences flowing therefrom did not obtain in the cases cited, for the accused was surrendered to pay his debt to society and to those personally aggrieved and harmed. The interest of the State is in the execution of the sentence, and as long as the accused is presented to serve that sentence, even if delay may have been incurred in by his bondsmen in surrendered him for the purpose, there is valid for the liberality of the State in reducing the liability of the bail bond, which in reality is "partial remission of the bondsman's liability", legally and morally justifiable. Thus, as quoted in the petition itself:

The liberality which we have shown in dealing with bonds in criminal cases and in mitigating their liability on bonds already confiscated because of the delay in the presentation of defendants, finds explanation in the fact that the ultimate desired of the State is not the monetary reputation of the bondsman's default, but the enforcement or execution of the sentence, such as the imprisonment of the accused or the payment by him of the fine imposed. That interest of the State can not be measured in terms of pesos as in private contracts and obligations. The surrender of the person of the accused so that he can serve his sentence is its ultimate goal or object. The provision for the confiscation of the bond, upon failure within a reasonable time to produce the person of the accused for the execution of the sentence, is not based upon a desire to gain from such failure; it is to compel the bondsman to enhance its efforts to have the person of the accused produced for the execution of the sentence. Hence, after the surety has presented the person or the accused to the court, or the accused already arrested, we have invariably exercised our discretion in favor of the partial remission of the bonds man's liability.

A further reason for such liberality lies in the fact that if the courts were strict in enforcing the liability of bondsmen, the latter would demand higher rates for furnishing bail for accused persons, making it difficult for such accused to secure their freedom during the course of the proceedings. If courts were strict in the endorsement of the monetary responsibility of bondsmen, bail which is considered a precious right, would be difficult to obtain. Bondsman will reproduce rates only if the courts are liberal in dealing with them in the performance of their obligations.

Lastly, if the courts are averse to mitigating the monetary responsibility of bondsmen after confiscation of their bond, bondsmen would be indifferent towards the attempts of the. Stare to secure the arrest or defendants, instead helping it therein.

The three-fold rule, on the other hand, has absolutely no bearing on the confiscation of the bond and the amount the to be forfeited. It has reference only to the maximum duration of the sentence to be served where three or more offense been committed. It has, therefore, no relevance at all when the accused absconds to become a fugitive from justice and makes a mockery of the judicial process, designed to protect society in general and particular members thereof directly offended. Considerations of liberality as have inspired the rulings relied upon by petitioner cannot be said to equally exist in the case at bar where there is not a mere delay in the presentation of the accused, but a total failure to produce him to be tried and sentenced accordingly if found guilty.

By its own terms and phraseology, the circular of the Secretary of Justice also invoked by petitioner, is clearly not applicable. It explicitly excludes complex crimes from its benign effects, the kind of crime with which Nestor Evangelista is charged in all the seven counts of estafa with falsification of commercial documents. They likewise do not arise from the same incident, which is one of the conditions required in the circular for its application in a given situation. Furthermore, the circular sets a rule for the determination of the amount of bail in the situation contemplated, certainly a different matter from the amount to be forfeited to the State of bail bonds confiscated for violation of the terms and conditions thereof.

There is a faint intimation in the instant petition that respondent judge abused his discretion gravely when he denied petitioner's motion to reduce its liability on its bond even before the hearing thereof as set in the motion. Considering, however, that the writ of execution was issued on June 8, 1972, and the motion aforementioned was filed on April 5, 1973, long after the declaration of confiscation of the bond as early as May 11, 1972, respondent judge saw evidently in the motion a mere dilatory tactic, which it really is, and a reading thereof not showing any, useful necessity of a hearing, its denial even without hearing is justified. Besides, hearing is more for the benefit of the adverse party, not to the movant who suffers the penalty of dismissal of his motion if he fails to set it for hearing with due notice to the adverse party.

In any event, since the merit of his motion has in effect been examined thoroughly by Us in this petition, petitioner has no reason to complain against what appeared to it and now claims to be a hasty denial of said motion in violation of due process which it is not.

WHEREFORE, there being no reversible error in the order complained of, much less grave abuse of discretion on the part of the respondent judge, the instant petition is hereby dismissed. No costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Fernandez, Guerrero and Melencio-Herrera,, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. L-46542 July 21, 1978

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE HERMENEGILDO A. PRIETO, SR., CFI Branch IV, Roxas Isabela, and DARIO GAMAYON,respondents.

FERNANDO, J.:

Judge Hermenegildo A. Prieto, Sr., of the Court of First Instance of Isabela, would not have been named respondent by the People of the Philippines in a certiorari proceeding had he taken greater care in his appraisal of what the last sentence of Section 19 of the Constitution means. It allows the continuation of a trial after arraignment, notwithstanding the absence of an accused, provided that he has been duly notified and his failure to appear is unjustified. 1 What is quite regrettable is that he had a previous order which was legally impeccable. It was set aside on a motion for reconsideration. Respondent Judge ought to have stood firm. Correctly, he had, in such order, "issued a warrant of arrest ... for the apprehension of accused Dario Gamayon for his continuous failure to appear in Court everytime the case is called for trial." 2 It continued: "His bail bond is declared forfeited. 3It likewise gave the bondsmen thirty days "from notice [thereof 1 within which to produce the body of accused Dario Gamayon and show cause why judgment should not be rendered against them for the amount of their undertaking. 4 Assistant Solicitor General Vicente V. Mendoza correctly pointed out that in the bond posted by the accused, there was the usual undertaking that the accused would appear and answer the charge, hold himself amenable to the orders of the court, and, if convicted, would appear for judgment. 5

After the issuance of such order by respondent Judge, there was a motion for reconsideration. Apparently, he was misled by his misreading of the above constitutional provision, now added to the present fundamental law. He failed to take into account that the constitutional right to bail 6 would be rendered nugatory if, by the mere fact that the trial could proceed in the absence of the accused, the undertaking in a bail bond and the Rules of Court provision could be ignored. Bail "is the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance. 7 Clearly, the innovation introduced by the present Constitution goes no further than to enable a judge to continue with the trial even if the accused is not present under the conditions therein specified. It does not give him the right to jump bail. Where, as in this case, it is undisputed that he had gone abroad, the usual procedure provided by the Rules of Court to determine the liability of his bondsmen should be followed.

The gravity of the error of respondent Judge is thus quite obvious. His previous order, strictly in compliance with the Rules of Court, ought to have remained undisturbed. It should not have been set aside. The provision, a novel feature of the present Constitution, as to when a trial could proceed in the absence of an accused, does not lend itself to a latitudinarian construction. It means what it says and is limited to what is explicitly ordained. It is too plain to be misinterpreted. certiorari lies.

Certainly, there was. grave abuse of discretion when respondent Judge set aside the order in question which was issued by him on February 7, 1977. It bears repeating that after declaring the bond forfeited for the continuous failure of the accused to appear in Court everytime the case is called for trial, it gave the bondsmen thirty (30) days from notice to produce the body of the accused Gamayon and show cause why judgment should not be rendered against them for the amount of their undertaking. Thus, he followed to the letter the applicable Rules of Court. It reads thus: "When the appearance of the defendant is required by the court, his sureties shall be notified to produce him before the court on a given date. If the defendant fails to appear as required, the bond is declared forfeited and the bondsmen are given thirty (30) days within which to produce their Principal and to show cause why a judgment should not be rendered against them for the amount of their bond. Within the said period of thirty (30) days, the bondsmen (a) must produce the body of their principal or give the reason for its non-production; and (b) must explain satisfactorily why the defendant did not appear before the court when first required so to do. Failing in these two requisites, a judgment shall be rendered against the bondsmen. 8

There is no justification in law, therefore, for such valid and correct order being reconsidered, just because of the innovation in the Constitution as to the trial being held in the absence of an accused. 9 Respondent Judge unfortunately assumed that thereby a defendant was thus conferred a fundamental right to ignore the terms of the bond posted by him in accordance with his constitutional right to bail. The present Constitution certainly has not made a dent on the traditional and correct concept of a bail as given to allow the release of a person in the custody of the law on condition that he would appear before any court whenever so required. Upon failure to do so, the warrant of arrest previously issued can be a sufficient justification for his confinement. All that is assured on accused who posts bail, therefore, is that prior to his conviction, he need not be deprived of his liberty. The mere fact that the trial could not continue in his absence certainly affords no justification for his jumping bail nor for his bondsmen to escape from the legal efforts of their undertaking.

Nothwithstanding an opposition to such motion for reconsideration, 10 the lower court in the challenged order referring especially to the present Constitution held "that if the trial could be conducted after the accused has been arraigned and Identified, the conclusion is inescapable that issuing an order of the forfeiture of the bailbond is premature, indeed until the time when a judgment of conviction shall have been meted out to the accused at which time his attendance is of utmost urgency. Until that time, therefore, confiscation of the bailbond of the accused is premature. If and when the trial of this case shall have been fully terminated and the Court shall finally. enter judgment of conviction, if the said accused win not be available during the promulgation of the said judgment, then and only then [can] judgment of forfeiture and confiscation of the bailbond be legally issued." 11

The grave abuse of discretion, to repeat, is quite apparent. There was a deliberate failure of respondent Judge to respect what is so clearly provided in the Rules of Court. It is quite categorical. As set forth above: "If the defendant fails to appear as required, the bond is declared forfeited ... . 12 The very caption of such section reads: "Forfeiture of bail." Respondent Judge did precisely that, with the bondsmen, again in accordance with the Rules of Court, being given thirty days from notice "to produce the body of the accused Dario Gamayon and show cause why judgment should not be rendered against them for the amount of their undertaking. 13 That order was in accordance with law. Respondent Judge should have stood firm. He ought not to have acceded to the plea of the accused to set it aside.

There is another aspect which strongly militates against the actuation of respondent Judge. As emphatically put by Assistant Solicitor Vicente V. Mendoza: "There was no justification" for accused Dario Gamayon's failure to appear during the scheduled hearings. He simply jumped bail and Judge Prieto knew it. As early as February 4, 1976, Judge Prieto was informed that accused Dario Gamayon was poised to leave the country and he was asked to order the proper authorities to prevent the departure of said accused. (Annex A) Judge Prieto refused to act on the information and motion. (Annex B) He also denied a motion for reconsideration of his action. (Annexes C and D) In setting aside his order of February 7, 1977 ... Judge Prieto gravely abused his discretion. There was the stark fact that accused Dario Gamayon had left the country. He was already beyond the reach of the lower court. Yet Judge Prieto would compound his previous inaction which made possible the departure of accused Dario Gamayon from the country by refusing to take action against the bondsmen." 14 Respondent Judge may not have been aware of it, but in so comporting himself, he had set at naught the teaching of a host of cases that uniformly set forth the procedure to be followed in the event of a violation of the conditions of a bail bond. 15

One last point. This petition on behalf of the People of the Philippines was filed by Assistant Provincial Fiscal Wilfredo Tumaliuan of Isabela. It was reinforced by the comment of Assistant Solicitor General Vicente V. Mendoza. While he joined the Assistant Provincial Fiscal in having the challenged order nullified, thus leaving the original order declaring the bond forfeited in full force and effect, he did suggest that the bondsmen be included as respondents. That is in accordance with sound procedural rules. At this stage, however, there is no necessity for strict compliance with such requirement. Their counsel, Attorney Hilario B. Sagun, Jr., relied on the same argument on the innovation of the Constitution as to the trial of an accused in his absence in a supplemental argument to motion for reconsideration filed with respondent Judge. What is more, in the reply to the opposition to the motion for reconsideration, the aforesaid counsel was again heard on behalf of his clients. Again, in the Comment which private respondent, the accused Gamayon, submitted to this Court, the same counsel argued on behalf of the bondsmen, relying, as could be expected, in the implausible and far-fetched interpretation of the significance to be attached to the constitutional provision allowing trial to proceed in the absence of the accused. It cannot be truly said, therefore, that they had not been accorded a hearing. At any rate, the original order which ought not to have been set aside, conformably to the Rules of Court, did grant the bondsmen a period of thirty days from notice within which to produce the body of the accused and also to show cause why judgment should not be rendered against them for the amount of their undertaking. Thus, they would be accorded full opportunity to present whatever defenses may be availed of by them. To all intents and purposes, therefore, there is no juridical objection to considering the petition amended in the sense that the bondsmen are deemed included. To require an amendment to the petition would, under the circumstances, be sheer superfluity. To repeat, certiorari lies.

WHEREFORE, the petition for certiorari is granted and the order of respondent Judge of April 5, 1977, lifting and setting aside his previous order of the forfeiture of the bond dated February 7, 1977, is nullified and declared to be without any force or effect for having been issued with grave abuse of discretion. The order of February 7, 1977 is restored and declared to be fully operative and subsisting. Its terms are to be strictly complied with, a new notice to be furnished the bondsmen to show cause why judgment should not be rendered against them for the amount of their undertaking. Respondent Judge Hermenegildo A. Prieto, Sr. is given a period of thirty days from receipt of a copy of this decision to show cause why no disciplinary action should be taken against him for allowing the accused, Dario Gamayon, to leave the country.

Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

The constitutional provision allowing trial in absentia did not abrogate section 15, Rule 114 of the Rules of Court regarding forfeiture of the bail bond in case the accused fails to appear at the trial. An means should be availed of to compel the accused to appear at the trial so that he may be Identified and fingered by the prosecution witnesses and So that the decision may be properly promulgated. The forfeiture of the bail bond is one means of enforcing the attendance of the accused at the trial. If the accused went abroad, passport may be cancelled (Suntay vs. People, 101 Phil. 833).

Separate Opinions

AQUINO, J., concurring:

The constitutional provision allowing trial in absentia did not abrogate section 15, Rule 114 of the Rules of Court regarding forfeiture of the bail bond in case the accused fails to appear at the trial. An means should be availed of to compel the accused to appear at the trial so that he may be Identified and fingered by the prosecution witnesses and So that the decision may be properly promulgated. The forfeiture of the bail bond is one means of enforcing the attendance of the accused at the trial. If the accused went abroad, passport may be cancelled (Suntay vs. People, 101 Phil. 833).

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. L-47309 January 30, 1982

BELFAST SURETY AND INSURANCE COMPANY, INC., thru its Vice-President and General Manager MAURO T. ALLARDE, petitioners, vs. THE PEOPLE OF THE PHILIPPINES, and THE HON. PEDRO N. LAGGUI Presiding Judge, Circuit Criminal Court, Fifth Judicial District, San Fernando, Pampanga, respondents.

CONCEPCION JR., J.:

This is a petition for certiorari and prohibition, with a prayer for the issuance of a writ of preliminary injunction premised upon the following facts:

Sometime on April 7, 1975, an information was filed with the Circuit Criminal Court of San Fernando, Pampanga, charging the accused Allan Pangilinan, Angelito Pangilinan, Reynaldo Tiotuico, and Lauriano Tiamzon with the crime of murder, docketed therein as Criminal Case No. CCC-V-1142.

All the accused posted their bail bonds for their provisional liberty. The petitioner Belfast Surety and Insurance Co., Inc., executed the bail bond for the accused Allan Pangilinan in the sum of P20,000.00.

When arraigned, all the accused entered a plea of not guilty; thereafter, trial proceeded. At the trial held on April 29, 1976, the accused Allan Pangilinan failed to appear, 1 despite the fact that he was notified of said trial thru the petitioner. 2 Thereupon, the respondent Judge issued an order 3 dated April 29, 1976, the dispositive portion of which reads as follows:

WHEREFORE, the Court hereby orders the arrest of the accused, ... Allan Pangilinan, for his (their) failure to appear this afternoon, as well as the forfeiture of the bond posted for him (them) by his (their) Surety is hereby directed to produce the person of the said accused and show cause why no judgment should be rendered against it in the amount of its bond, within a period of thirty (30) days from receipt of this Order.

Considering that the bond of the accused stipulates that the trial will proceed notwithstanding his (their) absence, if such absence is not justified, the Court hereby orders that the trial of this case proceed as scheduled in the absence of the accused, ... Allan Pangilinan.
4

a copy of which was received by the petitioner on May 6, 1976.

Again, at the trial held on May 10, 1976, the accused Allan Pangilinan failed to appear, and again, the respondent Judge issued an order 5 dated May 10, 1976, the dispositive portion of which reads as follows:

WHEREFORE, on motion of the District State Prosecutor, the Court hereby orders the arrest of ... Allan, surnamed Pangilinan and the forfeiture of his (their) bond for his (their) failure to appear for trial this morning. ... , the Belfast Surety and Insurance Co., Inc. is hereby ordered to produce the person of the said accused, Allan Pangilinan ... and to show cause why no judgment in the amount of its bond should be rendered against it for its failure to produce the said accused to appear this morning, within 30 days from its receipt of this order.

xxx xxx xxx

SO ORDERED.
6

The said order was received by the petitioner on May 17, 1976.

After the prosecution had rested its case on May 13, 1976, the accused instead of presenting their evidence moved that they be allowed to file a motion to dismiss (demurrer to evidence), and there being no opposition on the part of the prosecution, the respondent Judge granted the same. The accused filed their demurrer to evidence on May 18, 1976. 7 Acting upon the said "Demurrer to Evidence", the respondent Judge issued, on May 31, 1976, an order, 8 the dispositive portion of which reads as follows:

WHEREFORE, the Court finding the Demurrer to Evidence dated May 17, 1976, filed by the accused legally tenable, hereby grants the relief prayed for therein and, accordingly orders the ACQUITTAL of all the said accused of the charge in the above-entitled case with costs de oficio, and the cancellation of the bail bond posted for the accused, Angelito Pangilinan, Lauriano Tiamzon and Reynaldo Tiotuico only.

SO ORDERED.

which was promulgated on the same day. Thereafter, on June 29, 1976, or twenty-nine (29) days after the promulgation of the order of acquittal, the respondent Judge rendered a judgment, 9 reading as follows:

On April 29, 1976, the Court issued an Order for the arrest of the accused Allan (or Arnold) Pangilinan and the forfeiture of his bond for his failure to appear for trial on the said date, and for his surety, the Belfast Surety and Insurance Company, Inc. to produce the person of the accused and to show cause why no judgment in the amount of its bond should be rendered against it, within thirty (30) days from its receipt of the said Order. The said surety received a copy of the said Order of April 29, 1976, on May 6, 1976. Up to now, it has neither surrendered the person of the said accused to the Court, nor given any reason for its failure to produce him before the Court; it has likewise given no satisfactory explanation why the accused did not appear before the Court on April 29, 1976.

WHEREFORE, the Court hereby renders judgment against the surety, Belfast Surety and Insurance Co., Inc. condemning the said surety to pay the Republic of the Philippines the sum of P20,000.00 in Philippine Currency, which represents the bond it posted for the said accused Allan (or Arnold) Pangilinan on April 24, 1975 in the above-entitled case.

SO ORDERED.
10

a copy of which was received by the petitioner on July 7, 1976.

11

On July 20, 1976, the petitioner moved to reconsider; received by the petitioner on August 7, 1976. 13

however, the same was denied by the respondent judge in his order dated August 3, 1976, 12 a copy of which was

On March 3, 1977, the respondent judge issued an order Court.

14

directing the issuance of a writ of execution, and on the same date a writ of execution

15

was issued by the Clerk of

On June 17, 1977, the petitioner filed a motion to recall and/or set aside the judgment dated June 29, 1976, 16 on the ground of want of jurisdiction on the part of the court to render the same. The said motion, however, was denied by the respondent judge in his order dated June 20, 1977, 17 a copy of which was received by the petitioner on July 2, 1977. 18
19

On July 22, 1977, the petitioner filed a motion for reconsideration; received by the petitioner on September 15, 1977. 21

but the same was denied by respondent judge in 20 a copy of winch was Ms order dated September 8, 1977,

Hence, on November 17, 1977, the petitioner interposed the present petition for CERTIORARI, to annul and set aside the judgment dated June 29, 1976 as well as the orders dated March 3, 1977, June 30, 1977 and September 8, 1977 as having been rendered and issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, and PROHIBITION to inhibit and enjoin the respondent judge from further issuing orders, writs and/or processes to enforce the questioned judgment and orders.

As prayed for by the petitioner, this Court issued on November 28, 1977, a temporary restraining order, enjoining the respondent judge from enforcing and/or carrying out the judgment dated June 29, 1976 and the order dated March 3, 1977, as well as all other subsequent orders issued pursuant to said judgment, given in Criminal Case No. CCC-V1142, entitled "People of the Philippines, plaintiff vs. Allan Pangilinan, accused," of the Circuit Criminal Court, Fifth Judicial District of San Fernando, Pampanga, and required the respondents herein to comment on the petition. The respondent judge and the Solicitor General, as counsel for the respondent People of the Philippines, filed their respective comment, 22 on the petition, on January 5, 1978 and February 17, 1978. On October 9, 1978, the Court resolved to consider respondents' comments as answers to the petition and the case submitted for decision.

The issue to be resolved in the present case is whether or not the respondent judge acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in rendering the judgment of June 29, 1976, and in issuing all the subsequent orders in Criminal Case No. CCC-V-1142.

Section 15, Rule 114 of the Revised Rules of Court, provides as follows: Section 15. Forfeiture of bail. When the appearance of the defendant is required by the court his sureties shall be notified to produce him before the court on a given date. If the defendant fails to appear as required, the bond is declared forfeited and the bondsmen are given thirty (30) days within which to produce their principal and to show cause why a judgment should not rendered against them for the amount of the bond. Within the said period of thirty (30) days, the bondsmen (a) must produce the body of their principal or give the reason for its non-production; and (b) must explain satisfactorily why the defendant did not appear before the court when first required so to do. Falling in these two requisites, a judgment shall be rendered against the bondsmen.

In the case at bar, the records show that the accused Allan Pangilinan failed to appear at the hearing held on April 29, 1976, despite due notice to the surety, the herein petitioner. Hence, on the same date, the respondent judge issued an order, ordering the arrest of the accused and declaring the forfeiture of the bond posted for him by the petitioner. In the same order, the respondent judge also required the petitioner to produce the body of the accused and to show cause why no judgment should be rendered against it for the amount of the bond, within thirty (30) days from receipt of the said order. The order of the respondent Judge of April 29, 1976, was received by the petitioner on May 6, 1976. It had, therefore, thirty (30) days from the said date, or up to June 5, 1976, within which to comply with the said order. However, on May 31, 1976, that is, five days before the expiration of the 30-day period, the respondent Judge issued and promulgated an order acquitting all the accused in the presence of their counsel, and ordered the cancellation of their bonds, except that of the accused Allan Pangilinan. Considering that the order of acquittal was promulgated five (5) days before the expiration of the 30-day period, We believe that the petitioner was relieved of its duty to produce the body of the accused Allan Pangilinan, and to show cause why no judgment should be rendered against it for the amount of the bond. 23 It would have been different if the order of acquittal was promulgated after the 30-day period, because by then, the liability of the petitioner would have become fixed and the order of forfeiture final. It is true that in People vs. Uy Eng Hui, 49 Phil. 954, this Court held that the fact that a criminal prosecution is finally dismissed on the motion of the fiscal does not relieve the bondsmen of the accused from the effects of a previous forfeiture of tile bond consequent upon nonappearance of the accused at the time originally set for hearing. However, the ruling in the said case is inapplicable here because in that case the dismissal took place long after the 30-day period had elapsed.

Besides, in the implementation of Section 15, Rule 114 of the Revised Rules of Court, the courts generally adopt a liberal attitude towards the bondsmen and accept, if satisfactory, the explanation for the non-production of the person of the accused, because "the ultimate desire of the State is not the monetary reparation of the bondsman's default, but the enforcement and execution of the sentence, such as the imprisonment of the accused or the payment by him of the fine imposed. The surrender of the accused so that he can serve his sentence is its ultimate goal or object. The provision for the confiscation of the bond, upon failure within a reasonable time to produce the person of the accused for the execution of his sentence, is not based upon a desire to gain from such failure; it is to compel the bondsman to enchance its efforts to have the person of the accused for the execution of his sentence. 24 Since the judgment in the case at bar is for acquittal, the reason for the confiscation of the bond, upon failure of the bondsman to produce within a reasonable time the person of the accused, for the execution of the sentence, does not exist. Under the facts obtaining in the case before Us, it would seem that respondent Judge acted harshly against the petitioner. In his Comments on the Rules of Court, the late Chief Justice Manuel V. Moran observes that "(i)t is a general practice followed by all courts in the Philippines to cancel motu proprio the bond when a judgment of acquittal is rendered. And even if no such cancellation is ordered, the bond is ipso factocancelled and all obligations arising therefrom are extinguished. 25 Besides, a judgment of acquittal is final immediately after promulgation. 26 The respondent Judge's order of acquittal, therefore, became final immediately after its promulgation on May 31, 1976. After the said date, the respondent Judge had no more jurisdiction over the case and over the person of the accused Allan Pangilinan. Since the respondent Judge's judgment on the bond was rendered on June 29, 1976, 29 days after the order of acquittal became final, the same is nun and void for lack of jurisdiction.

The respondents, however, argue that although the presence of the accused Allan Pangilinan was not necessary during the promulgation of the order of acquittal, nevertheless, he should have at least been given a copy of the order, and since none was given to him, no judgment was validly entered as against him, citing the case of People vs. So, 101

Phil. 1257 and Cea et al., vs. Cinco, et al., 96 Phil. 131. The contention of respondents cannot be sustained. The ruling in the cited cases are not controlling to the case at bar. The issue in the case of People vs. So, is whether or not the decision, which was read to the defendant therein on November 12, 1954, is nun and void because the Judge who penned the decision had vacated his post on June 19, 1954, in view of the abolition of his position as Judge-at-large under Rep. Act No. 1186. This Court held that: "In criminal cases the judgment is required to be promulgated by reading the judgment or sentence in the presence of the defendant and the judge of the court who rendered it (Rule 1 16, Sec. 6) and although it may be read by the clerk 'when the judge is absent or outside the province," it is implied that it may be read, provided he is still the all therein. ... as the judgment was promulgated after the judge who penned it had ceased to be a judge, it was not legally binding. ... " In the case ofCea et al., vs. Cinco, et al., this Court held that where the judgment is one of acquittal, "reading in the presence of the defendant" may be substituted by giving a copy of the decision to him and such act - delivery of copy amounted to promulgation. There is nothing however in the decision which invalidates the promulgation of a judgment of acquittal where the defendant is not furnished a copy of the decision. On the contrary, Section 6, Rule 120 of the Revised Rules of Court does not require that a copy of the judgment be served on the parties. 27 While appeal is the proper remedy from a judgment of forfeiture, 28 nevertheless, certiorari is available despite the existence of the remedy of appeal where the judgment or order complained of was either issued in excess of or without jurisdiction. 29 Besides, appeal under the circumstances of the present case is not an adequate remedy since the trial court had already issued a writ of execution. Hence, the rule that certiorari does not he when there is an appeal is relaxed where, as in the present case, the trial court had already ordered the issuance of a writ of execution. 30

WHEREFORE, the writs prayed for are granted and the judgment of the respondent Judge in Criminal Case No. CCC-V-1142, dated June 29, 1976, and the subsequent Orders dated March 3, 1977, June 30, 1977 and September 8, 1977, are hereby annulled and set aside. The restraining order theretofore issued is hereby made permanent.

Without costs.

SO ORDERED.

Barredo (Chairman), Abad Santos, De Castro, Ericta and Escolin, JJ., concur.

Separate Opinions

AQUINO, J., dissenting:

I dissent. The 1976 judgment against the bond had long become final and executory when the petition for certiorari and prohibition in this case was filed. The trial court had jurisdiction to render judgment against the bond because the acquittal judgment in favor of Allan Pan had never been promulgated precisely because he never appeared in court.

Separate Opinions

AQUINO, J., dissenting:

I dissent. The 1976 judgment against the bond had long become final and executory when the petition for certiorari and prohibition in this case was filed. The trial court had jurisdiction to render judgment against the bond because the acquittal judgment in favor of Allan Pan had never been promulgated precisely because he never appeared in court.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 93177 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT. MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC. RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA, MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ. FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL COURT-MARTIAL NO. 14 COMPOSED OF: B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents.

No. 95020 August 2, 1991

B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, petitioners, vs. HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT PA., respondents.

No. 96948 August 2, 1991

B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC. JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PENA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14, respondents.

No. 97454 August 2, 1991

AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT. COL. ALBERTO OLARIO, Commanding Officer of the PNP/INP Detention Center/Jail, petitioners, vs. HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT MEMEL ROJAS PN(M) and 2LT HERMINIO L. CANTACO PC, respondents.

Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero, Ericson Aurelio, Levino Valencia, Danilo Arnon Vergel Nacino, Florencio Flores, Benigno Junio and Joey Sarroza.

Manuel Q. Malvar for Rafael Galvez and Danny Lim.

Manuel E. Valenzuela for Arsenio Tecson

Mariano R. Santiago for Alfredo Oliveros.

Ricardo J.M. Rivera for Manuel Ison.

Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.

Alfredo Lazaro for Romelino Gojo.

Manuel A. Barcelona, Jr. for Jose Comendador.

Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando.

Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.

Efren C. Moncupa for All Tecson.

M.M. Lazaro & Associates for respondents Ligot and Ison .

Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot.

Salvador B. Britanico for Cesar de la Pena.

Gilbert R.T. Reyes for Danilo Pizarro.

Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177.

The Solicitor General for respondents.

CRUZ, J.:p

These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident.

The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d' etat that took place on December 1 to 9, 1989.

The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder).

In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the charges against them and the creation of the General Court Martial GCM convened to try them.

In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408.

In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed oncertiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents.

In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020.

Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the petitioners, to wit:

You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS.

Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence.

On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements of witnesses, and death and medical certificates of victims of the rebellion.

At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing This was done through a Motion for Summary Dismissal dated February 21, 1990.

In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses.

On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14,1990.

The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides: Art. 71. Charges Action upon. Charges and specifications must be signed by a person subject to military law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief.

No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. (Emphasis supplied.)

They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution witnesses were presented to reaffirm their affidavits. while the motion for summary dismissal was denied, the motion for reconsideration remains unresolved to date and they have not been able to submit their counter-affidavits.

At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their right to raise peremptory challenges against the president and members of GCM No.14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued under P.D. No. 39.

In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot.

On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court.

After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison.

On August 22, 1990, the trial court rendered judgment inter alia:

(a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the assailed orders of General Court- Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14.

Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson.

On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpuson the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release.

II

The Court has examined the records of this case and rules as follows.

It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial.

The said petitioners cannot now claim they have been denied due process because the investigation was resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly warned In the subpoena sent them that "failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their defense.

Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violation of the Bill of Rights.

There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general court- martial of jurisdiction." We so held in Arula v. Espino, 1 thus:

xxx xxx xxx

But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction.

The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said:

We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counter-part is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable pre-requisite to the exercise of the Army General court martial jurisdiction.. The Article does serve important functions in the administration of court-martial procedures and does provide safeguards to an accused. Its language is clearly such that a defendant could object to trial in the absence of the required investigation. In that event the court-martial could itself postpone trial pending the investigation. And the military reviewing authorities could consider the same contention, reversing a court- martial conviction where failure to comply with Article 70 has substantially injured an accused. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pre-trial investigations fall short of the standards prescribed by Article 70. That Congress has not required analogous pre-trial procedure for Navy court-martial is an indication that the investigatory plan was not intended to be exalted to the jurisdictional level.

xxx xxx xxx

Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But this holding has been expressly repudiated in later holdings of the Judge Advocate General. This later interpretation has been that the pre-trial requirements of Article 70 are directory, not mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's interpretation was pointedly called to the attention of Congress in 1947 after which Congress amended Article 70 but left unchanged the language here under consideration. compensable pre-requisite to the exercise of Army general courtmartial jurisdiction

A trial before a general court-martial convened without any pretrial investigation under article of war 71 would of course be altogether irregular but the court-martial might nevertheless have jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity of the proceedings. As to what law should govern the conduct of the preliminary investigation, that issue was resolved more than two years ago in Kapunan v. De Villa, 2 where we declared:

The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge sheets, charging petitioners and their co-respondents with mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had investigated the matter through an evaluation of the pertinent records, including the reports of respondent AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge sheets were not certified in the manner provided under said decrees, i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that they voluntarily executed and understood its affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against them.

That petitioners were not able to confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance with P. D, No. 77, as amended by P.D. No. 911.

The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of the Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by Gen. Renato de Villa as Chief of Staff.

Article of War No. 8 reads: Art. 8. General Courts-Martial. The President of the Philippines, the Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority. ...

While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he authorized it because the order itself said it was issued "By Command of General De Villa" and it has not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned the said order, as he would certainly have done if his authority had been improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M 6 in the Comment filed for him and the other respondents by the Solicitor General.

Coming now to the right to peremptory challenge, we note that this was originally provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit: Art. 18. Challenges. Members of general or special courts-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged except for cause. The history of peremptory challenge was traced in Martelino v. Alejandro, 3 thus:

In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, its aside from the fact that the officer corps of the developing army was numerically made equate for the demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory challenges should not in the meanwhile be permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court- martial or by the accused. After December 17,1958, when the Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War 11 in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12,1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause.

On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them.

On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction, Procedure, and other matters relevant to military Tribunals). This decree disallowed the peremptory challenge, thus:

No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced.

On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No. 39 was embodied in this decree.

On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending therein.

P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein. With the termination of martial law and the dissolution of the military tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased automatically.

It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases.Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul.

Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived and now again allows the right to peremptory challenge.

We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime.

The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present government should invoke the rules of that discredited body to justify its action against the accused officers.

The Court realizes that the recognition of the right to peremptory challenge may be exploited by a respondent in a court-martial trial to delay the proceedings and defer his deserved Punishment. It is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their adverse effects. This is a problem only the political departments can resolve.

The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings.

The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals 4 where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals.

It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts.

In Martelino, we observed as follows:

It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion what in the language of Rule 65 is referred to as "grave abuse of discretion" as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition ... .

The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on petitions forhabeas corpus and quo warranto. 5 In the absence of a law providing that the decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction.

We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist.

The justification for this exception was well explained by the Solicitor General as follows:

The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail.

Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system.

xxx xxx xxx

National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25,1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice.

The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians.

On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more than one year from their arrest, our finding is that there was substantial compliance with the requirements of due process and the right to a speedy trial.

The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991, by the respondent court, where the petitioners submitted the charge memorandum and specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and specifications and were required to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of more than one year in the investigation and preparation of the charges against the private respondents. However, this was explained by the Solicitor General thus:

... The AFP Special Investigating Committee was able to complete it pre-charge investigation only after one (1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months to finish. The pre-charge investigation was rendered doubly difficult by the fact that those involved were dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout Rangers, have already been disbanded. After the charges were completed, the same still had to pass review and approval by the AFP Chief of Staff.

While accepting this explanation, the Court nevertheless must reiterate the following admonition:

This Court as protector of the rights of the people, must stress the point that if the participation of petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed against him or the existence of a prima facie case warranting trial before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must be taken to try the person accused or to dissmiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion may even be punished as a court martial may direct.
6

It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The 48- hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the decision had not yet become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991.

III

Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court in Arula:

The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ ofcertiorari.

As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released.

ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of the private respondents are hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

SARMIENTO, J., concurring:

I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he would deny bail to accused military personnel.

The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong." 1 The Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas corpus is suspended." 2 To deny the military officers here concerned of the right to bail is to circumscribe the inclusive meaning of "all persons" the coverage of the right.

I believe that military officers fall within "persons".

The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice." 3 But would a scenario of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally dangerous" elements of society?

We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be granted the same right.

The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we are a government of laws, not tradition.

If there are precedents that attest to the contrary, I submit that a reexamination is in order.

Separate Opinions

SARMIENTO, J., concurring:

I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent insofar as he would deny bail to accused military personnel.

The Constitution explicitly grants the right to bail to "all persons" before conviction, with the only exception of "those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong." 1 The Charter also states that "[T]he right to bail shall not be impaired even if the writ of habeas corpus is suspended." 2 To deny the military officers here concerned of the right to bail is to circumscribe the inclusive meaning of "all persons" the coverage of the right.

I believe that military officers fall within "persons".

The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail [t]he sheer number alone is already discomforting . . . [b]ut, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice." 3 But would a scenario of 1,000 murderers or drug pushers roaming the streets of the metropolis justify a denial of the right to bail? Would not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally dangerous" elements of society?

We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners should not be granted the same right.

The majority would point to tradition, supposed to be firmly settled, as an argument to deny bail. I submit, however, that tradition is no argument. First, the Constitution does not say it. Second, we are a government of laws, not tradition.

If there are precedents that attest to the contrary, I submit that a reexamination is in order.

Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION

G.R. No. 88555 November 21, 1991

EDUARDO N. ASWAT, petitioner, vs. BRIGADIER-GENERAL ALEJANDRO GALIDO, in his capacity as Commander of the Southern Luzon Command, Armed Forces of the Philippines, Camp Guillermo Nakar, Lucena City, respondent.

Pacifico M. Monje for petitioner.

FELICIANO, J.:p

In this Petition for Habeas Corpus, petitioner challenges the jurisdiction of the General Court-Martial which was convened by then respondent Brigadier General Alejandro Galido 1 as Commanding General of the Southern Luzon Command ("SOLCOM") to try petitioner for a specification (offense) committed outside a military reservation or installation.

Petitioner Eduardo N. Aswat and victim Felix B. Nebres were both enlisted men of the Armed Forces of the Philippines ("AFP") respectively holding the ranks Private First Class and Corporal. Aswat and Nebres were assigned to the SOLCOM but Aswat was detailed as caretaker of Brigadier General Galido's Baguio resthouse while Nebres was assigned to act as a personal driver of Brigadier General Galido's wife. On 29 December 1988, petitioner was involved in a shooting incident at Dominican Hills, Baguio City, which resulted in the death of Nebres.

Records disclose that petitioner voluntarily surrendered to the Baguio City police authorities and was briefly incarcerated at the Baguio City Jail until he was transferred to a SOLCOM detention cell on 31 December 1988. Petitioner has been detained at the SOLCOM Headquarters in Camp Guillermo Nakar, Lucena City since then.

On 20 April 1989, petitioner was charged before a SOLCOM General Court-Martial ("SOLCOM-GCM") with violation of Article 94 of the Articles of War ("A.W."), the specification being homicide.

While the court-martial proceedings were going on, petitioner filed the instant petition, contending: (1) that the specification of homicide with which he was charged was committed outside a military installation and hence the offense was cognizable by a regular, civilian court; (2) that he is entitled to be released on bail as a matter of right pursuant to Section 13, Article III of the Constitution; and (3) that he should be given his due base pay and other pay, aside from the allowances he has been receiving, computed from the time of commencement of his detention.

The Court en banc issued the writ of habeas corpus and required respondent to make a return of the writ before the Third Division of the Court. through the Third Division, resolved to require the parties to file their memoranda in amplification of their respective oral arguments. 3

2 After hearing, the Court,

Petitioner seeks to make a distinction between offenses committed outside and those committed inside a military installation or reservation. He assails the jurisdiction of the SOLCOM-GCM, alleging that the specification of homicide was committed in Baguio City and in an area outside any military installation or reservation.

The distinction upon which petitioner anchors his argument was obliterated sometime ago. As the law now stands, as long as the accused is subject to military law, as defined under Article 2, A.W., 4 he shall be punished as a court-martial may direct.

Art 94. Various Crimes.Any person subject to military law who commits any felony, crime, breach of law or violation of municipal ordinances which is recognized as an offense of a penal nature and is punishable under the penal laws of the Philippines or under municipal ordinances, (A) inside a reservation of the Armed Forces of the Philippines, or (B) outside any such reservation when the offended party (and each one of the offended parties if there be more than one) is a person subject to military law, shall be punished as a court-martial may direct: In imposing the penalties for offenses falling within this article, the penalties for such offenses provided in the penal laws of the Philippines or in such municipal ordinances shall be taken into consideration. 5(Emphasis supplied).
Article 94, A.W., in its original form, did refer only to offenses committed inside a Philippine military reservation as falling within the jurisdiction of a court-martial. In 1948, however, R.A. No. 242 amended Article 94, A.W. by providing that offenses committed outside a military reservation shall also be punished as a court-martial may direct, but only "when the offended party (and each one of the offended parties if there be more than one)" is similarly subject to military law. 6

There is no question that both petitioner and the deceased Nebres were subject to military law at the time the latter was shot and killed.

Moreover, when the petitioner asked for the affirmative relief of bail from the SOLCOM-GCM, he in effect recognized the jurisdiction of the General Court-Martial. Hence, petitioner is properly deemed estopped to deny such jurisdiction.

Petitioner next contends that his right to bail is explicitly guaranteed in Section 13, Article III of the Constitution.

Although the right to bail applies to "all," the Court has very recently ruled that the guarantee is not without any exception. In Comendador vs. De Villa, et al., 7 the Court en banc, speaking through Mr. Justice Cruz, held:

We find that the right to bail invoked by the private respondents in G.R. No. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where We observed that the right to a speedy trial is given more emphasis in the military where the right to bail does not exist.

The justification for this exception was well explained by the Solicitor General as follows:

The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail.

Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of the democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system.

xxx xxx xxx

The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guarantee requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. Butthey cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. (Emphasis supplied)

Petitioner, as already noted, is a person subject to military law, and under Article 70, A.W., "any person subject to military law charged with crime or with a serious offense under these article shall be placed in confinement or in arrest, as circumstances may require."

Confinement is one way of ensuring presence during sessions of the General Court-Martial; the more important reason underlying the authority to impose confinement is the need to enable the proper military authority to instill discipline with the command and thereby achieve command efficiency. By confining the petitioner, petitioner's unmilitary conduct may be curtailed from spreading within the ranks of the command. The necessity for such confinement is a matter properly left to the sound discretion of petitioner's superior officers. In Domingo vs.Minister of National Defense, 8 the Court en banc, speaking through Mr. Justice Vasquez, held:

The petitioner is a person subject to military law facing charges before a general court-martial, and his release from confinement pending the trial of the charges against him is a matter that lies largely in the discretion of the military authorities. They are undeniably in a better position to appreciate the gravity of said charges and the feasibility and advisability of releasing him or relaxing the terms of his confinement pending the trial and disposition of the case filed against him.

The authority of the respondent to order the arrest and confinement of the petitioner flows from his general jurisdiction over his command. Petitioner being assaigned to SOLCOM, he is directly under the command of then Brigadier General Galido.

The third issue raised by the petitioner concerns his right to receive base pay and other pay during the pendency of his detention. At present, petitioner is receiving a monthly allowance of P540.00. 9

The law defines "pay" to include "base pay and all additional pay for the length of service or type of duty such as longevity pay and flying pay," and distinguishes "pay" from "allowances" which is limited to "quarters, subsistence, travel, and such other allowances as may by law become payable to army personnel." 10

Concerning this issue, Section 18, Article 6 of R.A. No. 138, as amended, provides:

Sec. 18. An enlisted man awaiting trial by Court-martial or the result thereof, is not entitled to receive pay as distinguished allowances until the result of the trial is known; Provided, that any enlisted manwho is placed on a full duty status and performs regular duties while awaiting trial by courtmartial, or the result thereof, shall be entitled to receive all his pay and allowances for the period of such duty unless the same shall have been lawfully forfeited by the approved sentence of a court-martial prior to actual payment thereof to the enlisted man. For the purposes of this section, the restoration to full duty status of enlisted men awaiting trial by court-martial, or the result thereof, shall be as directed by the Chief of Staff, with the approval of the Secretary of National Defense.' (as amended by R.A. 1067). (Emphasis supplied)

Petitioner, during detention, ceased to perform his ordinary military duties. His continued detention necessarily restrains his freedom of work, and he cannot carry out his normal military functions. There is no showing by petitioner that he was placed on "full duty status" and performing "regular duties" pending trial. On the premise of "no work no pay", petitioner cannot insist on his right to receive base pay or any other pay while under detention. However, while petitioner is not entitled to receive any base pay or any other pay during his detention, the law expressly permits him to receive his regular and other allowances, if otherwise entitled thereto, while under detention.

ACCORDINGLY, the Court Resolved to DISMISS the Petition for Habeas Corpus for lack of merit. No pronouncement to costs.

SO ORDERED.

Narvasa, C.J., Cruz, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 138859-60

February 22, 2001

ALVAREZ ARO YUSOP, petitioner, vs. THE HONORABLE SANDIGANBAYAN (First Division), respondent.

PANGANIBAN, J.:

The right of a person to preliminary investigation is recognized by the law and is governed by the Rules of Court. However, the failure to accord this right does not ipso facto result in the dismissal of the information; the case is merely suspended, and the prosecutor directed to conduct the proper investigation.

The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing two Orders 1 of the Sandiganbayan,2 both dated February 15, 1999. The first Order rejected the attempt of petitioner to stop his arraignment in Criminal Case Nos. 24524-25, on the ground that he had been denied the right to a preliminary investigation. In the assailed second Order, the Sandiganbayan directed that a plea of not guilty be entered for all the accused, including herein petitioner.

The Facts Acting on an Affidavit-Complaint3 filed by a certain Erlinda Fadri, the Office of the Ombudsman-Mindanao issued an Order4 dated September 19, 1995, naming the following as respondents: benjamin Arao, Fredireck Winters, Pelaez Pantaran, Eduardo Dablo, Efren Sissay and the city jail warden of Pagadian City. The Order also reqquired respondents, within ten days from receipt thereof, to submit their counter-affidavits and other pieces of controverting evidence. The Office of the Ombudsman for Mindanao issued a Resolution dated January 15, 1998, 5 recommending the prosecution of "the aforenamed respondents" for violation of Article 269 of the Revised Penal Code and Section 3-a in relation to Section 3-e of Republic Act No. 3019 as amended. Significantly, the name of Petitioner Alvarez A. Yusop was included as one of the persons to be prosecuted, although he was not one of the original respondents mentioned in the Order of September 19, 1995. Ombudsman Aniano A. Desierto approved the recommendation.
1wphi1.nt

Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as Criminal Case Nos. 24524 (violation of Section 3-a of RA 3019) and 24525 (unlawful arrect under Article 269 of the Revised Penal Code).

On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case No. 24524. Petitioner, however, posted a bail bond before the Regional Trial Court of Dipolos City on May 20 of the same year. On the same day, he filed a "Motion To Remand Case To The Ombudsman - Mindanao For Preliminary Investigation."

In Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for his alleged failure to submit himself to the jurisdiction of the anti-graft court.

On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of preliminary investigation. In an Order dated September 22, 1998, the Sandiganbayan resolved not to take action on the Motion, because petitioner had not yet submitted himself to its jurisdiction insofar as Criminal Case No. 24525 was concerned.

On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he had not been accorded preliminary investigation. In its two assailed Orders, the Sandigabayan rejected his claim and proceeded with the arraignment. Hence, this recourse.6

Ruling of the Sandiganbayan

The Sandibayan rejected petitioner's plea for preliminary investigation in this wise:

"This morning, the accused herein appeared for arraignment duly represented by their counsel. Before proceeding, Atty. Omar A. Rivera appearing in behalf of accused Yusop informed this court of his reservations about proceeding with the arraignment this morning, primarily on the ground that accused Yusop did not undergo preliminary furnished any notice nor was he informed of the proceedings before the Ombudsman with respect to these cases. It would appear that one of the reasons [therefor] is that the accused despite notice of the existence of the accusation against him in Criminal Case No. 24525, had not given any timely notice nor any statement of any alleged inadequacy of the proceeding regarding the filing of the Information herein; thus, the Court is not persuaded that the claim of the accused Yusop with regard to the inadequacy of the proceedings as against him could still be validly entertained at this time. This is more particularly significant under Section 27 of Republic Act 6770 and xxx Criminal Cases 24524 and 24525 refer to the same incident although the prosecution, for its part, has filed Infomations under different statutes covering the same incident. Thus, the claim of accused Yusop that he was not notified with respect to one of the cases on an identical set of facts herein is not [of] particular significance since this would the be indulging in a superfluity.

xxx

xxx

xxx

"Thus, in view of all the following, the Court will now proceed to the arraignment of the accused herein."

The Issue

Although the parties did not specify the issue in this case, it is clear from their submissions that they are asking this Court to resolve this question: Whether the Sanduganbayan, despite being informed of the lack of preliminary investigation with respect to petitioner, In Criminal Case No. 24524, committed grave abuse of discretion in proceeding with his arraignment.

The Court's Ruling

The Petition is meritorious in part. While petitioner is entitled to preliminary investigation, the case against him should not be dismissed.

Main Issue:

Preliminary Investigation

Preliminary investigation is "an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial." 7 The Court explained that the rationable of preliminary investigation is to "protect the accused from the inconvenience, expense and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer."8 The Rules of Court requires such investigation before an information for an offense punishable by at least four years, two months and one day may be filed in court.9 The old Rules, on the other hand, mandates preliminary investigation of an offense cognizable by the regional trial court.10

Petitioner is charged in Criminal Case No. 24254 with violation of Section 3-a of RA of 3019. Such offense is punishable with, among other penalties, imprisonment of six years and one month to fifteen years.11 Under the aforecited Rules, whether in the old or the revised version, he is entitled to a preliminary investigation.

It is undisputed, however, that before the Information against petitioner was filed, no preliminary invertigation had been conducted. In fact, the Office of the Ombudsman admitted that "petitioner was denied of his right to preliminary investigation." 12

We find no basis for the Sandiganbayan's ruling that petitioner "had not given timely notice nor any statement of the alleged inadequacy of the proceeding regarding the filing of the Information."

First, there was no showing that petitioner was notified of the charges filed by Erlinda Fadri. As earlier noted, he had not been named a s arepondent in the September 19, 1995 Order of the Office of the Ombudsman in Mindanao. His name did not even appear in the caption of its January 15, 1998 Resolution,13 which recommended the filing of charges against the accused. Indeed, in his Compliance with the August 26, 1998 Sandiganbayan Resolution, 14 Special Prosecution Officer Diosdado V. Calonge manifested that petitioner "was not notified of the proceedings of the preliminary investigation and was accordingly not given the opportunity to be heard thereon."15

After learning of the filing of the Information against him when he was served a Warrant of Arrest, petitioner did not dally. He immediately informed the Sandiganbayan that no preliminary investigation had been conducted in regard to him. Several months later, moments before his arraignment, he reiterated his prayer that the preliminary investigation be conducted. In this light, the Sandiganbayan erred in saying that he had not given the court timely notice of this deficiency.

Even assuming that prior to the filing of the Information petitioner had known that the proceedings and the investigation against his co-accused were pending, he cannot be expected to know of the investigator's subsequent act of charging him. Precisely, he had not been previously included therein and, consequently, he had not been notified thereof. In Go v. Court of Appeals,16 this Court held that "the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment." Conversely, if the accused does invoke it before arraignment, as the petitioner did in this case, the right is not waived.

Neither did the filing of a bail bond constitute a waiver of petitioner's right to preliminary investigation. Under Section 26, Rule 114 of the Revised Rules of Criminal Procedure, "[a]n application for or admission to bai; shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. xxx."

We stress that the right to preliminary investigation is substantive, not merely formal or technical. To deny it to petitioner would deprive him of the full measure of his right to due process.17 Hence, preliminary investigation with regard to him must be conducted. We desagree with the Sandiganbayan's reliance on Section 27 of Republic Act 6770. 18 This provision cannot justify the evasion of the requirement set forth in the Rules of Court for conducting preliminary investigation. The law does not sanction such interpretation, for it deals merely with the finality of orders, directives and decisions of the Office of the Ombudsman -- not the deprivation of the substantive right to a preliminary investigation. Moreover, petitioner cannot be bound by the Ombudsman's January 15, 1998 Resolution, which recommended the filing of charges. He was not a party to the case and was not accorded any right to present evidence on his behalf. In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that the baisc rudiments of due process are complied with."19 For its part, the Sandiganbayan opted to remain silent when asked by this Court to comment on the Petition.

Dismissal of the Charges Not Justified Petitioner also prays that the cases against him be dismissed for lack of preliminary investigation. 20 We disagree. In the first place, nowhere in the Revised Rules of Criminal Procedure, or even the old Rules, is there any mention that this lack is a ground for a motion to quash. 21 Furthermore, it has been held that responsibility for the "absence of preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings." 22 We reiterate the following ruling of the Court in People v. Gomez:

"If there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court of their absence, the court, instead of dismissing the information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so the the preliminary investigation may be conducted."23

In sum, Criminal Case No. 24524 must be suspended with respect to petitioner even if the case is already undergoing trial, because "[t]o reach any other conclusion here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated to benefit from its own wrong or culpable ommission and effectively to dilute important rights of accused persons well-nigh to the vanishing point."24

WHEREFORE, the Petition is partially GRANTED. The assailed Orders are REVERSED, and the Office of the Ombudsman is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of violation of Section 3-a of RA 3019 against Petitioner Alvarez Aro Yusop. The trial on the merits of Criminal Case No. 24524 shall be SUSPENDED in regard to petitioner until the conclusion of the preliminary investigation. No pronouncement as to costs.

SO ORDERED.

Melo, Vitug, Gonzaga-Reyes, Sandoval-Gutierrez, JJ: concur.