G.R. No.

L-15138

July 31, 1961

R. L. Resurreccion for petitioner-appellee. Paciano C. C. Villavieja for respondents-appellants. BARRERA, J.: These appeals, although originating from different Courts of First Instance, are here treated together in this single decision because they present but one identical question of law, namely, the validity of Reorganization Plan No. 20-A, prepared and submitted by the Government Survey and Reorganization Commission under the authority of Republic Act No. 997, as amended by Republic Act No. 1241, insofar as it confers jurisdiction to the Regional Offices of the Department of Labor created in said Plan to decide claims of laborers for wages, overtime and separation pay, etc. In G.R. No. L-15138, Manuel Gonzales filed with Regional Office No. 3 of the Department of Labor, in Manila, a complaint (IS-1148) against Bill Miller (owner and manager of Miller Motors) claiming to be a driver of Miller from December 1, 1956 to October 31, 1957, on which latter date he was allegedly arbitrarily dismissed, without being paid separation pay. He prayed for judgement for the amount due him as separation pay plus damages. Upon receipt of said complaint, Chief Hearing Officer Atanacio Mardo of Regional Office No. 3 of the Department of Labor required Miller to file an answer. Whereupon, Miller filed with the Court of First Instance of Baguio a petition (Civil Case No. 759) praying for judgment prohibiting the Hearing Officer from proceeding with the case, for the reason that said Hearing Officer had no jurisdiction to hear and decide the subject matter of the complaint. The court then required the Hearing Officer and Gonzales to answer and, as prayed for, issued a writ of preliminary injunction. The latter file their separate motions to dismiss the petition, on the ground of lack of jurisdiction, improper venue, and non-exhaustion of administrative remedies, it being argued that pursuant to Republic Acts Nos. 997 and 1241, as implemented by Executive Order No. 218, series of 1956 and Reorganization Plan No. 20-A, regional offices of the Department of labor have exclusive and original jurisdiction over all cases affecting money claims arising from violations of labor standards or working conditions. Said motions to dismiss were denied by the court. Answers were then filed and the case was heard. Thereafter, the court rendered a decision holding that Republic Acts Nos. 997 and 1241, as well as Executive Order No. 218, series of 1956 and Reorganization Plan No. 20-A issued pursuant thereto, did not repeal the provision of the Judiciary Act conferring on courts of first instance original jurisdiction to take cognizance of money claims arising from violations of labor standards. The question of venue was also dismissed for being moot, the same having been already raised and decided in a petition for certiorari and prohibition previously filed with this Court in G.R. No. L-14007 (Mardo, etc. v. De Veyra, etc.) which was dismissed for lack of merit in our resolution of July 7, 1958. From the decision of the Court of First Instance of Baguio, respondents Hearing Officer and Gonzales interposed the present appeal now before us. 1

BILL MILLER, petitioner-appellee, vs. ATANACIO A. MARDO, and MANUEL GONZALES, respondentsappellants. x---------------------------------------------------------x G.R. No. L-15377 July 31, 1961

NUMERIANA RAGANAS, plaintiff-appellant, vs. SEN BEE TRADING COMPANY, MACARIO TAN, and SERGIO TAN, defendants-appellees. x---------------------------------------------------------x G.R. No. L-16660 July 31, 1961

VICENTE ROMERO, petitioner-appellee, vs. ANGEL HERNANDO ETC., and SIA SENG, respondents-appellants. x---------------------------------------------------------x G.R. No. L-16781 July 31, 1961

CHIN HUA TRADING COMPANY, and LAO KANG SUY, petitionersappellees, vs. ATANACIO A. MARDO, JORGE BENEDICTO, and CRESENCIO ESTAO, respondents-appellants. x---------------------------------------------------------x G.R. No. L-17056 July 31, 1961

FRED WILSON & CO., INC., petitioner-appellant, vs. MELITON C. PARDUCHO, ETC., and MARIANO PABILIARE, respondents-appellees.

In G.R. No. L-16781, Cresencio Estano filed with Regional Office No. 3 of the Department of Labor, a complaint (RO 3 Ls. Case No. 874) against Chin Hua Trading Co. and/or Lao Kang Suy and Ke Bon Chiong, as Manager and Assistant Manager thereof, respectively, claiming to have been their driver from June 17, 1947 to June 4, 1955, for which service he was not paid overtime pay (for work in excess of 8 hours and for Sundays and legal holidays) and vacation leave pay. He prayed for judgment for the amount due him, plus attorney's fees. Chin Hua Trading, et al., filed their answer and, issues having been joined, hearing thereof was started before Chief Hearing Officer Atanacio Mardo and Hearing Officer Jorge Benedicto. Before trial of the case could be terminated, however, Chin Hua Trading, et al., filed with the Court of First Instance of Manila a petition for prohibition with preliminary injunction (Civil Case No. 26826)), to restrain the hearing officers from proceeding with the disposition of the case, on the ground that they have no jurisdiction to entertain the same, as Reorganization Plan No. 20-A and Executive Order No. 218, series of 1956, in relation to Republic Act No. 997, as amended by Republic Act No. 1241, empowering them to adjudicate the complaint, is invalid or unconstitutional. As prayed for, a preliminary injunction was issued by the court. After due hearing the court rendered a decision holding that Reorganization Plan No. 20-A is null and void and therefore, granted the writ of prohibition making permanent the preliminary injunction previously issued. From this decision, the claimant and the hearing officers appealed to the Court of Appeals, which certified the case to us, as it involves only questions of law. In G.R. No. L-15377, appellant Numeriana Raganas filed with the Court of First Instance of Cebu a complaint (Civil Case No. R-5535) against appellees Sen Bee Trading Company, Macario Tan and Sergio Tan, claiming that she was employed by appellees as a seamstress from June 5, 1952 to January 11, 1958, for which service she was underpaid and was not given overtime, as well as vacation and sick leave pay. She prayed for judgment on the amount due her for the same plus damages. To said complaint, appellees filed a motion to dismiss, on the ground that the trial court has no jurisdiction to hear the case as it involves a money claim and should, under Reorganization Plan No. 20-A be filed with the Regional Office of the Department of Labor; and there is pending before the regional office of the Department of Labor, a claim for separation vacation, sick and maternity leave pay filed by the same plaintiff (appellant) against the same defendants-appellees). Acting on said motion, the court dismissed the case, relying on the provision of Section 25, Article VI of Reorganization Plan No. 20-A and on our resolution in the case of NASSCO v. Arca, et al. (G.R. No. L12249, May 6, 1957). From this order, appellant Raganas appealed to the Court of Appeals, but said court certified the case to us. In G.R. No. L-16660, Vicente B. Romero filed with Regional Officer No. 2 of the Department of Labor a complaint (Wage Case No. 196-W) against Sia Seng, for recovery of alleged unpaid wages, overtime and separation pay. Sia Seng, filed an answer. At the date set for hearing the latter did not appear despite due notice to him and counsel. Upon his petition, Romero

was allowed to present his evidence. Thereafter, a decision was rendered by the Hearing Officer in favor of Romero. Upon the latter's motion for execution, the records of the case were referred to Regional Labor Administrator Angel Hernando for issuance of said writ of execution, being the officer charged with the duty of issuing the same. Hernando, believing that Sia Seng should be given a chance to present his evidence, refused to issue the writ of execution and ordered a re-hearing. As a consequence, Romero filed with the Court of First Instance of Isabela a petition for mandamus (Case No. Br. II-35) praying that an order be issued commanding respondent Regional Labor Administrator to immediately issue a writ of execution of the decision in Wage Case No. 196-W. To this petition, respondent Regional Labor Administrator filed a motion to dismiss, on the ground that it states no cause of action, but action thereon was deferred until the case is decided on the merits. Sia Seng filed his answer questioning the validity of the rules and regulations issued under the authority of Reorganization Plan No. 20-A. After hearing, the court rendered a decision ordering, inter alia, respondent Regional Labor Administrator to forthwith issue the corresponding writ of execution, as enjoined by Section 48, of the Rules and Regulations No. 1 of the Labor Standards Commission. From this decision of the Court of First Instance, Sia Seng and Regional Labor Administrator Hernando appealed to us. Appellant Sia Seng urges in his appeal that the trial court erred in not dismissing the petition, in spite of the fact that the decision sought to be enforced by appellee Romero was rendered by a hearing officer who had no authority to render the same, and in failing to hold that Reorganization Plan No. 20-A was not validly passed as a statute and is unconstitutional. In G.R. No. L-17056, Mariano Pabillare instituted in Regional Office No. 3 of the Department of Labor a complaint (IS-2168) against petitioner Fred Wilson & Co., Inc., alleging that petitioner engaged his services as Chief Mechanic, Air conditioning Department, from October 1947 to February 19, 1959, when he was summarily dismissed without cause and without sufficient notice and separation pay. He also claimed that during his employment he was not paid for overtime rendered by him. He prayed for judgment for the amount due him for such overtime and separation pay. Petitioner moved to dismiss the complaint, on the ground that said regional office "being purely an administrative body, has no power, authority, nor jurisdiction to adjudicate the claim sought to be recovered in the action." Said motion to dismiss having been denied by respondent Hearing Officer Meliton Parducho, petitioner Fred Wilson & Co., Inc. filed with the Court of First Instance of Manila a petition for certiorariand prohibition, with preliminary injunction (Civil Case No. 41954) to restrain respondent hearing officer from proceeding with the case, and praying, among others, that Reorganization Plan No. 20-A, insofar as it vests original and exclusive jurisdiction over money claims (to the exclusion of regular courts of justice) on the Labor Standards Commission or the Regional Offices of the Department of Labor, be declared null and void and unconstitutional. As prayed for, the court granted a writ of preliminary injunction. Respondents Hearing Officer and Pabillare filed answer and the case was heard. After 2

hearing, the court rendered a decision declaring that "by the force of Section 6 of R.A. No. 997, as amended by R.A. 1241, Plan No. 20-A was deemed approved by Congress when it adjourned its session in 1956' (Res. of May 6, 1957 in National Shipyards Steel Corporation v. Vicente Area, G.R. No. L-12249). It follows that the questioned reorganization Plan No. 20-A is valid.". Petitioner Fred Wilson & Co., Inc. appealed directly to us from this decision. The specific legal provision invoked for the authority of the regional offices to take cognizance of the subject matter involved in these cases is paragraph 25 of Article VI of Reorganization Plan No. 20-A, which is hereunder quoted: 25 Each regional office shall have original and exclusive jurisdiction over all cases falling under the Workmen's Compensation law, and cases affecting all money claims arising from violations of labor standards on working conditions including but not restrictive to: unpaid wages, underpayment, overtime, separation pay and maternity leave of employees and laborers; and unpaid wages, overtime, separation pay, vacation pay and payment for medical services of domestic help. Under this provision, the regional offices have been given original and exclusive jurisdiction over: (a) all cases falling under the Workmen's Compensation law; (b) all cases affecting money claims arising from violations of labor standards on working conditions, unpaid wages, underpayment, overtime, separation pay and maternity leave of employees and laborers; and . (c) all cases for unpaid wages, overtime, separation pay, vacation pay and payment for medical services of domestic help. Before the effectivity of Reorganization Plan No. 20-A, however, the Department of Labor, except the Workmen's Compensation Commission with respect to claims for compensation under the Workmen's Compensation law, had no compulsory power to settle cases under (b) and (c) above, the only authority it had being to mediate merely or arbitrate when the parties so agree in writing, In case of refusal by a party to submit to such settlement, the remedy is to file a complaint in the proper court.1

It is evident, therefore, that the jurisdiction to take cognizance of cases affecting money claims such as those sought to be enforced in these proceedings, is a new conferment of power to the Department of Labor not theretofore exercised by it. The question thus presented by these cases is whether this is valid under our Constitution and applicable statutes. It is true that in Republic Act No. 1241, amending Section 4 of Republic Act 997, which created the Government Survey and Reorganization Commission, the latter was empowered (2) To abolish departments, offices, agencies, or functions which may not be necessary, or create those which way be necessary for the efficient conduct of the government service, activities, and functions. (Emphasis supplied.) But these "functions" which could thus be created, obviously refer merely to administrative, not judicial functions. For the Government Survey and Reorganization Commission was created to carry out the reorganization of theExecutive Branch of the National Government (See Section 3 of R.A. No. 997, as amended by R.A. No. 1241), which plainly did not include the creation of courts. And the Constitution expressly provides that "the Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law.(Sec. 1, Art. VII of the Constitution). Thus, judicial power rests exclusively in the judiciary. It may be conceded that the legislature may confer on administrative boards or bodies quasi-judicial powers involving the exercise of judgment and discretion, as incident to the performance of administrative functions.2 But in so doing, the legislature must state its intention in express terms that would leave no doubt, as even such quasi-judicial prerogatives must be limited, if they are to be valid, only to those incidental to or in connection with the performance of jurisdiction over a matter exclusively vested in the courts.3 If a statute itself actually passed by the Congress must be clear in its terms when clothing administrative bodies with quasi-judicial functions, then certainly such conferment can not be implied from a mere grant of power to a body such as the Government Survey and Reorganization Commission to create "functions" in connection with the reorganization of the Executive Branch of the Government. And so we held in Corominas et al. v. Labor Standards Commission, et al. (G.R. No. L-14837 and companion cases, June 30, 1961); . . . it was not the intention of Congress, in enacting Republic Act No. 997, to authorize the transfer of powers and jurisdiction granted to the courts of justice, from these to the officials to be appointed or offices to be created by the Reorganization Plan. Congress is well aware of the provisions of the Constitution that 3

judicial powers are vested 'only in the Supreme Court and in such courts as the law may establish'. The Commission was not authorized to create courts of justice, or to take away from these their jurisdiction and transfer said jurisdiction to the officials appointed or offices created under the Reorganization Plan. The Legislature could not have intended to grant such powers to the Reorganization Commission, an executive body, as the Legislature may not and cannot delegate its power to legislate or create courts of justice any other agency of the Government. (Chinese Flour Importers Assoc. vs. Price Stabilization Board, G.R. No. L4465, July 12, 1951; Surigao Consolidated vs. Collector of Internal Revenue G.R. No. L-5692, March 5, 1954; U.S. vs. Shreveport, 287 U.S. 77, 77 L. ed 175, and Johnson vs. San Diego, 42 P. 249, cited in 11 Am. Jur 921-922.) (Emphasis supplied.) But it is urged, in one of the cases, that the defect in the conferment of judicial or quasi-judicial functions to the Regional offices, emanating from the lack of authority of the Reorganization Commission has been cured by the non-disapproval of Reorganization Plan No. 20-A by Congress under the provisions of Section 6(a) of Republic Act No. 997, as amended. It is, in effect, argued that Reorganization Plan No. 20-A is not merely the creation of the Reorganization Commission, exercising its delegated powers, but is in fact an act of Congress itself, a regular statute directly and duly passed by Congress in the exercise of its legislative powers in the mode provided in the enabling act. The pertinent provision of Republic Act No. 997, as amended, invoked in favor of this argument reads as follows: SEC. 6 (a) The provisions of the reorganization plan or plans submitted by the President during the Second Session of the Third Congress shall be deemed approved after the adjournment of the said session, and those of the plan or plans or modifications of any plan or plans to be submitted after the adjournment of the Second Session, shall be deemed approved after the expiration of the seventy session days of the Congress following the date on which the plan is transmitted to it, unless between the date of transmittal and the expiration of such period, either House by simple resolution disapproves the reorganization plan or any, modification thereof. The said plan of reorganization or any modification thereof may, likewise, be approved by Congress in a concurrent Resolution within such period. It is an established fact that the Reorganization Commission submitted Reorganization Plan No. 20-A to the President who, in turn, transmitted the same to Congress on February 14, 1956. Congress adjourned its sessions without passing a resolution disapproving or adopting the said reorganization plan. It is now contended that, independent of the matter of

delegation of legislative authority (discussed earlier in this opinion), said plan, nevertheless became a law by non-action on the part of Congress, pursuant to the above-quoted provision. Such a procedure of enactment of law by legislative in action is not countenanced in this jurisdiction. By specific provision of the Constitution No bill shall be passed or become a law unless it shall have been printed and copies thereof in its final form furnished the Members at least three calendar clays prior to its passage by the National Assembly (Congress), except when the President shall have certified to the necessity of its immediate enactment. Upon the last reading of a bill no amendment thereof shall be allowed, and the question upon its final passage shall be taken immediately thereafter, and the yeas and nays entered on the Journal. (Sec. 21[a], Art. VI). Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it, but if not, he shall return it with his objections to the House where it originated, which shall enter the objections at large on its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members voting for and against shall be entered on its journal. If any bill shall not be returned by the President as herein provided within twenty days (Sundays excepted) after it shall have been presented to him, the same shall become a law in like manner as if he has signed it, unless the Congress by adjournment prevent its return, in which case it shall become a law unless vetoed by the President within thirty days after adjournment. (Sec. 20[1]. Art. VI of the Constitution). A comparison between the procedure of enactment provided in section 6 (a) of the Reorganization Act and that prescribed by the Constitution will show that the former is in distinct contrast to the latter. Under the first, consent or approval is to be manifested by silence or adjournment or by "concurrent resolution." In either case, the contemplated procedure violates the constitutional provisions requiring positive and separate action by each House of Congress. It is contrary to the "settled and wellunderstood parliamentary law (which requires that the) two houses are to hold separate sessions for their deliberations, and the determination of the one upon a proposed law is to be submitted to the separate determination of the other," (Cooley, Constitutional Limitations, 7th ed., p. 187).

Furthermore, Section 6 (a) of the Act would dispense with the "passage" of any measure, as that word is commonly used and understood, and with the requirement presentation to the President. In a sense, the section, if given the effect suggested in counsel's argument, would be a reversal of the democratic processes required by the Constitution, for under it, the President would propose the legislative action by action taken by Congress. Such a procedure would constitute a very dangerous precedent opening the way, if Congress is so disposed, because of weakness or indifference, to eventual abdication of its legislative prerogatives to the Executive who, under our Constitution, is already one of the strongest among constitutional heads of state. To sanction such a procedure will be to strike at the very root of the tri-departmental scheme four democracy. Even in the United States (in whose Federal Constitution there is no counterpart to the specific method of passaging laws prescribed in Section 21[2] of our Constitution) and in England (under whose parliamentary system the Prime Minister, real head of the Government, is a member of Parliament), the procedure outlined in Section 6(a) herein before quoted, is but a technique adopted in the delegation of the rule-making power, to preserve the control of the legislature and its share in the responsibility for the adoption of proposed regulations.4The procedure has ever been intended or utilized or interpreted as another mode of passing or enacting any law or measure by the legislature, as seems to be the impression expressed in one these cases. On the basis of the foregoing considerations, we hold ad declare that Reorganization Plan No. 20-A, insofar as confers judicial power to the Regional Offices over cases other than these falling under the Workmen's Compensation on Law, is invalid and of no effect. This ruling does not affect the resolution of this Court in the case of National Steel & Shipyards Corporation v. Arca et al., G.R. No. L-12249, dated May 6, 1957, considering that the said case refers to a claim before the Workmen's Compensation Commission, which exercised quasi-judicial powers even before the reorganization of the Department of Labor. WHEREFORE (a) The decision of the Court of First Instance of Baguio involved in case G.R. No. L-15138 is hereby affirmed, without costs; (b) The decision of the Court of First Instance of Manila questioned in case G.R. No. L-16781 is hereby affirmed, without costs;

(c) The order of dismissal issued by the Court of First Instance of Cebu appealed from in case G.R. No. L-15377 is set aside and the case remanded to the court of origin for further proceedings, without costs; (d) In case G.R. No. L-16660, the decision of the Court of First Instance of Isabela, directing the Regional Labor Administrator to issue a writ of execution of the order of the Regional Office No. 2, is hereby reversed, without costs; and . (e) In case G.R. No. L-17056, the decision rendered after hearing by the Court of First Instance of Manila, dismissing the complaint for annulment of the proceedings before the Regional office No. 3, is hereby reversed and the preliminary injunction at first issued by the trial court is revived and made permanents without costs. SO ORDERED. Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Dizon, De Leon and Natividad, JJ., concur. Bautista Angelo, J., on leave, took no part. Concepcion and Paredes JJ., took no part. G.R. No. 147525 February 26, 2007

BONIFACIO ESPINOZA, Petitioner, vs. PROVINCIAL ADJUDICATOR OF THE PROVINCIAL AGRARIAN REFORM ADJUDICATION OFFICE OF PAMPANGA andMARIA QUIBULOY, Respondents. DECISION CORONA, J.: Under review are the January 14, 1994 decision1 and June 01, 2000 resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 502 UDK. The CA dismissed petitioner Bonifacio Espinozas petition for certiorari imputing grave abuse of discretion on the part of the provincial adjudicator of the Provincial Agrarian Reform Adjudication Office (PARAD) of San Fernando, Pampanga in deciding DARAB Case No. 203-P-90. The events leading to this petition for review on certiorari stemmed from an agrarian dispute before the PARAD, San Fernando, Pampanga. A complaint3 for ejectment was filed against petitioner by private respondent Maria V. Quibuloy, as co-owner and administratrix of three parcels of land covered by Transfer Certificate of Title No. 3676. She alleged that petitioner 5

had reneged on his obligations as tenant to pay the rent and till the subject landholding. Instead of answering the complaint, petitioner moved to dismiss the case for lack of jurisdiction. He cited Section 1, Rule III of the 1989 Rules of Procedure of the Department of Agrarian Reform Adjudication Board (1989 DARAB Rules), providing for conciliation proceedings before the Barangay Agrarian Reform Council (BARC) prior to initiating the case. He contended that presentation of a certification from the BARC, attesting that the dispute had been submitted to it for mediation or conciliation without any success of settlement, was a jurisdictional requirement. On that note, he concluded that the provincial adjudicator could not take cognizance of the agrarian dispute due to Quibuloys failure to present the required certificate. The hearing on the motion to dismiss was set on November 7, 1990.4 On the said date, petitioner or his counsel failed to appear, hence the motion was submitted for resolution.5 Without issuing a ruling on petitioners motion, the provincial adjudicator set the case for hearing on May 22, 1991. Again, neither petitioner nor his counsel attended the hearing. Thus, Quibuloy was allowed to present her evidence ex-parte. Thereafter, the dispute was ordered submitted for decision.6 Just before the decision was rendered, petitioner filed his answer assailing Quibuloys personality to bring suit. Petitioner also offered unsubstantiated denials of Quibuloys charges. As his defense, he denied allegations of nonpayment of rents and non-tillage of the land for lack of knowledge and information to form a belief as to the veracity thereof. The provincial adjudicator was sufficiently convinced that Quibuloys allegations were true and correct. Accordingly, he decided the case against petitioner.7 Instead of immediately appealing from the adjudicators decision, petitioner allowed the reglementary period to lapse. Thereafter, he filed a petition for certiorari with the CA. The appellate court dismissed the petition as "unavailing and vacuous."8 It reiterated the well-settled rule that certiorari lies only in cases of errors of jurisdiction and not errors of judgment. It stressed that certiorari cannot be a substitute for a lost appeal. Now, petitioner comes to us with practically a rehash of the issues already raised in the CA, to wit:

I. WHETHER OR NOT PUBLIC RESPONDENT PROVINCIAL ADJUDICATOR OF THE [PARAD] OF PAMPANGA IS CORRECT IN PROCEEDING WITH DARAB CASE NO. 203-P-90 WITHOUT FIRST COMPLYING WITH THE JURISDICTIONAL REQUIREMENTS SET FORTH IN SECTION 1, RULE III OF THE [1989] DARAB REVISED RULES OF PROCEDURE. II. WHETHER OR NOT PUBLIC RESPONDENT PROVINCIAL ADJUDICATOR OF THE [PARAD] OF PAMPANGA IS CORRECT IN DECIDING DARAB CASE NO. 203-P90 WITHOUT FIRST RESOLVING PETITIONERS MOTION TO DISMISS. III. WHETHER OR NOT PUBLIC RESPONDENT ERRED IN RULING THAT PETITIONERS ANSWER TO PRIVATE RESPONDENTS COMPLAINT IN DARAB CASE NO. 203-P-90 WAS FILED OUT OF TIME AND IN NOT CONSIDERING THE SAME. IV. WHETHER OR NOT PUBLIC RESPONDENT IS CORRECT IN DECIDING DARAB CASE NO. 203-P-90 IN FAVOR OF PRIVATE RESPONDENT ON THE BASIS OF THE SELF-SERVING AFFIDAVIT OF THE LATTER AND HER LONE WITNESS CONSIDERING HER FAILURE TO PRESENT THE TITLE OF THE LAND IN QUESTION (TCT NO. 3676) OR ANY DOCUMENT TO SHOW HER AUTHORITY TO ACT AS ADMINISTRATOR OF THE SAME. V. WHETHER OR NOT THE [CAs] DISMISSAL OF THE PETITION FOR CERTIORARI AND DENIAL OF [PETITIONERS] MOTION FOR RECONSIDERATION IS PROPER.9 We deny the petition. A special civil action of certiorari is an independent action, raising the question of jurisdiction where the tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.10 The ultimate purpose of such action is to keep an inferior 6

tribunal within the bounds of its jurisdiction or relieve parties from arbitrary acts of courts.111awphi1.net A petition for certiorari was never meant as a mode of reviewing errors of judgment committed by an inferior tribunal. Thus, it has been settled that the remedy of certiorari is not a substitute for an appeal lost by the party entitled thereto especially if the right of appeal was lost through negligence.12 When the remedy of appeal is available but is lost due to petitioners own negligence or error in the choice of remedies, resort to certiorari is precluded. Under the 1989 DARAB Rules,13 an aggrieved party may appeal the decision of a provincial adjudicator to the Adjudication Board within 15 days from receipt. In this case, petitioner allowed the appeal period to lapse and instead filed a petition for certiorari in the CA roughly three months after the assailed decision was rendered. It is evident that the CA acted on the petition properly. Even if, in the greater interest of substantial justice, certiorari may be availed of, it must be shown that the adjudicator acted with grave abuse of discretion amounting to lack or excess of jurisdiction, that is, that the adjudicator exercised his powers in an arbitrary or despotic manner by reason of passion or personal hostilities, so patent and gross as to amount to an evasion or virtual refusal to perform the duty enjoined or to act in contemplation of law.14 As correctly found by the appellate court, there is no showing that errors of jurisdiction or grave abuse of discretion were committed by public respondent. On the first assigned error, the 1989 DARAB Rules exempted parties residing in non-adjoining barangays from presenting the BARC certification.15 Since it is undisputed that Quibuloy resided in San Nicolas 1ST, Lubao, Pampanga while petitioner stayed in San Agustin, Lubao, Pampanga, the former was not required to present the BARC certification before the adjudicator taking cognizance of the agrarian dispute. Needless to say, the provincial adjudicator did not err in entertaining the dispute notwithstanding the absence of the BARC certification. On the second issue, administrative agencies exercising quasi-judicial functions are not bound by technical rules followed in courts of law. The adjudicator is given enough latitude, subject to the essential requirements of administrative due process, to be able to expeditiously ascertain the facts of the agrarian dispute.16

While there may have been a technical lapse on the part of the adjudicator in disposing of the motion to dismiss, the assailed acts of the adjudicator did not amount to a grave abuse of discretion justifying a writ of certiorari. Considering the technical flexibility afforded to agrarian adjudicators, the order may easily be construed as a denial of the motion to dismiss. What would have been the prudent recourse under the rules was to submit an answer immediately, participate in the hearing and appeal an adverse decision. Sadly, petitioner failed to do any of these. It is now too late for him to dispute the adjudicators decision. Moving on to the third assignment of error, we hold that petitioners answer was indeed filed out of time. While the 1989 DARAB Rules provides that the non-answering respondent (petitioner) may be allowed to belatedly file his answer, it also provides that the answer should be filed before the matter is submitted for decision. Here, petitioner submitted his answer after the case was submitted for decision. Lastly, on the fourth assignment of error, it cannot be overemphasized that only errors of jurisdiction may be reviewed by the CA in a petition for certiorari. "Where the issue or question involved affects the wisdom or legal soundness of the decision not the jurisdiction of the court to render said decision the same is beyond the province of a special civil action for certiorari."17 In sum, the petition failed to prove that the CA committed any reversible error in denying petitioners petition for certiorari as well as his motion for reconsideration. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED. RENATO C. CORONA Associate Justice G.R. No. L-29169 August 19, 1968

ROGER CHAVEZ, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents. 7

Estanislao E. Fernandez and Fausto Arce for petitioner. Office of the Solicitor General for respondents. SANCHEZ, J.: The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction1 he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law. The indictment in the court below the third amended information upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias"Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2 Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described. Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.1wph1.t On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City. The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:. COURT: The parties may proceed.

Our first witness is Roger Chavez [one of the accused]. ATTY. CARBON [Counsel for petitioner Chavez]: I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in presenting him as his witness. I object. COURT: On what ground, counsel? . ATTY. CARBON: On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution. COURT (To the Fiscal): You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?. FISCAL GRECIA: I am not making him as state witness, Your Honor. I am only presenting him as an ordinary witness. ATTY. CARBON: As a matter of right, because it will incriminate my client, I object. COURT: The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the giving of his testimony. xxx xxx xxx 8

FISCAL GRECIA:

COURT: [after the recess] Are the parties ready? . FISCAL: We are ready to call on our first witness, Roger Chavez. ATTY. CARBON: As per understanding, the proceeding was suspended in order to enable me to confer with my client. I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire. COURT: What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witnessstand. ATTY. CARBON: I submit. xxx xxx xxx

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: . MAY IT PLEASE THE COURT: This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel. This representation has been apprised of the witnesses embraced in the information. For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing. COURT: The court will give counsel time within which to prepare his crossexamination of this witness. ATTY. CRUZ: I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information. I did not know until this morning that one of the accused will testify as witness for the prosecution. COURT: That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness. The court will not defer the taking of the direct examination of the witness. Call the witness to the witness stand. EVIDENCE FOR THE PROSECUTION

ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows: ATTY. IBASCO [Counsel for defendant Luis Asistio]: WITH THE LEAVE OF THE COURT: This witness, Roger Chavez is one of the accused in this case No. Q-5311. The information alleges conspiracy. Under Rule 123, Section 12, it states: 'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the coconspirator after the conspiracy is shown by evidence other than such act or declaration.' COURT: That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution events to establish by calling this witness to the witness stand. ATTY. IBASCO: I submit. COURT: The Fiscal may proceed.3 And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia". Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows: A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him about the Thunderbird. But

Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1wph1.t In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto. As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee. At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer.4 Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it. Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang 10

P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan. From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows: In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00. To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-loan backed up by the P5,000.00check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar. About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note. On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor. The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez.

At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign. After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang. When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel. Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded. The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted. As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court. As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court further continued:

11

It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez'accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself.7 The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame. The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car. The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals. On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed. On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous.8 On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed

the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment. It was at this stage that the present proceedings were commenced in this Court. Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented. We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here. 1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right constitutionally entrenched against selfincrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that "No person shall be compelled to be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." . It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty and personal freedom."11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure 12

in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged." So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16 It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Taada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17 Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18 2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence. Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial.23 And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:. What he will testify to does not necessarily incriminate him, counsel. And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused. If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will 13

sustain him if and when the court feels that the answer of this witness to the question would incriminate him. Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him. But surely, counsel could not object to have the accused called on the witness stand. Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" to conviction. The judge's words heretofore quoted "But surely counsel could not object to have the accused called on the witness stand" wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent. 3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27 The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1wph1.t 4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself

as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial. It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involve is not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1wph1.t There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, andintelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur. The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that gives protection - even to the guilty. 30 5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated.34 That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an 14

extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise: Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court as the Sixth Amendment requires by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release of habeas corpus. 41 Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. ... "42 6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled"People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist. No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur. Castro, J., concurs in a separate opinion.

Separate Opinions CASTRO, J., dissenting : In 1901, early in the history of constitutional government in this country, this Court reversed the conviction of an accused who, having pleaded "not guilty," was required by the judge to testify and answer the complaint. The case was that of United States v. Junio, reported in the first volume of the Philippine Reports, on page 50 thereof. Resolution of the case did not require an extended opinion (it consumed no more than a page in the Reports). For indeed the facts fitted exactly into the prohibition contained in The President's Instruction to the (Second) Philippine Commission1 "that no person shall ... be compelled in any criminal case to be a witness against himself.". There was no need either for a dissertation on the Rights of Man, though occasion for this was not lacking as the predominant American members of the Court were under a special commission to prepare the Filipinos for selfgovernment. The privilege against self-incrimination was fully understood by the Filipinos, whose own history provided the necessary backdrop for this privilege. 2

15

The Supreme Court simply said, "The judge had no right to compel the accused to make any statement whatever," and declared the proceedings void. Nor was there a similar judicial error likely to be committed in the years to come, what with the constant reminder of a Bill of Rights enshrined in successive organic acts intended for the Philippines.3 This is not to say that the Philippine history of the privilege ended with the Junio case. To be sure, violations of the privilege took other, and perhaps subtle, forms4 but not the form directly prohibited by the privilege. Even in the recent case of Cabal v. Kapunan5 it was assumed as a familiar learning that the accused in a criminal case cannot be required to give testimony and that if his testimony is needed at all against his co-accused, he must first be discharged.6 If Cabal, the respondent in an administrative case, was required by an investigating committee to testify, it was because it was thought that proceedings for forfeiture of illegally acquired property under Republic Act 13797 were civil and not criminal in nature. Thus Mr. Justice (now Chief Justice) Concepcion could confidently say: At the outset, it is not disputed that the accused in a criminal case may refuse not only to answer incriminatory questions but also to take the witness stand. (3 Whartons Criminal Evidence, pp. 19591960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before the aforementioned Committee is civil or criminal in character. Today, perhaps because of long separation from our past, we need what Holmes called "education in the obvious, more than investigation of the obscure."8 The past may have receded so far into the distance that our perspectives may have been altered and our vision blurred. When the court in the case at bar required the petitioner to testify, it in effect undid the libertarian gains made over half a century and overturned the settled law. The past was recreated with all its vividness and all its horrors: John Lilburne in England in 1637, refusing to testify before the Council of the Star Chamber and subsequently condemned by it to be whipped and pilloried for his "boldness in refusing to take a legal oath;"9 the Filipino priests Gomez, Burgos and Zamora in 1872 condemned by the Inquisition to die by their own testimony. 10 It is for this reason that I deem this occasion important for the expression of my views on the larger question of constitutional dimension. No doubt the constitutional provision that "No person shall be compelled to be a witness against himself" 11 may, on occasion, save a guilty man from his just deserts, but it is aimed against a more far reaching evil recurrence of the Inquisition and the Star Chamber, even if not in their

stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. 12 As Dean Griswold put the matter with eloquence:. [T]he privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized ... [W]e do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands. We have through the course of history developed considerable feeling of the dignity and intrinsic importance of the individual man. Even the evil man is a human being. 13 The Government must thus establish guilt by evidence independently and freely secured; it can not by coercion prove a charge against an accused out of his own mouth. 14 This is not what was done here. What was done here was to force the petitioner to take the witness stand and state his part in the crime charged as "star witness for the prosecution," to use the very words of the decision, and, by means of his testimony, prove his guilt. Thus, the trial court said in its decision: Roger Chavez does not offer any defense. As a matter of fact, his testimony as a witness for the prosecution establishes his guilt beyond reasonable doubt. The petitioner has been variously described by the trial court as "a car agent ... well versed in this kind of chicanery" "a self-confessed culprit," and "a man with at least two convictions for acts not very different from those charged in [the] information." But if he has thus been described it was on the basis of evidence wrung from his lips. If he was ultimately found guilty of the charge against him it was because of evidence which he was forced to give. In truth he was made the "star witness for the prosecution" against himself. But neither torture nor an oath nor the threat of punishment such as imprisonment for contempt can be used to compel him to provide the evidence to convict himself. No matter how evil he is, he is still a human being. The fact that the judgment of conviction became final with the dismissal of the appeal to the Court of Appeals for failure of the petitioner's former counsel to file a brief,15 is of no moment. That judgment is void, and it is precisely the abiding concern of the writ of habeas corpus to provide redress for unconstitutional and wrongful convictions. Vindication of due 16

process, it has been well said, is precisely the historic office of the Great Writ. 16 In many respects, this case is similar to that of Fay v. Noia. 17 Noia was convicted of murder in 1942 with Santo Caminito and Frank Bonino in the County Court of Kings County, New York, in the killing of one Hemmeroff during the commission of a robbery. The sole evidence against each defendant was his signed confession. Caminito and Bonino, but not Noia appealed their convictions to the Appellate Division of the New York Supreme Court. These appeals were unsuccessful but subsequent legal proceedings resulted in the releases of Caminito and Bonino upon findings that their confessions had been coerced and their conviction therefore procured in violation of the Fourteenth Amendment. Although Noia's confession was found to have been coerced, the United States District Court for the Southern District of New York held that, because of Noia's failure to appeal, he must be denied reliefin view of the provision of 28 U.S.C. sec. 2254 that "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State. ..." The Court of Appeals for the Second Circuit reversed the judgment of the District Court and ordered Noia's conviction set aside, with direction to discharge him from custody unless given a new trial forthwith. From that judgment the State appealed. As the Supreme Court of the United States phrased the issue, the "narrow question is whether the respondent Noia may be granted federal habeas corpus relief from imprisonment under a New York conviction now admitted by the State to rest upon a confession obtained from him in violation of the Fourteenth Amendment, after he was denied state post-conviction relief because the coerced confession claim had been decided against him at the trial and Noia had allowed the time for a direct appeal to lapse without seeking review by a state appellate court." In affirming the judgment of the Court of Appeals, the United States Supreme Court, through Mr. Justice Brennan, spoke in enduring language that may well apply to the case of Roger Chavez. Said the Court: 1wph1.t Today as always few indeed is the number of State prisoners who eventually win their freedom by means of federal habeas corpus. These few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his co-defendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can

tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas Corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy. A fitting conclusion of this separate opinion may perhaps be found in two memorable admonitions from Marjorie G. Fribourg and Justice William O. Douglas. Mrs. Fribourg, in her inimitable phrase, warns us that ... Time has taught its age-old lesson. Well-meaning people burnt witches. Well-meaning prosecutors have convicted the innocent. Well-meaning objectives espoused by those not grounded in history can lure us from protecting our heritage of equal justice under the law. They can entice us, faster than we like to believe, into endangering our liberties.18 And these are the unforgettable words of Justice Douglas: The challenge to our liberties comes frequently not from those who consciously seek to destroy our system of government, but from men of goodwill - good men who allow their proper concerns to blind them to the fact that what they propose to accomplish involves an impairment of liberty. xxx xxx xxx

The motives of these men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another, larger surrender. The battle over the Bill of Rights is a never ending one. 1wph1.t xxx xxx xxx 17

The liberties of any person are the liberties of all of us. xxx xxx xxx

confines of this Republic. The after-shocks stunned the nation even more as this ramified to all aspects of Philippine political, economic and social life. To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses appeared and testified and/or produced documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the Board Among the witnesses who appeared, testified and produced evidence before the Board were the herein private respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4 UPON termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the other members of the Board namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private respondents were charged as accessories, along with several principals, and one accomplice. Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY. In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private respondents before the Agrava Board. 6 Private respondents, through their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-entitled cases" 7 contending that its admission will be in derogation of his constitutional right against self-incrimination and violative of the immunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and the rest of the other private respondents likewise filed separate motions to exclude their respective individual testimonies invoking the 18

In short, the liberties of none are safe unless the liberties of all are protected. But even if we should sense no danger to our own liberties, even if we feel secure because we belong to a group that is important and respected, we must recognize that our Bill of Rights is a code of fair play for the less fortunate that we in all honor and good conscience must observe.19 G.R. Nos. 71208-09 August 30, 1985 SATURNINA GALMAN AND REYNALDO GALMAN, petitioners, vs. THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO ACUPIDO, respondents. G.R. Nos. 71212-13 August 30, 1985 PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner, vs. THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.

CUEVAS, JR., J.: On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the country after a long-sojourn abroad, was gunned down to death. The assassination rippled shock-waves throughout the entire country which reverberated beyond the territorial

same ground. 8 Petitioner TANODBAYAN opposed said motions contending that the immunity relied upon by the private respondents in support of their motions to exclude their respective testimonies, was not available to them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit their respective memorandum on the issue after which said motions will be considered submitted for resolution. 10 On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending motions for exclusion and the opposition thereto, together with the memorandum in support thereof, as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's Resolution on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the testimonies of private respondents and other evidences produced by them before the Board, all of which have been previously marked in the course of the trial. 12 All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by them in their respective motion for exclusion. On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other evidence produced by the private respondents in view of the immunity granted by P.D. 1886. 13 Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before Us by way of certiorari 14 praying for the amendment and/or setting aside of the challenged Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a separate petition for certiorari 15 on the same ground. Having arisen from the same factual beginnings and raising practically Identical issues, the two (2) petitioners were consolidated and will therefore be jointly dealt with and resolved in this Decision. The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8) private respondents who did not invoke their rights against self-incrimination before the Agrava Board.

It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said testimonies are admissible against the private respondents, respectively, because of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by contending that such failure to claim said constitutional privilege amounts to a waiver thereof. 16 The private respondents, on the other hand, claim that notwithstanding failure to set up the privilege against self- incrimination before the Agrava Board, said evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section would suffer from constitutional infirmity for being violative of the witness' right against self- incrimination.17 Thus, the protagonists are locked in horns on the effect and legal significance of failure to set up the privilege against self-incrimination. The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to rule on issues involving immunity statutes. The relative novelty of the question coupled with the extraordinary circumstance that had precipitated the same did nothing to ease the burden of laying down the criteria upon which this Court will henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall be guided, as always, by the constitution and existing laws. The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and independent body, instead of any ordinary police agency, be charged with the task of conducting the investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the probable motive behind the assassination and the person or persons responsible for or involved in the assassination hastened its creation and heavily contributed to its early formation. 19 Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all legal intents and purposes, an entity charged, not only with the function of determining the facts and circumstances surrounding the killing, but more importantly, the determination of the person or persons criminally responsible therefor so that they may be brought before the bar of justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt with criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent portion of which provides SECTION 12. The findings of the Board shall be made public. Should the findings warrant the prosecution of any 19

person, the Board may initiate the filing of proper complaint with the appropriate got government agency. ... (Emphasis supplied) The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment and/or determination of the culprit or culprits, their consequent prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify before the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned to testify will include not merely plain witnesses but also those suspected as authors and co-participants in the tragic killing. And when suspects are summoned and called to testify and/or produce evidence, the situation is one where the person testifying or producing evidence is undergoing investigation for the commission of an offense and not merely in order to shed light on the facts and surrounding circumstances of the assassination, but more importantly, to determine the character and extent of his participation therein. Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest) at the time they were summoned and gave their testimonies before the Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so. 21 The jeopardy of being placed behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are sacrosantly enshrined and protected by our fundamental law. 21-a Both these constitutional rights (to remain silent and not to be compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were not immune from prosecution by reason of the testimony given by them. Of course, it may be argued is not the right to remain silent available only to a person undergoing custodial interrogation? We find no categorical statement in the constitutional provision on the matter which reads: ... Any person under investigation for the commission of an offense shall have the right to remain and to counsel, and to be informed of such right. ... 22 (Emphasis supplied)

Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific portion of the subject provision. In all these cases, it has been categorically declared that a person detained for the commission of an offense undergoing investigation has a right to be informed of his right to remain silent, to counsel, and to an admonition that any and all statements to be given by him may be used against him. Significantly however, there has been no pronouncement in any of these cases nor in any other that a person similarly undergoing investigation for the commission of an offense, if not detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of the Bill of Rights. The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and investigation", as in fact the sentence opens with the phrase "any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners' contention that the use of the word "confession" in the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police investigation, for although the word "confession" is used, the protection covers not only "confessions" but also "admissions" made in violation of this section. They are inadmissible against the source of the confession or admission and against third person. 25 It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying conditions than one who is at liberty while being investigated. But the common denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. This is the lamentable situation we have at hand. All the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on that fateful day. Being at the scene of the crime as such, they were among the first line of suspects in the subject assassination. General Ver on the other hand, being the highest military authority of his co-petitioners labored under the same suspicion and so with General Olivas, the first designated investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and rumors from uglywagging tongues, all point to them as having, in one way or another participated or have something to do, in the alleged conspiracy that brought about the assassination. Could there still be any doubt then that their being asked to testify, was to determine whether they were really conspirators and if so, the extent of their participation in the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being called to the witness stand was merely to elicit from 20

them facts and circumstances surrounding the tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting and determining the so-called surrounding facts and circumstances of the assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude that they were called to the stand to determine their probable involvement in the crime being investigated. Yet they have not been informed or at the very least even warned while so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any statement given by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other police agency, all the herein private respondents could not have been compelled to give any statement whether incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to remain silent, to counsel, and be informed that any and all statements given by them may be used against them. Did they lose their aforesaid constitutional rights simply because the investigation was by the Agrava Board and not by any police investigator, officer or agency? True, they continued testifying. May that be construed as a waiver of their rights to remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are not persuaded that when they testified, they voluntarily waived their constitutional rights not to be compelled to be a witness against themselves much less their right to remain silent. Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of the defendant. 26 Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where certain police officers summoned to an inquiry being conducted by the Attorney General involving the fixing of traffic tickets were asked questions following a warning that if they did not answer they would be removed from office and that anything they said might be used against them in any criminal proceeding, and the questions were answered, the answers given cannot over their objection be later used in their prosecutions for conspiracy. The United States Supreme Court went further in holding that:

the protection of the individuals under the Fourteenth Amendment against coerced statements prohibits use in subsequent proceedings of statements obtained under threat or removal from office, and that it extends to all, whether they are policemen or other members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held that in the context of threats of removal from office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against self- incrimination. To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be invoked by any of the herein private respondents before the Agrava Board. The Cabal vs. Kapunan 28 doctrine militates very heavily against this theory. Said case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea that for him to be compelled to testify will be in violation of his right against selfincrimination. We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture case where only property rights were involved, "the right not to be compelled to be a witness against himself" is secured in favor of the defendant, then with more reason it cannot be denied to a person facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements to be given by him, hang on the balance. Further enlightenment on the subject can be found in the historical background of this constitutional provision against self- incrimination. The privilege against self- incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American influence. At first, the provision in our organic laws were similar to the Constitution of the United States and was as follows: That no person shall be ... compelled in a criminal case to be a witness against himself. 30 As now worded, Section 20 of Article IV reads: 21

No person shall be compelled to be a witness against himself. The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify against himself" applies to the herein private respondents notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a criminal case No doubt, the private respondents were not merely denied the aforediscussed sacred constitutional rights, but also the right to "due process" which is fundamental fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M. Fernando, due process ... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair play(Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those strivings for justice and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and political thought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with fixed content unrelated to time, place and circumstances."(Cafeteria Workers v. McElroy 1961, 367 US 1230) Decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939, 308 US 313). Our review of the pleadings and their annexes, together with the oral arguments, manifestations and admissions of both counsel, failed to reveal adherence to and compliance with due process. The manner in which the testimonies were taken from private respondents fall short of the constitutional standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such grave

constitutional infirmities, the individual testimonies of private respondents cannot be admitted against them in ally criminal proceeding. This is true regardless of absence of claim of constitutional privilege or of the presence of a grant of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and extensively discussed in the pleadings and oral arguments of the parties. Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other, which grants what is known as "transactional immunity." The distinction between the two is as follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, "transactional immunity" grants immunity to the witness from prosecution for an offense to which his compelled testimony relates." 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads: SEC. 5. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against selfincrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office. (Emphasis supplied) it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness immuned from prosecution notwithstanding his invocation of the right against self- incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against selfincrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents should have been informed of their rights to remain silent and warned that any and all statements to be given by them may be used against them. This, they were denied, under 22

the pretense that they are not entitled to it and that the Board has no obligation to so inform them. It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners that the right against self-incrimination must be invoked before the Board in order to prevent use of any given statement against the testifying witness in a subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the Constitution, which is the first test of admissibility. It reads: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. (Emphasis supplied) The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier discussed, this exclusionary rule applies not only to confessions but also to admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the commission of an offense. Any interpretation of a statute which will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more constructions or interpretations could possibly be resorted to, then that one which will avoid unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the more usual and apparent import of the language used. 34 To save the statute from a declaration of unconstitutionality it must be given a reasonable construction that will bring it within the fundamental law. 35 Apparent conflict between two clauses should be harmonized. 36 But a literal application of a requirement of a claim of the privilege against self- incrimination as a condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its exercise, thus: SEC. 4. The Board may hold any person in direct or indirect contempt, and impose appropriate penalties therefor. A person guilty of .... including ... refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so

may be summarily adjudged in direct contempt by the Board. ... Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes upon the witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a coextensive protection in the form of IMMUNITY is offered. 37 Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results the private respondents had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same law practically strips away from the witness. With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that hover before Us, we have strictly adhered to the Constitution in upholding the rule of law finding solace in the view very aptly articulated by that wellknown civil libertarian and admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs. Manalang 38 and we quote: I am completely conscious of the need for a balancing of the interests of society with the rights and freedoms of the individuals. I have advocated the balancing-ofinterests rule in an situations which call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any human being. (Emphasis supplied) Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or innocence of the herein private 23

respondents an issue which is before the Sandiganbayan. We are merely resolving a question of law and the pronouncement herein made applies to all similarly situated, irrespective of one's rank and status in society. IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same are DISMISSED. No pronouncement as to costs. SO ORDERED. Aquino, J., concurs (as certified by Makasiar, C.J.). Abad Santos, J., is on leave.

The utilization in the prosecution against them before the Sandiganbayan of the testimonies and other evidence of private respondents before the FFB collides with Section 1, Section 17 and Section 20 of the Bill of Rights of the 1973 Constitution: Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal of the laws. xxx xxx xxx Section 17, No person shall be held to answer for a criminal offense without due process of law. xxx xxx xxx Section 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this Section shall be inadmissible in evidence. The Bill of Rights constitutes the reservation of the sovereign people against, as well as the limitation on, the delegated powers of government. These rights thus enshrined need no express assertion. On the contrary, the police and prosecution officers of the country should respect these constitutional liberties as directed in the recent decision in the Hildawa and Valmonte cases (G.R. Nos. 67766 and 70881, August 14, 1985). The established jurisprudence is that waiver by the citizen of his constitutional rights should be clear, categorical, knowing, and intelligent (Johnson vs. Zerbst, 304 US 458, 464, cited in Abriol vs. Homeres, 84 Phil. 525 [1949] and in Chavez vs. CA, 24 SCRA 663, 682-683). The use of testimonies and other evidence of private respondents before the FFB against them in the criminal cases subsequently filed before the Sandiganbayan would trench upon the constitutional guarantees that "no person shall be deprived of life, liberty, or property without due process of law ... that "no person shall be held to answer for a criminal offense without due process of law" and that (Section 17, Article IV, 1973 Constitution), that "no person shall be compelled to be a witness against himself. ..." and that " a person has the right to remain silent ..." (Section 20, Article IV, 1973 Constitution). 24

Separate Opinions

MAKASIAR, C.J., concurring: To admit private respondents' testimonies and evidence before the FactFinding Board (FFB) against them in the criminal prosecution pending before the Sandiganbayan, would violate their constitutional or human rights the right to procedural due process, the right to remain silent, and the right against self- incrimination. That their testimonies and other evidence they submitted before the FFB in these criminal cases are incriminatory, is confirmed by the very fact that such testimonies and evidence were the very bases of the majority report of the FFB recommending the prosecution of private respondents as accessories. It should be stressed that the basic purposes of the right against selfincrimination are (1) humanity or humanitarian reasons to prevent a witness or accused from being coerced, whether physically, morally, and/or psychologically, into incriminating himself, and (2) to protect the witness or accused from committing perjury, because the first law of nature is selfpreservation.

There can be no implied waiver of a citizen's right against self-incrimination or of his right to remain silent. Any such renunciation cannot be predicated on such a slender or tenuous reed as a dubious implication. Otherwise, it would be easier to lose the human rights guaranteed by the Bill of Rights than to protect or preserve them; it would be easier to enslave the citizen than for him to remain free. Such a result was never intended by the Founding Fathers. The first sentence of Section 20 of the Bill of Rights stating that "no person shall be compelled to be a witness against himself," applies to both the ordinary witness and the suspect under custodial investigation. In support of the rule that there can be no implied waiver of the right against self-incrimination and all other constitutional rights by the witness or by the accused, is the fact that the right against double jeopardy can only be renounced by the accused if the criminal case against him is dismissed or otherwise terminated with his express consent. Without such express consent to the dismissal or termination of the case, the accused can always invoke his constitutional right against double jeopardy. If Section 5 of P.D. 1886 were interpreted otherwise, said section would become a booby trap for the unsuspecting or unwary witness, A witness summoned either by subpoena or by Invitation to testify before the FFB under Section 5, cannot refuse, under pain of contempt, to testify or produce evidence required of him on the ground that his testimony or evidence may tend to incriminate or subject him to a penalty or forfeiture; because the same Section 5 prohibits the use of such testimony or evidence which may tend to incriminate him in any criminal prosecution that may be filed against him. The law or decree cannot diminish the scope and extent of the guarantee against self-incrimination or the right to remain silent or the right against being held to answer for a criminal offense without due process of law, or against deprivation of his life, liberty or property without due process of law. As a matter of fact, numerous decisions culled by American jurisprudence are partial to the rule that immunity statutes which compel a citizen to testify, should provide an immunity from prosecution that is as coextensive, as total and as absolute as the guarantees themselves (Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-1623; Kastigar vs. US 1972, 406 US 441). Even if the witness testified pursuant to an invitation, the invitation does not remove the veiled threat of compulsion, because as stated in the Chavez case, supra.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressures which operate to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion attending to force testimony from the unwilling lips of the defendant (Chavez vs. Court of Appeals, 24 SCRA 663, 679). The summons issued to private respondents has been euphemistically called as an invitation, instead of a subpoena or subpoena duces tecum, as a sign of respect for the important and high positions occupied by private respondents. But the effect of such an invitation thus worded is the same as a subpoena or subpoena duces tecum. Precisely, the phraseology of Section 5 of P.D. 1886 entices the unsuspecting private respondents to testify before the FFB, by dangling in the same Section 5 the assurance that their testimony or the evidence given by them will not be used against them in a criminal prosecution that may be instituted against them. At the very least, their consent to testify was under such misapprehension. Hence, there can be no clear, categorical, knowing and intelligent waiver of the right to remain silent, against self-incrimination, against being held to answer for a criminal offense without due process of law, and against being deprived of life, liberty or property without due process of law under such misapprehension. In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is accentuated by the difference of opinion thereon among the counsels in these cases and among members of this Court. And it is basic in criminal law that doubts should be resolved liberally in favor of the accused and strictly against the government. The procedural due process both under Sections 1 and 17 of the Bill of Rights, Article IV of the 1973 Constitution, simply means, in the language of Justice Frankfurter, the sporting Idea of fair play. The FFB and its counsel did not inform the private respondents herein of their right to remain silent and their right against self-incrimination, and that their testimonies may be utilized against them in a court of law, before they testified. This is not fair to them, and hence, they were denied procedural due process. It should be stressed that the FFB was merely a fact-finding agency for the purpose of gathering all the possible facts that may lead to the Identity of the culprit. Such testimonies may provide leads for the FFB, its counsels and agents to follow up. The FFB and its counsels cannot rely solely on such testimonies to be used against the private respondents in these criminal cases. It should be recalled that the FFB had ample funds for the purpose of 25

accomplishing its object. As a matter of fact. it refunded several million pesos to the government after it concluded its investigation. The Board and its counsel could have utilized the said amount to appoint additional agents to look for witnesses to the assassination. In this respect, the FFB counsel could be faulted in not utilizing the funds appropriated for them to ferret out all evidence that will Identify the culprit or culprits. The failure of the FFB's counsel to use said funds reflects on the initiative and resourcefulness of its counsel. He could prosecute private respondents on evidence other than their testimony and the evidence they gave before the FFB. As heretofore stated, the private respondents were compelled to testify before the FFB whether by subpoena or by invitation which has the effect of a subpoena as provided for in Section 5 of P.D. 1886; because private respondents then believed, by reading the entire Section 5, that the testimony they gave before the FFB could not be used against them in the criminal cases subsequently filed before the Sandiganbayan. Because the Board was merely a fact-finding board and that it was riot conducting a criminal prosecution the private respondents were under the impression that there was no need for them to invoke their rights to remain silent, against self-incrimination and against being held for a criminal offense without due process of law. It should be recalled that the counsel of the FFB after submitting the majority report, refused to cooperate with the Tanodbayan in these cases with the pompous declaration that, after submitting their majority report, he automatically became functus oficio. Was his refusal to cooperate with, and assist, the Tanodbayan in the prosecution of these cases, born of the realization that the FFB majority report is as weak as it was precipitate? And when the Tanodbayan has now his back to the wall, as it were, by the ruling of the respondent Sandiganbayan excluding the testimonies and other evidence of private respondents herein on the ground that the use of their testimonies and other evidence will incriminate them, the FFB counsel, without being requested by the Tanodbayan, now files a memorandum in support of the position of the Tanodbayan. what is the reason for this turn-about to save his report from the fire which they started with such enthusiasm? As above emphasized, it is the duty of the police and the prosecuting authorities to respect their rights under the Constitution as we stated in the recent Hildawa and Valmonte cases, supra. The grant of immunity under Section 5 of P.D. 1886 would be meaningless if we follow the posture of petitioners herein. Such a posture would be correct if the phrase "after having invoked his privilege against selfincrimination" were transposed as the opening clause of Section 5 to read a follows "After having invoked his privilege against self-incrimination, no person shall be excused from attending and testifying ... etc."

Said Section 5 has two clauses and contemplates two proceedings. The first clause from "No person shall be excused ... etc." up to "penalty or forfeiture refers to the proceeding before the FFB. The second clause after the semicolon following the word "forfeiture which begins with but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter, or thing concerning which he is compelled, after having invoked his privilege against self-incrimination to testify . refers to a subsequent criminal proceeding against him which second clause guarantees him against the use of his testimony in such criminal prosecution, but does not immunize him from such prosecution based on other evidence. The private respondents herein, if the contention of the prosecution were sustained, would be fried in their own fat. Consequently, the petition should be dismissed.

CONCEPCION, JR., J., concurring: 1. Let me preface my opinion by quoting from my dissent in Pimentel.
1

1. We are committed to the mandate of the Rule of Law. We resolve controversies before Us without considering what is or what might be the popular decision. No. We never do. We only consider the facts and the law. Always the facts and the law. 2. The issue before Us is not I repeat not the guilt or innocence of Gen. Fabian C. Ver, Major Gen. Prospero Olivas, and others for their alleged participation in the assassination of former Senator Benigno S. Aquino, Jr. 3. The issue is: Are the testimonies given by them before the Agrava Board admissible in evidence against them in their trial before the Sandiganbayan? 4. The issue therefore is purely a question of law. It involves the interpretation of Sec. 5, P.D. No. 1886 and calls for the application of the Rule of Law. 5. Sec. 5, P.D. No. 1886 reads: No person shall be excused from attending and testifying or from producing books, records, correspondence, 26

documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled. after having invoked his privilege against selfincrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office. 6. This section means that any person who is invited or summoned to appear must obey and testify as to what he knows. Even if the testimony tends to incriminate him he must testify. Even if he claims his constitutional right against self-incrimination, he still must testify. However, his testimony cannot be used against him in any subsequent proceeding, provided that at the time it is being presented, he invokes his privilege against selfincrimination. His testimony, no matter what it may be, cannot in any way cause him harm. The only exception is if the testimony he gave is false, in which case he can be prosecuted and punished for perjury. He may also be demoted or removed from office. 7. The testimonies given by private respondents before the Agrava Board are therefore not admissible against them in their trial before the Sandiganbayan, having invoked their privilege against self-incrimination.

same measure of protection as the fundamental guarantee against selfincrimination. 2. Presidential Decree 1886 was not intended either to restrict or expand the constitutional guarantee against self-incrimination. On the one hand, a law cannot restrict a constitutional provision. On the other hand, PD 1886 was adopted precisely to coerce the production of evidence that hopefully would unmask the killers of Senator Aquino, although the compulsory process is accompanied by "use" immunity. 3. It is argued that the right against self- incrimination must have been invoked before the Agrava Board if the use of evidence given therein against the witness in a subsequent criminal prosecution is to be barred. I did not agree. I fail to see why to preserve pursuant to law (PD 1886) one's constitutional right against self-incrimination, one has to offer resistance to giving testimony a resistance which the said law itself says is futile and cannot prevail, as no witness by its specific injunction can refuse to testify. 4. The constitutional right against self-incrimination may be waived expressly. It may also be waived impliedly by speaking when one has the option to hold his tongue. Waiver by implication presupposes the existence of the right to keep silent. Thus, when one speaks because the law orders him to do so, his action is not really voluntary and therefore his testimony should not be deemed an implied waiver of his constitutional right against self- incrimination. 5. Presidential Decree 1886 does not give private respondents absolute immunity from prosecution, It only bars the use against them of the evidence that was elicited from them by the Agrava Board. If there are other evidence available, private respondents are subject to indictment and conviction. 6. Moreover, the evidence given to the Agrava Board is not, in my view, completedly immunized. What PD 1886 bars from use is only the testimony of the witness who testified before the Agrava Board and whatever was presented as part of his testimony, as such. PD 1886 could not have intended to convert non-confidential official documents into shielded public records that cannot be used as evidence against private respondents, by the mere fact that they were admitted in evidence as part of private respondents' testimony before the Agrava Board. In other words, evidence otherwise available to the prosecution, such as official documents, do not become barred just because they have been referred to in the course of the testimony of private respondents and admitted in evidence as part of their testimony They may still be subpoenaed and offered in evidence. 27

PLANA, J., concurring: I would like to underscore some considerations underlying my concurrence: 1. According to the Constitution, no person shall be compelled to be a witness against himself. But the law (PD 1886) which created the Agrava Board decrees that no person shall be excused from testifying on the ground of self- incrimination. If the law had stopped after this command, it would have been plainly at variance with the Constitution and void. lt was to ward off such a Constitutional infirmity that the law provided for immunity against the use of coerced testimony or other evidence, an immunity which, to be constitutionally adequate, must give at least the

Conceivably, some objections might be raised; but the evidence will be unfettered by the exclusionary rule in PD 1886.

unaffected by what is currently popular or decreed and heedless of whoever may be involved In many petitions filed with this Court and lower courts, the military has often been charged with riding roughshod over the basic rights of citizens. Officers and enlisted men in the frontlines of the fight against subversion or rebellion may, in the heat of combat, see no need to be concerned over such ,niceties" as due process, unreasonable searches and seizures, freedom of expression, and right to counsel. They are best reminded that these rights are not luxuries to be discarded in times of crisis. These rights are the bedrock of a free and civilized society. They are the reason why we fight so hard to preserve our system of government. And as earlier stated, there may come times when we may have to personally invoke these basic freedoms for ourselves. When we deny a right to an accused, we deny it to ourselves. The decision of the Court underscores the importance of keeping inviolate the protections given by the Bill of Rights. Acts which erode or sacrifice constitutional rights under seductive claims of preserving or enhancing political and economic stability must be resisted. Any lessening of freedom will not at all increase stability. The liberties of individuals cannot be preserved by denying them. The dividing line between legitimate dissent or opposition on one hand and subversion or rebellion on the other may be difficult to pinpoint during troubled times. The lesson of this petition is that those charged with suppressing the rebellion and those who sit in courts of justice should ever be vigilant in not lumping legitimate dissenters and rebels together in one indiscriminate classification. An abiding concern for principles of liberty and justice is especially imperative in periods of crisis and in times of transition. And all persons from the mighty to the lowy must be given the fullest measure of protection under the Bill of Rights if our constitutional guarantees are to have any meaning. In addition to the right against self- incrimination, of not being compelled to be a witness against one's self, so ably discussed by Justice Cuevas in the Court's opinion, I am constrained by considerations of basic fairness to vote against granting the petition. The private respondents were called to testify before the Agrava Commission. The decree creating the commission stated that no person may refuse to attend and testify or to produce evidence before it on the ground that what he says or produces may incriminate him. But since the witness is compelled to give all he knows or possesses in effect shorn by law of his right not to incriminate himself the decree states that the 28

ESCOLIN, J., concurring: I concur in the dismissal of the petitions. The admission in evidence of the testimonies of private respondents given before the Agrava Board would constitute a violation of their right against self- incrimination guaranteed under Section 20, Article IV of the Constitution. I subscribe to the majority view that Section 5 of P.D. 1886 cannot be constitutionally tenable, unless a grant of immunity is read into it vis-a-vis the compulsion it imposes upon a witness to testify. Otherwise stated, Section 5 of P.D. 1886 should be interpreted as an immunity statute, which, while depriving one of the right to remain silent, provides an immunity from prosecution that is as coextensive, as total and as absolute as the guarantees themselves. (Jones Law on Evidence, Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S., 1972, 406 US 441). Clearly, this is how the private respondents understood the legal provision under consideration. For ably assisted as they were by counsel, they would not have allowed themselves to be deliberately dragged into what the Chief Justice would call a "booby trap". Viewed from another angle, therefore, it could not be truly said that private respondents had waived their right against self- incrimination in a manner that is clear, categorical, knowing and intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol v. Homeres, 84 Phil. 525 and Chavez v. CA, 24 SCRA 663).

GUTIERREZ, JR., J., concurring: I concur in the majority opinion penned by Justice Serafin R. Cuevas and in the pithy separate opinion of Justice Nestor B. Alampay but would like to add some personal observations. This case furnishes an opportunity to appreciate the workings of our criminal justice system. The prosecutions which led to this petition serve as a timely reminder that all of us-civilian or military, layman or judge, powerful or helpless- need the Bill of Rights. And should the time ever come when like the respondents we may have to invoke the Constitution's protection, the guarantees of basic rights must be readily available, in their full strength and pristine glory,

evidence wrung from that witness may not be used against him later. This is, simply speaking, what the petition is all about. The respondents may be prosecuted as indeed they have been prosecuted. They may eventually be convicted if the evidence warrants conviction. however, they may not be convicted solely on the evidence which came from their own mouths or was produced by their own hands. The evidence must come from other sources. It would be the height of unfairness and contrary to due process if a man is required to state what he knows even if it would incriminate him, is promised immunity if he talks freely, and is later convicted solely on the testimony he gave under such a promise of immunity. I believe that P.D. 1886 is the first Immunity Act to be enacted in the Philippines. It may be relevant, therefore, to refer to American decisions expounding on immunity statutes, more so when a comparison of P.D. 1886 with such statutes as the U.S. Immunity Act of 1954, 68 Stat. 745, 18 U.S.C.A. Section 3486, shows a similarity in the protection given by the statutes. The U.S. Immunity Act of 1954 was enacted to assist federal grand juries in their investigatins of attempts to endanger the national security or defense of the United States by treason, sabotage, espionage, sedition, seditious conspiracy, and violations of various laws on internal security, atomic or nuclear energy, and immigration and nationality. The law stated that a witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that it may tend to incriminate him or subject him to a penalty or forfeiture. The statute then provides: But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against selfincrimination, to testify or produce evidence nor shall testimony so compelled be used as evidence in any criminal proceeding ... against him in any court. The American statute provides immunity against prosecution, penalties, and use of the testimony. P.D. 1886 is of more limited scope. Only the use of the compelled testimony is proscribed. The witness may still be prosecuted but the prosecution will have to look for evidence other than the words of the accused given before the Agrava Commission. In Brown v. Walker (161 U.S. 591) the U.S. Supreme Court was confronted with the validity of the 1893 Immunity Act. Brown was subpoenaed to testify before a grand jury investigating railroad anomalies. lie refused to

testify on grounds of self- incrimination, arguing that the Immunity Act compelling him to testify was unconstitutional. The Court ruled that "(W)hile the constitutional provision in question is justly regarded as one of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity and we are therefore of opinion that the witness was compellable to answer." In other words, the statutory immunity takes the place of the invocation of the constitutional guarantee. There is no need at the time of taking testimony to invoke the Fifth Amendment because it would be denied any way and the witness would be compelled to testify. It would be absurd to invoke a protection which cannot be availed of when compelled to testify. The time to invoke the immunity is when the testimony is being used contrary to the granted immunity. Protected by the statutory immunity, a witness cannot even insist on his right to remain silent when testifying. In Ullmann v. United States (350 U.S. 422), the court interpreted the Immunity Act of 1954 and stated. xxx xxx xxx ... Since that time the Court's holding in Brown v. Walker has never been challenged; the case and the doctrine it announced have consistently and without question been treated as definitive by this Court, in opinions written, among others, by Holmes and Brandeis, Justices. See, e.g., McCarthy v. Arndstein 226 U.S. 34, 42; Heike v. United States, 227 U.S. 131, 142. The 1893 statute has become part of our constitutional fabric and has been included in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.' Shapiro v. United States, 335 U.S. 1, 6. For a partial list of these statutes, see, Id., 335 U.S. at pages 6-7, note 4. Moreover, the States, with one exception a case decided prior to Brown v. Walker have, under their own constitutions, enunciated the same doctrine, 8 Wigmore, Evidence (3d ed.), 2281, and have passed numerous statutes compelling testimony in exchange for immunity in the form either of complete amnesty or of prohibition of the use of the compelled testimony. For a list of such statutes, see 8 Wigmore, Evidence (3d ed.), 2281, n. 11 (pp. 478-501) and Pocket Supplement thereto, 2281, n. 11 (pp. 147-157). (Emphasis supplied) xxx xxx xxx

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It is interesting to note how the American Supreme Court in Ullmann treated the immunity not only against the use of the testimony (as under P.D. 1886) but even against prosecution. xxx xxx xxx Petitioner, however, attempts to distinguish Brown v. Walker. He argues that this case is different fromBrown v. Walker because the impact of the disabilities imposed by federal and state authorities and the public in general such as loss of job, expulsion from labor unions, state registration and investigation statutes, passport eligibility and general public opprobrium-is so oppressive that the statute does not give him true immunity. This, he alleges, is significantly different from the impact of testifying on the auditor in Brown v. Walker, who could the next day resume his job with reputation unaffected. But, as this Court has often held, the immunity granted need only remove those sanctions which generate the fear justifying the invocation of the privilege 'The interdiction of the other Amendment operates only here a witness may possibly expose him to a criminal charge. But if the criminality has already been taken away, the amendment ceased to apply.' Hale v. Henkel 201 U.S. 43, 67. Here, since the Immunity Act protects a witness who is compelled to answer to the extent of his constitutional immunity, he has of course, when a particular sanction is sought to be imposed against him, the right to claim that it is criminal in nature. (Emphasis supplied). In United States v. Murdock (284 U.S. 141), the court ruled that "the principle established is that full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self-incrimination. P.D. 1886, being an immunity statute should not be given a strained or absurd interpretation in order to achieve a certain result. If the immunity given by the decree is equivalent to the protection furnished by the right against self- incrimination, then, paraphrasing Justice Frankfurter in Ullmann, the same protection given by one of the great landmarks in man's struggle to make himself civilized must not be interpreted in a hostile or niggardly spirit, xxx xxx xxx ... Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too

readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregard ful of the interest of justice ... I, therefore, join the majority in dismissing the petition.

DE LA FUENTE, J., concurring: No person shall be compelled to be a witness against himself." 1 This basic right against self- incrimination, which supplanted the inquisitorial methods of interrogating the accused as practiced during the Spanish regime, has become an indispensable part of our laws since 1900. Pursuant thereto, an accused in a criminal case has the right not only to refuse to answer incriminating questions but also to refuse to take the witness stand. He cannot be compelled even to utter a word in his defense. 2 As stressed in Chavez vs. Court of Appeals, 3 the rule may otherwise be stated as the constitutional right of the accused to remain silent. " The accused can forego testimony 4without any adverse implication drawn from his decision to do so, The burden is on the State to establish the guilt of the accused beyond reasonable doubt; the prosecution must look elsewhere for other "evidence independently and freely secured," The rule forbids what has been considered as "the certainly inhuman procedure of compelling a person 'to furnish the missing evidence necessary for his conviction'." According to Justice Harlan, it was intended "to shield the guilty and imprudent as well as the innocent and foresighted." 5 Transplanted in this country with the advent of American sovereignty 6 and firmly imbedded in our fundamental law, 7 the said privilege against compulsory self-incrimination, which is predicated on grounds of public policy and humanity, 8 "is fundamental to our scheme of justice" 9 and is one of the procedural guarantees of our accusatorial system. 1. As I see it, what the prosecution proposed to do in these cases was to present, as evidence of the alleged accessorial acts of private respondents, the transcripts of their respective testimonies before the Agrava Board. 30

Confronted by the apparent unwillingness of said respondents to be called to the witness stand in subsequent criminal proceedings, the prosecution sought to put into the record of these criminal cases (in lieu of private respondents' testimonies) the said transcripts and other evidence given by them in the course of their testimony before the Agrava Board. If allowed over and despite private respondents' objection, this would be a clear infringement of the constitutional guarantee that they can invoke in said criminal proceedings, as all of them did. Since the prosecution cannot require said respondents to testify in the criminal cases before the Sandiganbayan, it stands to reason that it is equally disabled from indirectly compelling respondents to give evidence against themselves by using their Agrava Board testimonies. The prosecution must present evidence "derived from a legitimate source wholly independent of the compelled testimony." 10 2. It is contended, however, that these self- incriminatory testimonies were given voluntarily because they did not claim the constitutional guarantee before or while giving testimony to the Agrava Board. Voluntariness, I think. cannot be inferred simply from such failure to invoke the privilege. There was no fair warning or notice to the declarant that his testimony would be used against him if incriminatory, unless the privilege is invoked beforehand or during his testimony. If they were properly warned and still gave testimony without t invoking the privilege, then it would be clear that they knowingly waived the privilege. Otherwise, it meant at the most a willingness on their part to help the Agrava Board in its fact-finding investigation without waiving (a) the immunity granted by law, and (b) the constitutional guarantee against self- incrimination in case of subsequent prosecution based on their self-incriminatory testimony. For waiver, it is wellsettled, to be effective. "must be certain, unequivocal and intelligently, understandably and willingly made. " 11 Mere submission to an illegal search or seizure "is not consent or waiver of objection. 12 The prosecution has the burden to prove otherwise. The same standard should be observed in self-incrimination cases. PD No. 1886 (as amended), which created that "independent ad hoc factfinding Board," vested it with "plenary powers to determine the facts and circumstances surrounding the killing [of former Senator Aquino] and to allow for a free, unlimited and exhaustive investigation into all aspects of said tragedy." In consonance with these objectives, the law declared that the privilege was unavailable to an Agrava Board "witness", as follows: "No person shall be excused from attending and testifying or from producing other evidence on the ground that his testimony or any evidence requested of him may tend to incriminate him, " 13 etc. At the same time, the Board was empowered to summarily hold and punish any person in direct contempt for "refusal to be sworn or to answer as a witness," its judgment being "final and unappealable."

Quite plainly, the constitutional right against compulsory self-incrimination could not be invoked by Agrava Board witnesses, The privilege was suspended or temporarily taken away for purposes of the investigation, in order that the Board would have access to all relevant evidence and all sources of information, not excluding compelled incriminatory statements of probable and possible or potential defendants. An Agrava Board witness was, under the terms of the quoted provision, placed in a dilemma: (1) to answer truthfully all questions including those tending to be selfincriminatory, since he cannot invoke the privilege; (2) to lie and become liable criminally for perjury; and (3) to insist on his right to remain silent and be summarily punished by the Board for direct contempt. It is plain that such a witness was under compulsion to give self-incriminatory testimony. It was not voluntary. Precisely because of its coerced nature (an infringement of his constitutional right against self- incrimination), PD No. 1886 promised. in exchange or as a substitute for the privilege, limited immunity (as provided in the next succeeding clause, same section), to wit: ... but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he was compelled, after having invoked his privilege against selfincrimination, to testify or produce evidence. 14 Such immunity 15 would bar the prosecution's use against the witness of his said testimony in subsequent criminal proceedings (wherein he is charged with offenses related to his testimony). Nevertheless, this would not operate to change the involuntary nature of his self- incriminatory testimony. As far as the witness is concerned, it was "coerced", not freely given, because he was not fully accorded the "liberty of choice." The law withheld his basic freedom to choose between testifying and remaining silent without the risk of being punished for direct contempt to forego testimony which could possibly be to his detriment. 3. I cannot agree with the proposition that the privilege should be invoked by the witness before or while giving testimony to the Agrava Board. Section 5 should be reasonably construed and fairly applied to the cases at bar, in the light of the accused's constitutional right against compulsory self- incrimination. The formula of limited-immunity in-lieu-of-the-privilege contained in said section rendered unnecessary or superfluous, the invocation of the privilege before the Board. Under said formula, the witness was deprived of the privilege to protect himself against inquisitorial interrogation into matters that a targeted defendant or virtual respondent can keep to himself in ordinary investigations or proceedings. Even if the provision is susceptible of an interpretation in support of the petitioner's stand, it appears that the time for invoking the privilege is not clear enough or certain from the language of the law. Equally plausible and logical is the contrary view that it may be invoked later on when it became 31

apparent that the prosecution intended to use the testimony given before the Board to secure conviction of the declarant in the subsequent criminal proceedings. The privilege cannot be deemed waived by implication merely as a consequence of failure to claim it before the Board. It bears emphasis that the right of an accused "witnesses" against compulsory selfincrimination is predicated on the constitutional guarantee, not on the special law in question. 3. In the United States, the generally accepted approach in Fifth Amendment Cases (involving the constitutional guarantee under consideration) was stated as follows in Johnson vs Zerbst:" 16 It has been pointed out that 'courts indulge in every reasonable presumption against a waiver of the fundamental rights and that we do not presume acquiescence in the loss of such fundamental rights.'" Because, as Dean Griswold of Harvard Law School (later, Solicitor General of the United States) eloquently puts it: [T]he privilege against self-incrimination is one of the great landmark,s in man's struggles to make himself civilized ... [W]e do not make even the most hardened criminal sign his own death warrant, or dig his own grave ... We have through the course of history developed a considerable feeling of the dignity and intrinsic importance of the individual man. Even the evil man is a human being. 17 In this jurisdiction, more than four decades ago, the late Justice Jose P. Laurela nationalist, constitutionalist and eminent jurist, whose incisive and authoritative opinions on constitutional questions are often cited by the bench and the bar- voted to sustain a claim of the constitutional guarantee in Bermudez vs. Castillo. 18 In his concurrence, he said inter alia: (1) As between two possible and equally rational constructions, that should prevail which is more in consonance with the purpose intended to be carried out by the Constitution. The provision ... should be construed with the utmost liberality in favor of the right of the individual intended to be secured. ... (2) I am averse to the enlargement of the rule allegedly calculated to gauge more fully the credibility of a witness if the witness would thereby be forced to furnish the means for his own destruction. Unless the evidence is voluntarily given, the policy of the constitution is one of protection on humanitarian considerations and grounds of public policy...

(3) The privilege should not be disregarded merely because it often affords a shelter to the guilty and may prevent the disclosure of wrongdoing. Courts can not, under the guise of protecting the public interest and furthering the ends of justice, treat a sacred privilege as if it were mere excrescence in the Constitution. (Emphasis supplied; at page 493.) In sum, considering the pertinent legal provisions and judicial pronouncements as well as the climate prevailing when the private respondents testified before the Agrava Board, I find it unavoidable to reach the conclusion that they did so under legal, moral and psychological compulsion. Their compelled testimonies before the Agrava Board cannot thereafter be used against them in the cases at bar in view of the immunity granted by P.D. No. 1886. They were not obliged to invoke then and there the constitutional guarantee. If they did, that would have sufficed to afford them adequate protection. If they did not, they could do so later on when the Government prosecutors (in spite of the statutory grant of immunity) decided in the subsequent criminal proceedings, to use against them their Agrava Board testimonies. For, as earlier stated, there was no intelligent and knowing waiver on their part of their constitutional right against selfincrimination. Accordingly, and for other reasons well stated in the main separate concurring opinions, I vote to dismiss the petitions.

ALAMPAY, J., concurring: I vote for the dismissal of the petition in these consolidated cases. What appears to be the basic and principal issue to which the consideration of the Court is addressed to is the singular question of whether testimonies adduced by the private respondents before the Ad Hoc Agrava Fact Finding Board and sought to be introduced against them in the Sandiganbayan wherein they have been accused were rightfully excluded as evidence against them. I find untenable the insistence of the petitioner Tanodbayan that the private respondents should have claimed the right against selfincrimination before the said Fact Finding Board and that having omitted doing so, the said privilege afforded to them by law can no longer be invoked by them before the Sandiganbayan.

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The right claimed by private respondents rests on the fundamental principle that no person shall be compelled to be a witness against himself as so stated in our Constitution and from the fact that Section 5 of P.D. 1886 disallows the use against him of such testimony or any evidence produced by him before the said Fact Finding Board, except for perjury. Petitioner argues however, that there was a waiver of this right to selfincrimination when respondents proceeded to give their testimonies on various dates before the Agrava Fact Finding Board without formally invoking on said occasions their right against self-incrimination. As private respondents could not have excused themselves from testifying before said Board as clearly emphasized in the very first clause of Section 5 of P.D. 1886, and as at that point of time, there was no reason for the declarant to anticipate or speculate that there would be any criminal charge or any proceeding instituted against them, it would therefore, be unnatural and illogical to expect that private respondents would even contemplate the need of prefacing their declarations with an invocation before the Fact Finding Board of their privilege against self-incrimination. In fact for a declarant to announce his claim of the aforestated privilege prior to or while testifying before said Fact Finding Board, would irresistibly create an inference and convey an impression that said witness is burdened with his own awareness that he stands already incriminated in some wrong. To insist therefore, even in the absence yet of any proceeding against him, that the witness invoke the said privilege before the Agrava Fact Finding Board, would be obviously self-demeaning. Such an effect could not have been intended by Section 5 of P.D. 1886, which was even meant to grant to the witness a benefit rather than a burden. It is more reasonable therefore, to conclude that the privilege against selfincrimination would be accorded to said witness after he has invoked the same in a subsequent proceeding wherein he has been charged of a wrong doing, except in a case for perjury. It is only at such time when the necessity of invoking the mantle of the privilege or the immunity afforded to him by law would arise. It cannot also be rightfully concluded that private respondents had intentionally relinquished or abandoned the said right which they claimed before the Sandiganbayan. The fact that the issue of when and before what forum should such claim to the right against self-incrimination be necessarily presented has provoked much discussion and debate because of divergent views. This has even prompted the submissions to the Court of opinions of amicus curiae or friends of the court as to how Section 5 of Presidential Decree 1886 should be construed and applied which are however different from and contrary to the views expressed by the Justices of the Sandiganbayan and other legal luminaries. These conflicting views negate the proposition that there was an effective waiver made by the private respondents of their rights.

It has earlier been stated by this Court that to be effective, such waiver must be certain and unequivocal and intelligently, understandably and willingly made. (Chavez vs. Court of Appeals, et al., 24 SCRA 663). In the same cited case, it has been stated that courts indulge in every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights (Citing Johnson vs. Zerbst 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore, whether the alleged waiver is express or implied, it must be intentional. (Davison vs. Klaess 20 N.E. 2d. 744, 748, 280 N.Y. 252; 92 CJS, 1058). I find it difficult to accept that private respondents had at any time, ever intended to relinquish or abandon their right against self-incrimination.

PATAJO, J., concurring: I vote for the dismissal of the petition in these consolidated cases. Said petitions do not merit being given due course and should be dismissed outright. I hold the view that the testimonies and evidence given before the Agrava Board are inadmissible as evidence against those who testified or gave said evidence irrespective of whether said persons were subpoenaed or invited. I believe it is not a condition sine quo non to the non-admissibility of said evidence that at the time they testified or gave evidence before the Agrava Board that they had invoked their privilege against self-incrimination. The Agrava Board was created as an independent ad hoc fact finding board to determine all the facts and circumstances surrounding the assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983. It was given plenary powers to allow for a free, unlimited and exhaustive investigation into all the aspects of said tragedy. It was given the power to issue subpoena or subpoena duces tecum and "other compulsory processes" requiring the attendance and testimony of witnesses and the production of any evidence relative to any matter under investigation by said Board. Those who have been subpoenaed to appear and testify or produce any documentary evidence before the Board shall not be excused from testifying or presenting evidence before said Board on the ground that their testimony or evidence may tend to incriminate them or subject them to penalty or forfeiture. I believe an invitation from the Board is as much a compulsory process 1 to appear and testify before the Board as a subpoena and one receiving said invitation cannot also excuse himself from appearing and testifying before the Board. Petitioners appear to share this 33

view when they said in subparagraph (c), paragraph 7 of their petition in G.R. No. L-71208-09. (c) People were either invited or issued subpoenas, depending upon their rank and office, to give testimony before the Board and among those invited were respondents General Fabian C. Ver and Major General Olivas while the rest of the military respondents were issued subpoenas. Unquestionably, it was the intention of the decree creating the Board to investigate the Aquino assassination to encourage all who have some information on any "aspect of said tragedy" to furnish the Board said information whether they are subpoenaed or issued other forms of compulsory process such as an invitation and to do so without fear that what they will say may be used against them. It is in this context that Section 5 of PD No. 1886 should be viewed. When they testified before the Board, they were given full assurance that whatever they say before the Board will not be used against them. Only if they testify falsely that they may be prosecuted for perjury. This is to prevent people from preventing the Board from finding out the truth about the Aquino assassination by giving false leads or information for ulterior reasons. Actually Section 5 of PD No. 1886 falls under that category of statutes which do not pronounce an entire immunity by forbidding punishment or prosecution for any testimony or evidence given in connection with the investigation of certain offenses more widely known as immunity statutes, but merely prohibit in any criminal prosecution the use of the testimony of the witness. Immunity statutes as well as statutes prohibiting the use of testimony in any subsequent criminal prosecution have been the expedients resorted for the investigation of many offenses, chiefly those whose proof or punishment were otherwise impracticable because of the implication in the offense itself of all who could bear useful testimony. The expediency and practical utility of this mode of obtaining evidence may as a measure of legislation, be open to argument. But the tradition of it as a lawful method of annulling the privilege against selfincrimination is unquestioned in English history." ignore on Evidence, Vol. III, p. 469. Speaking of this kind of privilege of non-admission of testimony given by the witness in subsequent prosecutions as allowed by the common law and modified by subsequent statutes, State vs. Quarles 13 Ark 307, 311, said: The privilege in question, in its greatest scope, as allowed by the common law and no one, be he witness or

accused, can pretend to claim it beyond its scope at the common law never did contemplate that the witness might not be proved guilty of the very crime about which he may be called to testify; but only that the witness should not be compelled to produce the evidence to prove himself guilty of that crime. His privilege, therefore, was not an exemption from the consequences of a crime that he might have committed; but only an exemption from the necessity of himself producing the evidence to establish his own crime ... So long as it might be lawful to produce in evidence against an accused party whatever he might before have voluntarily said as a witness on a prosecution against another, there were no means by which the privilege could be made available short of a claim by the witness to be silent; and as that was the rule of the common law, this was the common-law mode of making the privilege available. And that silence was but a mode of making the privilege available, and was not of the essence of the privilege itself, is conclusively proven by all that current of enlightened authority, to which we yield our fullest assent, which holds that the privilege has ceased when the crime has been pardoned, when the witness has been tried and acquitted, or is adjudged guilty, or when the prosecution, to which he was exposed, has been barred by lapse of time ... But the Legislature has so changed the common-law rule, by the enactment in question in the substitution of a rule that the testimony required to be given by the act, shall never be used against the witness for the purpose of procuring his conviction for the crime or misdemeanor to which it relates, that it is no longer necessary for him to claim his privilege as to such testimony, in order to prevent its being afterwards used against him. And the only question that can possibly arise under the present state of the law, as applicable to the case now before us, is as to whether our statutory regulations afford sufficient protection to the witness, responsive to this new rule and to his constitutional guarantee against compulsory selfaccusation ... Considering the objectives sought to be achieved by PD No. 1886 the provision thereof making testimony and evidence given before the Board inadmissible in evidence against the ones giving the same, provides protection beyond that granted by the Constitutional provision against selfincrimination, otherwise it will be constitutionally suspect. Counselman vs. Hitchcock, 142 US 547, 35 L Ed 1110. Of relevance are the observations of the District Court, N.D. Illinois, in United States vs. Armour & Co., 112 Fed 808, 821, 822: 34

All of these immunity acts are relied upon by the individual defendants, and, while expressed in, slightly varying language, they all mean the same thing, and each of them is a substitute for the privilege contained in that clause of the fifth amendment to the Constitution, reading: 'Nor shall any person be compelled in any criminal case to be a witness against himself.' This fifth amendment deals with one of the most cherished rights of the American citizen, and has been construed by the courts to mean that the witness shall have the right to remain silent when questioned upon any subject where the answer would tend to incriminate him. Congress by the immunity laws in question, and by each of them, has taken away the privilege contained in the amended it is conceded in argument that this cannot be done without giving to the citizen by way of immunity something as broad and valuable as the privilege thus destroyed We are not without authority on this question. By a previous act, Congress undertook to take away the constitutional privilege by giving the citizen an equivalent, and the Supreme Court held in the case of Counselman v. Hitchcock 142 U.S. 547, 12 Sup. Ct. 195, 35 I Ed., 1110, that the substitution so given was not an equivalent. Then, at various times, the immunity acts in question were passed by Congress with full knowledge that in furnishing a substitute for this great right of the citizen, it must give something as broad as the privilege taken away. It might be broader, but it could not be narrower. Now, in my judgment, the immunity law is broader than the privilege given by the fifth amendment, which the act was intended to substitute. The privilege of the amendment permits a refusal to answer. The act wipes out the offense about which the witness might have refused to answer. The privilege permits a refusal only as to incriminating evidence. The act gives immunity for evidence of or concerning the matter covered by the incident and the evidence need not be self-incriminating. The privilege must be personally claimed by the witness at the time. The immunity flows to the witness by action of law and without any claim on his part. Brown v. Walker, 161 U.S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale vs. Henkel (recently decided) 26 Sup. Ct. 370, 50 L. Ed. -; State v. Quarles 13 Ark. 307, quoted in 142 U.S. 567, 12

Sup. Ct. 199 (35 L. Ed. 1110); People Sharp, 107 N.Y. 427, 14 N.E. 319, 1 Am. St. Rep. 851; Brown v. Walker approved in Lamson v. Boyden, 160 I11. 613, 620, 621, 43 N.E. 781: People v. Butler, St. Foundry, 201 I11. 236, 248, 66 N.E. 349. I am further of opinion that the immunity given by the act must be as broad as the liabilities imposed by the act. The act calls upon the citizen to answer any 'lawful requirement' of the Commissioner. 'Require' means to ask of right and by authority. Webster's Dictionary. Tenn. Coal Co. v. Saller (C.C.) 37 Fed. 545, 547. Anything is a requirement by a public officer which brings home to the person called upon that the officer is there officially and desires compliance. 'Demand' and' require' are synonymous. Miller v. Davis, 88 Me. 454, 34 Atl. 265. The citizen may be punished for refusal to answer such lawful requirement. I am of opinion that when the Commissioner of Corporations, who has power to compel, makes his demand, it is the duty of the witness to obey. The contention has been made that in order to get immunity the citizen shall wait until the compulsion becomes irresistible. That is the effect of the government contention. I am not able to bring my mind to accept that doctrine. If I am right in saying that immunity flows from the law l, without any claim on the part of the defendant and at different times that has been conceded here in argument then no act of any kind on his part which amounts to a claim of immunity, which amounts to setting up a claim of immunity is demanded by the law. The law never puts a premium on contumacy. A person does not become a favored citizen by resistance to a lawful requirement. On the contrary, the policy of the law favors the willing giving of evidence whenever an officer entitled to make a demand makes it upon a citizen who has no right to refuse. And it would be absurd and unAmerican to favor the citizen who resists and places obstacles in the way of the government as against the citizen who, with a full knowledge of the law, obeys without resistance the demand of an officer who has the legal right to make the demand for something which the citizen has no legal right to refuse. This, then, is the proposition to which we are led. When an officer, who has a legal right to make a demand, makes such demand upon a citizen who has no legal light to refuse, and that citizen answers under such conditions, he answers under compulsion of the law. 35

There is no merit then to the contention that private respondents should be invoked the privilege against self-incrimination before the Agrava Board for precisely PD No. 1886 had explicitly provided that the testimony of those who testified before the Board can not be used against them. It will be a meaningless act of supererogation to require that said witnesses before answering any question addressed to them must invoke their privilege against self-incrimination. The phrase "after having invoked his privilege against self-incrimination" in Section 5 of PD No. 1886 to be consistent with the intention of said decree, should refer to the time that the testimony of the witness will be used against him in another proceeding, such as the cases now pending before the Sandiganbayan. It could not refer to the proceedings before the Agrava Board because no one is being accused before said Board and no matter how self-incriminating the testimony of said witness is, he runs no risk of being prejudiced, much less convicted by the Agrava Board. It is in the prosecution of cases based on the report of said Board that the witness should invoke his right against selfincrimination. These private respondents did just that when they moved for the exclusion in evidence of their statement before the Agrava Board. Any other interpretation would defeat the very purpose of PD No. 1886.

1. Respondent court grossly disregarded the settled guidelines laid down for trial courts by this Court of Appeal vs. Paylo 3 thru Mr. Justice J.B.L. Reyes, speaking for a unanimous Court, Chat By so doing [ordering the exclusion of the proferred confessions of the two accused upon a ground not raised by counsel but motu proprio by the trial court, i.e. lack of independent proof of conspiracy] the [trial] court overlooked that the right to objection is a mere privilege which the parties may waive; and if the ground for objection is known and not seasonably made, the objection is deemed waived and the [trial] court has no power, on its own motion, to disregard the evidence (Marella vs. Reyes, 12 Phil. 1) ... Suffice it to say that the lower court should have allowed such confessions to be given in evidence at least as against the parties who made them, and admit the same conditionally to establish conspiracy, in order to give the prosecution a chance to get into the record all the relevant evidence at its disposal to probe the charges. At any rate, in the final determination and consideration of the case, the trial court should be able to distinguish the admissible from the inadmissible, and reject what, under the rules of evidence, should be excluded. Trial courts should be liberal in the matter of admission of proof and avoid the premature and precipitate exclusion of evidence on doubtful objections to its admissibility, citing the Court's long-standing basic ruling and policy inPrats & Co. vs. Phoenix Ins. Co. 4 that reception and admission of evidence objected to on doubtful or technical grounds is ultimately the less harmful course to either litigant, since the Supreme Court upon appeal would then have all the materials before it necessary to make a correct judgment (instead of returning the case for a new trial which only prolongs the determination of the case); and There is greater reason to adhere to such policy in criminal cases where questions arise as to admissibility of evidence for the prosecution, for the unjustified exclusion of evidence may lead to the erroneous acquittal of the accused or the dismissal of the charges, from which the People can no longer appeal 5 2. The right against self-incrimination is found in the first sentence of section 20 of the Bill of Rights of the 1973 Constitution stating that "No person shall be compelled to be a witness against himself." This single sentence constituted the whole text of section 18 of the Bill of Rights of the 19,7,5 Constitution. This right against self-incrimination has a settled meaning in jurisprudence which is fully applicable here since the right 36

TEEHANKEE, J., dissenting: The majority decision is based on erroneous premises, viz. what the case at bar presents a "novel question;" that "this Court has not been previously called upon to rule on issues involving immunity statute" and is burdened with the monumental task" of "laying the criteria ... (to) build future jurisprudence on a heretofore unexplored area of judicial inquiry." 1 The fact is that we have a wealth of settled jurisprudence and precedents, Philippine and foreign, that control the determination of the simple issue at bar and call for the setting aside of the exclusion order issued by respondent court (Sandiganbayan) which wrongly rules as totally and absolutely inadmissible the testimonies given by private respondents General Ver and Olivas and their six co- respondents (all charged as accessories) as well as all the documents, records and other evidence produced by them before the Fact-Finding Board, notwithstanding that all were represented by counsel 2 and none of them invoked the privilege or right against self- incrimination or made any claim or objection at the time of his testimony before the Board that any question propounded to him and which he willingly answered called for an incriminating answer against himself. The following vital considerations based on settled jurisprudence and precedents show that respondent court acted with gross error and misconception of the applicable principles of the right against selfincrimination:

against self-incrimination was first enforced here as an inviolable rule" in U.S. President McKinley's instructions under date of April 7, 1900 to the Taft Commission. 6 As recounted by the late Mr. Justice Conrado Sanchez as ponente for a unanimous Court in the leading 1968 case of Chavez vs. Court of Appeals 7, "Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days 'in a revolt against the thumbscrew and the rack.' An old Philippine case [1904] speaks of this constitutional injunction as 'older than the Government of the United States;' as having 'its origin in a protest against the inquisitorial methods of interrogating the accused person;' and as having been adopted in the Philippines 'to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses will which they were charged.' " But Mr. Justice Sanchez equally stressed that "(an) accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, 8 an accused may altogether refuse to take the witness stand and refuse to answer any and all questions." 9 As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez vs. Tengco, 10 "No legal impediment exists against a litigant calling any of the adverse parties to be his witness. ... True, an accused in a criminal case may not be compelled to testify, or to so much as utter a word, even for his own defense (U.S. vs, Junio, 1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344: U.S. vs. Binayoh 35 Phil. 23; Sec. l(c), Rule 111, Rules of Court). But while the constitutional guaranty against self-incrimination protects a person in all types of cases, be they criminal, civil, or administrative (Art. 111, Sec. 1, No. 18, Phil. constitution: Bermudez vs. Castillo, 64 Phil, 483), said privilege in, proceedings other than a criminal case against him who invokes it, is considered an option of refusal to answer incriminating question, and not a prohibition of inquiry. Except in criminal cases, there is no rule prohibiting a party litigant from utilizing his adversary as witness. As a matter of fact, section 83 of Rule 123, Rules of Court expressly authorizes a party to call an adverse party to the witness stand and interrogate him. This rule is, of course, subject to the constitutional injunction not to compel any person to testify against himself. But it is established that the privilege against self-incrimination must be invoked at the proper time, and the proper time to invoke it is when a question calling for a incriminating answer is propounded. This has to be so, because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify 'cannot decline to appear, nor can

he decline to be sworn as a witness' and 'no claim of privilege can be made until a question calling for a incriminating answer is asked, at that time, and, generally speaking, at that time only, the claim of privilege may properly be interposed.' (Gonzales vs. Sec. of Labor, L-6409, February 5, 1954, 11 cit. in Navarro, Criminal Procedure, p. 302.)' Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales, 12 wherein once again the Court, with the concurrence in the result of the now Chief Justice, under similar facts held that the petitioner (provincial treasurer) could not refuse to take the stand as an adverse party in a civil case since the privilege against self-incrimination "in proceedings other than a criminal case against him who invokes it, is considered an option to refuse to answer incriminating questions, and not a prohibition of inquiry" and "must be invoked when a question calling for an incriminating answer is propounded, because before a question is asked, there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not." The Court therein denied "the petition to prohibit respondent judge from directing petitioner to take the witness stand and testify ... without prejudice to petitioner's properly invoking the guaranty against self-incrimination when questions are propounded to him on the stand. Costs against the petitioner." 3. All the respondents at bar were in this category of ordinary witnesses in the hearings of the Fact-Finding Board. They were not accused in any criminal case nor were they persons under custodial interrogation who under the second part of section 20 of the Bill of Rights (consisting of three additional sentences 13) were given additional rights to silence and counsel and to be informed of such rights and to the out-lawing of any confession obtained in violation of the rights guaranteed in the cited section, by virtue of the incorporation into the Bill of Rights of the rights granted in the rulings of the U.S. Supreme Court in the Miranda-Escobedo cases. As noted by former Chief Justice Enrique M. Fernando, "(I)t amounts to an acceptance of the applicability in this jurisdiction of the epochal American Supreme Court decision in Miranda vs. Arizona, the opinion being rendered by Chief Justice Warren. It is thus now a part of our fundamental law. Such doctrine was promulgated in response to the question of the admissibility of statements obtained from an individual interrogated under police custody, considering that such a time and under the stress of such conditions, his right against self-incrimination could be rendered futile." 14 The Miranda pronouncements thus became necessarily a part and parcel of the additional rights granted in the cited section 20, as made by the late U.S. Chief Justice Warren in the Miranda case thus: "The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been 37

taken into custody or otherwise deprived of his freedom of action in any significant way. " 15 These additional Miranda rights could not be invoked by respondents, as the members of the Fact-Finding Board were not law enforcement officers nor were respondents under custodial interrogation. As ordinary witnesses before the Fact-Finding Board and under the settled jurisprudence above-cited, they could not invoke the right to silence and refuse to take the witness stand. Their right and privilege (which is not selfexecutory or automatic ipso jure) was, while testifying, whether voluntarily or by subpoena, to invoke the privilege and refuse to answer as and when a question calling for an incriminating answer is propounded. Failure to invoke the privilege which is personal does automatically result in its loss ipso facto. The law, usage and settled jurisprudence uniformly require that the privilege must be asserted or else is lost. The court or board upon its invocation still has to pass upon and rule upon the proper application of the privilege. As restated by Francisco, the rule and exceptions are: "Certainly, where the witness, on oath declares his belief that the answer to the question would criminate or tend to criminate him, the court cannot compel him to answer, unless it is clear perfectly, from a careful consideration of all the circumstances of the case, that the witness is mistaken, or is acting in bad faith, and that the answer cannot possibly have any such tendency. " 16 4. The view that withal, it is best, although not required, that a warning to the witness of his option to refuse an answer to incriminating questions as advanced even by the Tanodbayan at the hearing dates back to a century ago and has been long discarded as "witnesses are usually well enough advised beforehand by counsel as to their rights when such issues impend" and "as general knowledge spread among the masses and the preparation for testimony became more thorough." Thus, "ignore, the bible on the law of evidence so remarks and adds that "there is no reason for letting a wholesome custom degenerate into a technical rule." It is plausible to argue that the witness should be warned and notified, when a incriminating fact is inquired about, that he has an option to refuse an answer; and this view was often insisted upon, a century ago, by leaders at the Bar, xxx xxx xxx But there are opposing considerations. In the first place, such a warning would be an anomaly; it is not given for any other privilege; witnesses are in other respects supposed to know their rights; and why not here? In the next place, it is not called for by principle, since, until the witness refuses, it can hardly be said that he is compelled to answer; nor is it material that he believes himself

compelled; for the Court's action, and not the witness' state of mind, must be the test of compulsion. Again, the question can at any rate only be one of judicial propriety of conduct, for no one supposes that an answer given under such an erroneous belief should be struck out for lack of the warning. Finally, in practical convenience, there is no demand for such rule; witnesses are usually well enough advised beforehand by counsel as to their rights when such issues impend, and judges are too much concerned with other responsibilities to be burdened with the provision of individual witnesses' knowledge; the risk of their being in ignorance should fall rather upon the party summoning than the party opposing. Nevertheless, it is plain that the old practice was to give such a warning, when it appeared to be needed. But, as general knowledge spread among the masses, and the preparation for testimony became more thorough, this practice seems to have disappeared in England, so far at least as any general rule was concerned. In the United States, both the rule and the trial custom vary in the different jurisdictions. No doubt a capable and painstaking judge will give the warning, where need appears, but there is no reason for letting a wholesome custom degenerate into a technical rule. 17 But from the environmental facts and circumstances of the Fact-Finding Board hearings, to require such a warning to the witness of his option of refusal to answer incriminatory questions would have been an exercise in absurdity and futility, As is a matter of public knowledge, respondents had concluded in their investigation that Galman was the assassin of the late Senator Aquino. As observed by former Senator Ambrosio Padilla as amicus curiae at the hearing on the merits of August 15, 1985, they were all too eager to testify and make a strong effort to gain support from the FactFinding Board and the public for the military version and report that the assassin was Galman who was forthwith gunned down by the military escorts and guards at the tarmac. It would have been ridiculous, if not bordering on officiousness and impropriety, to warn them as the highest ranking military officers of their option of refusal to answer incriminatory questions and also as the majority holds, 18 of their right to remain silent. When respondents generals appeared before the Board, respondent Ver precisely made the opening statement that GENERAL VER:

38

I welcome this opportunity, Madame Justice, members of this Honorable Board, Dean, Gentlemen this opportunity to assist ... this Honorable Board in the quest for truth and justice, We all deplore this tragic incident which is now the subject of inquiry, This Board, this Honorable Board is mandated to conduct a free, full and exhaustive investigation into the matter under investigation We all hope that my testimony, madame, will somehow dispel any misconception, or any misinformation surrounding this tragic incident. I am now ready to answer your questions. JUSTICE AGRAVA: Now, General, at the outset, we give the right and the privilege for every witness to be assisted by counsel Do you have your counsel with you this morning? GENERAL VER: I did not bring any counsel, madame, but ... if I need a counsel, madame, I could probably look for... probably ... JUSTICE AGRAVA: Yes? GENERAL VER: I may call Fiscal Parena or the Public Coordinator. I was talking to Atty. Tan to assist me, in the protection of my constitutional rights ... JUSTICE AGRAVA: Yes.

GENERAL VER: ... if it is necessary: ATTY. TAN: Your Honor, please, it is part of the function of this office to help the witness if he doesn't have counsel, and so, if the General is willing to have me, I will happily serve as counsel, Your Honor. JUSTICE AGRAVA: All right. GENERAL VER: Thank you.
19

Respondent Olivas likewise testified before the Board in response to its invitation to assist it in determining the true facts and circumstances surrounding the double killing. 6. The majority decision would go around this by asserting without basis in the record that "(A)ll the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted Sen. Aquino while embarking from the plane that brought him home to Manila on that fateful day. Being at the scene of the crime as such, they were among the first line of suspects in the subject assassination. General Ver on the other hand, being the highest military authority of his co-petitioners labored under the same suspicion and so with General Olivas, the first designated investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and rumors from ugly wagging tongues, all point to them as having, in one way or another participated or have something to do, in the alleged conspiracy that brought about the assassination. Could there still be any doubt then that their being asked to testify, was to determine whether they were really conspirators and if so, the extent of their participation in the said conspiracy?" In fact, the respondent court's decision and separate opinions as well as the majority decision at bar and the separate concurring opinions all fail to specify the particular portions of the testimonies of respondents or any specific question and answer that can be in any way deemed to be selfincriminating. Indeed, even if we assumed arguendo that they were warned 39

of their right against self-incrimination and tried absurdly to invoke the same, there is no specific question and answer by way of testimony that could be pointed to them as having been made under compulsion for the simple reason that their testimony was in full support of their own military report that Galman was Aquino's killer and for which they were trying to gain the Board's acceptance. In the all too brief and inadequate deliberations held on August 20 and 21, 1985 after the hearing on the merits of August 15, 1985, without reaching a definite conclusion, the ponente reported and I share this view from a cursory examination, for want of material time, of the excluded testimonies only since the excluded documents, records and other evidence produced by them were not before the Court that there is nothing in the excluded testimonies that could in any way be deemed self-incriminatory perse. So there would be no legal basis whatever for their exclusion. But the ponente circulated only last August 26th at noon his draft for dismissal of the petitions which were filed only last month. And its release has been set for August 30th. 7. There has not been enough time to weigh and ponder on the farreaching consequences of the decision at bar. The decision orders the total and unqualified exclusion of the testimonies and evidence produced before the Fact-Finding Board by the eight respondents charged as accessories "even though (they) failed to claim (their) privilege before giving the incriminating testimony" (citing 21 Am. Jur. 2d. 218). But the cited compilation of American State and Federal Law expressly cautions that "The question whether a witness must claim exemption . on from selfincrimination to be entitled to immunity from subsequent prosecution must in each case be determined in the light of constitutional and statutory provisions in the jurisdiction where the question arises" (21 Am. Jur. 2d. 151). It recites on the same cited page that "Under a statute granting immunity to persons who have been compelled to testify, one who has appeared voluntarily and testified without claiming his privilege against self-incrimination or one who has appeared and testified pursuant to a void subpoena or one addressed to another person, without claiming the privilege, cannot say he has been compelled to testify, and therefore, he is not entitled to immunity." And the necessity of claiming the privilege against self-incrimination before an administrative officer or board such as the Fact Finding Board is recognized to be essential, thus: This is not only equally true as for the case of testimony in a judicial trial, but the explicitness is here even more essential, and particularly where the administrative officer makes a general demand for documents or testimony upon a broad class of topics. The reason is clear. The officer has testimonial powers to extract a general mass of facts, or which some, many, or most will certainly be innocent and unprivileged, some may be privileged communications (e.g., between attorney and client) whose privilege remains unaffected by the statute defining his powers, and some may be privileged as self-

incriminating but liable to become demandable by overriding this privilege with a grant of immunity. Among these mass of facts, then, the officer will seek those which are relevant to his administrative inquiry; he cannot know which of them fall within one or another privilege in particular, which of them tend to criminate at all, or to criminate a particular person; if such facts are there, he may not desire or be authorized to exercised the option of granting immunity so as to obtain them; his primary function and power is to obtain the relevant facts at large, and his power to obtain a special and limited class of facts by grant of immunity is only a secondary one, and one which he will not exercise till a cause arises, if even then. For these reasons of practical sense, then, as well as for the inherent requirements of principle already noticed for judicial officers, it is particularly true for an inquiry by an administrative officer that the witness must explicitly claim his privilege, and specifically the privilege against self- incrimination, and must then be overridden in that claim, before immunity can take effect. (VII Wigmore on Evidence, 2282, pp. 517-518) The concurrence of Justice Vera Cruz sounds even more ominous thus: I believe that where evidence is produced by a witness in accordance with the conditions of the statute granting immunity such as P.D. No. 1886, as amended, its immunity provisions attach instantly and it is entirely immaterial what use the investigation authority makes of it (People ex rel. Massarsky v. Adams, 47 N.Y.S. 2d 375, 62 N.E. 2d 244). Consequently, the evidence, given before the Agrava Board by the accused in the instant cases namely, Generals Fabian Ver and Prospero Olivas, and Sergeants Pablo Martinez, Tomas Fernandez, Leonardo Mojica, Pepito Torio, Prospero Bona and Aniceto Acupido cannot be used against them and this proscription did attach instantly when they testified before the same Board. Verily, the prohibition stands, irrespective of the purpose for which the prosecution would like to use this evidence. The total and unqualified exclusion of the testimony and evidence granted by respondent court and sustained by the majority decision herein refers expressly to the eight respondents charged as accessories. Would not this 40

unprecedented grant of immunity and exclusion of testimony be now claimed by the rest of the twenty-two accused charged as principals except for the lone civilian? As reported by the press, respondent court has suspended its trial and placed the pressure on the Court to rush its decision, as "(T)he so-called 'trial of the century' has been delayed since last week on motion of the defense panel which had argued that the high court's decision on the admissibility of Ver's testimonies was a vital prerequisite to the presentation of witnesses for the defense. " 20Would this not result in the People holding an empty bag of excluded testimonies and evidence, since to all intents and purposes all respondents-accused testified before the Fact-Finding Board? Would their testimonies be inadmissible for purposes even of impeaching such testimony as they may now give before respondent court? These ponderous questions need not confront us had we but required respondent court to hew to the settled procedure and doctrine of Yatco (supra, par. I hereof) of giving the prosecution a chance to get into the record its relevant evidence until the final determination and consideration of the case, for the unjustified exclusion of evidence of the prosecution may lead to the erroneous acquittal of the accused or dismissal of the charges, from which the People can no longer appeal. 8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886 cited in respondent court's questioned order and bolstered by the majority decision's "novel" conclusion and ruling that the cited section quoted therein 21requires a claim from the witness of the privilege against selfincrimination but "forecloses under threat of contempt proceedings [under section 4] against anyone who makes such a claim. But the strong testimonial compulsion imposed by section 5 of P.D. 1886 viewed in the light, of the actions provided in section 4, infringes upon the witness' right against self- incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is offered. Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results the private respondents had all testified without offer of immunity. Their constitutional rights are, therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same law practically strips away from the witness. " Emphasis supplied). It bears emphasis that none of respondents made any such claim against self-incrimination. The "oppressive compulsion" if it may be so-called,

consists of a maximum penalty of P200. fine and/or 30 days imprisonment for direct contempt. As indicated, it would be ridiculous for any respondent to 1 make such claim when his testimony was but in full support of their own military theory and report that Galman killed Aquino. The language of the cited section 22 is plain and simple. It excuses no one from testifying and producing books and records but grants him immunity from prosecution (except for perjury) after having invoked his privilege against self-incrimination " There is nothing oppressive about such compulsion in exchange for immunity provided the witness invokes his and aims his privilege a against self-incrimination. In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to dismiss outright the petitions. opined that The clause 'concerning which lie is compelled to testify after having invoked his privilege against selfincrimination' is surplusage. It is in conflict with the first clause which, as already stated, gives immunity to the witness except in case of perjury. So, section 5 should be read as if that clause were not there.This is contrary to the rules of statutory construction that there is no room for construction when tile text is plain and simple, i.e. requires invocation and that the provisions must be taken in context and all the words taken into account and given their full meaning. The Anti-Gambling Law, Act No. 1757, enacted on October 9, 1907 by the Philippine Commission (probably the first Philippine immunity statute) granted such absolute immunity and does not contain the conditional clause requiring that the witness invoke his privilege against self-incrimination. Section 10 of the cited Act reads: Sec. 10. Upon any investigation or proceeding for violation of this Act no person shall be excused from giving testimony upon the ground that such testimony would tend to convict him of a crime, but such testimony cannot be received against him upon any criminal investigation or proceeding; Provided, however, That no person so testifying shall be exempt from prosecution or punishment for perjury committed in the course of any proceeding or investigation had by virtue of [his Act. (1 CPS [Rev. Ed.], 190) But when the statute grants conditional immunity (and not absolute as in the above-quoted section 10 of the Anti-Gambling Act.), then it explicitly contains the cited conditional clause in section 5 of P.D. 1886 granting immunity only when "he is compelled to testify after having invoked his privilege against self-incrimination. " This is but in accord with long-settled Philippine jurisprudence cited above (supra. paragraph 2 hereof), that the witness has an option of refusal to answer incriminatory questions, which he loses ipso facto if he does not 41

invoke the privilege and nevertheless answers the questions. Here, in review of the national and international importance of the case with the country's very prestige at stake, the P.D. added the incentive of offering immunity: "The purpose of immunity provisions is to aid prosecuting officers by inducing criminals or their confederates to turn state's evidence and tell on each other, to enable prosecuting officers to procure evidence which would otherwise be denied to them because of the constitutional right against self-incrimination, and at the same time to protect every person from gluing testimony which directly or indirectly would be helpful to the prosecution in securing an indictment or a conviction. The provisions for immunity are or should be as broad as or co-extensive with the constitutional provisions granting the privilege against self-incrimination." (21 Am. Jur. 2d. Criminal Law, sec. 148). It is bad enough that no state's evidence turned up to tell on his confederates in exchange of immunity. But to call the cited section " a booby trap for the unsuspecting or unwary witness" unless it was construed as granting absolute and unconditional immunity from the very fact of merely testifying as a witness before the Board without claiming immunity nor giving any incriminatory information that would aid the state to determine the true facts about Aquino's assassination would be a sell-out. It would make a shambles of the letter and spirit as well as the salutary intent and objective of the Decree to ferret out the truth and obtain state witnesses. 9. The truncated and distorted reading of the cited section 5 which consists of a single integrated paragraph and splitting it into two isolated parts so as to allow the privilege against self-incrimination (which was already lost for failure to claim it in the Board hearings) to be resurrected and raised in a much later time frame and "subsequent criminal proceeding" is against all usage and rules of statutory construction, not to mention the long line of above-cited jurisprudence to the contrary. And if there still be doubt, we need only reproduce hereunder the similar wording of Senate Joint Resolution 137 (Public Law 88-202) after which section 5 of P.D. 1886 was patterned. Said law was enacted by the U.S. Congress in December 1963 to empower the Warren Commission to issue subpoenas requiring the testimony of witness and the production of evidence relating to any matter under its investigation. The Report of the President's Commission on the Assassination of President John F. Kennedy in its foreword on page X stated that "In addition, the resolution authorized the Commission to compel testimony from witnesses claiming the privilege against self-incrimination under the fifth amendment to the U.S. Constitution by providing for the grant of immunity to persons testifying under such compulsion." (Emphasis supplied). The cited Public Law reads: (e) No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena, on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture

but no individual shall be prosecuted or subjected to any penalty or forfeiture (except demotion or removal from office) for or on account of any transaction matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying. (Emphasis supplied). 10. As already indicated above, none of the respondents, public and private, has indicated the specific portions of their testimony that they have been "oppressively compelled" to glue, in alleged violation of their privilege against self-incrimination. The reason for this is that they all testified voluntarily and eagerly to support the military report and version that Galman killed Senator Aquino. The Board unanimously rejected the military report and found that the killings were the product of criminal conspiracy. A brief flashback is herein appropriate: Within 60 seconds from his being led away by soldiers from his plane that had just landed at the Manila International Airport on Sunday, August 21, 1983 at past one p.m., former Senator Benigno S. Aquino, Jr. who was coming home after three years of self-exile in the U.S. laid dead face down on the tarmac, with his brain smashed by a bullet fired point blank into the back of his head by a murderous assassin. 23 Also lying dead on the tarmac, face up, near the senator was another man, to be Identified much later as Rolando Galman, whom the soldiers admittedly gunned down. The military pointed to him as Aquino's assassin, who had somehow allegedly penetrated the air-tight security of close to 2000 men ringing the airport. The military version met with great public disbelief and skepticism. The first fact-finding commission created under Administrative Order No. 469 dated August 24, 1983 and P.D. 1879 dated August 27, 1983 was the object of several suits charging bias and that the President "had already prejudged the case, by rejecting the version of foreign media that it is one of the soldiers, supposed to guard Aquino, who fatally shot him." 24 The said commission was dissolved per P.D. 1886, dated October 14, 1983 (later amended by P.D. 1903 dated February 8, 1984) which created the ad hoc Fact-Finding Board with plenary powers to investigate "the treacherous and vicious assassination (which) has to all Filipinos become a national tragedy and national shame ... (and) to determine the facts and circumstances surrounding the killing and to allow for a free, unlimited and exhaustive investigation into all the aspects of said tragedy." The Board after extensive hearings, submitted to the President their majority report on October 24, 1984, while the chairman former Court of Appeals Justice Corazon Agrava submitted her minority report one day earlier on October 23, 1984. All five members of the Board unanimously rejected the official military version that Galman was the assassin and instead found that there was criminal conspiracy. Their main difference of opinion is that the four-member majority found twenty-five military men (headed by respondents Generals Ver, Olivas and Luther Custodia) and one civilian "indictable for the premeditated killing of 42

Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983." The chairman's report confined the conspiracy to seven men headed by General Custodia. The Tanodbayan, after conducting the preliminary investigation, adopted the Board's majority report recommending the indictment of the accused as "involved in this conspiracy, either as principals, upon the theory that the act of one is the act of all, or as accessories, for attempting to hide the corpus of the offense." The eight accessories so indicted are the private respondents herein named headed by respondents Ver and Olivas. (The chairman in her minority report had found that "(T)he indications are that the plotters had agreed that only one would be the assassin; that the others can either point to Galman as the killer; or they can state that they did not see the shooting; and that they will give false testimony to mislead and confuse. 11. Only the former lawyers of the Fact-Finding Board created under P.D. No. 1886, consisting of Messrs. Andres R. Narvasa, Bienvenido A. Tan, Jr., Mario E. Ongkiko and Francisco A. Villa have given us the answer that there is nothing incriminatory per se in the testimonies of the respondents, in the Memorandum submitted by them, to wit: I. The so-called 'Galman Theory that it was Rolando Galman who killed Senator Aquino is either true or untrue, a matter the SANDIGANBAYAN will have to resolve. II. If the 'Galman Theory' be true as advocated by the military officers concerned then the testimony of Ver, et al. is true. It is not self-incriminatory. There would then be no reason to exclude it. If, on the other hand, the theory be untrue as the prosecution in turn advocates then the testimony of Ver, et al. is untrue. It is incriminatory of them, because by giving it and thereby seeking to hide the crime, they incriminated themselves. Withal there would also be no reason to exclude it. Surely, after their plot to deceive the Board had been exposed, they should not now be allowed to use the law to bring about exclusion of the very proof of their deception. In short, the testimonies of respondents could only be deemed incriminating if it be found that they sought thereby to hide or cover up the crime and thus incriminate themselves, as accessories to the murder of Senator Aquino. The former Fact-Finding Board lawyers amplify their theory, as follows:

5. The plain language of Section 5, PD 1886 precludes its interpretation as extending immunity to all testimony or evidence produced before the Board in obedience to subpoena regardless of whether the witness giving such evidence invokes the privilege against self-incrimination or not. 6. The fact is, the invocation by Ver, et al. of such right would have been self-defeating first, it would have prevented them from presenting evidence in substantiation of the 'Galman Theory,' which they wished the Board to accept; and second, it might have exposed to some extent their real objective, which was to deceive the Board. 7. It would have been incongruous for Ver, et al. to have claimed that their testimony would incriminate them as accessories to the murder of Aquino when they were, by testifying, actually in process of committing that precise crime, becoming accessories. 8. Neither PD 1886 nor the Constitution should be used as a shield for crime, fraud or trickery. 9. The foregoing propositions were ignored by the SANDIGANBAYAN. Instead, with all due respect, it has a. given Section 5, PD 1886 a strained construction not justified by and contrary to its plain language; b. given Section 20, Article IV, Constitution, a meaning at odds with its plain terms and contrary to relevant decisions of this Honorable Supreme Court; and c. sanctioned the use of legal provisions to shield persons from criminal liability arising from their perfidious testimony before the Fact-Finding Board. There is no legal ground nor justification for the exclusion order. It is for respondent court, upon consideration of the evidence for the People, without any exclusion, and of the evidence for the defense in due course, to render its verdict of guilty or not guilty. With a word of commendation for the former Fact-Finding Board lawyers and former Senator Ambrosio Padilla and Atty. Ramon Gonzales, whose memoranda as amid curiae, have been of great assistance, I vote, accordingly, to grant the petitions at bar and to set aside the questioned exclusion order.

43

MELENCIO-HERRERA, J., dissenting: I vote to grant the Petitions and to reverse the ruling of the Sandiganbayan. The resolution of the issue revolves around the interpretation to be given to Sec. 5 of PD No. 1886, reading as follows: SEC. 5. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the grounds that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter, or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence, except that such an individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office. (Emphasis supplied) As I read the law, Section 5 does not require that the person testifying before the Agrava Fact Finding Board (the Board, for short) shall first invoke the privilege against self-incrimination. Under said statute it is obvious that he has no such privilege. But what is the effect of the second part providing that his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence, except in case of perjury? To my mind, the above portion does not grant to a person who has testified before the Board absolute or total immunity. It should not operate as a shield against criminal liability specially since, under Section 12 of the same Decree, the Board may initiate the filing of the proper complaint if its finding so warrant. Thus, SEC. 12. The findings of the Board shall be made public. Should the findings warrant the prosecution of any person the Board may initiate the filing of the proper complaint with the appropriate government agency. ... (Emphasis supplied)

The inquiry before the Board was a general one. It was not directed against any particular individual or individuals. Private respondents did not testify therein as suspects or as accused persons. There should therefore be no hindrance to a criminal prosecution. It has been held that where an inquiry by a grand jury is a general one and is not directed against a particular individual the fact that on the basis of the information elicited, grounds for a criminal prosecution may evolve against a witness, may not serve as a bar to such prosecution (U.S. v. Okin D.C.N.J., 154 F. Supp. 553; Benson v. Goldstein, 124 N.Y.S. 2d 452) even though he testified before the grand jury without being warned of his constitutional privileges against self- incrimination. (U.S. v. Okin supra) (Emphasis supplied) The right against self incrimination is not a prohibition of inquiry but an option of refusal to answer incriminating questions Cabal vs. Kapunan, 6 SCRA 1059 [1962]). The kernel of the privilege is testimonial compulsion. Whether or not any specific portion of the testimonies of private respondents is incriminating should be determined by the Sandiganbayan itself. The claim against self-incrimination should be invoked when a specific question, which is incriminating in character, is put to a witness in the subsequent proceeding. There should be no automatic "immunity bath" of the entire testimony before the Board for immunity does not extend to such of the evidence as is not privileged. ... But it is established that the privilege against selfincrimination must be invoked at the proper time, and the proper time to invoke it is when a question calling for an incriminating answer is propounded. This has to be so, because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify 'cannot decline to appear, nor can be decline to be sworn as a witness' and 'no claim or privilege can be made until a question calling for a incriminating answer is asked; at that time, and generally speaking, at that time only, the claim of privilege may be interposed. (Gonzales vs. Sec. of Labor, et al., 94 Phil. 325, 326 [19541). Moreover, the issue actually addresses itself to a question of admissibility or competency of evidence and not to its credibility. Whether the evidence so admitted is to be given any probative weight or credence is best addressed to the Sandiganbayan. It should be recalled that the Board was not unanimous in its assessment of the testimonies given. 44

There are additional considerations. While the right against selfincrimination is indubitably one of the most fundamental of human rights, Section 5 of PD No. 1886 should be construed so as to effect a practical and beneficent purpose and not in such a manner as to hinder or obstruct the administration of criminal justice. ... Any statute which, while it compels him to testify, protects the witness if he does disclose the circumstances of his offense and the sources from which or the means by which evidence of its commission or of his connection with it may be obtained or made effectual for his subsequent prosecution and conviction is sufficient to comply with the constitutional requirements. Such a statute, however should be construed to effect a practical and beneficent purpose, namely, at the same time to secure the witness in his constitutional rights and to permit the prosecuting officer to secure evidence of a crime. It should not be construed so as to unduly impede, hinder, or obstruct the administration of criminal justice." Brown v. Walker 161 US 591, 16 Sup. Ct. 644, 40 L. Ed. 819. (People ex rel. Hunt vs. Lane, 116 N.Y.S. 990, 132 App. Div. 406) The objective in all this exercise is to arrive at the truth. "Though the constitutional provisions for the protection of one who appears ... must be liberally and fairly applied, the interests of the people are also entitled to consideration" (Wharton's Criminal Evidence, 11th Ed., Vol. 1, p. 609; People vs. Coyle 15 N.Y.S. 2d 441, 172 Mis 593). Specially so since, in the language of PD No. 1886 itself, the "treacherous and vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983, has to all Filipinos become a national tragedy and national shame. " In the interest of eliciting the truth, the excluded testimonies should be admitted, leaving it to the Sandiganbayan to determine which specific questions and answers are to be excluded because they are incriminatory, and which should be given credibility, in found to be competent and admissible.

Respondent Sandiganbayan rejected their testimonies on the ground that "under statutes providing in substance that no person shall be excused from testifying or furnishing evidence on the ground that the testimony or evidence may tend to incriminate him, but that no person shall be subject to indictment or prosecution for anything concerning which he may testify or furnish evidence, it has been held that one who testifies concerning criminal offenses when required to do so is entitled to immunity from prosecution even though he fails to claim his privilege before giving the incriminating testimony (21 Am Jur 2d 218). He could not be required, in order to gain the immunity which the law afforded, to go though the formality of an objection or protest which, however made, would be useless (VIII Wigmore 516)." (p. 4, Resolution of Sandiganbayan) Section 5 of Presidential Decree No. 1886 provides that: SEC. 5. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against selfincrimination to testify or produce evidence ... (Emphasis supplied.) Pursuant to the above Presidential Decree no one can refuse to testify or furnish evidence before the Fact Finding Board. However, his testimony or any evidence produced shall not be used against him after he invoked the privilege against self-incrimination. Stated differently, the privilege against self-incrimination must be invoked when the question at the hearing before the Board, calling for an incriminating answer is propounded; otherwise, before any question is asked of the witness, he would not know whether the information to be elicited from him is incriminating or not. In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this Court held that "the privilege against self-incrimination must be invoked at the proper time, and the proper time to invoke it is when question calling for a incriminating answer is propounded. This has to be so, because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify 'cannot decline to appear, nor can he decline to be sworn as a witness' and 'no claim of privilege can be made until a question calling for a incriminating answer is asked; at that time, and generally speaking, at that time only, the claim of privilege may properly be 45

RELOVA, J., dissenting: The issue raised in these two petitions is whether the testimonies and other evidence produced by the private respondents before the Agrava Board may be used as evidence against them before the Sandiganbayan

interposed.'" And, since it is a personal right to be exercised only by the witness, this privilege against self-incrimination may be waived by him and, when so waived, cannot thereafter be asserted. The privilege is waived by his voluntary offer to testify by, answering questions without objecting and/or claiming the privilege. When private respondents gave testimonies before the Board they were not defendants but witnesses invited and/or subpoenaed "to ventilate the truth thorougly free, independent and dispassionate investigation." They could not refuse or withhold answers to questions propounded to them unless the inquiry calls for an incriminating answer and a timely objection is raised. In the case at bar, since the private respondents answered questions from the Fact Finding Board without claiming the privilege against selfincrimination they cannot now be allowed to invoke the immunity clause provided in Section 5 of Presidential Decree No. 1886. I vote to grant the petitions. G.R. No. 89914 November 20, 1991 JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA, KURT BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE CASTILLO, and CYNTHIA SABIDO LIMJAP, petitioners, vs. THE SENATE BLUE RIBBON COMMITTEE AND ITS MEMBERS, represented by and through the CHAIRMAN, HON. WIGBERTO TAADA, respondents, JOSE S. SANDEJAS, intervenor. Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for petitioners. Balgos & Perez for intervening petitioner. Eddie Tamondong and Antonio T. Tagaro for respondents.

produce evidence at its inquiry into the alleged sale of the equity of Benjamin "Kokoy" Romualdez to the Lopa Group in thirty-six (36) or thirtynine (39) corporations. On 30 July 1987, the Republic of the Philippines, represented by the Presidential Commission on Good Government (PCGG), assisted by the Solicitor General, filed with the Sandiganbayan Civil Case No. 0035 (PCGG Case No. 35) entitled "Republic of the Philippines vs. Benjamin "Kokoy" Romualdez, et al.", for reconveyance, reversion, accounting, restitution and damages. The complaint was amended several times by impleading new defendants and/or amplifying the allegations therein. Under the Second Amended Complaint, 1 the herein petitioners were impleaded as party defendants. The complaint insofar as pertinent to herein petitioners, as defendants, alleges among others that: 14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez, acting by themselves and/or in unlawful concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of their relationship, influence and connection with the latter Defendant spouses, engaged in devices, schemes and strategems to unjuestly enrigh themselves at the expense of Plaintiff and the Filipino people, among others: (a) Obatained, with the active collaboration of Defendants Sene J. Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J. Valdez, Cesar C. Zalamea and Francisco Tantuico, Atty. Jose Bengzon, Jr. and his law partners, namely: Edilberto S. Narciso, Jr., Jose Vicente E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz; Jose S. Sandejas and his fellow senior managers of FMMC/PNI Holdings groups of companies such as Leonardo Gamboa, Vicente T. Mills, Jr., Jose M. Mantecon, Abelardo S. Termulo, Rex C. Drilon II and Kurt Bachmann, Jr., control of some of the biggest business enterprises in the Philippines, such as the Manila Corporation (MERALCO), Benguet Consolidated and the 46

PADILLA, J.:p This is a petition for prohibition with prayer for the issuance of a temporary restraining order and/or injuective relief, to enjoin the respondent Senate Blue Ribbon committee from requiring the petitioners to testify and

Philippine Commercial International Bank (PCI Bank) by employing devious financial schemes and techniques calculated to require the massive infusion and hemorrhage of government funds with minimum or negligible "cashout" from Defendant Benjamin Romualdez... xxx xxx xxx (m) manipulated, with the support, assistance and collaboration of Philgurantee officials led by chairman Cesar E.A. Virata and the Senior managers of FMMC/PNI Holdings, Inc. led by Jose S. Sandejas, Jr., Jose M. Mantecom and Kurt S. Bachmann, Jr., among others, the formation of Erectors Holdings, Inc. without infusing additional capital solely for the purpose of Erectors Incorporated with Philguarantee in the amount of P527,387,440.71 with insufficient securities/collaterals just to enable Erectors Inc, to appear viable and to borrow more capitals, so much so that its obligation with Philgurantee has reached a total of more than P2 Billion as of June 30, 1987. (n) at the onset of the present Administration and/or within the week following the February 1986 People's Revolution, in conspiracy with, supoort, assistance and collaboration of the abovenamed lawyers of the Bengzon Law Offices, or specifically Defendants Jose F.S. Bengzon, Jr., V.E. Jimenez, Amando V. Faustino, Jr., and Edilberto S. Narciso, Jr., manipulated, shcemed, and/or executed a series of devices intended to conceal and place, and/or for the purpose of concealing and placing, beyond the inquiry and jurisdiction of the Presidential Commission on Good Government (PCGG) herein Defendant's individual

and collective funds, properties, and assets subject of and/or suited int he instant Complaint. (o) manuevered, with the technical know-how and legalitic talents of the FMMC senior manager and some of the Bengzon law partners, such as Attys. Jose F.S. Bengzon, Jr., Edilberto S. Narciso, Jr., Amando V. Faustino, Jose Vicente E. Jimenez and Leonardo C. Cruz, the purported sale of defendant Benjamin Romualdez's interests in the (i) Professional Managers, (ii) A & E International Corporation (A & E), (iii) First Manila Managerment Corporation (FMMC), (iv) Philippine World Travel Inc. (PWTI) and its subsidiaries consisting of 36 corporations in all, to PNI Holdings, Inc. (wjose purported incorporations are all members of Atty. Jose F.S. Bengzon's law firm) for only P5 million on March 3, 1986 or three days after the creation of the Presidential Commission on Good Government on February 28, 1986, for the sole purpose of deceiving and preempting the Government, particularly the PCGG, and making it appear that defendant Benjamin Romualdez had already divested himself of his ownership of the same when in truth and in fact, his interests are well intact and being protected by Atty. Jose F.S. Bengzon, Jr. and some of his law partners, together with the FMMC senior managers who still control and run the affiars of said corporations, and in order to entice the PCGG to approve the said fictitious sale, the above-named defendants offered P20 million as "donation" to the Government; (p) misused, with the connivance, support and technical assitance of the Bengzon law firm represented by Atty. Jose F.S. Bengzon, Jr. as legal counsel, together with defendants Cesar Zalamea, Antonio Ozaeta, Mario D. 47

Camacho amd Senen J. Gabaldon as members of the Board of Directors of the Philippine Commercial International bank (PCIB), the Meralco Pension Fund (Fund, for short) in the amount of P25 million by cuasing it to be invested in the PCIB and through the Bank's TSG, assigned to PCI Development and PCI Equity at 50% each, the Fund's (a) 8,028.011 common shares in the Bank and (b) "Deposit in Subscription" in the amount of P4,929.972.50 but of the agreed consideration of P28 million for the said assignment, PCI Development and PCI Equity were able to pay only P5,500.00 downpayment and the first amortization of P3,937,500.00 thus prompting the Fund to rescind its assignment, and the consequent reversion of the assigned brought the total shareholding of the Fund to 11,470,555 voting shares or 36.8% of the voting stock of the PCIB, and this development (which the defendants themselves orchestrated or allowed to happen) was used by them as an excuse for the unlawful dismantling or cancellation of the Fund's 10 million shares for allegedly exceeding the 30percent ceiling prescribed by Section 12-B of the General Banking Act, although they know for a fact that what the law declares as unlawful and void ab initio are the subscriptions in excess of the 30% ceiling "to the extent of the excess over any of the ceilings prescribed ..." and not the whole or entire stockholding which they allowed to stay for six years (from June 30, 1980 to March 24, 1986); (q) cleverly hid behind the veil of corporate entity, through the use of the names and managerial expertise of the FMMC senior manager and lawyers identified as Jose B. Sandejas, Leonardo Gamboa, Vicente T. Mills, Abelardo S, Termulo, Edilberto S. Narciso, Jr., Jose M. Mantecon, Rex C. Drilon II, Kurt

Bachmann, Jr. together with the legal talents of corporate lawyers, such as Attys. Jose F.S. Bengzon, Jr., Jose V.E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz, the ill-gotten wealth of Benjamin T. Romualdez including, among others, the 6,229,177 shares in PCIB registered in the names of Trans Middle East Phils. Equities, Inc. and Edilberto S. Narciso, Jr. which they refused to surrender to PCGG despite their disclosure as they tried and continue to exert efforts in getting hold of the same as well as the shares in Benguet registered in the names of Palm Avenue Holdings and Palm Avenue Realty Development Corp. purportedly to be applied as payment for the claim of P70 million of a "merger company of the First Manila Managerment Corp. group" supposedly owned by them although the truth is that all the said firms are still beneficially owned by defendants Benjamin Romualdez. xxx xxx xxx On 28 September 1988, petitioner (as defendants) filed their respective answers. 2 Meanwhile, from 2 to 6 August 1988, conflicting reports on the disposition by the PCGG of the "Romualdez corporations" were carried in various metropolitan newspapers. Thus, one newspaper reported that the Romuladez firms had not been sequestered because of the opposition of certain PCGG officials who "had worked prviously as lawyers of the Marcos crony firms." Another daily reported otherwise, while others declared that on 3 March 1986, or shortly after the EDSA February 1986 revolution, the Romualdez companies" were sold for P5 million, without PCGG approval, to a holding company controlled by Romualdez, and that Ricardo Lopa, the President's brother-in-law, had effectively taken over the firms, even pending negotiations for the purchase of the corporations, for the same price of P5 million which was reportedly way below the fair value of their assets. 3 On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech "on a matter of personal privilege" before the Senate on the alleged "take-over personal privilege" before the Senate on the alleged "take-over of SOLOIL Incorporated, the flaship of the First Manila Management of Companies (FMMC) by Ricardo Lopa" and called 48

upon "the Senate to look into the possible violation of the law in the case, particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act." 4 On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee on Accountability of Public Officers (Blue Ribbon Committee). 5 Thereafter, the Senate Blue Ribbon Committee started its investigation on the matter. Petitioners and Ricardo Lopa were subpoenaed by the Committee to appear before it and testify on "what they know" regarding the "sale of thirty-six (36) corporations belonging to Benjamin "Kokoy" Romualdez." At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on the ground that his testimony may "unduly prejudice" the defendants in Civil Case No. 0035 before the Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify involing his constitutional right to due process, and averring that the publicity generated by respondents Committee's inquiry could adversely affect his rights as well as those of the other petitioners who are his co-defendants in Civil Case No. 0035 before the Sandiganbayan. The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and directed the petitioners to file their memorandum on the constitutional issues raised, after which, it issued a resolution 6 dated 5 June 1989 rejecting the petitioner's plea to be excused from testifying, and the Committee voted to pursue and continue its investigation of the matter. Senator Neptali Gonzales dissented. 7 Claiming that the Senate Blue Ribbon Committee is poised to subpoena them and required their attendance and testimony in proceedings before the Committee, in excess of its jurisdiction and legislative purpose, in clear and blatant disregard of their constitutional rights, and to their grave and irreparable damager, prejudice and injury, and that there is no appeal nor any other plain, speedy and adequate remedy in the ordinary course of law, the petitioners filed the present petition for prohibition with a prayer for temporary restraning order and/or injunctive relief. Meanwhile, one of the defendants in Civil Case No. 0035 before the Sandiganbayan, Jose S. Sandejas, filed with the Court of motion for intervention, 8 which the Court granted in the resolution 9 of 21 December 1989, and required the respondent Senate Blue Ribbon Committee to comment on the petition in intervention. In compliance, therewith, respondent Senate Blue Ribbon Committee filed its comment 10 thereon. Before discussing the issues raised by petitioner and intervenor, we will first tackle the jurisdictional question raised by the respondent Committee.

In its comment, respondent Committee claims that this court cannot properly inquire into the motives of the lawmakers in conducting legislative investigations, much less cna it enjoin the Congress or any its regular and special commitees like what petitioners seek from making inquiries in aid of legislation, under the doctrine of separation of powers, which obtaines in our present system of government. The contention is untenable. In Angara vs. Electoral Commission, 11 the Court held: The separation of powers is a fundamental principle in our system of government. It obtains not hrough express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters wihtin its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government... xxx xxx xxx But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The ovelapping and interlacing of funcstions and duties between the several deaprtments, however, sometimes makes it hard to say just where the political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated, in cases of conflict, the judicial departments is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. xxx xxx xxx The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries; it does not assert any 49

superiority over the other departments; it does not inr eality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by tyhe Constitution to determine conflicting claims of authority under the Constitution and to established for the parties in an actual controversy the rights which that instrument secures and guarantess to them. This is in thruth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even the, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More thatn that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also becuase the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. The "allocation of constituional boundaries" is a task that this Court must perfomr under the Constitution. Moreowever, as held in a recent case, 12 "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with kthe applicability of the principle in appropriate cases." 13 The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of determining the scope and extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into private affirs in purported aid of legislation. Coming to the specific issues raised in this case, petitioners contend that (1) the Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e., it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez corporations is a "purely private transaction" which is beyond the power of the Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their right to due process.

The 1987 Constition expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. 14 Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committee may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. 15 The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one's self. The power to conduct formal inquiries or investigations in specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or reexamination of any law or in connection with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Seante alone. As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exervise of a power in it vested by the Constitution, such as to legislate or to expel a member. Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any Senator which in tis judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made. A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement which was published in various newspapers on 2 September 1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over the FMMC Group of Companies." As a consequence thereof, Mr. Lopa wrote a letter to Senator Enrile on 4 September 1988 categorically denying that he had "taken over " the FMMC Group of Companies; that former PCGG Chairman Ramon Diaz himself categorically stated in a telecast interview by Mr. Luis Beltran on Channel 7 on 31 August 1988 that there has been no 50

takeover by him (Lopa); and that theses repeated allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as they are malicious. The Lopa reply prompted Senator Enrile, during the session of the Senate on 13 September 1988, to avail of the privilege hour, 17 so that he could repond to the said Lopa letter, and also to vindicate his reputation as a Member of the Senate of the Philippines, considering the claim of Mr. Lopa that his (Enrile's) charges that he (Lopa) had taken over the FMMC Group of Companies are "baseless" and "malicious." Thus, in his speech, 18 Senator Enrile said, among others, as follows: Mr. President, I rise this afternnon on a matter of personal privilege; the privilege being that I received, Mr. President, a letter dated September 4, 1988, signed by Mr. ricardo A. Lopa, a.k.a. or Baby Lopa, wherein he denied categorically that he has taken over the First Manila Management Group of Companies which includes SOLOIL Incorporated. xxx xxxx xxx In answer to Mr. Lopa, I will quote pertinent portions from an Official Memorandum to the Presidential Commission of Good Government written and signed by former Governor, now Congressman Jose Ramirez, in his capacity as head of the PCGG Task Force for Region VIII. In his memorandum dated July 3, 1986, then Governor Ramirez stated that when he and the members of his task force sought to serve a sequestration order on the management of SOLOIL in Tanauan, Leyte, management officials assured him that relatives of the President of the Philippines were personally discussing and representing SOLOIL so that the order of sequestration would be lifted and that the new owner was Mr. Ricardo A. Lopa. I will quote the pertinent portions in the Ramire's memorandum. The first paragraph of the memorandum reads as follows and I quote, Mr. President: "Our sequestration work of SOLOIL in Tanauan, Leyte was not heeded by management because they said another representation was being made to this Commission for the ventual

lifting of our sequestrationorder. They even assured us that Mr. Ricardo Lopa and Peping Cojunangco were personally discussing and representing SOLOIL, so the order of sequestration will finally be lifted. While we attempted to carry on our order, management refused to cooperate and vehemently turned down our request to make available to us the records of the company. In fact it was obviously clear that they will meet us with forcethe moment we insist on doing normally our assigned task. In view of the impending threat, and to avoid any untoward incident we decided to temporarily suspend our work until there is a more categorical stand of this Commission in view of the seemingly influential represetation being made by SOLOIL for us not to continue our work." Another pertinent portion of the same memorandum is paragraph five, which reads as follows, and I quote Mr. President: "The President, Mr. Gamboa, this is, I understand, the President of SOLOIL, and the Plant Superintendent, Mr. Jimenez including their chief counsel, Atty. Mandong Mendiola are now saying that there have been divestment, and that the new owner is now Mr. Ricardo Lopa who according to them, is the brother-in-law of the President. They even went further by telling us that even Peping Cojuangco who we know is the brother of her excellency is also interested in the ownership and management of SOLOIL. When he demanded for supporting papers which will indicate aforesaid divestment, Messrs. Gamboa, Jimenez and Mendiola refused vehemently to submit these papers to us, instead they said it will be submitted directly to this Commission. To our mind their continuous dropping of names is not good for this Commission and even to the President 51

if our dersire is to achieve respectability and stability of the government." The contents of the memorandum of then Governor and now Congressman Jose Ramirez were personally confirmed by him in a news interview last September 7, 1988. xxx xxxx xxx Also relevant to this case, Mr. President, is a letter of Mr. Ricardo Lopa himself in August 11, 1988 issue of the newspaper Malaya headlined "On Alleged Takeover of Romualdez Firms." Mr. Lopa states in the last paragraph of the published letter and I quote him: 12. As of this writing, the sales agreement is under review by the PCGG solely to determine the appropriate price. The sale of these companies and our prior rigtht to requires them have never been at issue. Perhaps I could not make it any clearer to Mr. Lopa that I was not really making baseless and malicious statements. Senator Enrile concluded his privilege speech in the following tenor: Mr. President, it may be worthwhile for the Senate to look into the possible violation of the law in the case particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, Section 5 of which reads as follows and I quote: Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for nay relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene directly or indirectly, in any

business, transaction, contract or application with the Government: Provided, that this section shall not apply to any person who prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application filed by him for approval of which is not discretionary on the part of the officials concerned but depends upon compliance with requisites provided by law, nor to any act lawfully performed in an official capacity or in the exercise of a profession. Mr. President, I have done duty to this Senate and to myself. I leave it to this august Body to make its own conclusion. Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019, otherwise known as "The AntiGraft and Corrupt Practices Act." I other words, the purpose of the inquiry to be conducted by respondent Blue Ribbon commitee was to find out whether or not the relatives of President Aquino, particularly Mr. ricardo Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin "Kokoy" Romualdez to the Lopaa Group. There appears to be, therefore, no intended legislation involved. The Court is also not impressed with the respondent Committee's argument that the questioned inquiry is to be conducted pursuant to Senate Resolution No. 212. The said resolution was introduced by Senator Jose D. Lina in view of the representaions made by leaders of school youth, community groups and youth of non-governmental organizations to the Senate Committee on Youth and Sports Development, to look into the charges against the PCGG filed by three (3) stockholders of Oriental petroleum, i.e., that it has adopted a "get-rich-quick scheme" for its nominee-directors in a sequestered oil exploration firm.The pertinent portion of Senate Resolution No. 212 reads as follows: xxx xxx xxx WHEREAS, recent developments have shown that no less than the Solicitor-General has stated that the PCGG 52

Chairman and at least three Commissioners should resign and that the agency should rid itself of "ineptness, incompetence and corruption" and that the Sandiganbayan has reportedly ordered the PCGG to answer charges filed by three stockholders of Oriental Petroleum that it has adopted a "get-rich-quick scheme" for its nominee-directors in a sequestered oil exploration firm; WHEREAS, leaders of school youth, community groups and youth of non-governmental organization had made representations to the Senate Committee on Youth and Sports Development to look into the charges against the PCGG since said agency is a symbol of the changes expected by the people when the EDSA revolution took place and that the ill-gotten wealth to be recovered will fund priority projects which will benefit our people such as CARP, free education in the elementary and secondary levels reforestration, and employment generation for rural and urban workers; WHEREAS, the government and the present leadeship must demonstrate in their public and private lives integrity, honor and efficient management of government services lest our youth become disillusioned and lose hope and return to an Idelogy and form of government which is repugnant to true freedom, democratic participation and human rights: Now, therefore, be it. Resolved by the Senate, That the activities of the Presidential Commission on Good Government be investigated by the appropriate Committee in connection with the implementation of Section 26, Article XVIII of the Constitution. 19 Thus, the inquiry under Senate Resolution No. 212 is to look into the charges against the PCGG filed by the three (3) stockholders of Oriental Petroleum in connection with the implementation of Section 26, Article XVIII of the Constitution. It cannot, therefore, be said that the contemplated inquiry on the subject of the privilege speech of Senator Juan Ponce Enrile, i.e., the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez to the Lopa Group is to be conducted pursuant to Senate Resolution No. 212 because, firstly, Senator Enrile did not indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the herein petitioners are connected with the government but are private citizens.

It appeals, therefore, that the contemplated inquiry by respondent Committee is not really "in aid of legislation" becuase it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the ralatives of the President or Mr. Ricardo Lopa had violated Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a matter that appears more within the province of the courts rather than of the legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the pendency of this case. In John T. Watkins vs. United States, 20 it was held held: ... The power of congress to conduct investigations in inherent in the legislative process. That power is broad. it encompasses inquiries concerning the administration of existing laws as well as proposed, or possibly needed statutes. It includes surveys of defects in our social,economic, or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But broad asis this power ofinquiry, it is not unlimited. There is no general authority to expose the private affairs ofindividuals without justification in terms of the functions of congress. This was freely conceded by Solicitor General in his argument in this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigations conducted soly for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible. (emphasis supplied) It can not be overlooked that when respondent Committee decide to conduct its investigation of the petitioners, the complaint in Civil No. 0035 had already been filed with the Sandiganbayan. A perusal of that complaint shows that one of its principal causes of action against herein petitioners, as defendants therein, is the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez. Since the issues in said complaint had long been joined by the filing of petitioner's respective answers thereto, the issue sought to be investigated by the respondent Commitee is one over which jurisdiction had been acquired by the Sandiganbayan. In short, the issue had been pre-empted by that court. To allow the respondent Committee to conduct its own investigation of an issue already before the Sandiganbayan would not only pose the possibility of conflicting judgments betweena legislative commitee and a judicial tribunal, but if the Committee's judgment were to be reached before that of the Sandiganbayan, the possibility of its influence being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted. 53

In fine, for the rspondent Committee to probe and inquire into the same justiciable controversy already before the Sandiganbayan, would be an encroachment into the exclusive domain of judicial jurisdiction that had much earlier set in. In Baremblatt vs. United States, 21 it was held that: Broad as it is, the power is not, howevern, without limitations. Since congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot inquire into mattes that are exclusively the concern of the Judiciary. Neither can it suplant the Executive in what exclusively belongs to the Executive. ... Now to another matter. It has been held that "a congressional committee's right to inquire is 'subject to all relevant limitations placed by the Constitution on governmental action,' including "'the relevant limitations of the Bill of Rights'." 22 In another case ... the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical element is the exeistence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that over-balances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroah upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly. 23 One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. 24 Thir right constured as the right to remain completely silent may be availed of by the accused in a criminal case; but kit may be invoked by other witnesses only as questions are asked of them. This distinction was enunciated by the Court in Romeo Chavez vs. The Honorable Court of Appeals, et al. 25 thus

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is hot at him, an accused may altother refuse to take the witness stand and refuse to answer any all questions. Moreover, this right of the accused is extended to respondents in administrative investigations but only if they partake of the nature of a criminal proceeding or analogous to a criminal proceeding. In Galman vs. Pamaran, 26the Court reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against self-incrimination not only in criminal proceedings but also in all other types of suit It was held that: We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is propounded to him. Clearly then, it is not the characeter of the suit involved but the nature of the proceedings that controls. The privilege has consistenly been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by the respondent Committee to appear, testify and produce evidenc before it, it is only becuase we hold that the questioned inquiry is not in aid of legislation and, if pursued, would be violative of the principle of separation of powers between the legislative and the judicial departments of government, ordained by the Constitution. WHEREFORE, the petition is GRANTED. The Court holds that, under the facts, including the circumtance that petitioners are presently impleaded as defendants in a case before the Sandiganbayan, which involves issues intimately related to the subject of contemplated inquiry before the respondet Committee, the respondent Senate Blue Ribbon Committee is hereby enjoined from compelling the petitioners and intervenor to testify before it and produce evidence at the said inquiry. SO ORDERED. 54

Fernan, C.J., Melencio-Herrera, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur.

practices we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our Constitution, as we have done in other cases in the past. Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisely and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change: and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. ... (At p. 45) The framers of the present Constitution were not content to leave the power inherent, incidental or implied. The power is now expressed as follows: Sec. 21 The Senate or the House of Representatives or may of its respective committees may conduct inquiries in aid of legialtion in accordance with its duly published rules of precedure. The rights of persons appearing in or affected by such inquiries shall be respected. Apart from the formal requirement of publishing the rules of procedure, I agree that there are three queries which, if answered in the affirmative, may give us cause to intervene. First, is the matter being investigated one on which no valid legislation could possibly be enacted? Second, is Congress encroaching on terrain which the Constitution has reserved as the exclusive domain of another branch of government? And third, is Congress violating the basic liberties of an individual? The classic formulation of the power of the Court to interpret the meaning of "in aid of legislation" is expressed inKilbourn v. Thompson, 103 U.S. 168 (1880). 55

Separate Opinions

PARAS, J., concurring: I concur principally because any decision of the respondent committee may unduly influence the Sandiganbayan GUTIERREZ, JR., J., dissenting: I regret that I must express a strong dissent the Court's opinion in this case. The Court is asserting a power which I believe we do not possess. We are encroaching on the turf of Congress. We are prohibiting the Senate from proceeding with a consitutionally vested function. We are stopping the Senate Blue Ribbon Committee from exercising a legislative prerogative investigations in aid of legislation. We do so becuase we somehow feel that the purported aim is not the real purpose. The Court has no power to second guess the motives behind an act of a House of Congress. Neither can we substitute our judgment for its judgment on a matter specifically given to it by the Constitution. The scope of the legislative power is broad. it emcompasses practically every aspect of human or corporate behavior capable of regulation. How can this Court say that unraveling the tangled and secret skeins behind the acquisition by Benjamin "Kokoy" Romualdez of 39 corporations under the past regime and their sudden sale to the Lopa Group at the outset of the new dispensation will not result in useful legislation? The power of either House of Congress to conduct investigations is inherent. It needs no textual grant. As stated inArnault v. Nazareno, 87 Phil. 29 (1950) Our form of government being patterned after the American system the framers of our Constitution having drawn largely from American institutions and

The House of Representatives passed a resolution creating a committee to investigate the financial relations between Jay Cooke and Co., a depositary of federal funds and a real estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused to answer questions put to him by the Committee and to produce certain book sna papers. Consequently, he was ordered jailed for forty-five days. He brought an action for false imprisonment and the Supreme Court decided in his favor. Speaking through Justice Miller, the Court ruled: The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress on the subject, In all the argument of the case no suggestion has been made of what the House of Respresentatives or the Congress could have done in the way of remedying the wrong or securing the creditors of Jay Cooke and Co., or even the United States. Was it to be simply a fruitless investigation into the personal affiars of individuals? If so the House of Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for the government of their country. By fruitless we mean that it could result in no valid legislation on the subject to which the inquiry referrred. (Kilbourn v. Thompson, Id. at page 388) The Kilbourn decision is, however, crica 1880. The world has turned over many times since that era. The same court which validated separate but equal facilities against of racial discrimination and ruled that a private contract may bar improved labor standards and social justice legislation has reversed itslef on these and many other questions. In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the express terms of the Senate resolution directing the investigation of a former Attorney General for non-feasance, misfeasance, and malfeasance in office. It presumed that the action of the Senate was with a legitimate object. ... Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney-General and the duties of his assitants, are all subject to regulation by congressional legislation, and that the department is maintained and its activitites are

carried on under such appropriations as in the judgment of Congress are needed from year to year. The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject was the real object. An express avowal of the object would have been better; but in view of the particular subject matter was not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep. 49, 2 N.E. 615, where the Court of Appeals of New york sustained an investigation order by the House of Representatives of that state where the resolution contained no avowal, but disclosed that it definitely related to the administrative of public office the duties of which were subject to legislative regulation, the court said (pp. 485, 487): Where public institutions under the control of the State are ordered to be investigated, it is generally with the view of some legislative action respecting them, and the same may be said in respect of public officers,' And again "We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended." (McGrain v. Daugherty Id., at page 594-595, Emphasis supplied) The American Court was more categorical in United States v. Josephson, 333 U.S. 858 (1938). It declared that declaration of legislative purpose was conclusive on the Courts: Whatever may be said of the Committee on the unAmerican activities, its authorizing resolution recites it is in aid of legislation and that fact is establshed for courts. And since the matter before us in somethingwe inherited from the American constitutional system, rulings from the decision of federal courts may be apropos. (Stamler v. Willis, 287 F. Supp. 734 [1968] The Court cannot probe into the motives of the members of the Congress. Barsky v. United States, 167 F. 2d 241 [1948] The measure of the power of inquiry is the potentiality that constitutional legislation might ensue from information derived from such inquiry. 56

The possibility that invalid as well as valid legislation might ensue from an inquiry does not limit the power of inquiry, since invalid legislation might ensue from any inquiry. United States v. Shelton, 148 F. Supp. 926 [1957] The contention of the defendant that the hearing at which he testified and from which the indictment arose was not in furtherance og a legislative purpose proceeds on the assumption that a failure to have specific legislation in contemplation, or a failure to show that legislation was in fact enacted, estabished an absence of legislative purpose. This argument is patently unsound. The investigative power of Congress is not subject to the limitation that hearings must result in legislation or recommendations for legislation. United States v. Deutch (147 F. Supp. 89 (1956) Under the Constitution of the U.S., the Federal Government is a government of limited powers. The Congress, being the legislative branch of the Federal Government, is also clothed with limited legislative powers. In orders, however, to carry its legislative powers into effect successfully, it has always been held that Congress has the power to secure information concerning matters in respect to which it has the authority to legislate. In fact, it would seem that Congress must secure information in order to legislate intelligently. Beyond that, the Congress has the right secure information in order to determine whether or not to legislate on a particular subject matter on which it is within its constitutional powers to act. (Emphasis Supplied) The even broader scope of legislative investigation in the Philippine context is explained by a member of the Constitutional Commission. The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy becuase, unlike in the United States, where legislative power is shared by the United State Congress and the states legislatures, the totality of legislative power is possessed by the Congress nad its legislative field is well-nigh

unlimited. "It would be difficult to define any limits by which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation. "In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for legislative action and form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question. (Id., at 48) On the basis of this interpretation of what "in aid of legislation" means, it can readily be seen that the phrase contributes practically nothing towards protecting witnesses. Practically any investigation can be in aid of the broad legislative power of Congress. The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103 U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United States (354 U.S. 178, 200 [1957] labeled as exposure for the sake of exposure. (Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed., page 132). Applying the above principles to the present casem, it can readily be seen that the Senate is investigating an area where it may potentially legislate. The ease with which relatives of the President were allegedly able to amass great wealth under the past regime is a legitimate area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding adminsitration to duplicate the feat, the need for remedial legislation becomes more imperative. Our second area of concern is congressional encroachment on matters reserved by the Constitution for the Executive or the Judiciary. The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139 (1936) explaining our power to determined conflicting claims of authority. It is indeed the function on this Court to allocate constitutional boundaries but in the exercise of this "umpire" function we have to take care that we do not keep any of the three great departments of government from performing functions peculiar to each department or specifically vested to it sby the Constitution. When a power is vested, ti carries with is everything legitimately neede to exercise it. 57

It may be argued that the investigation into the Romualdez Lopa transactions is more appropriate for the Department of Justice and the judiciary. This argument misses the point of legislative inquiry. The prosecution of offenders by the Department of Justice or the Ombudsman and their trial before courts of justice is intended to punish persons who violate the law. Legislative investigations go further. The aim is to arrive at policy determinations which may or may not be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus. For sure, the Senate Blue Ribbon Committee knows it cannot sentence any offender, no matter how overwhelming the proof that it may gatherm to a jail term. But certainly, the Committee can recommend to Congress how the situation which enabled get-rich-quick schemes to flourish may be remedied. The fact that the subject of the investigation may currently be undergoing trial does not restrict the power of Congress to investigate for its own purposes. The legislative purpose is distinctly different from the judicial purpose. In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations to oil companies were investigated by the United States Senate. On a finding that certain leases were fraudulent, court action was recommended. In other words, court action on one hand and legislation on the other, are not mutually exclusive. They may complement each other. ... It may be conceded that Congress is without authority to compel disclosyres for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through it Committees, to require pertinent disclosures in aid of its own consitutional power is not abridged because the information sought to be elicited may also be of use in such suits... It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action... (Sinclair v. United States, Id.at page 698). In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent for a legislative committee to seek facts indicating that a witness was linked to unlawful intestate gambling. The power of a congressional committee to investigate matters cannot be challenged on the ground that the Committee went beyond the scope of any contemplated legislative and assumed the functions of a grand jury. Whre the genral subject of investigation is one concerning which Congress can legislate, and the

information sought might aid the congressional consideration, in such a situation a legitimate legislative purpose must be presumed... I submit that the filing of indictments or informations or the trial of certain persons cannot, by themselves, half the intitiation or stop the progress of legislative investigations. The other ground which I consider the more important one is where the legislative investigation violates the liberties of the witnesses. The Constitution expressly provides that "the rights of persons appearing in or affected by such inquiries shall be respected. It should be emphasized that the constitutional restriction does not call for the banning or prohibition of investigations where a violation of a basis rights is claimed. It only requires that in the course of the proceedings, the right of persons should be respected. What the majority opinion mandates is a blanket prohibition against a witness testifying at all, simply because he is already facing charges before the Sandiganbayan. To my mind, the Consitution allows him to interpose objections whenever an incriminating question is posed or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness stand completely. Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to curtail legislative investigations even where an invocation of individual liberties is made. In Arnault, the entire country already knew the name of the presidential realtive whom the Sentate was trying to link to the Tambobong-Buenavista estate anomalies. Still, the Court did not interfere when Arnault refused to answer specific questions directed at him and he was punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the national penitentiary for an indefinite visit until the name which the Senate wanted him to utter was extracted. Only when the imprisonment became ureasonably prolonged and the situation in Congress had changed was he released. As pointed out by the respondents, not one question has been asked requiring an answer that would incriminate the petitioners. The allegation that their basic rights are vilolated is not only without basis but is also premature.

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I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a purely private transaction into which the Senate may not inquire. if this were so, much of the work of the Presidential Commission on Good Government (PCGG) as it seeks to recover illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the product of arrangements which are not only private but also secret and hidden. I therefore, vote to DISMISS the petition. Narvasa, J., dissents. CRUZ, J., dissenting: I regret I am unable to give my concurrence, I do not agree that the investigation being conducted by the Blue Ribbon Committee is not in aid of legislation. In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right ot assume that the contrary was intended." (People ex rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the U.S. Supreme Court in McGrain vs. Daugherty, 273 U.S. 135). As far as I know, that is still the rule today. More importantly, the presumption is supported by the established facts. The inquiry is sustainable as an implied of power the legislature and even as expressly limited by the Constitution. The inquiry deals with alleged manipulations of public funds and illicit acquisitions of properties now being claimed by the PCGG for the Republic of the Philippines. The purpose of the Committee is to ascertain if and how such anomalies have been committed. It is settled that the legislature has a right to investigate the disposition of the public funds it has appropriated; indeed, "an inquiry into the expenditure of all public money is na indispensable duty of the legislature." Moreover, an investigation of a possible violation of a law may be useful in the drafting of amendatory legislation to correct or strengthen that law. The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained no suggestions of contemplated legislation; he merely called upon the Senate to look into a possible violation of section 5 of R.A. No. 3019." However, according to McGrain v. Daugherty, supra:

Primarily, the purpose for which legislative inquiry and investigation is pursued is to serve as an aid in legislation. Through it, the legislature is able to obtain facts or data in aid fo proposed legislation. However, it is not necessary that the resolution ordering an investigation should in terms expressly state that the object of the inquiry is to obtain data in aid of proposed legislation. It is enough that such purpose appears from a consideration of the entire proceedings or one in which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. An express avowal of the object would be better, but such is not indispensable. (Emphasis supplied). The petitioner's contention that the questioned investigation would compel them to reveal their defense in the cases now pending against them in the Sandigangbayan is untenable. They know or should know that they cannot be compelled to answer incriminating questions. The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may refuse at the outset to take the stand on the ground that the questions to be put by the prosecutor will tend to incriminate him is, of course, not applicable to them. They are not facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they can invoke the right against self-incrimination only when and as the incriminating question is propounded. While it is true that the Court is now allowed more leeway in reviewing the traditionally political acts of the legislative and executive departments, the power must be exercised with the utmost circumspection lest we unduly trench on their prerogatives and disarrange the constitutional separation of powers. That power is available to us only if there is a clear showing of a grave abuse of discretion, which I do not see in the case at bar. Guided by the presumption and the facts, I vote to DISMISS the petition. Narvasa, J., dissents.

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