G.R. No. 117267-117310 August 22, 1996 GENEROSO N. SUBAYCO, ALFREDO T. ALCALDE, !" ELEUTER#O #BA$E%, petitioners, vs.

SAND#GANBAYAN !" &EO&LE OF T'E &'#L#&&#NES, respondents. O.

&UNO, J.:p The year was 1985, the month, September. The Marcos government was fast sliding into its sunset days. et, it was again set to celebrate with pomp, September !1, the day it proclaimed martial law some thirteen "1#$ years ago. The people, however, were not in the mood to be %oyous. They planned massive public protests in different parts of the country. &ne of the biggest protest rallies was blueprinted as a Welga ng Bayan at 'scalante, (egros &ccidental. )t ended in tragedy which will not easily recede in the mist of our history. Twenty "!*$ demonstrators were shot dead and twenty+four "!,$ others were wounded by the military and para+military forces of the Marcos government. &f several persons charged with various counts of murder and frustrated murder, only three "#$ were convicted - .eneroso (. Subayco, /lfredo T. /lcalde and 'leuterio &. )ba0e1 were convicted by the respondentSandiganbayan. They now come to this 2ourt insisting on their innocence and pleading to be set free. 3e deny their petition and we warn our military and police authorities that they cannot shoot people who are e4ercising their right to peacefully assemble and petition the government for redress of grievance. 1 /s aforestated, twenty "!*$ demonstrators were 5illed and twenty+four "!,$ others were seriously wounded by gunshots during the Welga ng Bayan held on September !*, 1985 at 'scalante, (egros &ccidental. Twenty "!*$ counts of Murder and twenty+four "!,$ counts of 6rustrated Murder 2 were filed with respondent Sandiganbayanagainst those allegedly responsible for the death and in%uries of the victims. 2harged were several civilian government officials, personnel from the 7hilippine 2onstabulary and the )ntegrated (ational 7olice, and from the para+military group 2ivilian 8ome 9efense 6orce "2896$, namely: /ll of the accused were part of the police+military group which undertoo5 the dispersal operation during the rally. &nly twenty+eight "!8$ of the above accused were arrested and tried as the others remained at large. The twenty+eight "!8$ were all members of the 7hilippine 2onstabulary and the )ntegrated (ational 7olice, viz.: ;pon conclusion of the trial, respondent court ac<uitted all the accused e4cept petitioners /lfredo /lcalde, 'leuterio )ba0e1 and .eneroso Subayco. The dispositive portion of the 9ecision held:

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38'='6&=', for all the foregoing, the 2ourt finds the evidence against the following accused to be insufficient to establish their liability in the instant charges and therefore ACQUITS them in all the herein cases: The same evidence, however, has established the guilt beyond reasonable doubt of the following accused who stood trial: 1./lfredo/lcalde !./leuterio)ba0e1,and #. .eneroso Subayco and the 2ourt hereby renders %udgment 2&(>)2T)(. them and imposing upon them the corresponding penalties, to wit: /. FOR MURDER in the following 2riminal 2ases: 1$ imprisonment for an indeterminate period ranging from a minimum ofseventeen ( !" yea#s and $ne ( " day of #e%l&si$n te'p$#al to a ma4imum of #e%l&si$n pe#pet&a for '/28 of the above si4teen cases? !$ to %ointly pay indemnity to the heirs for the death of the above mentioned victims at 75*,***.** for each victim, or a total of 78**,***.**? #$ to %ointly pay moral damages to the heirs of the above victims at 7!*,***.** for each victim of a total of 7#!*,***.**? @. FOR FRUSTRATED MURDER for the in%uries sustained under the following 2riminal 2ases: 1$ imprisonment for an indeterminate period ranging from a minimum ofeig(t ()" yea#s and $ne ( " day of p#isi$n 'ay$# to a ma4imum of *$&#teen ( +" yea#s, ten ( ," '$nt(s and t-enty (.," days of #e%l&si$n te'p$#al for '/28 of the above ten "1*$ cases? !$ to %ointly pay actual damages incurred only by the following victims, as follows:

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/le%andro @ocabal "(o. 1!*,*$ - 7 8**.** Au1minda .emola "(o. 1!*B!$ - 7 C**.** or a total of 71,5**.**? no other damage having been actually proven at trial? #$ to %ointly pay moral damages to the following victims: 2. FOR ATTEM/TED MURDER for the in%uries sustained under the following 2riminal 2ases: 1$ imprisonment for an indeterminate period ranging from a minimum of *$&# (+" yea#s0 $ne ( " '$nt( and $ne ( " day of p#isi$n %$##e%%i$nal to a ma4imum of eig(t ()" yea#s of p#isi$n 'ay$# for '/28 of the above fourteen "1,$ cases? !$ to %ointly pay actual damages incurred by the victims, as follows: #$ to %ointly pay moral damages to the victims at 75,***.** for each of the victims in the fourteen cases or a total of 7C*,***.**. These three accused, namely, /lfredo /lcalde, 'leuterio )ba0e1 and .enoroso Subayco are, however, /2D;)TT'9 in the four murder cases "(o. 1!*B9, (o. 1!*C5, (o. 1!*C9 and (o. 1!*8! charging the deaths of /le4 Aobatos, =odolfo Mahinay, =ogelio Magallen, Er. and (orberto Aocanilao, respectively$ for failure of the prosecution to prove their guilt beyond reasonable doubt. A'T an alias warrant of arrest issue for the following accused who, up to this time, had eluded arrest: )n the meantime, the cases with respect to the above+named accused who remain at large shall be archived pending their arrest or voluntary submission to the %urisdiction of this 2ourt. S& &=9'='9.
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7etitioners now come before us by way of %e#ti$#a#i raising the following issues: 1. 3hether respondent Sandiganbayan committed serious error of law in convicting the petitioners based merely on alleged implied

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conspiracy to perpetrate the crimes charged and not on clear, positive and convincing proof of conspiracy? and !. 3hether respondent Sandiganbayan committed serious error of law in convicting the petitioners despite that the <uantum of evidence re<uired for a finding of guilt - that is proof beyond reasonable doubt - was not satisfied. ) The petition must fail. The undisputed facts are summari1ed by the respondent court in its e4haustive 9ecision, as follows: 444 444 444 There was a rally held at 'scalante, (egros &ccidental that started on September 18, 1985. )t was planned to go on until September !1, 1985, the anniversary of the proclamation of martial law by then 7resident Marcos. This rally was participated in by members of the @agong /lyansang Ma5abayan or @/ /(, the (ational 6ederation of Sugar 3or5ers, the Fristianong Fatilingban, the 2 &, the FM;, the Aeague of 6ilipino, Students, and others. )t was spearheaded by the @/ /( whose leader at 'scalante was =olando 7onseca. The rally was without permit from the local authorities, although the plan was not 5ept secret from them. )n fact, this planned demonstration was ta5en up at a conference called by the 7rovincial 2ommand and attended by the accused 2apt. Sanson of the ##,th 72 2ompany stationed at Sagay, among other unit commanders. /t that meeting, the operational guidelines were laid down on how to deal with the planned demonstration as well as with contingencies in connection therewith. The local command headed by 2apt. Sanson had met with the leaders of the pro%ected Welga ng Bayan in order to agree on ground rules for the conduct of the rally. The Welga ng Bayan started as scheduled on September 18, 1985. )t started with a torch parade that evening. The demonstrators came to 'scalante and stayed, occupying the national highway in front of the =ural @anf of 'scalante and the other converging point at the mar5et site. @y the !*th, the crowd was at its thic5est. 'stimates of the attendance therein ranged from #,*** to 1*,***. /t around noontime on that day, there were speeches delivered by spea5ers from among the demonstrators using the public address system on an improvised platform, addressing the crowd assembled in front of the =ural @an5. The crowd also shouted anti+Marcos and anti+ military slogans, among others.

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2apt. Sanson had been constantly apprised of the activities of the demonstrators by reports coming from 2apt. =afael Eugan, the Station 2ommander of the )(7 at 'scalante. 8e was informed by the latter that the rallyists had failed to honor their commitment not to barricade the entire portion of the national highway so as not to obstruct traffic. 8e was li5ewise informed that the demonstrators were collecting money from passing motorists and that the demonstrators were becoming unruly. 2apt. Sanson in turn reported these pieces of information to the 7rovincial 2ommand. /s he was in charge of the area, 2apt. Sanson too5 it upon himself to personally tal5 to 7onseca, when he believed that his Station 2ommander had failed to get in touch with 7onseca, to remind him of his commitment. /fter 7onseca had failed to effect a dispersal of the crowd or to open at least half of the road to allow passage to vehicles, he had prepared a dispersal operation and had called fire+fighting personnel and e<uipment from the towns of Sagay and 'scalante, as well as from the cities of San 2arlos and 2adi1. 8e had also summoned his men under 2apt. Eugan of the 'scalante )(7, the 2896 headed by Sgt. Subayco and another team headed by At. Supaco. /fter a last+ditch effort to peacefully disperse the crowd by 7onseca through a letter to the demonstrators in front of the =ural @an5 had failed, the dispersal operation by 2apt. Sanson began. 6our firetruc5s were dispatched to the crowd of demonstrators, two of them - the 2adi1 and 'scalante firetruc5s - towards the demonstrators massed in front of the =ural @an5 of 'scalante. These hosed the demonstrators with water but even after the water from them had been e4hausted, the demonstrators stayed put. 2apt. Sanson then ordered the throwing of teargas to the demonstrators by two of his men, /mar and Mercado. The tear gas caused the demonstrators to lie face down on the ground? they persisted in their places rather than disperse. Then, a single shot rang out followed by successive gunfire from different directions. /s one witness had described it, it was li5e (ew earGs 've "TS(, 6ebruary C, 199,, testimony of accused 2896 Morante$. This firing lasted for a few minutes. 2apt. Sanson had been heard by some of the witnesses to have shouted HStop firingH repeatedly and, after some time, the firing had stopped, but not soon enough for men and women, from the rallyistsG group who died and others who were wounded as a result of the gunfire. 6 )t was the thesis of the prosecution that the whole dispersal operation was an unlawful conspiracy, that the firing at the crowd was part of the dispersal operation, and that all those who too5 part in the dispersal operation should be held liable for each death and each in%ury that resulted therefrom. 7

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The accused denied the e4istence of conspiracy. Subayco and )ba0e1 claimed that they merely fired into the air but not toward the crowd. &n his part, /lcalde admitted that he fired his weapon to prevent the rallyists from climbing the 2adi1 2ity firetruc5. * )n its 9ecision, the respondent court ruled there was no sufficient evidence to prove general conspiracy of the forty+five ",5$ accused as alleged by the prosecution. 9 )t then e4amined the individual acts of the accused during the dispersal operation to determine their liability for the death and in%uries of the victims. )t found implied conspiracy only on the part of all the accused who fired at the demonstrators. 7er finding of the respondent Sandiganbayan, the firing came from the 2adi1 2ity firetruc5 and the %eep which witnesses referred to as a Hweapons carrierH. /fter the rallyists were hosed with water, the 2adi1 2ity firetruc5 attempted to move bac5, but was trapped by the logs and roc5s ostensibly put by the rallyists under its wheels. The Hweapons carrierH was then maneuvered behind the 2adi1 2ity firetruc5. Thereafter, teargas canisters were lobbed at the rallyists. Eovy Earavelo, a rallyist, pic5ed up one of the canisters and threw it bac5 where it came from. 8ell bro5e loose. 2896 /lfredo Duinatagcan "a.5.a. 7idong @agis$ shot Earavelo. Successive gunfire followed. Several witnesses saw the 2896 personnel and the 72 men on board the 2adi1 2ity firetruc5 and the Hweapons carrierH fire their guns. Some fired into the air while the others directed their gun shots at the rallyists. 3hen the dust settled down, twenty "!*$ of the demonstrators were dead, twenty+ four "!,$ others were wounded and seventy+nine "C9$ empty shells were recovered from the scene of the crime. They were later traced to four firearms belonging to 2896 2a0ete, 2896 7arcon, 2!2 Aerado and 212 )ba0e1. 10 The following were identified by witnesses to have fired their guns: 2896 /lfredo M. Duinatagcan alias 7idong @agis, 2896 'lias Torias, 2896 Eimmy Mayordomo, 2896 Teddy Magtubo, 2896 Eeremias >illanueva, 2896 Eose H@oyH 7arcon, =oming Eavier, 212 'leuterio &. )ba0e1, TISgt. .eneroso 3. Subayco, 212 /lfredo /lcalde. 11 &n the basis of the evidence adduced and following its theory of implied conspiracy, the respondent 2ourt held petitioners liable for the deaths and in%uries of all the victims. 12 )t is this finding of implied conspiracy that petitioners assail in the petition at bar. C$nspi#a%y e4ists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. )t may be deduced from the mode and manner in which the offense was committed. The concerted acts of the petitioners to achieve the same ob%ective signify conspiracy. 13 )n the case of /e$ple vs.1&eva##a, 1( we enunciated the doctrine of implied conspiracy as follows: 444 444 444 /lthough there is no well+founded evidence that the appellant and =omero had conferred and agreed to 5ill Eoselito, their complicity can be %ustified by circumstantial evidence, that is, their community of

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purpose and their unity of design in the contemporaneous or simultaneous performance of the act of assaulting the deceased. 444 444 444 There can be no <uestion that the appellantGs act in holding the victim from behind immediately before the latter was stabbed by 'duardo constitutes a positive and overt act towards the reali1ation of a common criminal intent, although the intent may be classified as instantane$&s. The act was impulsively done on the spur of the moment. )t sprang from the turn of events, thereby &niting t(e %#i'inal design $* t(e slaye# i''ediately be*$#e t(e %$''issi$n $* t(e $**ense. That is termed as i'plied %$nspi#a%y. The appellantGs voluntary and indispensable cooperation was a concurrence of the criminal act to be e4ecuted. 2onse<uently, he is a co+conspirator by indispensable cooperation, although the common desire or purpose was never bottled up by previous underta5ing. "emphasis supplied$ 3e therefore uphold the respondent court in ruling that the following circumstances proved the e4istence of an i'plied %$nspi#a%y among the petitioners in the cases at bar: 1. /fter the 'scalante firetruc5 e4hausted its supply of water, it withdrew from the scene. !. The 2adi1 2ity firetruc5 too5 over hosing the crowd. )t also ran out of water, tried to bac5 out but was prevented by the logs and roc5s strewn behind it. #. The Hweapons carrierH then moved behind the 2adi1 2ity firetruc5. ,. Teargas canisters were thrown into the crowd. Eovy Earavelo, a rallyist, pic5ed up one of the canisters and threw it bac5 to where it came from. /t this %uncture, 2896 /lfredo Duinatagcan a.5.a. 7idong @agis shot Earavelo. Successive gunfire followed. 5. The seventy+nine "C9$ empty shells recovered from the scene of the crime were traced to four M+1B rifles issued to 2896 2a0ete, 2896 7arcon, 2!2 Aerado and 212 )ba0e1. 2a0ete and 7arcon were on board the Hweapons carrierH while Aerado and )ba0e1 were on board the 2adi1 2ity firetruc5. B. The other personnel who were also on these two vehicles were also seen to have fired at the crowd.

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/ll these circumstances intersect to show a community of purpose among the petitioners and their companions, that is, to fire at the demonstrators. This common purpose was pursued by the petitioners and their companions who used firepower against the rallyists. /s proved, the plan to disperse the demonstrators did not include the use of guns, yet, petitioners and their cohorts did. /t the first crac5 of gunfire coming from 2896 /lfredo Duinatagcan "a.5.a. 7idong @agis$, petitioners and their companions commenced firing at the demonstrators, as if on signal. They fired indiscriminately toward the demonstrators who were then already lying prone on the ground. There was no imminent danger to their safety. (ot %ust one or a few shots were fired but several. The firing lasted a few minutes and cost the lives and limbs of the demonstrators. 3e agree with the respondent court that the collective acts of the petitioners and their companions clearly show the e4istence of a common design toward the accomplishment of a united purpose. 1) They were therefore properly convicted for all the crimes they were charged with. The use of bullets to brea5 up an assembly of people petitioning for redress of grievance cannot but be bewailed. )t is bound to happen again for as long as abuses in government abound. 7recisely to help put a bra5e on official abuses, people empowerment was codified in various provisions of the 198C 2onstitution. )t is high time to remind our officials that under our 2onstitution power does not come from the barrel of a gun but from the ballots of the people. )t thus important to 5now the une4purgated will of the people for in a republican government, it is the people who should truly rule. 2onse<uently, the right of the people to assemble peacefully and to petition for redress of grievance should not be abridged by officials momentarily holding the powers of government. So we e4pressly held in the early case of US v. Ap&#ad$. 16 )t is rather to be e4pected that more or less disorder will mar5 the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always brought to a high pitch of e4citement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. @ut if the prosecution be permitted to sei1e upon every instance of such disorderly conduct by individual members of a crowd as an e4cuse to characteri1e the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to e4ercise it on the most righteous occasion and in the most peaceable manner would e4pose all those who too5 part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. )f instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be e4ercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising. The 2onstitution did not engage in mystical teaching when it proclaimed in solemn tone that Hsovereignty resides in the people and all government

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authority emanates from them.H 17 )t should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen, especially the government. 6or in a democracy, it is the people who count? those who are deaf to their grievances are ciphers. &ur affirmance of the conviction of the petitioners does not give complete %ustice to the victims of the 'scalante massacre, sub%ect of the cases at bar. ;ntil today, si4teen "1B$ of the other accused have successfully eluded arrest by the authorities. (ot until they have been arrested and tried will %ustice emerge triumphant for %ustice cannot come in fraction. )( >)'3 38'='&6, the 9ecision of the Sandiganbayan promulgated &ctober #, 199, is affirmed. Aet copies of this 9ecision be furnished the Secretary of Eustice and the Secretary of )nterior and Aocal .overnment that they may underta5e the necessary efforts to effectuate the early arrest of the other accused in the cases at bar. 2osts against petitioners. S& &=9'='9. Regalad$0 R$'e#$0 Mend$za and T$##es0 2#30 2230 %$n%&#3

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