[G.R. Nos. 72335-39. March 21, 1988.] FRANCISCO S. TATAD, petitioner, vs.

THE SANDIGANBAYAN, and THE TANODBAYAN, respondents. SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; DELAY OF THREE YEARS IN THE TERMINATION OF PRELIMINARY INVESTIGATION, A VIOLATION THEREOF. We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutionally guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. 2.REMEDIAL LAW; CRIMINAL PROCEDURE; LONG DELAY IN FILING OF INFORMATIONS AGAINST ACCUSED WARRANTS DISMISSAL OF CASES. We are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed.

DECISION

YAP, J :
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In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985, petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7, 1985, and the resolutions of the Sandiganbayan, dated August 9, 1985, August 12, 1985 and September 17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from continuing with trial or any other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, all entitled "People of the Philippines versus Francisco S. Tatad." The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes, former Head Executive Assistant of the then Department of Public Information (DPI) and Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the Legal Panel, Presidential Security Command (PSC), charging petitioner, who was then Secretary and Head of the Department of Public Information, with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Apparently, no action was taken on said report. Then, in October 1979, or five years later, it became publicly known that petitioner had submitted his resignation as Minister of Public Information, and two months after, or on December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in the conduct of his office as then Secretary of Public Information. The complaint repeated the charges embodied in the previous report filed by complainant before the Legal Panel, Presidential Security Command (PSC).

On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E. Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the Criminal Investigation Service (CIS) for fact-finding investigation. On June 16, 1980, Roberto P. Dizon, CIS Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation Report, with the following conclusion, ". . . evidence gathered indicates that former Min. TATAD had violated Sec. 3 (e) and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also liable under Sec. 5 of RA 3019," and recommended appropriate legal action on the matter. Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by virtue of PD 1791, but the motion was denied on July 26, 1982 and his motion for reconsideration was also denied on October 5, 1982. On October 25, 1982, all affidavits and counter-affidavits were with the Tanodbayan for final disposition. On July 5, 1985, the Tanodbayan approved a resolution, dated April 1, 1985, prepared by Special Prosecutor Marina Buzon, recommending that the following informations be filed against petitioner before the Sandiganbayan, to wit:
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"1.Violation of Section 3, paragraph (e) of R.A. 3019 for giving D' Group, a private corporation controlled by his brother-in-law, unwarranted benefits, advantage or preference in the discharge of his official functions through manifest partiality and evident bad faith; "2.Violation of Section 3, paragraph (b) of R.A. 3019 for receiving a check of P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the release of a check of P588,000.00 to said corporation for printing services rendered for the Constitutional Convention Referendum in 1973; "3.Violation of Section 7 of R.A. 3019 on three (3) counts for his failure to file his Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978."

Accordingly, on June 12, 1985, the following informations were filed with the Sandiganbayan against the petitioner:
Re:Criminal Case No. 10499 "The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad with Violation of Section 3, paragraph (b) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully demand and receive a check for P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the payment to said Corporation of the sum of P588,000.00, for printing services rendered for the Constitutional Convention Referendum of January, 1973, wherein the accused in his official capacity had to intervene under the law in the release of the funds for said project. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW." Re:Criminal Case No. 10500 "The undersigned Tanodbayan Special Prosecutor accused FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows:
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That on or about the 31st day of January, 1974 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true detailed and sworn statement of his assets and liabilities, as of December 31, 1973, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1973), as required of every public officer. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW." Re:Criminal Case No. 10501 "The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 3, paragraph (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on the about the month of May, 1975 and for sometime prior thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully give Marketing Communication Group, Inc. (D' Group), a private corporation of which his brother-in-law, Antonio L. Cantero, is the President, unwarranted benefits, advantage or preference in the discharge of his official functions, through manifest partiality and evident bad faith, by allowing the transfer of D' GROUP of the funds, assets and ownership of South East Asia Research Corporation (SEARCH), allegedly a private corporation registered with the Securities and Exchange Corporation on June 4, 1973, but whose organization and operating expenses came from the confidential funds of the Department of Public Information as it was organized to undertake research, projects for the government, without requiring an accounting of the funds advanced by the Department of Public Information and reimbursement thereof by D' GROUP, to the damage and prejudice of the government. That the complaint against the above-named accused was filed with the office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW." Re:Criminal Case No. 10502 "The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 31st day of January, 1977 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true and sworn statement of his assets and liabilities, as of December 31, 1976, including a statement of the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1976), as required of every public officer.

That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1988.
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CONTRARY TO LAW." Re:Criminal Case No. 10503 "The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 15th day of April, 1979, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true, detailed and sworn statement of his assets and liabilities, as a December 31, 1978, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1978), as required of every public officer. That the complaint against the above-named accused was filed with the office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW."

On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the information on the following grounds:
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"1.The prosecution deprived accused-movant of due process of law and of the right to a speedy disposition of the cases filed against him, amounting to loss of jurisdiction to file the informations; 2.Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and 10501; 3.The facts charged in Criminal Case No. 10500 (for failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense; 4.No prima facie case against the accused-movant exists in Criminal Cases Nos. 10500, 10502 and 10503; 5.No prima facie case against the accused-movant exists in Criminal Case No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended; 6.No prima facie case against the accused-movant exists in Criminal Case No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended."

On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to quash, stating therein in particular that there were only two grounds in said motion that needed refutation, namely:
1.The offenses charged in Criminal Cases Nos. 10499, 10500 and 10501, have already prescribed and criminal liability is extinguished; and 2.The facts charged in the information (Criminal Case No. 10500 For failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense.

On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122 SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office interrupts the period of prescription. Since the above-numbered cases were filed with the Office of the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973, January 31, 1974 and in May 1975, respectively, although the charges were actually filed in Court only on July 9, 1985, the Tanodbayan has still the right to prosecute the same, it
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appearing that the ten (10) year prescriptive period has not yet lapsed. Moreover, Tanodbayan pointed out that a law such as Batas Pambansa Blg. 195, extending the period of limitation with respect to criminal prosecution, unless the right to acquittal has been acquired, is constitutional. Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions of the Anti-Graft Law, as amended. For while the former requires "any natural or juridical person having gross assets of P50,000.00 or more . . ." to submit a statement of assets and liabilities ". . . regardless of the networth," the mandate in the latter law is for ALL government employees and officials to submit a statement of assets and liabilities. Hence, the prosecution under these two laws are separate and distinct from each other. Tanodbayan also explained that delay in the conduct of preliminary investigation does not impair the validity of the informations filed and that neither will it render said informations defective. Finally, Tanodbayan added that P.D. 911, the law which governs preliminary investigations is merely directory insofar as it fixes a period of ten (10) days from its termination to resolve the preliminary investigation.
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On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's motion to quash, the dispositive portion of which reads:
"WHEREFORE, prescinding therefrom, We find, and so hold, that the accused's "Consolidated Motion to Quash" should be as it is hereby, denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985 Rules on Criminal Procedure, the defect in the information in Criminal Case No. 10500 being one which could be cured by amendment, the Tanodbayan is hereby directed to amend said information to change the date of the alleged commission of the offense therein charged from January 31, 1974 to September 30, 1974 within five (5) days from receipt hereof. SO ORDERED."

On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date of the commission of the offense to September 30, 1974. On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was denied by the Sandiganbayan on September 17, 1985. Hence, petitioner filed this petition on October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the Court, without giving due course to the petition, resolved to require the respondents to comment thereon and issued a temporary restraining order effective immediately and continuing until further orders of the Court, enjoining the respondents Sandiganbayan and Tanodbayan from continuing with the trial and other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503. In compliance with said resolution, the respondents, through Solicitor General Estelito P. Mendoza, filed their comment on January 6, 1986. On April 10, 1986, The Court required the parties to move in the premises considering the supervening events, including the change of administration that had transpired, and the provisions for Sec. 18, Rule 3 of the Rules of Court insofar as the public respondents were concerned, which required the successor official to state whether or not he maintains the action or position taken by his predecessor in office. On June 20, 1986, the new Tanodbayan manifested that since "the charges are not political offenses and they have no political bearing whatsoever," he had no alternative but to pursue the cases against the petitioner, should the Court resolve to deny the position; that in any event, petitioner is not precluded from pursuing any other legal remedies under the law, such as the filing of a motion for re-evaluation of his cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27, 1986 in which he concurred with the position taken by the new Tanodbayan.
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Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for re-evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in question be re-evaluated and
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the informations be quashed. The Court is not aware of what action, if any, has been taken thereon by the Tanodbayan. However, be that as it may, the filing of the aforesaid motion for re-evaluation with the Tanodbayan has no material bearing insofar as the duty of this Court to resolve the issues raised in the instant petition is concerned. Petitioner has raised the following issues in his petition: 1.Whether the prosecution's long delay in the filing of these cases with the Sandiganbayan had deprived petitioner of his constitutional right to due process and the right to a speedy disposition of the cases against him. 2.Whether the crimes charged has already prescribed. 3.Whether there is a discriminatory prosecution of the petitioner by the Tanodbayan. 4.Whether Sandiganbayan should have ruled on the question of amnesty raised by the petitioner. 5.Whether petitioner's contention of the supposed lack or non-existence of prima facie evidence to sustain the filing of the cases at bar justifies the quashal of the questioned informations. Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due process" and "speedy disposition of cases" in unduly prolonging the termination of the preliminary investigation and in filing the corresponding informations only after more than a decade from the alleged commission of the purported offenses, which amounted to loss of jurisdiction and authority to file the informations. The respondent Sandiganbayan dismissed petitioner's contention, saying that the applicability of the authorities cited by him to the case at bar was "nebulous;" that it would be premature for the court to grant the "radical relief" prayed for by petitioner at this stage of the proceeding; that the mere allegations of "undue delay" do not suffice to justify acceptance thereof without any showing "as to the supposed lack or omission of any alleged procedural right granted or allowed to the respondent accused by law or administrative fiat" or in the absence of "indubitable proof of any irregularity or abuse" committed by the Tanodbayan in the conduct of the preliminary investigation; that such facts and circumstances as would establish petitioner's claim of denial of due process and other constitutionally guaranteed rights could be presented and more fully threshed out at the trial. Said the Sandiganbayan:
"That there was a hiatus in the proceedings between the alleged termination of the proceedings before the investigating fiscal on October 25, 1982 and its resolution on April 17, 1985 could have been due to certain factors which do not appear on record and which both parties did not bother to explain or elaborate upon in detail. It could even be logically inferred that the delay may be due to painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. In this respect, We are of the considered opinion that the provision of Pres. Decree No. 911, as amended, regarding the resolution of a complaint by the Tanodbayan within ten (10) days from termination of the preliminary investigation is merely "directory" in nature, in view of the nature and extent of the proceedings in said office.

The statutory grounds for the quashal of an information are clearly set forth in concise language in Rule 117, Section 2, of the 1985 Rules on Criminal Procedure and no other grounds for quashal may be entertained by the Court prior to arraignment inasmuch as it would be itself remiss in the performance of its official functions and subject to the charge that it has gravely abused its discretion. Such facts and circumstances which could otherwise justify the dismissal of the case, such as failure on the part of the prosecution to comply with due process or any other constitutionally-guaranteed rights may be presented during the trial wherein evidence for and against the issue involved may be fully threshed out and considered. Regrettably, the accused herein attempts to have the Court grant such as radical relief during this stage of the proceedings which precludes a precocious or summary evaluation of insufficient evidence in support thereof."
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This bring us to the crux of the issue at hand. Was petitioner deprived of his constitutional right to due process and the right to "speedy disposition" of the cases against him as guaranteed by the Constitution? May the court, ostrich-like, bury its head in the sand, as it were, at the initial stage of the proceedings and wait to resolve the issue only after the trial?
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In a number of cases, 1 this Court has not hesitated to grant the so-called "radical relief" and to spare the accused from undergoing the rigors and expense of a full-blown trial where it is clear that the has been deprived of due process of law or other constitutionally guaranteed rights. Of course, it goes without saying that in the application of the doctrine enunciated in those cases, particular regard must be taken of the facts and circumstances peculiar to each case. Coming to the case at bar, the following relevant facts appear on record and are largely undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal Panel of the Presidential Security Command (PSC) on October 1974, containing charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end of 1979 when it became widely known that Secretary (then Minister) Tatad had a falling out with President Marcos and had resigned from the Cabinet. On December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint filed with the Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the complaint on April 1, 1980 which was around two months after petitioner Tatad's resignation was accepted by Pres. Marcos by referring the complaint to the CIS, Presidential Security Command, for investigation and report. On June 16, 1980, the CIS report was submitted to the Tanodbayan, recommending the filing of charges for graft and corrupt practices against former Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavit and counter-affidavits were in and the case was ready for disposition by the Tanodbayan. However, it was only on July 5, 1985 that a resolution was approved by the Tanodbayan, recommending the filing of the corresponding criminal informations against the accused Francisco Tatad. Five (5) criminal informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone. A painstaking review of the facts can not but leave the impression that political motivations played a vital role in activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly, departing from established procedures prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits by the Tanodbayan referred the complaint to the Presidential Security Command for factfinding investigation and report.
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We find such blatant departure from the established procedure as a dubious, but revealing attempt to involve an office directly under the President in the prosecution was politically motivated. We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may the public's perception of the impartiality of the prosecutor be enhanced. Moreover, the long delay in resolving the case under preliminary investigation can not be justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case under preliminary investigation by him from its termination. While we agree with the respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that is deliberately intended to become meaningless and to be treated as a dead letter. We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the
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requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutionally guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and grueling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True but the absence of a a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time.
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After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. Accordingly, the Court Resolved to give due course to the petition and to grant the same. The informations in Criminal Cases Nos. 10499, 10500, 10502 and 10503, entitled "People of the Philippines vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining order issued on October 22, 1985 is made permanent. SO ORDERED.

Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.

[G.R. No. 72670. September 12, 1986.] SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON, MARY CONCEPCION BAUTISTA, JOAQUIN G. BERNAS, S.J., M. BELLARMINE BERNAS, O.S.B., FRANCISCO I. CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA, MARCELO B. FERNAN, FRANCISCO GARCHITORENA, ** ANDREW GONZALEZ, JOSE C. LAURETA, SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA MUOZ PALMA, JAIME V. ONGPIN, FELIX PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR., RAMON DEL ROSARIO, JR., RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V.
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SORIANO, DAVID SYCIP, ENRIQUE SYQUIA, CRISTINA TAN, JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE JAYME, *** , petitioners, vs. SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel Pamaran, Chairman, and Justices Augusto Amores and Bienvenido Vera Cruz, Members), JUSTICE BERNARDO FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS, BRIG. GEN. LUTHER A. CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO, respondents.

Lupino Lazaro and Arturo M. de Castro for petitioners. Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr. Rodolfo U. Jimenez for respondent Brig. Gen. Custodio. Ramon M. Bernaldo for respondent H. Gosuico. Romulo Quimbo for respondent B. Vera Cruz. Norberto J. Quisumbing for respondent P. Olivas. Felix Solomon for respondent Col. A. Custodio. Alfonso S. Cruz for B. Fernandez. Edgardo B. Gayos for M. Pamaran.
SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; FINDINGS OF COMMISSION THAT PROCEEDINGS HAVE BEEN VITIATED BY LACK OF DUE PROCESS, UPHELD; CASE AT BAR. The Commission submitted the following recommendation: "Considering the existence of adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also predetermined the final outcome of the case, the Commission is of the considered thinking and belief, subject to the better opinion and judgment of this Honorable court, that the proceedings in the said case have been vitiated by lack of due process, and hereby respectfully recommends that the prayer in the petition for a declaration of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled 'People vs. Luther Custodio, et al.,' be granted." The Court adopts and approves the Report and its findings and holds on the basis thereof and of the evidence received and appreciated by the Commission and duly supported by the facts of public record set that the then President (codenamed Olympus) had stage-managed in and from Malacaang Palace "a scripted and predetermined manner of handling and disposing of the Aquino Galman murder case;" and that "the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented
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the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also predetermined the final outcome of the case" of total absolution of the twenty-six respondents-accused of all criminal and civil liability. The Court finds that the Commission's Report and findings and conclusions are duly substantiated by the evidence and facts of public record. Composed of distinguished members of proven integrity with a combined total of 141 years of experience in the practice of law (55 years) and in the prosecutorial and judicial services (86 years in the trial and appellate courts), experts at sifting, the chaff from the grain, the Commission properly appraised the evidences presented and denials made by public respondents. 2.ID.; ID.; MOCKERY OF JUDICIAL PROCESS; A CASE OF. The record shows suffocatingly that from beginning to end, the then President used, or more precisely, misused the overwhelming resources of the government and his authoritarian powers to corrupt and make a mockery of the judicial process in the AquinoGalman murder cases. As graphically depicted in the Report, and borned out by the happenings (res ipsa loquitur), since the resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused was unpalatable (it would summon the demonstrators back to the streets and at any rate was not acceptable to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacaang conference, would accomplish the two principal clamor for the suspected killers to be charged in court and of giving them through their acquittal the legal shield of double jeopardy. Indeed, the secret Malacaang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the predetermined ignominious final outcome are without parallel and precedent in out annals and jurisprudence. 3.ID.; ID.; ID.; SECRET CONFERENCE AT MALACAANG AND THE ENTIRE PROSECUTION PANEL REGARDING IMMINENT FILING OF THE CRIMINAL CHARGES AGAINST THE ACCUSED; VITIATED ALL PROCEEDINGS IN THE SANDIGANBAYAN. The fact of the secret Malacaang conference of January 10, 1985 at which the authoritarian President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of the imminent filing of the criminal charges against all the twenty-six accused (as admitted by respondent Justice Fernandez to have been confirmed by him to the then President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was illegal under out penal laws. This illegality vitiated from the very beginning all proceedings in the Sandiganbayan court headed by the very Presiding Justice who attended. As the Commission noted: "The very acts of being summoned to Malacaang and their ready acquiescence thereto the circumstances then obtaining, are in themselves pressure dramatized and exemplified. . . . Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacaang Palace on January 10, 1985." 4.ID.; ID.; JUDGMENT; VOID AB INITIO IN VIEW COLLUSION AS TO HANDLING AND TREATMENT OF CASES. No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. Jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of predetermining the outcome of individual cases." This criminal collusion as to the handling and treatment of the cases by public respondent at the secret Malacaang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly General Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court.

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5.ID.; ID.; ID.; ACQUITTAL; DECLARED UNLAWFUL AND VOID AB INITIO; CASE AT BAR. The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. The Court is constrained to declare the sham trial a mock trial - the non-trial of the century and that the predetermined judgment of acquittal was unlawful and void ab initio. 6.ID.; ID.; ID.; DOUBLE JEOPARDY; CANNOT BE INVOKED WHERE PROSECUTION IS DENIED DUE PROCESS.No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court stressed in the 1985 case of People vs. Bocar, "Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated.

7.ID.; ID.; ID.; VOID WHERE DENIAL OF RIGHT TO DUE PROCESS IS APPARENT. "The cardinal present is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971] which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a 'lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head' (Aducayen vs. Flores, supra). 8.ID.; ID.; DOUBLE JEOPARDY; WHEN APPLICABLE. "Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process. "In effect, the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy." Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which cannot be appealed or reopened, without being put in double jeopardy was forcefully disposed of by the Court in People Court of Appeals, which is fully applicable here, as follows: "That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. . . . 9.ID.; ID.; ID.; CANNOT BE INVOKED IN A SHAM AND MOCK TRIAL. More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we have held, the sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure the predetermined final outcome of acquittal and total absolution as innocent of all the respondent-accused. Fully aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and reluctance to appear and testify, respondent Sandiganbayan
11

maintained a "dizzying tempo" of the proceedings and announced its intention to terminate the proceedings in about 6 months time or less than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and contempt proceedings as compared to the nil situation for the defense. 10.ID.; ID.; JUDGMENT; VOID WHERE VERDICT WAS DICTATED, COERCED AND SCRIPTED. A dictated, coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such judgment is "a lawless thing which can be treated as an outlaw." It is a terrible and unspeakable affront to the society and the people. 11.ID.; ID.; COURTS; CALLED UPON TO RENDER JUSTICE WHERE IT IS DUE. "Private respondents invoke 'justice for the innocent.' For justice to prevail, the scales must be balance. It is not to be dispensed for he accused alone. The interests of the society, which they have wronged must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could also mean injustice. This is where the Courts play a vital role. They render justice where justice is due. 12.ID.; ID.; JUDGMENT ACQUITTAL OF ACCUSED BY THE SANDIGANBAYAN DURING PENDENCY OF FINAL ACTION OF SUPREME COURT; CONSTITUTES GRAVE ABUSE OF DISCRETION. Although no restraining order was issued anew, respondent Sandiganbayan should not have precipitately issued its decision of total absolution of all the accused pending the final action of this Court. This is the teaching of Valdez vs. Aquilzan, wherein the Court is setting aside the hasty convictions, ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner." 13.ID.; ID.; SECOND MOTION FOR RECONSIDERATION; OPINION IN LUZON BROKERAGE CO., INC. vs. MARITIME BLDG., CO., INC. (36 SCRA 305 [1978], NOT APPLICABLE. Respondent invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation be put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for over six (6) years and one (1) month since the denial of the first motion for reconsideration). This opinion cannot be properly invoked, because here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of February 4th of the first motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is not being resolved within five months of its filing after the Commission had received the evidence of the parties who were heard by the Court only last August 26th. Then the second motion for reconsideration is based on an entirely new material ground which was not known at the time of the denial of the petition and filing of the first motion for reconsideration, i.e., the secret Malacaang conference on January 10, 1985 which came to light only fifteen months later in March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of the petition and that the authoritarian president had dictated and predetermined the final outcome of acquittal. Hence, the ten members of the Court (without any new appointees) unanimously voted to admit the second motion for reconsideration. ALAMPAY, J., concurring: 1.REMEDIAL LAW; CRIMINAL PROCEDURE; SECOND MOTION FOR RECONSIDERATION; GRANTING THEREOF JUSTIFIED IN VIEW OF THE CERTAIN SIGNIFICANT FACTS AND CIRCUMSTANCES NOT PREVIOUSLY DISCLOSED TO THE COURT. Considering that certain significant facts and circumstances not previously
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disclosed to the Court were found by the Commission constituted by this Court, purposely to inquire and ascertain the veracity of the same, to be duly established by sufficient evidence and are indicative of "a scripted and predetermined manner of handling and disposing of the Aquino-Galman murder case . . .;" and that there exists "adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences it could have otherwise presented, but also predetermined the outcome of the case; . . ." I join in granting petitioner's second motion for reconsideration. MELENCIO-HERRERA, J., concurring: 1.REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; RULE OF PUBLIC PROSECUTOR. As it is, the prosecution failed to fully ventilate its position and to lay out before respondent Court all the pertinent facts which could have helped that Court in arriving at a just decision. It had, thus, failed in its task. "A public prosecutor is 'the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice and every definite sense the servant of the law, the two fold aim of which is that guilt shall not escape or innocence suffer." (Suarez v. Platon, 69 Phil. 556 [1940]). "He owes the state, the court and the accused the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in his evidence to the end that the court's mind may not be tortured by doubts, the innocent may not suffer, and the guilty may not escape unpunished" (People vs. Esquivel, 82 Phil. 453 [1948]). 2.ADMINISTRATIVE SUPERVISION OVER COURTS AND COURT PERSONNEL; SANDIGANBAYAN; EQUALLY CULPABLE FOR MISCARRIAGE OF JUSTICE; CASE AT BAR. Respondent Court, in showing partiality for the accused from beginning to end, from the raffle of the subject cases to the promulgation of judgment, which absolved the accused, en masse, from any and all liability, is equally culpable for miscarriage of justice. Due process of law, which "requires a hearing before an impartial and disinterested tribunal" and the right of every litigant to "nothing less than the cold neutrality of an impartial Judge" (Gutierrez vs. Santos, 112 Phil. 184 [1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was violated.

3.REMEDIAL LAW; CRIMINAL PROCEDURE; JUDGMENT; NULL AND VOID AB INITIO; VITIATED BY LACK OF DUE PROCESS. The proceedings below, having been vitiated by lack of due process, to the detriment of the State and the People, were invalid and the judgment rendered null and void ab initio. There having been no trial at all in contemplation of law, there is likewise no judgment on which a plea of double jeopardy may be based. "To entitle the accused to the plea of former jeopardy, the proceedings must have been valid (State vs. Bartlett, 164 N.W. 757; State vs. O'Day 185 So. 290). The lack of any fundamental requisite which would render void the judgment would make ineffective a plea of jeopardy based on such proceedings (Steen vs. State, 242 S.W. 1047). 4.ID.; ID.; DOUBLE JEOPARDY; ATTACHES EVEN IF COLLUSION TAKES PLACE AND THE ACCUSED WERE NOT A PARTY TO THE SAME; PRINCIPLE NOT APPLICABLE IN CASE AT BAR. The accused, however, argue that double jeopardy attaches for, even assuming without conceding, that pressure and collusion did take place, they were not a party to the same; and, for those who were charged only either as accomplices or accessories, they contend that their alleged offense involved only a cover-up in the investigation of the crime so that, whatever pressure was exerted could only have benefited the principals, consequently, to subject them to a retrial is to put them twice in jeopardy. It is true that where an accused was not a party to the fraud, a conviction cannot be avoided by the state (Statevs. Heflin, 96 So. 459, 19 Ala. App. 222). However, that exception is inapplicable to the cases at bar where both the prosecution and the Trial Court itself were parties to the fraud and collusion. Nor can it be said that the accused were not a part thereof. The agreement to file the murder
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charge in Court so that, after being acquitted as planned, the accused could no longer be prosecuted under the doctrine of double jeopardy; the "categorization" of the accused into principals, accomplices and accessories so that not all of them would be denied bail during the trial, were fraudulently conceived for their benefit and for the purpose of protecting them for subsequent prosecution. It is, thus, no bar to a subsequent prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682). "A verdict of acquittal procured by the accused by fraud and collusion is a nullity and does not put him in jeopardy; and consequently, it is no bar to a second trial for the same offense (State vs. Lee, 30A, 1110, 65 Conn. 265, 48 Am. S.R. 202, 27 L. RA. 498).

RESOLUTION

TEEHANKEE, C.J :
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Last August 21st, our nation marked with solemnity and for the first time in freedom the third anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno "Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in September, 1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing squad by a military tribunal for common offenses alleged to have been committed long before the declaration of martial law and whose jurisdiction over him as a civilian entitled to trial by judicial process by civil courts he repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not courts but mere instruments and subject to the control of the President as created by him under the General Orders issued by him as Commander-in-Chief of the Armed Forces of the Philippines, and that he had already been publicly indicted and adjudged guilty by the President of the charges in a nationwide press conference held on August 24, 1971 when he declared the evidence against Ninoy "not only strong but overwhelming." 1 This followed the Plaza Miranda bombing of August 21, 1971 of the proclamation rally of the opposition Liberal Party candidates for the November, 1971 elections (when eight persons were killed and practically all of the opposition candidates headed by Senator Jovito Salonga and many more were seriously injured), and the suspension of the privilege of the writ of habeas corpus under Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the communists but the truth has never been known. But the then President never filed the said charges against Ninoy in the civil courts. Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo successful heart surgery. After three years of exile and despite the regime's refusal to give him a passport, he sought to return home "to strive for a genuine national reconciliation founded on justice." He was to be cold-bloodedly killed while under escort away by soldiers from his plane that had just landed at the Manila International Airport on that fateful day at past 1 p.m. His brain was smashed by a bullet fired point-blank into the back of his head by a murderous assassin, notwithstanding that the airport was ringed by airtight security of close to 2,000 soldiers and "from a military viewpoint, it (was) technically impossible to get inside (such) a cordon." 2 The military investigators reported within a span of three hours that the man who shot Aquino (whose identity was then supposed to be unknown and was revealed only days later as Rolando Galman, although he was the personal friend of accused Col. Arturo Custodio who picked him up from his house on August 17, 1983) was a communist-hired gunman, and that the military escorts gunned him down in turn. The military later filmed a reenactment of the killing scripted according to this version and continuously replayed it on all TV channels as if it were taken live on the spot. The then President instantly accepted the military version and repeated it in a nationally televised press conference that he gave late in the evening of August 22, 1983, wherein he said, in order to induce disbelief that the military had a hand in the killing, that "if the purpose was to eliminate Aquino, this was not the way to do it." The national tragedy shocked the conscience of the entire nation and outraged the free world. The large masses of people who joined in the ten-day period of national mourning and came out in millions in the largest
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and most orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom and their yearning for the truth, justice and freedom.
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The then President was constrained to create a Fact Finding Board 3 to investigate "the treacherous and vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become a national tragedy and national shame specially because of the early distortions and exaggerations in both foreign and local media 4 so that all right thinking and honest men desire to ventilate the truth through fare, independent and dispassionate investigation by prestigious and free investigators." After two false starts, 5 he finally constituted the Board 6 on October 22, 1983 which held 125 hearing days commencing November 3, 1983 (including 3 hearings in Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377 pages of transcripts, until the submission of their minority and majority reports to the President on October 23 and 24, 1984. This was to mark another first anywhere in the world wherein the minority report was submitted one day ahead by the ponente thereof, the chairman, who was received congenially and cordially by the then President who treated the report as if it were the majority report instead of a minority report of one and forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for trial in the Sandiganbayan which was better known as a graft court; and the majority report of the four other members was submitted on the following day to the then President who coldly received them and could scarcely conceal his instant rejection of their report with the grim statement that "I hope you can live with your conscience with what you have done." The fact is that both majority and minority reports were one in rejecting the military version as propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no subversive affiliations." They were in agreement that "only the soldiers in the staircase with Sen. Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen. Aquino" and that "the SWAT troopers who gunned down Galman and the soldiers who escorted Sen. Aquino down the service stairs, deliberately and in conspiracy with one another, gave a perjured story to us regarding the alleged shooting by Galman of Sen. Aquino and the mowing down, in turn, of Galman himself;" in short, that Ninoy's assassination was the product of a military conspiracy, not a communist plot. The only difference between the two reports is that the majority report found all the twenty-six private respondents abovenamed in the title of the case headed by then AFP Chief General Fabian C. Ver involved in the military conspiracy and therefore "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983;" while the chairman's minority report would exclude nineteen of them and limit as plotters "the six persons who were on the service stairs while Senator Aquino was descending" and "General Luther Custodio . . . because the criminal plot could not have been planned and implemented without his intervention."
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The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work lies in what will transpire in accordance with the action that the Office of the President may thereafter direct to be taken." The four-member majority report (also prophetically) wrote in the epilogue (after warning the forces who adhere to an alien and intolerable political ideology against unscrupulously using the report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing" They wrote:
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"The task of the Board was clear and unequivocal. This task was not only to determine the facts and circumstances surrounding the death of the late former Senator. Of greater significance is the awesome responsibility of the Board to uphold righteousness over evil, justice over injustice, rationality over irrationality, humaneness over inhumanity. The task was indeed a painful test, the inevitable result of which will restore our country's honored place among the sovereign nations of the free world where peace, law and order, freedom, and justice are a way of life. "More than any other event in contemporary Philippine history, the killing of the late former Senator Aquino has brought into sharper focus, the ills pervading Philippine society. It was the concretization of
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the horror that has been haunting this country for decades, routinely manifested by the breakdown of peace and order, economic instability, subversion, graft and corruption, and an increasing number of abusive elements in what are otherwise noble institutions in our country the military and law enforcement agencies. We are, however, convinced that, by and large, the great majority of the officers and men of these institutions have remained decent and honorable, dedicated to their noble mission in the service of our country and people. "The tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing. As former Israeli Foreign Minister Abba Eban observes. 'Nobody who has great authority can be trusted not to go beyond its proper limits.' Social apathy, passivity and indifference and neglect have spawned in secret a dark force that is bent on destroying the values held sacred by freedom-loving people. "To assert our proper place in the civilized world, it is imperative that public officials should regard public service as a reflection of human ideals in which the highest sense of moral values and integrity are strictly required. "A tragedy like that which happened on August 21, 1983, and the crisis that followed, would have normally caused the resignation of the Chief of the Armed Forces in a country where public office is viewed with highest esteem and respect and where the moral responsibilities of public officials transcend all other considerations."

It is equally the fact that the then President through all his recorded public acts and statements from the beginning disdained and rejected his own Board's above findings and insisted on the military version of Galman being Ninoy's assassin. In upholding this view that "there is no involvement of anyone in his government in the assassination," he told David Briscoe (then AP Manila Bureau Chief) in a Radio-TV interview on September 9, 1983 that "I am convinced that if any member of my government were involved, I would have known somehow . . . Even at a fairly low level, I would have known. I know how they think. I know what they are thinking of." 7 He told CBS in another interview in May, 1984 (as his Fact Finding Board was holding its hearings) the following:
"CBS:'But indeed there has been recent evidence that seems to contradict earlier reports, namely, the recent evidence seems to indicate that some of the guards may have been responsible (for shooting Ninoy)." "MARCOS:'Well, you are of course wrong. What you have been reading are the newspapers and the newspaper reports have been biased. The evidence still proves that Galman was the killer. The evidence also shows that there were intelligence reports connecting the communist party to the killing.'" 8

In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence upon release of the Board's majority report implicating him, he wrote that "(W)e are even more aware, general, that the circumstances under which the board has chosen to implicate you in its findings are fraught with doubt and great contradictions of opinion and testimony. And we are deeply disturbed that on the basis of so-called evidence, you have been so accused by some members of the Board," and extended "My very best wishes to you and your family for a speedy resolution of your case," 9 even as he announced that he would return the general to his position as AFP Chief "if he is acquitted by the Sandiganbayan." In an interview on June 4, 1985 with the Gamma Photo Agency, as respondent court was hearing the cases, he was quoted as saying that "as will probably be shown, those witnesses (against the accused) are perjured witnesses." 10 It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other petitioners, composed of three former Justices of this Court, five incumbent and former university presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens of the community, filed the present action alleging that respondents Tanodbayan and Sandiganbayan committed serious irregularities constituting mistrial
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and resulting in miscarriage of justice and gross violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to due process of law. They asserted that the Tanodbayan did not represent the interest of the people when he failed to exert genuine and earnest efforts to present vital and important testimonial and documentary evidence for the prosecution and that the Sandiganbayan Justices were biased, prejudiced and partial in favor of the accused, and that their acts "clouded with the gravest doubts the sincerity of government to find out the truth about the Aquino assassination." Petitioners prayed for the immediate issuance of a temporary restraining order restraining the respondent Sandiganbayan from rendering a decision on the merits in the pending criminal cases which it had scheduled on November 20, 1985 and that judgment be rendered declaring a mistrial and nullifying the proceedings before the Sandiganbayan and ordering a re-trial before an impartial tribunal by an unbiased prosecutor. 10 At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining order enjoining respondent court from rendering a decision in the two criminal cases before it, the Court resolved by nine-to-two votes 11 to issue the restraining order prayed for. The Court also granted petitioners a five-day period to file a reply to respondents' separate comments and respondent Tanodbayan a three-day period to submit a copy of his 84-page memorandum for the prosecution as filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as Annex 5 of his comment.
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But ten days later on November 28, 1985, the Court by the same nine-to-two-vote ratio in reverse, 12 resolved to dismiss the petition and to lift the temporary restraining order issued ten days earlier enjoining the Sandiganbayan from rendering its decision. 13 The same Court majority denied petitioners' motion for a new 5day period counted from receipt of respondent Tanodbayan's memorandum for the prosecution (which apparently was not served on them and which they alleged was "very material to the question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to respondents' separate comments, by an eight-to three vote, with Justice Gutierrez joining the dissenters. 14 On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did not indicate the legal ground for such action and urging that the case be set for a full hearing on the merits because if the charge of partiality and bias against the respondents and suppression of vital evidence by the prosecution are proven, the petitioners would be entitled to the reliefs demanded: The People are entitled to due process which requires an impartial tribunal and an unbiased prosecutor. If the State is deprived of a fair opportunity to prosecute and convict because certain material evidence is suppressed by the prosecution and the tribunal is not impartial, then the entire proceedings would be null and void. Petitioners prayed that the Sandiganbayan be restrained from promulgating their decision as scheduled anew on December 2, 1985. On December 5, 1985, the Court required the respondents to comment on the motion for reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled, respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged, declaring them innocent and totally absolving them of any civil liability. This marked another unusual first in that respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was not on trial) as the assassin of Ninoy contrary to the very information and evidence submitted by the prosecution. In opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal, the instant case had become moot and academic. On February 4, 1986, the same Court majority denied petitioners' motion for reconsideration for lack of merit, with the writer and Justice Abad Santos maintaining our dissent. On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration attached therewith. The thrust of the second motion for reconsideration was the startling and therefore unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered the respondents Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel headed by Herrera to whitewash the criminal cases against the 26 respondents accused and produce a verdict of acquittal.
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On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and ordered the respondents to comment thereon. 15

Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added "relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein respondent never succumbed to any alleged attempts to influence his actuations in the premises,having instead successfully resisted perceived attempts to exert pressure to drop the case after preliminary investigation and actually ordered the filing and prosecution of the two (2) murder cases below against herein private-party respondents." He candidly admitted also in his memorandum: "There is not much that need be said about the existence of pressure. That there were pressures can hardly be denied; in fact, it has never been denied." 15a He submitted that "even as he vehemently denies insinuations of any direct or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases below, . . . should this Honorable Court find sufficient cause to justify the reopening and retrial of the cases below, he would welcome such development so that any wrong that had been caused may be righted and so that, at the very least the actuations of herein respondent in the premises may be reviewed and reexamined, confident as he is that the end will show that he had done nothing in the premises that violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to the reopening of the trial of the cases . . . as, in fact, he urged that the said cases be reopened in order that justice could take its course." Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9, 1986 stated that the trial of the criminal cases by them was valid and regular and decided on the basis of evidence presented and the law applicable, but manifested that "if it is true that the former Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into suppressing vital evidence which would probably alter the result of the trial, Answering Respondents would not interpose any objection to the reopening of those cases, if only to allow justice to take its course." Respondent Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment, asserted that he passed no note to anyone; the note being bandied about is not in his handwriting; he had nothing to do with the writing of the note or of any note of any kind intended for any lawyer of the defense or even of the prosecution; and requested for an investigation by this Court to settle the note-passing issue once and for all. Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the second motion for reconsideration that he revealed that the Sandiganbayan Justices and Tanodbayan prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified his revelations, as follows:
"1.AB INITIO, A VERDICT OF ACQUITTAL! Incidents during the preliminary investigation showed ominous signs that the fate of the criminal case on the death of Ex-Senator Benigno Aquino and Rolando Galman on August 21, 1983 was dooned to an ignominous end. Malacaang wanted dismissal to the extent that a prepared resolution was sent to the Investigating Panel (composed of the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for signature. This, of course, was resisted by the panel, and a resolution charging all the respondents as principals was forwarded to the Tanodbayan on January 10, 1985. 2.MALACAANG CONFERENCE PLANNED SCENARIO OF TRIAL. At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former President) summoned to Malacaang Justice Bernardo Fernandez (the Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding Justice) and all the members of the Panel.

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Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and Mrs. Imelda R. Marcos, who left earlier, came back and left again. The former President had a copy of the panel's signed resolution (charging all accused as principals), evidently furnished him in advance, and with prepared notes on the contents thereof. LLjur The former President started by vehemently maintaining that Galman shot Aquino at the tarmac. Albeit initially the undersigned argued against the theory, to remain silent was the more discreet posture when the former President became emotional (he was quite sick then). During a good part of the conference, the former President talked about Aquino and the communists, lambasting the Agrava Board, specially the Legal Panel. Shifting to the military he rumbled on such statements as: 'It will be bloody . . . Gen. Ramos, though close to me, is getting ambitious and poor Johnny does not know what to do' . . . 'our understanding with Gen. Ramos is that his stint is only temporary, but he is becoming ambitious;' . . . 'the boys were frantic when they heard that they will be charged in court, and will be detained at city jail.' From outright dismissal, the sentiment veered towards a more pragmatic approach. The former President more or less conceded that for political and legal reasons all the respondents should be charged in court. Politically, as it will become evident that the government was serious in pursuing the case towards its logical conclusion, and thereby ease public demonstrations; on the other hand, legally, it was perceived that after (not IF) they are acquitted, double jeopardy would inure. The former President ordered then that the resolution be revised by categorizing the participation of each respondent. In the matter of custody of the accused pendente lite the Coordinator was ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and Director Jolly Bugarin to put on record that they had no place in their respective institutions. The existence of PD No. 1950 (giving custody to commanding officers of members of AFP charged in court) was never mentioned. It was decided that the presiding justice (First Division) would personally handle the trial, and assurance was made by him that it would be finished in four to six months, pointing out that, with the recent effectivity of the New Rules on Criminal Procedure, the trial could be expedited. Towards the end of the two hour meeting and after the script had been tacitly mapped out, the former President uttered: 'Magmoro-moro na lang kayo.' The parting words of the former President were: 'Thank you for your cooperation. I know how to reciprocate.' While still in the palace grounds on the way out, the undersigned manifested his desire to the Tanodbayan to resign from the panel, or even the office. This, as well as other moves to this effect, had always been refused. Hoping that with sufficient evidence sincerely and efficiently presented by the prosecution, all involves in the trial would be conscience-pricked and realize the futility and injustice of proceeding in accordance with the script, the undersigned opted to say on."

Herrera further added details on the "implementation of the script," such as the holding of a "make-believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan at noon of January 23, 1985, while there were no members of the media; the installation of TV monitors directly beamed to Malacaang; the installation of a "war room" occupied by the military; attempts to direct and stifle witnesses for the prosecution; the suppression of the evidence that could be given by U.S. Airforce men about the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and the bias and partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should not decide these cases on the merits without first making a final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill with the declaration that "the Court finds all accused innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," adding that "in the almost twenty years that the
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undersigned has been the prosecutor in the sala of the Presiding Justice this is the only occasion where civil liability is pronounced in a decision of acquittal." He "associated himself with the motion for reconsideration and likewise prayed that the proceedings in the Sandiganbayan and its decision be declared null and void." New Solicitor General Sedfrey Ordoez' comment of April 25, 1986 submitted that a declaration of mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of evidence and collusion. He submitted that this would require reception of evidence by a Court-appointed or designated commissioner or body of commissioners (as was done in G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco Filipinocase); and that if petitioners' claim were substantiated, a reopening of the double murder case is proper to avoid a miscarriage of justice since the verdict of acquittal would no longer be a valid basis for a double jeopardy claim.
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Respondents-accused opposed the second motion for reconsideration and prayed for its denial. Respondent Olivas contended that the proper step for the government was to file a direct action to annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures. As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the issues had become moot and academic because of the rendition of the Sandiganbayan's judgment of acquittal of all respondents-accused on December 2, 1985, with counsels for respondents Ver and Tigas, as well as Olivas, further arguing that assuming that the judgment of acquittal is void for any reason, the remedy is a direct action to annul the judgment where the burden of proof falls upon the plaintiff to establish by clear, competent and convincing evidence the cause of the nullity.

After petitioners had filed their consolidated reply, the Court resolved per its resolution of June 5, 1986 to appoint a three-member commission composed of retired Supreme Court Justice Conrado Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros German and Eduardo Caguioa as members, to hear and receive evidence, testimonial and documentary, of the charges of collusion and pressures and relevant matters, upon prior notice to all parties, and to submit their findings to this Court for proper disposition. The Commission conducted hearings on 19 days, starting on June 16, 1986 and ending on July 16, 1986. On the said last day, respondents announced in open hearing that they decided to forego the taking of the projected deposition of former President Marcos, as his testimony would be merely corroborative of the testimonies of respondents Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it submitted its extensive 64-page Report 16 wherein it discussed fully the evidence received by it and made a recapitulation of its findings in capsulized form, as follows:
"1.The Office of the Tanodbayan, particularly Justice Fernandez and the Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special Prosecutor Tamayo, was originally of the view that all of the twenty-six (26) respondents named in the Agrava Board majority report should all be charged as principals of the crime of double murder for the death of Senator Benigno Aquino and Rolando Galman. 2.When Malacaang learned of the impending filing of the said charge before the Sandiganbayan, the Special Investigating Panel having already prepared a draft Resolution recommending such course of action, President Marcos summoned Justice Fernandez, the three members of the Special Investigating Panel, and Justice Pamaran to a conference in Malacaang in the early evening of January 10, 1985. 3.In said conference, President Marcos initially expressed his disagreement with the recommendation of the Special Investigating Panel and disputed the findings of the Agrava Board that it was not Galman who shot Benigno Aquino.

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4.Later in the conference, however, President Marcos was convinced of the advisability of filing the murder charge in court so that, after being acquitted as planned, the accused may no longer be prosecuted in view of the doctrine of double jeopardy. 5.Presumably in order to be assured that not all of the accused would be denied bail during the trial, considering that they would be charged with capital offenses, President Marcos directed that the several accused be 'categorized' so that some of them would merely be charged as accomplices and accessories. 6.In addition to said directive, President Marcos ordered that the case be handled personally by Justice Pamaran who should dispose of it in the earliest possible time. 7.The instructions given in the Malacaang conference were followed to the letter; and compliance therewith manifested itself in several specific instances in the course of the proceedings, such as, the changing of the resolution of the special investigating panel, the filing of the case with the Sandiganbayan and its assignment to Justice Pamaran, suppression of some vital evidence, harassment of witnesses, recantation of witnesses who gave adverse testimony before the Agrava Board, coaching of defense counsels, the hasty trial, monitoring of proceedings, and even in the very decision rendered in the case. 8.That expression of President Marcos' desire as to how he wanted the Aquino-Galman case to be handled and disposed of constituted sufficient pressure on those involved in said task to comply with the same in the subsequent course of the proceedings. 9.That while Justice Pamaran and Justice Fernandez manifested no revulsion against complying with the Malacaang directive, Justice Herrera played his role with manifestly ambivalent feelings. 10.Sufficient evidence has been ventilated to show a scripted and predetermined manner of handling and disposing of the Aquino-Galman murder case, as stage-managed from Malacaang and performed by willing dramatis personnae as well as by recalcitrant ones whipped into line by the omni-present influence of an authoritarian ruler."

The Commission submitted the following recommendation.

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"Considering the existence of adequate credible evidence showing that the prosecution in the AquinoGalman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also predetermined the final outcome of the case, the Commission is of the considered thinking and belief, subject to the better opinion and judgment of this Honorable Court, that the proceedings in the said case have been vitiated by lack of due process, and hereby respectfully recommends that the prayer in the petition for a declaration of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled 'People vs. Luther Custodio, et al.,' be granted."

The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and required them to submit their objections thereto. It thereafter heard the parties and their objections at the hearing of August 26, 1986 and the matter was submitted for the Court's resolution. The Court adopts and approves the Report and its findings and holds on the basis thereof and of the evidence received and appreciated by the Commission and duly supported by the facts of public record and knowledge set forth above and hereinafter, that the then President (code-named Olympus) had stage-managed in and from Malacaang Palace "a scripted and predetermined manner of handling and disposing of the AquinoGalman murder case;" and that "the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences
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which it could have otherwise presented, but also predetermined the final outcome of the case" of total absolution of the twenty-six respondents-accused of all criminal and civil liability. The Court finds that the Commission's Report (incorporated herein by reference) and findings and conclusions are duly substantiated by the evidence and facts of public record. Composed of distinguished members of proven integrity with a combined total of 141 years of experience in the practice of law (55 years) and in the prosecutoral and judicial services (86 years in the trial and appellate courts), experts at sifting the chaff from the grain, 17 the Commission properly appraised the evidences presented and denials made by public respondents, thus:
"The desire of President Marcos to have the Aquino-Galman case disposed of in a manner suitable to his purposes was quite understandable and was but to be expected. The case had stirred unprecedented public outcry and wide international attention. Not invariably, the finger of suspicion pointed to those then in power who supposedly had the means and the most compelling motive to eliminate Senator Aquino. A day or so after the assassination, President Marcos came up with a public statement aired over television that Senator Aquino was killed not by his military escorts, but by a communist hired gun. It was, therefore, not a source of wonder that President Marcos would want the case disposed of in a manner consistent with his announced theory thereof which, at the same time, would clear his name and his administration of any suspected guilty participation in the assassination. "The calling of the conference was undoubtedly to accomplish thus purpose . . . "President Marcos made no bones to conceal his purpose for calling them. From the start, he expressed irritation and displeasure at the recommendation of the investigating panel to charge all of the twentysix (26) respondents as principals of the crime of double murder. He insisted that it was Galman who shot Senator Aquino, and that the findings of the Agrava Board were not supported by evidence that could stand in court. He discussed and argued with Justice Herrera on this point. Midway in the course of the discussion, mention was made that the filing of the charge in court would at least mollify public demands and possibly prevent further street demonstrations. It was further pointed out that such a procedure would be a better arrangement because, if the accused are charged in court and subsequently acquitted, they may claim the benefit of the doctrine of double jeopardy and thereby avoid another prosecution if some other witnesses shall appear when President Marcos is no longer in office. xxx xxx xxx "After an agreement was reached as to filing the case, instead of dismissing it, but with some of the accused to be charged merely as accomplices or accessories, and the question of preventive custody of the accused having thereby received satisfactory solution, President Marcos took up the matter of who would try the case and how long it would take to be finished. "According to Justice Herrera, President Marcos told Justice Pamaran 'point blank' to personally handle the case. This was denied by Justice Pamaran. No similar denial was voiced by Justice Fernandez in the entire course of his two-day testimony. Justice Pamaran explained that such order could not have been given inasmuch as it was not yet certain then that the Sandiganbayan would try the case and, besides, cases therein are assigned by raffle to a division and not to a particular Justice thereof. "It was preposterous to expect Justice Pamaran to admit having received such presidential directive. His denial, however, falls to pieces in the light of the fact that the case was indeed handled by him after being assigned to the division headed by him. A supposition of mere coincidence is at once dispelled by the circumstance that he was the only one from the Sandiganbayan called to the Malacaang conference wherein the said directive was given . . .

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"The giving of such directive to Justice Pamaran may also be inferred from his admission that he gave President Marcos the possible time frame when asked as to how long it would take him to finish the case. "The testimony of Justice Herrera that, during the conference, and after an agreement was reached on filing the case and subsequently acquitting the accused,President Marcos told them 'Okay, mag moromoro na lamang kayo;' and that on their way out of the room President Marcos expressed his thanks to the group and uttered 'I know how to reciprocate,' did not receive any denial or contradiction either on the part of Justice Fernandez or Justice Pamaran. (No other person present in the conference was presented by the respondents. Despite an earlier manifestation by the respondents of their intention to

present Fiscal Bernabe and Prosecutor Tamayo, such move was abandoned without any reason having been given therefor.).

"The facts set forth above are all supported by the evidence on record. In the mind of the Commission, the only conclusion that may be drawn therefrom is that pressure from Malacaang had indeed been made to bear on both the court and the prosecution in the handling and disposition of the AquinoGalman case. The intensity of this pressure is readily deductible from the personality of the one who

exerted it, his moral and official ascendancy over those to whom his instructions were directed, the motivation behind such instructions, and the nature of the government prevailing at that time which enabled the then head of state to exercise authoritarian powers . That the conference called to script or stage-manage the prosecution and trial of the Aquino-Galman case was considered as something anomalous that should be kept away from the public eye is shown by the effort to assure its secrecy .
None but those directly involved were called to attend. The meeting was held in an inner room of the Palace. Only the First Lady and Presidential Legal Assistant Justice Lazaro were with the President. The conferees were told to take the back door in going to the room where the meeting was held, presumably to escape notice by the visitors in the reception hall waiting to see the President. Actually, no public mention was ever made of this conference until Justice Herrera made his expose some fifteen (15) months later when the former President was no longer around .

"President Marcos undoubtedly realized the importance of the matter he wanted to take up with the officials he asked to be summoned. He had to do it personally, and not merely through trusted assistants. The lack of will or determination on the part of Justice Fernandez and Justice Pamaran to resist the presidential summons despite their realization of its unwholesome implications on their handling of the celebrated murder case may be easily inferred from their unquestioned obedience thereto. No effort to resist was made, despite the existence of a most valid reason to beg off, on the lame excuses that they went there out of 'curiosity,' or 'out of respect to the Office of the President,' or that it would be 'unbecoming to refuse a summons from the President.' Such frame of mind only reveals their susceptibility to presidential pressure and lack of capacity to resist the same. The very acts of being

summoned to Malacaang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified. Their abject deference to President Marcos may likewise be inferred from the admitted fact that, not having been given seats during the
two-hour conference (Justice Fernandez said it was not that long, but did not say how long) in which President Marcos did the talking most of the time, they listened to him on their feet. Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacaang Palace on January 10, 1985." 18

The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on whether the Sandiganbayan and the Office of the Tanodbayan actually succumbed to such pressure, as may be gauged by their subsequent actuations in their respective handling of the case." It duly concluded that "the pressure exerted by President Marcos in the conference held on January 10, 1985 pervaded the entire proceedings of the Aquino-Galman [murder] cases" as manifested in several specific incidents and instances it enumerated in the Report under the heading of "Manifestations of Pressure and Manipulation." Suffice it to give hereinbelow brief excerpts:

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1.The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as principals

by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and 6 others as accessories and the civilian as accomplice, and recommending bail for the latter two categories: "The

categorization may not be completely justified by saying that, in the mind of Justice Fernandez, there was no sufficient evidence to justify that all of the accused be charged as principals. The majority of the Agrava Board found the existence of conspiracy and recommended that all of the accused be charged accordingly. Without going into the merit of such finding, it may hardly be disputed that, in case of doubt, and in accordance with the standard practice of the prosecution to charge accused with the most serious possible offense or in the highest category so as to prevent an incurable injustice in the event that the evidence presented in the trial will show his guilt of the graver charge, the most logical and practical course of action should have been, as originally recommended by the Herrera panel, to charge all the accused as principals. As it turned out, Justice Fernandez readily opted for categorization which, not surprisingly, was in consonance with the Malacaang instruction." It is too much to attribute to coincidence that such unusual categorization came only after the then President's instruction at Malacaang when Gen. Ver's counsel Atty. Coronel, had been asking the same of Tanodbayan Fernandez since November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that time, [the Malacaang conference on January 10, 1985], his own view was in conformity with that of the Special Investigating Panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder. 19 As the Commission further noted, "Justice Fernandez never denied the claim of Justice Herrera that the draft resolution of January 10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have been the subject of a press conference on the afternoon of said date which did not go through due to the summons for them to go to Malacaang in the early evening of said date." 20 2.Suppression of vital evidence and harassment of witnesses: "Realizing, no doubt, that a party's case is as strong as the evidence it can present, unmistakable and persistent efforts were exerted in behalf of the accused to weaken the case of the prosecution and thereby assure and justify [the accused's] eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and some were indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled, perjured or threatened either to refrain from testifying or to testify in a manner favorable to the defense." The Report specified the ordeals of the prosecution witnesses: 21 Cesar Loterina, PAL employee, Roberta Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had to be discarded as prosecution witnesses before at the trial. Witnesses Viesca and Raas who also testified before the Board "disappeared all of a sudden and could not be located by the police. The Commission narrated the efforts to stifle Kiyoshi Wakamiya, eyewitness who accompanied Ninoy on his fateful flight on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was not even allowed to return to Manila on August 20, 1984 to participate in the first death anniversary of Ninoy but was deported as an undesirable alien and had to leave on the next plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese police in accordance with their law and Wakamiya claimed before the Commission that the English transcription of his testimony, as prepared by an official of the Philippine Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although there was no clear showing of the discrepancy from the original transcription which was in Nippon-go. Upon his arrival at the MIA on August 21, 1985 on invitation of Justice Herrera to testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men who sought to protect Wakamiya from harm by surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday (August 24th) notwithstanding Herrera's request to let him stay until he could testify the following Monday (August 26th). In the case of principal eyewitness Rebecca Quijano, the Commission reported that
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". . . Undoubtedly in view of the considerable significance of her proposed testimony and its unfavorable effect on the cause of the defense, the efforts exerted to suppress the same was as much as, if not more than those in the case of Wakamiya . . . She recounted that she was in constant fear of her life, having been hunted by armed men; that their house in Tabaco, Albay was ransacked, her family harassed by the foreclosure of the mortgage on their house by the local Rural Bank, and ejected therefrom when she ignored the request of its manager to talk with her about her proposed testimony;
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that a certain William Farias offered her plane tickets for a trip abroad; that Mayor Rudy Farias of Laoag City kept on calling her sister in the United States to warn her not to testify; that, later, Rudy and William Farias offered her two million pesos supposedly coming from Bongbong Marcos, a house and lot in Baguio, the dropping of her estafa case in Hongkong, and the punishment of the persons responsible for the death of her father, if she would refrain from testifying.

"It is a matter of record, however, that despite such cajolery and harassments, or perhaps because of them, Ms. Quijano eventually testified before the Sandiganbayan. Justice Herrera was told by Justice Fernandez of the displeasure expressed by Olympus at Justice Herrera's going out of his way to make Ms. Quijano to testify, and for his refusal to honor the invitation to attend the birthday party of the First Lady on May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985. The insiduous attempts to tamper with her testimony, however, did not end with her taking the witness stand. In the course of her testimony several notes were passed to Atty. Rodolfo Jimenez, the defense counsel who crossexamined her, one of which suggested that she be asked more questions about Dean Narvasa who was suspected of having coached her as to what to declare (Exhibit 'D'); and on another occasion, at a crucial point in her testimony, a power brownout occurred; which lasted for about twenty minutes, throwing the courtroom into darkness, and making most of those present to scamper for safety, and Ms. Quijano to pass over the railing of the rostrum so as to be able to leave the courtroom. It was verified that the brownout was limited to the building housing the Sandiganbayan, it not having affected the nearby Manila City Hall and the Finance Building Justice Herrera declared that the main switchboard of the Sandiganbayan electrical system was located beside the room occupied by Malacaang people who were keeping track of the proceedings."

Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who jotted down the number of the car that took them away, also disappeared. On January 29, 1984, during the proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was kidnapped together with a neighbor named Rogelio Taruc. They have been missing since then, despite his attempts to find any of them. According to him, "nobody was looking for these five persons because they said Marcos was in power [despite his appeal to the Minister of National Defense to locate them]. Today, still no one is looking for these people." And he appealed to the new leadership for its assistance in learning their fate. 3.The discarding of the affidavits executed by U.S. airmen: "While it is true that the U.S. airmen's proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa Airfield or some other place, such showing would not necessarily contravene the theory of the prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport. Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane merelyshowed a 'wider range of conspiracy,' it being possibly just one of two or three other plans designed to accomplish the same purpose of liquidating Senator Aquino. In any event, even assuming that the said piece of evidence could go either way, it may not be successfully contended that it was prudent or wise on the part of the prosecution to totally discard the said piece of evidence. Despite minor inconsistencies contained therein, its introduction could have helped the cause of the prosecution. If it were not so, or that it would even favor the defense, as averred by Justice Fernandez, the determined effort to suppress the same would have been totally uncalled for.
LLjur

"4.Nine proposed rebuttal witnesses not presented 5.The failure to exhaust available remedies against adverse developments: "When the Supreme Court denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the military respondents headed by Gen. Ver before the Fact Finding Board], the latter almost immediately announced to media that he was not filing a motion for the reconsideration of said denial, for the reason that it would be futile to do so and

25

foolhardy to expect a favorable action on the same . . . His posture . . . is, in the least, indicative that he was living up to the instruction of finishing the trial of the case as soon as possible, if not of something else. "6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President Marcos ordered Justice Pamaran point-blank to handle the case. The pro-forma denial by Justice Pamaran of such instruction crumbles under the actuality of such directive having been complied with to the letter . . .
"Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to handle the case personally by explaining that cases in the Sandiganbayan are assigned by raffle and not to a particular Justice, but to a division thereof. The evidence before the Commission on how the case happened to be assigned to Justice Pamaran evinces a strong indication that such assignment was not done fairly or regularly. "There was no evidence at all that the assignment was indeed by virtue of a regular raffle, except the uncorroborated testimony of Justice Pamaran . . . Despite an announcement that Justice Escareal would be presented by the respondents to testify on the contents of his aforesaid Memorandum, such was not done. No reason was given why Justice Escarel could not, or would not like to testify. Neither was any one of the officials or employees of the Sandiganbayan who, according to Justice Pamaran, were present during the supposed raffle, presented to corroborate the claim of Justice Pamaran as regards the said raffle. xxx xxx xxx "It is also an admitted fact that the two Informations in the double murder case were filed by Justice Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee were summoned at 12:20 p.m. or only 18 minutes after the filing of the two Informations. Such speed in the actual assignment of the case can truly be categorized as unusual, if not extraordinary, considering that before a case filed may be included in the raffle, there is need for a certain amount of paper work to be undertaken. If such preliminary requirements were done in this case within the limited time available therefor, the charge that the raffle was rushed to avoid the presence of media people would ring with truth. "What is more intriguing is the fact that although a raffle might have been actually conducted which resulted in the assignment of the case to the First Division of the Sandiganbayan, the Commission did not receive any evidence on how or why it was handled personally by Justice Pamaran who wrote the decision thereof, and not by any one of the two other members of his division . . ."

7.The custody of the accused; their confinement in a military camp, instead of in a civilian jail: "When the question of custody came up after the case was filed in the Sandiganbayan, the latter issued an order directing the confinement of the accused in the City Jail of Manila. This order was not carried out in view of the information given by the Warden of the City Jail that there was no space for the twenty-six accused in said jail. The same information was given when the custody was proposed to be given to the National Penitentiary in Muntinglupa and to the National Bureau of Investigation. At that point, the defense came up with Presidential Decree No. 1950A which authorizes the custody of the accused military personnel with their respective Commanding Officers. Justice Herrera claimed that the said Presidential Decree was not known even to the Tanodbayan Justice Fernandez who had to call up the then Minister of Justice Estelito Mendoza to request a copy of the same, and was given such copy only after sometime . . . 8.The monitoring of proceedings and developments from Malacaang and by Malacaang personnel. "There is an uncontradicted evidence that the progress of the proceedings in the Sandiganbayan as well as the developments of the case outside the Court had been monitored by Malacaang presumably for it to know what was happening and to take remedial measures as may be necessary, Justice Pamaran had candidly admitted that television cameras "boldly carrying the label of 'Office of the President of the Philippines'" were installed in the courtroom for that purpose. There was a room in the Sandiganbayan, mischievously called 'war room', wherein military and Malacaang personnel stayed to keep track of the proceedings," the close monitoring by
26

Malacaang showed its results oh several occasions specified in the Report. Malacaang was immediately aware of the Japanese witness Wakamiya's presence in Justice Herrera's office on August 21, 1985 and forestalled the giving of his testimony by having the Japanese Embassy advise Wakamiya to leave the country at once. Likewise, Col. Balbino Diego, Malacaang intelligence chief, suddenly appeared at the National Bureau of Investigation office when the "crying lady" Rebecca Quijano was brought there by NBI agents for interrogation and therein sought to obtain custody of her. "It is likewise an undisputed fact," the Commission noted "that several military personnel pretended to be deputy sheriffs of the Sandiganbayan and attended the trials thereof in the prescribed deputy sheriffs' uniforms." The Commission's inescapable finding: "It is abundantly clear that President Marcos did not only give instructions as to how the case should be handled. He saw to it that he would know if his instructions will be complied with. 9.Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an integral part of the scenario which was cleverly designed to accomplish two principal objectives, seemingly conflicting in themselves, but favorable both to then administration and to the accused; to wit, [1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged in court, and [2] the foreclosure of any possibility that they may again be prosecuted for the same offense in the event that President Marcos shall no longer be in power.

"In rendering its decision, the Sandiganbayan overdid itself in favoring the presidential directive. Its bias and

partiality in favor of the accused was glaringly obvious. The evidence presented by the prosecution was totally ignored and disregarded. . . . It was deemed not sufficient to simply acquit all of the twenty-six accused on thestandard ground that their guilt had not been proven beyond reasonable doubt, as was the most logical and
appropriate way of justifying the acquittal in the case, there not being a total absence of evidence that could show guilt on the part of the accused. The decision had to pronounce them 'innocent of the crime charged on the two informations, and accordingly, they incur neither criminal nor civil liability.' It is a rare phenomenon to see a person accused of a crime to be favored with such total absolution. . . . "Doubt on the soundness of the decision entertained by one of the two justices who concurred with the majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified that in October, 1985, when the decision was being prepared, Justice Augusto Amores told him that he was of the view that some of the accused should be convicted, he having found difficulty in acquitting all of them; however, he

confided to Justice Herrera that Justice Pamaran made it clear to him and Justice Vera Cruz that Malacaang had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986, p. 49). Justice Amores also told Justice Herrera that he would confirm this statement (which was mentioned in Justice Herrera's comment to the Second Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-93). This testimony of Justice Herrera remained unrebutted." (Emphasis supplied).
The record shows suffocatingly that from beginning to end, the then President used, or more precisely, misused the overwhelming resources of the government and his authoritarian powers to corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. As graphically depicted in the Report, supra, and borne out by the happenings (res ipsa loquitura 22 ), since the resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused was unpalatable (it would summon the demonstrators back to the streets 23 ) and at any rate was not acceptable to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacaang conference, would accomplish the two principal objectives of satisfaction of the public clamor for the suspected killers to be charged in court and of giving them through their acquittal the legal shield of double jeopardy. 24

27

Indeed, the secret Malacaang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the pre-determined ignominious final outcome are without parallel and precedent in our annals and jurisprudence. To borrow a phrase from Ninoy's April 14, 1975 letter withdrawing his petition for habeas corpus, 25 "This is the evil of one-man rule at its very worst." Our Penal Code penalizes "anyexecutive officer who shall address any order or suggestion to any judicial authority with respect to any case or business coming within the exclusive jurisdiction of the courts of justice." 26 His obsession for "the boys'" acquittal led to several first which would otherwise be inexplicable: 1.He turned his back on and repudiated the findings of the very Fact Finding Board that he himself appointed to investigate the "national tragedy and national shame" of the "treacherous and vicious assassination of Ninoy Aquino" and "to ventilate the truth through free, independent and dispassionate investigation by prestigious and free investigators. "2.He cordially received the chairman with her minority report one day ahead of the four majority members and instantly referred it to respondents "for final resolution through the legal system" as if it were the majority and controlling report; and rebuked the four majority members when they presented to him the next day their report calling for the indictment of all 26 respondents headed by Gens. Ver and Olivas (instead of the lesser seven under the chairman's minority report). 3.From the day after the Aquino assassination to the dictated verdict of acquittal, he totally disregarded the Board's majority and minority findings of fact and publicly insisted that the military's "fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers' incompetence and gross negligence to provide any security for Ninoy in contrast to their alacrity in gunning down the alleged assassin Galman and sealing his lips. 4.The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and 5.Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to convict some of the accused) granted all 26 accused total absolution and pronounced them "innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," notwithstanding the evidence on the basis of which the Fact Finding Board had unanimously declared the soldiers' version of Galman being Aquino's killer a "perjuredstory, given deliberately and in conspiracy with one another." The fact of the secret Malacaang conference of January 10, 1985 at which the authoritarian President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of the imminent filing of the criminal charges against all the twenty-six accused (as admitted by respondent Justice Fernandez to have been confirmed by him to the then President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was illegal under our penal laws, supra. This illegality vitiated from the very beginning all proceedings in the Sandiganbayan court headed by the very Presiding Justice who attended. As the Commission noted: "The very acts of being summoned to Malacaang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified . . . Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacaang Palace on January 10, 1985."
LLphil

No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatory required by the known P.D. 1850 at the time providing for exclusive
28

jurisdiction of courts martial over criminal offenses committed by military men 26a ) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of predetermining the outcome of individual cases." 26b This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacaang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court.
LLphil

The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of lawand justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century and that the predetermined judgment of acquittal was unlawful and void ab initio.

1.No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court stressed in the 1985 case of People vs. Bocar, 27
"Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated. 27a "The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971] which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a 'lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head' (Aducayen vs. Flores, supra). "Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra). xxx xxx xxx
29

"Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower

court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process.
"In effect, the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy."

More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we have held, the sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure the predetermined final outcome of acquittal and total absolution as innocent of all the respondents-accused. Notwithstanding the laudable efforts of Justice Herrera which saw him near the end "deactivating" himself from the case, as it was his belief that its eventual resolution was already a foregone conclusion, they could not cope with the misuse and abuse of the overwhelming powers of the authoritarian President to weaken the case of the prosecution, to suppress its evidence, harass, intimidate and threaten its witnesses, secure their recantation or prevent them from testifying. Fully aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and reluctance to appear and testify, respondent Sandiganbayan maintained a "dizzying tempo" of the proceedings and announced its intention to terminate the proceedings in about 6 months time or less than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and contempt proceedings as compared to the nil situation for the defense. Herrera likewise complained of being "cajoled into producing witnesses and pressed on making assurances that if given a certain period, they will be able to produce their witnesses," Herrera pleaded for "a reasonable period of preparation of its evidence" and cited other pending cases before respondent court that were pending trial for a much longer time where the "dizzying tempo" and "fast pace" were not maintained by the court. 28 Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian President to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a judgment is "a lawless thing which can be treated as an outlaw". It is a terrible and unspeakable affront to the society and the people. To paraphrase Brandeis: 29 If the authoritarian head of the government becomes the lawbreaker, he breeds contempt for the law, he invites every man to become a law unto himself, he invites anarchy.
prLL

Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which cannot be appealed or reopened, without being put in double jeopardy was forcefully disposed of by the Court in People vs. Court of Appeals, which is fully applicable here, as follows: "That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. xxx xxx xxx "Private respondent invoke 'justice for the innocent'. For justice to prevail, the scales must balance. It is not to be dispensed for the accused alone. The interests of the society, which they have wronged must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could also mean injustice. This is where the Courts play a vital role. They render justice where justice is due. 30

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2.Motion to Disqualify/Inhibit should have been resolved ahead. The private prosecutors had filed a motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M. Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel. Justice Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the prosecution memorandum that respondent Sandiganbayan "should not decide the case on the merits without first making a final ruling on the Motion for Inhibition." Herrera quoted the exchange between him and the Presiding Justice to show the latter's "following the script of Malacaang"
"PJ PAMARAN "Well the court believes that we should proceed with the trial and then deal later on with that. After all the most important thing here is, shall we say, the decision of the case ." "J. HERRERA I think more important than the decision of the case, Your Honor, is the capacity of the Justices to sit in judgment. That is more important than anything else." (p. 13 TSN, June 25, 1985) (Italics supplied by Herrera)." 31

But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the decision, for supposedly not having joined the petition for inhibition, contrary to the facts above-stated, as follows:
". . . the motion for inhibition above referred to related exclusively for the contempt proceeding. Too, it must be remembered that the prosecution neither joined that petition, nor did it at any time manifest a desire to file a similar motion prior to the submission of these cases for decision. To do it now is not alone out of season but is also a confession of official insouciance." (Page 22, Decision). 32

The action for prohibition was filed in the Court to seek the disqualification of respondents Justices pursuant to the procedure recognized by the Court in the 1969 case of Paredes vs. Gopengco 33 since an adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party without any remedy nor appeal in view of the double jeopardy rule, not to mention the overriding and transcendental public interest that would make out a case of denial of due process to the People if the alleged failure on the part of the Tanodbayan to present the complete evidence for the prosecution is substantiated. 34 In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting of the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been taken cognizance of by the Court which had required the respondents', including the Sandiganbayan's, comments. Although no restraining order was issued anew, respondent Sandiganbayan should not have precipitately issued its decision of total absolution of all the accused pending the final action of this Court. This is the teaching of Valdez vs. Aquilizan 35 , wherein the court in setting aside the hasty convictions, ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner."

3.Re: Objections of respondents. The other related objections of respondents' counsels must be rejected in the face of the Court's declaration that the trial was a mock trial and that the predetermined judgment of acquittal was unlawful and void ab initio.
31

(a)It follows that there is no need to resort to a direct action to annul the judgment, instead of the present action which was timely filed initially to declare a mistrial and to enjoin the rendition of the void judgment. And after the hasty rendition of such judgment for the declaration of its nullity, following the presentation of competent proof heard by the Commission and the Court's findings therefrom that the proceedings were from the beginning vitiated not only by lack of due process but also by the collusion between the public respondents (court and Tanodbayan) for the rendition of a predetermined verdict of acquitting all the twenty-six respondents-accused.
cdll

(b)It is manifest that this does not involve a case of mere irregularities in the conduct of the proceedings or errors of judgment which do not affect the integrity or validity of the judgment or verdict. (c)The contention of one of defense counsel that the State and the sovereign people are not entitled to due process is clearly erroneous and contrary to the basic principles and jurisprudence cited hereinabove. (d)The submittal of respondents-accused that they had not exerted the pressure applied by the authoritarian president on public respondents and that no evidence was suppressed against them must be held to be untenable in the wake of the evil plot now exposed for their preordained wholesale exoneration. (e)Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., Inc. 36 is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation be put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for over six (6) years and one (1) month since the denial of the first motion for reconsideration). This opinion cannot be properly invoked, because here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of February 4th of the first motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being resolved within five months of its filing after the Commission had received the evidence of the parties who were heard by the Court only last August 26th. Then, the second motion for reconsideration is based on an entirely new material ground which was not known at the time of the denial of the petition and filing of the first motion for reconsideration, i.e, the secret Malacaang conference on January 10, 1985 which came to light only fifteen months later in March, 1986 and showed beyond peradventure (as proved in the Commission hearings) the merits of the petition and that the authoritarian president had dictated and predetermined the final outcome of acquittal. Hence, the ten members of the Court (without any new appointees) unanimously voted to admit the second motion for reconsideration. 37 4.With the declaration of nullity of the proceedings, the cases must now be tried before an impartial court with an unbiased prosecutor. There has been the long dark night of authoritarian regime, since the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now admitted by Enrile himself) was staged to trigger the imposition of martial law and authoritarian one-man rule, with the padlocking of Congress and the abolition of the office of the Vice-President. As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members of the Bar last May, "In the past few years, the judiciary was under heavy attack by an extremely powerful executive. During this state of judicial siege, lawyers both in and outside the judiciary perceptively surrendered to the animus of technicality. In the end, morality was overwhelmed by technicality, so that the latter emerged ugly and naked in its true manifestation." Now that the light is emerging, the Supreme Court faces the task of restoring public faith and confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse. Its strength has mainly in public confidence, based on the truth and moral force of its judgments. This has been built on its cherished traditions of objectivity and impartiality, integrity and fairness and unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the leadership as by the people. The lower courts draw
32

their bearings from the Supreme Court. With this Court's judgment today declaring the nullity of the questioned judgment or acquittal and directing a new trial, there must be a rejection of the temptation of becoming instruments of injustice as vigorously as we rejected becoming its victims. The end of one form of injustice should not become simply the beginning of another. This simply means that the respondents accused must now face trial for the crimes charged against them before an impartial court with an unbiased prosecutor with all due process. What the past regime had denied the people and the aggrieved parties in the sham trial must now be assured as much to the accused as to the aggrieved parties. The people will assuredly have a way of knowing when justice has prevailed as well as when it has failed.
cdrep

The notion nurtured under the past regime that those appointed to public office owe their primary allegiance to the appointing authority and are accountable to him alone and not to the people or the Constitution must be discarded. The function of the appointing authority with the mandate of the people, under our system of government, is to fill the public posts. While the appointee may acknowledge with gratitude the opportunity thus given of rendering public service, the appointing authority becomes functus officio and the primary loyalty of the appointed must be rendered to the Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase the late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must ever realize that they have no constituency, serve no majority nor minority but serve only the public interest as they see it in accordance with their oath of office, guided only the Constitution and their own conscience and honor. 5.Note of Commendation. The Court expresses its appreciation with thanks for the invaluable services rendered by the Commission composed of retired Supreme Court Justice Conrado M. Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo Caguioa as members. In the pure spirit of public service, they rendered selflessly and without remuneration thorough, competent and dedicated service in discharging their tasks of hearing and receiving the evidence, evaluating the same and submitting their Report and findings to the Court within the scheduled period and greatly easing the Court's burden. ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered nullifying the proceedings in respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs. Gen. Luther Custodio, et al." and ordering a re-trial of the said cases which should be conducted with deliberate dispatch and with careful regard for the requirements of due process, so that the truth may be finally known and justice done to all. This resolution is immediately executory. SO ORDERED. Yap, Cruz, Paras and Feliciano, JJ., concur. Feria, Fernan and Narvasa, JJ., took no part. Feliciano, J., I join Gutierrez, Jr., J., in his statements in the last three paragraphs (prior to the dispositive

paragraph) of his Separate Concurring Opinion.

Separate Opinions MELENCIO-HERRERA, J., concurring: Consistent with what I had perceived as the need to establish the truth behind the vicious assassination of the late Senator Benigno Aquino, as expressed in my dissenting opinion in Galman vs. Pamaran (138 SCRA 294, 379 [1985]), and so that justice may be done, I vote for the re-trial prayed for by petitioners.
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There is reason to believe that some vital evidence had been suppressed by the prosecution, or that it had disregarded, as immaterial or irrelevant, evidence which, if presented, could affect the outcome of the case. As it is, the prosecution failed to fully ventilate its position and to lay out before respondent Court all the pertinent facts which could have helped that Court in arriving at a just decision. It had, thus, failed in its task.
"A public prosecutor is 'the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done. As such, he is in a peculiar and every definite sense the servant of the law, the two fold aim of which is that guilt shall not escape or innocence suffer." [Italics ours] (Suarez vs. Platon, 69 Phil 556 [1940]). "He owes the state, the court and the accused the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in his evidence to the end that the court's mind may not be tortured by doubts, the innocent may not suffer, and the guilty may not escape unpunished" (People vs. Esquivel, 82 Phil. 453 [1948]).

Respondent Court, in showing partiality for the accused from beginning to end, from the raffle of the subject cases to the promulgation of judgment, which absolved the accused, en masse, from any and all liability, is equally culpable for miscarriage of justice. Due process of law, which "requires a hearing before an impartial and disinterested tribunal" and the right of every litigant to "nothing less than the cold neutrality of an impartial Judge" (Gutierrez vs. Santos, 112 Phil. 184 [1961]; Castillo vs. Juan, 62 SCRA 124 [1975]), was violated.
prLL

The proceedings below, having been vitiated by lack of due process, to the detriment of the State and the People, were invalid and the judgment rendered null and void ab initio. There having been no trial at all in contemplation of law, there is likewise no judgment on which a plea of double jeopardy may be based. "To entitle the accused to the plea of former jeopardy, the proceedings must have been valid (State vs. Bartlett, 164 N.W., 757; State vs. O'Day 185 So. 290). The lack of any fundamental requisite which would render void the judgment would make ineffective a plea of jeopardy based on such proceedings (Steen vs. State, 242 S.W. 1047). The accused, however, argue that double jeopardy attaches for, even assuming without conceding, that pressure and collusion did take place, they were not a party to the same; and, for those who were charged only either as accomplices or accessories, they contend that their alleged offense involved only a cover-up in the investigation of the crimes so that, whatever pressure was exerted could only have benefited the principals, consequently, to subject them to a re-trial is to put them twice in jeopardy. It is true that where an accused was not a party to the fraud, a conviction secured fraudulently by the State's officer cannot be avoided by the state (State vs. Heflin, 96 So. 459,19 Ala. App. 222). However, that exception is inapplicable to the cases at bar where both the prosecution and the Trial Court itself were parties to the fraud and collusion. Nor can it be said that the accused were not a part thereof. The agreement to file the murder charge in Court so that, after being acquitted as planned, the accused could no longer be prosecuted under the doctrine of double jeopardy; the "categorization" of the accused into principals, accomplices and accessories so that not all of them would be denied bail during the trial, were fraudulently conceived for their benefit and for the purpose of protecting them from subsequent prosecution. It is, thus, no bar to a subsequent prosecution for the same offense (Coumas vs. Superior Court, 192 P. 2d. 449, 452, 31 C. 2d. 682). "A verdict of acquittal procured by the accused by fraud and collusion is a nullity and does not put him in jeopardy; and consequently, it is no bar to a second trial for the same offense (State vs. Lee, 30A. 1110, 65 Conn. 265, 48 Am. S.R. 202, 27 L. RA. 498). The proceedings below having been fatally flawed by pressure, fraud and collusion, with the legal consequence that there was no trial and judgment to speak of, and under the circumstances peculiar only to these cases, I
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vote for a re-trial in the interest of truth and the ends of public justice. As in all criminal proceedings, however, the accused must be guaranteed a fair, speedy, and impartial re-trial before an unbiased Tribunal and prosecutor and, I might add, safeguarded against trial by publicity. ALAMPAY, J., concurring: Considering that certain significant facts and circumstances not previously disclosed to the Court were found by the Commission constituted by this Court, purposely to inquire and ascertain the veracity of the same, to be duly established by sufficient evidence and are indicative of "a scripted and predetermined manner of handling and disposing of the Aquino-Galman murder case . . .;" and that there exists "adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences it could have otherwise presented, but also predetermined the outcome of the case; . . ." I join in granting petitioners' second motion for reconsideration. In my considered view, the ends of Justice will be best served by allowing the trial anew of the subject cases in order to ultimately obtain a judgment that will be removed from any suspicion of attendant irregularities. With the greatest significance being given by our people to the said cases, which are evidently of historical importance, I am readily persuaded that it is to our national interest that all relevant evidence that may be now available be provided an opportunity to be received and made known so that whatever is the actual truth can be rightfully ascertained. I, therefore, vote for a declaration of mistrial and for nullifying the proceedings of the referred Criminal Cases Nos. 10010 and 10011 before the Sandiganbayan and the ordering of a re-trial. GUTIERREZ, JR., J., concurring: On November 28, 1985, this Court dismissed the petition for certiorari and prohibition with preliminary injunction and lifted a Temporary Restraining Order earlier granted. We are now acting on a motion for reconsideration filed by the petitioners. When the Court initially dismissed the petition, I issued a separate concurring and dissenting opinion. The issues before us were novel and momentous. I felt that in immediately dismissing the petition, we were denying the petitioners every reasonable opportunity to prove their allegations of non-independent and biased conduct of both the prosecution and the trial court. I stated that the issues of miscarriage of justice and due process arising from that conduct should be allowed more extended treatment. With then Associate Justices Claudio Teehankee and Vicente Abad Santos, I, therefore, dissented from the Court's resolution denying the petitioners' motions to continue presenting their case. Since the majority of the Court, however, had decided to resolve the petition on its merits and the findings of the Vasquez Commission were still for the future, I concurred in the result of this Court's action on two grounds (1) the right of the accused to speedy trial and (2) the presumption in law that judicial acts are regularly performed and that public officers have discharged their duties in accordance with law. The findings of the Vasquez Commission now confirm my initial misgivings and more than overcome the presumption of regular performance of official duty upon which I based my concurrence. What were some of these misgivings now given substance by the investigation? Mistrial is usually raised by the accused. In this petition neither the accused nor the prosecution saw anything wrong in the proceedings. We had the unusual phenomenon of the relatives of one victim, prominent lawyers
35

and law professors, and retired Justices assuming the uncommon role of alleging not only a biased Sandiganbayan but also a Tanodbayan holding back its own evidence. Instead of allowing the heated passions and emotions generated by the Aquino assassination to cool off or die down, the accused insisted on the immediate rendition of a decision. The Sandiganbayan is usually sober and respectful in its relations with the Supreme Court. I, therefore, found it strange and unfortunate why, in its Comment, the Sandiganbayan should question our authority to look into the exercise of its jurisdiction. There was the further matter of television cameras during trial, their effect on the witnesses and the judges, and other mischievous potentialities. The report of the Vasquez Commission now shows that there was more to these misgivings and suspicions than appeared in the records at that time. The Court's opinion penned by the Chief Justice states in detail why the Sandiganbayan was not an impartial tribunal and the Tanodbayan not an unbiased prosecutor. The right against double jeopardy is intended to protect against repeated litigations and continuous harassment of a person who has already undergone the agony of prosecution and trial for one and the same offense. It certainly was never Intended to cover a situation where the prosecution suppresses some of its own evidence, where the accused correctly and eagerly anticipate a judgment of acquittal, and where the court appears to have made up its mind even before trial has started. Under the circumstances found by the Vasquez Commission, there was a failure of trial tantamount to no trial at all. A "moro-moro" could not possibly result in a just or valid decision. I am, however, constrained to write this separate opinion to emphasize a concern of this Court and of all Filipinos who want genuine justice to be realized in this case. In the same way that we deplore the pressures and partiality which led to the judgment of acquittal, we must insure that absolutely no indication of bias, prejudgment, or vindictiveness shall taint the retrial of this case. The fairly strong language used by the Court in its main opinion underscores the gravity with which it views the travesties of justice in this "trial of the century." At the same time, nothing expressed in our opinion should be interpreted as the Supreme Court's making a factual finding, one way or another, about the perpetrators of the Aquino or the Galman killing. Any statements about the circumstances of the assassination or about the military version of the killings are intended solely for one issue - whether or not the Sandiganbayan acquittals should be set aside and a retrial ordered. Neither our final resolution of this petition, the stature of the persons involved, pakikisama, utang na loob for an appointment or reappointment, or any other extraneous matters should color or influence the future course of this case.

Needless to say, any person who, in the past, may have formally expressed opinions about the innocence or guilt of the accused should be neither a prosecutor or judge in any forthcoming trial. It is not enough for the future proceedings to be fair; they should be above any suspicion of partiality, bias, rancor, or vindictiveness. It would be unfortunate if, in the conduct of further proceedings in this case, erroneous impressions may arise that a prosecutor or judge has prejudged the guilt or innocence of any accused. Having just declared a mistrial, we should not again declare the retrial as another mistrial, ad infinitum. For the reasons abovestated, I concur in the decision of the Court to grant the petitioners' second motion for reconsideration. Feliciano, J., concur in the last three paragraphs (prior to the dispositive paragraph).
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[G.R. No. 131652. March 9, 1998.] BAYANI M. ALONTE, petitioner, vs. HON. MAXIMO A. SAVELLANO JR., NATIONAL BUREAU OF INVESTIGATION and PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 131728. March 9, 1998.] BUENAVENTURA CONCEPCION, petitioner, vs. JUDGE MAXIMO SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES, and JUVIELYN Y. PUNONGBAYAN, respondents.

Fortun, Narvasa & Salazar for petitioner Bayani M. Alonte. Ramon C. Casano for petitioner in 131728. The Law Firm of Raymundo A. Armovit for respondent Judge.
SYNOPSIS Bayani M. Alonte, then incumbent Mayor of Bian, Laguna and Buenaventura Concepcion were charged with rape based on the complaint of Juvielyn Punongbayan. During the pendency of the petition for change of venue, Juvielyn, assisted by her parents and counsel, executed an affidavit of desistance. The petition for change of venue was granted and the case was raffled to respondent judge who issued warrants of arrest for petitioners. Juvielyn reiterated her "decision to abide by her Affidavit of Desistance." Petitioners pleaded not guilty when arraigned and waived pre-trial. Immediately following arraignment the prosecution presented Juvielyn who testified to the validity and voluntariness of her affidavit of desistance and that she has no interest in further prosecuting the action. The Prosecution then manifested that the State had no further evidence against the accused to prove the guilt of the accused. She then moved for the "dismissal of the case" against both accused-petitioners. The two accused did not present any countervailing evidence, did not take the witness stand nor admitted the act charged in the information. Thereupon, respondent judge said that "the case was submitted for decision." On December 18, 1997, a decision was rendered convicting petitioners of rape.
IEaCDH

Due process in criminal proceedings, in particular, require (a) that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing. The above constitutional and jurisprudential postulates, by now elementary and deeply imbedded in our own criminal justice system, are mandatory and indispensable. The order of trial in criminal cases is clearly spelled out in Section 3, Rule 119, of the Rules of Court which should be strictly adhered to. There can be no short-cut to the legal process, and there can be no excuse for not affording an accused his full day in court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most undeserving. An affidavit of desistance by itself, even when construed as a pardon in the so-called "private crimes," is not a ground for the dismissal of the criminal case once the action has been instituted.

37

Prosecutors are expected not merely to discharge their duties with the highest degree of excellence, professionalism and skill but also to act each time with utmost devotion and dedication to duty. The Court is hopeful that the zeal which has been exhibited many times in the past, although regrettably a disappointment on few occasions, will not be wanting in the proceedings yet to follow.
TEDaAc

SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; DUE PROCESS IN CRIMINAL PROCEEDINGS; REQUISITES. Jurisprudence acknowledges that due process in criminal proceedings, in particular, require (a) that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing. The above constitutional and jurisprudential postulates, by now elementary and deeply imbedded in our own criminal justice system, are mandatory and indispensable. The principles find universal acceptance and are tersely expressed in the oftquoted statement that procedural due process cannot possibly be met without a "law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." 2.ID.; ID.; THERE CAN BE NO SHORT-CUT TO THE LEGAL PROCESS AND THERE CAN BE NO EXCUSE FOR NOT AFFORDING AN ACCUSED HIS FULL DAY IN COURT. The existence of the waiver must be positively demonstrated. The standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences." Mere silence of the holder of the right should not be so construed as a waiver of right, and the courts must indulge every reasonable presumption against waiver. The Solicitor General has aptly discerned a few of the deviations from what otherwise should have been the regular course of trial: (1) Petitioners have not been directed to present evidence to prove their defenses nor have dates therefor been scheduled for the purpose; (2) the parties have not been given the opportunity to present rebutting evidence nor have dates been set by respondent Judge for the purpose; and (3) petitioners have not admitted the act charged in the Information so as to justify any modification in the order of trial. There can be no short-cut to the legal process, and there can be no excuse for not affording an accused his full day in court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most undeserving. 3.ID.; EVIDENCE; AFFIDAVIT OF DESISTANCE; SHOULD NOT BE GIVEN PROBATIVE VALUE. In the case of People vs. Junio, the Court held that: Thus, we have declared that at most the retraction is an afterthought which should not be given value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable. [Flores vs. People, 211 SCRA 622, citing De Guzman vs. Intermediate Appellate Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.] 4.ID.; COURTS; WITH INHERENT POWER TO COMPEL THE ATTENDANCE OF ANY PERSON TO TESTIFY. Courts have the inherent power to compel the attendance of any person to testify in a case pending before it, and a party is not precluded from invoking that authority. 5.ID.; EVIDENCE; AFFIDAVIT OF DESISTANCE; THOUGH CONSTRUED AS PARDON IN "PRIVATE CRIMES," IT IS NOT A GROUND FOR DISMISSAL OF CRIMINAL ACTION. An affidavit of desistance by itself, even when construed as a pardon in the so-called "private crimes," is not a ground for the dismissal of the criminal case once the action has been instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly constitute

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evidence whose weight or probative value, like any other piece of evidence, would be up to the court for proper evaluation.
EaSCAH

6.ID.; ID.; DISQUALIFICATION OF JUDGES; IT IS NOT ENOUGH THAT A COURT IS IMPARTIAL, IT MUST ALSO BE PERCEIVED TO BE IMPARTIAL. Relative to the prayer for the disqualification of Judge Savellano from further hearing the case, the Court is convinced that Judge Savellano should, given the circumstances, be best excused from the case. Possible animosity between the personalities here involved may not all be that unlikely. The pronouncement of this Court in the old case of Luque vs. Kayanan could again be said: All suitors are entitled to nothing short of the cold neutrality of an independent, wholly-free, disinterested and unbiased tribunal. Second only to the duty of rendering a just decision is the duty of doing it in a manner that will not arouse any suspicion as to the fairness and integrity of the Judge. It is not enough that a court is impartial, it must also be perceived as impartial. 7.ID.; ATTORNEYS; USE OF INTEMPERATE LANGUAGE AND UNKIND ASCRIPTIONS CAN HARDLY BE JUSTIFIED. While the lawyer in promoting the cause of his client or defending his rights might do so with fervor, simple courtesy demands that it be done within the bounds of propriety and decency. The use of intemperate language and unkind ascriptions hardly can be justified nor can have a place in the dignity of judicial forum. Civility among members of the legal profession is a treasured tradition that must at no time be lost to it.
DHEcCT

8.ID.; CRIMINAL PROCEDURE; PROSECUTORS; EXPECTED TO ACT WITH UTMOST DEVOTION AND DEDICATION TO DUTY. Finally, it may be opportune to say, once again, that prosecutors are expected not merely to discharge their duties with the highest degree of excellence, professionalism and skill but also to act each time with utmost devotion and dedication to duty. The Court is hopeful that the zeal which has been exhibited many times in the past, although regrettably a disappointment on few occasions, will not be wanting in the proceedings yet to follow. PUNO, J., separate opinion: 1.REMEDIAL LAW; EVIDENCE; RECANTATION; CONSTRUED. A recantation usually applies to a repudiation by a complainant or a witness, either for the prosecution or the defense, who has previously given an extrajudicial statement or testimony in court. Repudiation may be made in writing, i.e., by sworn statement, or by testifying on the witness stand. 2.ID.; ID.; ID.; GENERALLY LOOKED UPON WITH DISFAVOR. Mere retraction by a witness or by complainant of his or her testimony does not necessarily vitiate the original testimony or statement, if credible. The general rule is that courts look with disfavor upon retractions of testimonies previously given in court. This rule applies to crimes, offenses as well as to administrative offenses. The reason is because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually through intimidation or for monetary consideration. Moreover, there is always the probability that they will later be repudiated and there would never be an end to criminal litigation. It would also be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on changed their minds for one reason or another. This would make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses.

3.ID.; ID.; ID.; ID.; EXCEPTION. The general rule notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. There are instances when a recantation may create serious doubts as to the guilt of the accused. A retracted statement or testimony must be subject to scrupulous examination. The previous statement or testimony and the subsequent one must be carefully compared and the circumstances under which each was given and the reasons and motives for the change carefully scrutinized. The veracity of
39

each statement or testimony must be tested by the credibility of the witness which is left for the judge to decide. In short, only where there exists special circumstances in the case which when coupled with the retraction raise doubts as to the truth of the testimony or statement given, can a retraction be considered and upheld. 4.ID.; ID.; AFFIDAVIT OF DESISTANCE, GENERALLY WITH NO PERSUASIVE EFFECT. An affidavit of desistance is understood to be a sworn statement executed by a complainant in a criminal or administrative case that he or she is discontinuing the action filed upon his or her complaint for whatever reason he or she may cite. The court attaches no persuasive value to a desistance especially when executed as an afterthought. However, as in retractions, an affidavit of desistance calls for a reexamination of the records of the case.
cAHDES

5.ID.; ID.; ID.; WEIGHT IN PRIVATE CRIMES. In private crimes, an affidavit of desistance filed by a private complainant is also frowned upon by the courts. Although such affidavit may deserve a second look at the case, there is hardly an instance when this Court upheld it in private crimes and dismissed the case on thesole basis thereof. Indeed, a case is not dismissed upon mere affidavit of desistance of the complainant, particularly where there exist special circumstances that raise doubts as to the reliability of the affidavit. 6.ID.; CRIMINAL PROCEDURE; PRIVATE CRIMES; CANNOT BE PROSECUTED EXCEPT UPON COMPLAINT OF OFFENDED PARTY. Private crimes cannot be prosecuted except upon complaint filed by the offended party. In adultery and concubinage, the offended party must implead both the guilty parties and must not have consented or pardoned the offenders. In seduction, abduction, rape and acts of lasciviousness, the complaint must be filed by the offended party or her parents, grandparents or guardian. The complainant must not have expressly pardoned the offender. The filing of a complaint in private crimes is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. It is the complaint that starts the prosecutory proceeding without which the fiscal and the court cannot exercise jurisdiction over the case. Once the complaint is filed, the action proceeds just as in any other crime. 7.CRIMINAL LAW; EXTINCTION OF CRIMINAL LIABILITY; MODES. Article 344 also provides for the extinction of criminal liability in private crimes. It mentions two modes: pardon and marriage, which when validly and timely made, result in the total extinction of criminal liability of the offender. The pardon in private crimes must be made before the institution of the criminal action. In adultery and concubinage, the pardon may be express or implied while in seduction, abduction, rape and acts of lasciviousness, the pardon must be express. In all cases, the pardon must come prior to the institution of the criminal action. After the case has been filed in court, any pardon made by the private complainant, whether by sworn statement or on the witness stand, cannot extinguish criminal liability. The only act that extinguishes the penal action and the penalty that may have been imposed is the marriage between the offender and the offended party. 8.ID.; ID.; PARDON IN PRIVATE CRIMES; MUST COME BEFORE INSTITUTION OF CRIMINAL ACTION. Pardon by the offended party extinguishes criminal liability when made while the crime is still "private" and within the control of the offended party. But once the case is filed in court, the pardon cannot ipso factooperate to dismiss the case. After the institution of the criminal action, any pardon given by the complainant to the offender would be unavailing, except of course when the offender validly marries the offended party. The offended party's pardon of the offender in a seduction case after the criminal action had been instituted constitutes no bar to said action. A pardon given in a rape case after the filing of the action in court "comes too late to hide the shameful occurrence from public notice." 9.ID.; ID.; DESISTANCE, NOT A GROUND. Article 344 does not include desistance of the offended party from prosecuting the case as a ground for extinction of criminal liability whether total or partial. Hence, only when the desistance is grounded on forgiveness and pardon and is made before the institution of the criminal action, can it extinguish criminal liability. Desistance, per se, is not equivalent to pardon.

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10.ID.; ID.; ID.; CASE AT BAR. In the case at bar, the "Affidavit of Desistance" of Juvielyn is not an express pardon of the accused and the crime committed. Private complainant desisted from prosecuting the case against the petitioners because she wished "to start life anew and live normally again." She reiterated this reason on the witness stand. She complained that members of the media were bothering and harassing her and that she wanted to go back to her normal life. She never said that she forgave the petitioners. She did not absolve them from their culpability. She did not give any exculpatory fact that would raise doubts about her rape. She did not say that she consented to petitioner Alonte's acts. Moreover, the rape case is already in court and it is no longer her right to decide whether or not the charge should be continued. 11.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; ACCUSED DENIED THEREOF WHERE JUDGMENT OF CONVICTION WAS RENDERED WITHOUT TRIAL. Justice Puno agrees with the majority that the November 7, 1997 proceedings could not have been a trial on the merits. First of all, the proceedings did not conform with the procedure for trial as provided in the 1985 Rules on Criminal Procedure. In the case at bar, petitioners were never instructed to present evidence to prove their defenses. The parties were never given the opportunity to present their respective evidence rebutting the testimony of private complainant. There was no admission by petitioners of the charge in the information as to justify a change in the order of trial. Second, the admission of private complainant's affidavit of October 21, 1996 was made solely in response to respondent judge's own questioning. It was this affidavit which respondent judge used to convict the petitioners. This affidavit, however, was not marked nor was it formally offered before the court. Third, where there is a doubt as to the nature of the criminal proceedings before the court, this doubt must be resolved in favor of the accused who must be given the widest latitude of action to prove his innocence. It is in petitioners' favor that the proceedings of November 7, 1997 be treated as a hearing on the motion to dismiss, not a trial on the merits. To rule otherwise will effectively deny petitioners due process and all the other rights of an accused under the Bill of Rights and our Rules in Criminal Procedure.
AHacIS

12.REMEDIAL LAW; CRIMINAL PROCEDURE; RULES STRICTLY ADHERED TO. Our criminal rules of procedure strictly provide the step by step procedure to be followed by courts in cases punishable by death. This rule also applies to all other criminal cases, particularly where the imposable penalty is reclusion perpetua. The reason for this is to assure that the State makes no mistake in taking life and liberty except that of the guilty. 13.ID.; EVIDENCE; EVIDENCE NOT FORMALLY OFFERED, NOT TAKEN INTO CONSIDERATION. Evidence not formally offered in court will not be taken into consideration by the court in disposing of the issues of the case. Any evidence which a party desires to submit for the consideration of the court must formally be offered by him, otherwise it is excluded and rejected. Indeed, following respondent judge's finding and assuming that the November 7, 1997 hearing was already a trial on the merits, petitioners were never afforded their right to confront and cross-examine the witness. The court did not, at the very least, inquire as to whether the petitioners wanted to cross-examine private complainant with respect to her affidavit of October 21, 1996. No opportunity to cross-examine was afforded petitioners and their counsels such that they cannot be deemed to have waived said right by inaction.

DECISION

VITUG, J :
p

Pending before this Court are two separate petitions, one filed by petitioner Bayani M. Alonte, docketed G.R. No. 131652, and the other by petitioner Buenaventura Concepcion, docketed G.R. No. 131728, that assail the decision of respondent Judge Maximo A. Savellano, Jr., of the Regional Trial Court ("RTC"), Branch 53, of Manila finding both petitioners guilty beyond reasonable doubt of the crime of rape. The two petitions were consolidated.
llcd

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On 05 December 1996, an information for rape was filed against petitioners Bayani M. Alonte, an incumbent Mayor of Bian, Laguna, and Buenaventura Concepcion predicated on a complaint filed by Juvie-lyn Punongbayan. The information contained the following averments; thus:
"That on or about September 12, 1996, in Sto. Tomas, Bian, Laguna, and within the jurisdiction of this Honorable court, the above named accused, who is the incumbent mayor of Bian, Laguna after giving complainant-child drinking water which made her dizzy and weak, did then and there willfully, unlawfully and feloniously have carnal knowledge with said JUVIELYN PUNONGBAYAN against her will and consent, to her damage and prejudice.

"That accused Buenaventura 'Wella' Concepcion without having participated as principal or accessory assisted in the commission of the offense by bringing said complainant child to the rest house of accused Bayani 'Arthur' Alonte at Sto. Tomas, Bian, Laguna and after receiving the amount of P1,000.00 left her alone with Bayani Alonte who subsequently raped her. Contrary to Law."
1

The case was docketed Criminal Case No. 9619-B and assigned by raffle to Branch 25 of the RTC of Bian, Laguna, presided over by Judge Pablo B. Francisco. On 13 December 1996, Juvie-lyn Punongbayan, through her counsel Attorney Remedios C. Balbin, and Assistant Chief State Prosecutor ("ACSP") Leonardo Guiyab, Jr., filed with the Office of the Court Administrator a Petition for a Change of Venue (docketed Administrative Matter No. 97-1-12-RTC) to have the case transferred and tried by any of the Regional Trial Courts in Metro Manila. During the pendency of the petition for change of venue, or on 25 June 1997, Juvie-lyn Punongbayan, assisted by her parents and counsel, executed an affidavit of desistance, quoted herein in full, as follows:
AFFIDAVIT OF DESISTANCE
"I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a resident of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my parents, after having duly sworn in accordance with law, depose and say: "1.That I am the Complainant in the rape case filed against Mayor Bayani 'Arthur' Alonte of Bian, Laguna, with the RTC-Branch 25 of Bian, Laguna; "2.That the case has been pending for some time, on preliminary issues, specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and after its denial by said court, brought to the Office of the President, on the veracity of the findings of the FiveMan Investigating Panel of the State Prosecutor's Office, and the Secretary of Justice, and (c) a holddeparture order filed with the Bian Court; "3.That the legal process moves ever so slowly, and meanwhile, I have already lost two (2) semesters of my college residence. And when the actual trial is held after all the preliminary issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the hearings; "4.That during the entire period since I filed the case, my family has lived a most abnormal life: my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had to stop his schooling, like myself; "5.That I do not blame anyone for the long, judicial process, I simply wish to stop and live elsewhere with my family, where we can start life anew, and live normally once again;
42

"6.That I pray that I be allowed to withdraw my complaint for rape and the other charge for child abuse wherein the Five-Man Investigating Panel of the Office of the State Prosecutor found a prima facie case although the information has not been filed, and that I will not at any time revive this, and related cases or file new cases, whether criminal, civil, and or administrative, here or anywhere in the Philippines; "7.That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a witnesscomplainant; "8.That this is my final decision reached without fear or favor, premised on a corresponding commitment that there will be no reprisals in whatever form, against members of the police force or any other official of officer, my relatives and friends who extended assistance to me in whatever way, in my search for justice. "WHEREOF, I affix my signature this 25 day of June, 1997, in Quezon City. "(Sgd) JUVIE-LYN Y. PUNONGBAYAN Complainant "Assisted by: (Sgd) ATTY. REMEDIOS C. BALBIN Private Prosecutor "In the presence of: (Sgd) PABLO PUNONGBAYAN Father (Sgd) JULIE Y. PUNONGBAYAN Mother "SUBSCRIBED AND SWORN to before me this 25 day of June, 1997, in Quezon City. "(Sgd) Illegible Administering Officer"
2

On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners, moved to have the petition for change of venue dismissed on the ground that it had become moot in view of complainant's affidavit of desistance. On 22 August 1997, ACSP Guiyab filed his comment on the motion to dismiss. Guiyab asserted that he was not aware of the desistance of private complainant and opined that the desistance, in any case, would not produce any legal effect since it was the public prosecutor who had direction and control of the prosecution of the criminal action. He prayed for the denial of the motion to dismiss. On 02 September 1997, this Court issued a Resolution (Administrative Matter No. 97-1-12-RTC), granting the petition for change of venue. The Court said:
"These affidavits give specific names, dates, and methods being used to abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses are too
43

generalized if not fabricated. Indeed, the probability that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition to transfer the venue of Criminal Case No. 9619-B from Bian, Laguna to the City of Manila. "IN VIEW WHEREOF, the Petition for Change of Venue from Bian, Laguna to the City of Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Bian, Laguna and determine the voluntariness and validity of petitioner's desistance in light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of Bian, Laguna is ordered to personally deliver to the Executive Judge of Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution." 3

On 17 September 1997, the case, now re-docketed Criminal Case No. 97-159955 by the Clerk of Court of Manila, was assigned by raffle to Branch 53, RTC Manila, with respondent Judge Maximo A. Savellano, Jr., presiding. On 07 October 1997, Juvie-lyn Punongbayan, through Attorney Balbin, submitted to the Manila court a "compliance" where she reiterated "her decision to abide by her Affidavit of Desistance." In an Order, dated 09 October 1997, Judge Savellano found probable cause for the issuance of warrants for the arrest of petitioners Alonte and Concepcion "without prejudice to, and independent of, this Court's separate determination as the trier of facts, of the voluntariness and validity of the [private complainant's] desistance in the light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab." On 02 November 1997, Alonte voluntarily surrendered himself to Director Santiago Toledo of the National Bureau of Investigation ("NBI"), while Concepcion,. in his case, posted the recommended bail of P150,000.00. On 07 November 1997, petitioners were arraigned and both pleaded "not guilty" to the charge. The parties manifested that they were waiving pre-trial. The proceedings forthwith went on. Per Judge Savellano, both parties agreed to proceed with the trial of the case on the merits. 4 According to Alonte, however, Judge Savellano allowed the prosecution to present evidence relative only to the question of the voluntariness and validity of the affidavit of desistance. 5 It would appear that immediately following the arraignment, the prosecution presented private complainant Juvie-lyn Punongbayan followed by her parents. During this hearing, Punongbayan affirmed the validity and voluntariness of her affidavit of desistance. She stated that she had no intention of giving positive testimony in support of the charges against Alonte and had no interest in further prosecuting the action. Punongbayan confirmed: (i) That she was compelled to desist because of the harassment she was experiencing from the media, (ii) that no pressures nor influence were exerted upon her to sign the affidavit of desistance, and (iii) that neither she nor her parents received a single centavo from anybody to secure the affidavit of desistance. Assistant State Prosecutor Marilyn Campomanes then presented, in sequence: (i) Punongbayan's parents, who affirmed their signatures on the affidavit of desistance and their consent to their daughter's decision to desist from the case, and (ii) Assistant Provincial Prosecutor Alberto Nofuente, who attested that the affidavit of desistance was signed by Punongbayan and her parents in his presence and that he was satisfied that the same was executed freely and voluntarily. Finally, Campomanes manifested that in light of the decision of private complainant and her parents not to pursue the case, the State had no further evidence against the accused to prove the guilt of the accused. She, then, moved for the "dismissal of the case" against both Alonte and Concepcion. Thereupon, respondent judge said that "the case was submitted for decision."
6

44

On 10 November 1997, petitioner Alonte filed an "Urgent Motion to Admit to Bail." Assistant State Prosecutor Campomanes, in a Comment filed on the same date, stated that the State interposed "no objection to the granting of bail and in fact Justice and Equity dictates that it joins the accused in his prayer for the granting of bail." Respondent judge did not act on the application for bail. On 17 November 1997, Alonte filed anew an Urgent Plea to Resolve the Motion for Bail. On even date, ASP Campomanes filed a Manifestation deeming "it proper and in accord with justice and fair play to Join the aforestated motion." Again, the respondent judge did not act on the urgent motion.

The records would indicate that on the 25th November 1997, 1st December 1997, 8th December 1997 and 10th December 1997, petitioner Alonte filed a Second, Third, Fourth and Fifth Motion for Early Resolution, respectively, in respect of his application for bail. None of these motions were acted upon by Judge Savellano. On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead counsel for petitioner Alonte received a notice from the RTC Manila Branch 53, notifying him of the schedule of promulgation, on 18 December 1997, of the decision on the case. The counsel for accused Concepcion denied having received any notice of the scheduled promulgation. On 18 December 1997, after the case was called, Atty. Sigrid Fortun and Atty. Jose Flaminiano manifested that Alonte could not attend the promulgation of the decision because he was suffering from mild hypertension and was confined at the NBI clinic and that, upon the other hand, petitioner Concepcion and his counsel would appear not to have been notified of the proceedings. The promulgation, nevertheless, of the decision proceeded in absentia; the reading concluded:
"WHEREFORE, judgment is hereby rendered finding the two (2) accused Mayor Bayani Alonte and Buenaventura 'Wella' Concepcion guilty beyond reasonable doubt of the heinous crime of RAPE, as defined and penalized under Article 335(2) in relation to Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659, for which each one of the them is hereby sentenced to suffer the indivisible penalty of RECLUSION PERPETUA or imprisonment for twenty (20) years; and one (1) day to forty (40) years. "In view thereof, the bail bond put up by the accused Buenaventura 'Wella' Concepcion for his provisional liberty is hereby cancelled and rendered without any further force and effect. "SO ORDERED."
7

On the same day of 18th December 1997, petitioner Alonte filed a motion for reconsideration. Without waiting for its resolution, Alonte filed the instant "Ex Abundante Ad Cautelam" for certiorari, Prohibition, Habeas Corpus, Bail, Recusation of respondent Judge, and for Disciplinary Action against an RTC Judge." Petitioner Concepcion later filed his own petition for certiorariand mandamus with the Court. Alonte submits the following grounds in support of his petition seeking to have the decision nullified and the case remanded for new trial; thus:
"The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo (Annex A) without affording the petitioner his Constitutional right to due process of law (Article III, 1, Constitution).
45

"The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo in violation of the mandatory provisions of the Rules on Criminal Procedure, specifically, in the conduct and order of trial (Rule 119) prior to the promulgation of a judgment (Rule 120; Annex A). "The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when, in total disregard of the Revised Rules on Evidence and existing doctrinal jurisprudence, he rendered a Decision in the case a quo (Annex A) on the basis of two (2) affidavits (Punongbayan's and Balbin's) which were neither marked nor offered into evidence by the prosecution, nor without giving the petitioner an opportunity to cross-examine the affiants thereof, again in violation of petitioner's right to due process (Article III, 1, Constitution). "The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo without conducting a trial on the facts which would establish that complainant was raped by petitioner (Rule 119, Article III, 1, Constitution), thereby setting a dangerous precedent where heinous offenses can result in conviction without trial (then with more reason that simpler offenses could end up with the same result)." 8

On the other hand, Concepcion relies on the following grounds in support of his own petition; thus:
"1.The decision of the respondent Judge rendered in the course of resolving the prosecution's motion to dismiss the case is a patent nullity for having been rendered without jurisdiction, without the benefit of a trial and in total violation of the petitioner's right to due process of law. "2.There had been no valid promulgation of judgment at least as far as petitioner is concerned. "3.The decision had been rendered in gross violation of the right of the accused to a fair trial by an impartial and neutral judge whose actuations and outlook of the case had been motivated by a sinister desire to ride on the crest of media hype that surrounded this case and use this case as a tool for his ambition for promotion to a higher court. "4.The decision is patently contrary to law and the jurisprudence in so far as it convicts the petitioner as a principal even though he has been charged only as an accomplice in the information." 9

The petitions deserve some merit; the Court will disregard, in view of the case milieu, the prematurity of petitioners' invocation, i e., even before the trial court could resolve Alonte's motion for reconsideration. The Court must admit that it is puzzled by the somewhat strange way the case has proceeded below. Per Judge Savellano, after the waiver by the parties of the pre-trial stage, the trial of the case did proceed on the merits but that
"The two (2) accused did not present any countervailing evidence during the trial. They did not take the witness stand to refute or deny under oath the truth of the contents of the private complainant's aforementioned affidavit which she expressly affirmed and confirmed in Court, but, instead, thru their respective lawyers, they rested and submitted the case for decision merely on the basis of the private complainant's so called 'desistance' which, to them, was sufficient enough for their purposes. They left everything to the so-called 'desistance' of the private complainant." 10

According to petitioners, however, there was no such trial for what was conducted on 07 November 1997, aside from the arraignment of the accused, was merely a proceeding in conformity with the resolution of this Court in Administrative Case No. 97-1-12-RTC to determine the validity and voluntariness of the affidavit of desistance executed by Punongbayan. It does seem to the Court that there has been undue precipitancy in the conduct of the proceedings. Perhaps the problem could have well been avoided had not the basic procedures been, to the Court's perception taken
46

lightly. And in this shortcoming, looking at the records of the case, the trial court certainly is not alone to blame. Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals.
"(1)No person shall be held to answer for a criminal offense without due process of law. "(2)In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable."

Jurisprudence 11 acknowledges that due process in criminal proceedings, in particular, require (a) that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing. 12 The above constitutional and jurisprudential postulates, by now elementary and deeply imbedded in our own criminal justice system, are mandatory and indispensable. The principles find universal acceptance and are tersely expressed in the oft-quoted statement that procedural due process cannot possibly be met without a "law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." 13 The order of trial in criminal cases is clearly spelled out in Section 3, Rule 119, of the Rules of Court; viz:
"Sec. 3.Order of trial. The trial shall proceed in the following order: "(a)The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. "(b)The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case. "(c)The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. "(d)Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda. "(e)However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly."

In Tabao vs. Espina,

14 the

Court has underscored the need to adhere strictly to the above rules. It reminds that

". . . each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of an accused requires that an accused be given sufficient opportunity to present his defense. So, with the prosecution as to its evidence. "Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether in the prosecution or defense. In the exercise of their discretion, judges are sworn not only to uphold the law but also to do what is fair and just. The judicial gavel should not be wielded by one who has an unsound and distorted sense of justice and fairness. 15

47

While Judge Savellano has claimed in his Comment that

"Petitioners-accused were each represented during the hearing on 07 November 1997 with their respective counsel of choice. None of their counsel interposed an intention to cross-examine rape victim Juvielyn Punongbayan, even after she attested, in answer to respondent judge's clarificatory questions, the voluntariness and truth of her two affidavits one detailing the rape and the other detailing the attempts to buy her desistance; the opportunity was missed/not used, hence waived. The rule of case law is that the right to confront and cross-examine a witness 'is a personal one and may be waived."' (emphasis supplied)

It should be pointed out, however, that the existence of the waiver must be positively demonstrated. The standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences." 16 Mere silence of the holder of the right should not be so construed as a waiver of right, and the courts must indulge every reasonable presumption against waiver. 17 The Solicitor General has aptly discerned a few of the deviations from what otherwise should have been the regular course of trial: (1) Petitioners have not been directed to present evidence to prove their defenses nor have dates therefor been scheduled for the purpose; 18 (2) the parties have not been given the opportunity to present rebutting evidence nor have dates been set by respondent Judge for the purpose; 19 and (3) petitioners have not admitted the act charged in the Information so as to justify any modification in the order of trial. 20 There can be no short-cut to the legal process, and there can be no excuse for not affording an accused his full day in court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most undeserving. This case, in fine, must be remanded for further proceedings. And, since the case would have to be sent back to the court a quo, this ponencia has carefully avoided making any statement or reference that might be misconstrued as prejudgment or as pre-empting the trial court in the proper disposition of the case. The Court likewise deems it appropriate that all related proceedings therein, including the petition for bail, should be subject to the proper disposition of the trial court.
LLpr

Nevertheless, it is needful to stress a few observations on the affidavit of desistance executed by the complainant. any statement that disavows the veracity of her complaint against petitioners but merely seeks to "be allowed to withdraw" her complaint and to discontinue with the case for varied other reasons. On this subject, the case of People vs. Junio, 21 should be instructive. The Court has there explained:
"The appellant's submission that the execution of an Affidavit of Desistance by complainant who was assisted by her mother supported the 'inherent incredibility of prosecution's evidence' is specious. We have said in so many cases that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, Maryjane would suddenly turn around and declare that '[a]fter a careful deliberation over the case, (she) find(s) that the same does not merit or warrant criminal prosecution.' "Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous
48

Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan, hereinbefore quoted, does not contain

witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable. [Flores vs. People, 211 SCRA 622, citing De Guzman vs. Intermediate Appellate Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.] 22

The Junio rule is no different from ordinary criminal cases. For instance, in People vs. Ballabare, case, the Court has ruled:

23 a

murder

"The contention has no merit. To begin with, the Affidavit executed by eyewitness Tessie Asenita is not a recantation. To recant a prior statement is to renounce and withdraw it formally and publicly. [36 WORDS AND PHRASES 683, citing Pradlik vs. State, 41-A 2nd, 906, 907.] In her affidavit, Tessie Asenita did not really recant what she had said during the trial. She only said she wanted to withdraw her testimony because her father, Leonardo Tacadao, Sr., was no longer interested in prosecuting the case against accused-appellant. Thus, her affidavit stated: "3.That inasmuch as my father, Leonardo Tacadao, Sr., the complainant therein, was no longer interested to prosecute the case as manifested in the Sworn Affidavit of Desistance before the Provincial Prosecutor, I do hereby WITHDRAW and/or REVOKE my testimony of record to confirm (sic) with my father's desire; "It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense. In the first place, any recantation must be tested in a public trial with sufficient opportunity given to the party adversely affected by it to cross-examine the recanting witness. In this case, Tessie Asenita was not recalled to the witness stand to testify on her affidavit. Her affidavit is thus hearsay. It was her husband, Roque Asenita, who was presented and the matters he testified to did not even bear on the substance of Tessie's affidavit. He testified that accused-appellant was not involved in the perpetration of the crime. "In the second place, to accept the new evidence uncritically would be to make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. [De Guzman vs. Intermediate Appellate Court, 184 SCRA 128, 134, citing People vs. Morales, 113 SCRA 683.] For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not require the court to disregard her original testimony. A retraction does not necessarily negate an earlier declaration. [People vs. Davatos, 229 SCRA 647.] For this reason, courts look with disfavor upon retractions because they can easily be obtained from witnesses usually through intimidation or for monetary considerations. [People vs. Clamor, 198 SCRA 642.] Hence, when confronted with a situation where a witness recants his testimony, courts must not automatically exclude the original testimony solely on the basis of the recantation. They should determine which testimony should be given credence through a comparison of the original testimony and the new testimony, applying the general rules of evidence. [Reano vs. Court of Appeals, 165 SCRA 525.] In this case we think the trial court correctly ruled." 24

It may not be amiss to state that courts have the inherent power to compel the attendance of any person to testify in a case pending before it, and a party is not precluded from invoking that authority. 25

Secondly, an affidavit of desistance by itself, even when construed as a pardon in the so-called "private

crimes," is not a ground for the dismissal of the criminal case once the action has been instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly constitute evidence whose weight or probative value, like any other piece of evidence, would be up to the court for proper evaluation. The decision in Junio went on to hold
"While '[t]he offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above named persons, as the case may be,' [Third par. of Art. 344, The Revised Penal Code,] the pardon to justify the dismissal of the complaint should have been made prior to the institution of the criminal action. [People vs. Entes, 103
49

SCRA 162, cited by People vs. Soliao, 194 SCRA 250, which in turn is cited in People vs. Villorente, 210 SCRA 647.] Here, the motion to dismiss to which the affidavit of desistance is attached was filed after the institution of the criminal case. And, affiant did not appear to be serious in 'signifying (her) intention to refrain from testifying' since she still completed her testimony notwithstanding her earlier affidavit of desistance. More, the affidavit is suspect considering that while it was dated 'April 1992,' it was only submitted sometime in August 1992, four (4) months after the Information was filed before the court a quo on 6 April 1992, perhaps dated as such to coincide with the actual filing of the case." 26

In People vs. Miranda, full, states -

27

applying the pertinent provisions of Article 344 of the Revised Penal Code which, in

"Art. 344.Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape, and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. "The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

"The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. "In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes."

the Court said:

"Paragraph 3 of the legal provision above quoted prohibits a prosecution for seduction, abduction, rape, or acts of lasciviousness, except upon a complaint made by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the abovenamed persons, as the case may be. It does not prohibit the continuance of a prosecution in the offended patty pardons the offender after the cause has been instituted, nor does it order the dismissal of said cause. The only act that according to article 344 extinguishes the penal action and the penalty that may have been imposed is the marriage between the offender and the offended party." 28

In People vs. Infante,

29 decided

just a little over a month before Miranda, the Court similarly held:

"In this court, after the case had been submitted, a motion to dismiss was filed on behalf of the appellant predicated on an affidavit executed by Manuel Artigas, Jr., in which he pardoned his guilty spouse for her infidelity. But this attempted pardon cannot prosper for two reasons. The second paragraph of article 344 of the Revised Penal Code which is in question reads: 'The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.' This provision means that the pardon afforded the offenders must come before the institution of the criminal prosecution, and means, further, that both the offenders must be pardoned by the offended party. To elucidate further, article 435 of the old Penal Code provided: 'The husband may at any time remit the penalty imposed upon his wife. In such case the penalty imposed upon the wife's paramour shall also be deemed to be remitted.' These provisions of the old Penal Code became inoperative after the passage of Act No. 1773, section 2, which had the effect of repealing the same. The Revised Penal Code thereafter expressly repealed the old Penal Code, and in so doing did not have the effect of reviving any of its provisions which were not in force. But with the incorporation of the second paragraph of article 344, the pardon given by the offended party again constitutes a bar to the prosecution for adultery. Once more, however, it must be
50

emphasized that this pardon must come before the institution of the criminal prosecution and must be for both offenders to be effective circumstances which do not concur in this case." 30

The decisions speak well for themselves, and the Court need not say more than what it has heretofore already held. Relative to the prayer for the disqualification of Judge Savellano from further hearing the case, the Court is convinced that Judge Savellano should, given the circumstances, be best excused from the case. Possible animosity between the personalities here involved may not all be that unlikely. The pronouncement of this Court in the old case of Luque vs. Kayanan 31 could again be said: All suitors are entitled to nothing short of the cold neutrality of an independent, wholly-free disinterested and unbiased tribunal. Second only to the duty of rendering a just decision is the duty of doing it in a manner that will not arouse any suspicion as to the fairness and integrity of the Judge. 32 It is not enough that a court is impartial, it must also be perceived as impartial. The Court cannot end this ponencia without a simple reminder on the use of proper language before the courts. While the lawyer in promoting the cause of his client or defending his rights might do so with fervor, simple courtesy demands that it be done within the bounds of propriety and decency. The use of intemperate language and unkind ascriptions hardly can be justified nor can have a place in the dignity of judicial forum. Civility among members of the legal profession is a treasured tradition that must at no time be lost to it. Finally, it may be opportune to say, once again, that prosecutors are expected not merely to discharge their duties with the highest degree of excellence, professionalism and skill but also to act each time with utmost devotion and dedication to duty. 33 The Court is hopeful that the zeal which has been exhibited many times in the past, although regrettably a disappointment on few occasions, will not be wanting in the proceedings yet to follow. WHEREFORE, conformably with all the foregoing, the Court hereby RULES that (a)The submission of the "Affidavit of Desistance," executed by Juvie-Lyn Y. Punongbayan on 25 June 1997, having been filed AFTER the institution of Criminal Case No. 97-159935, DOES NOT WARRANT THE DISMISSAL of said criminal case; (b)For FAILURE OF DUE PROCESS, the assailed judgment, dated 12 December 1997, convicting petitioners is declared NULL AND VOID and thereby SET ASIDE; accordingly, the case is REMANDED to the trial court for further proceedings; and (c)Judge Maximo A. Savellano, Jr., presiding Judge of Branch 53 of the Regional Trial Court of Manila, is ENJOINED from further hearing Criminal Case No. 97-159935; instead, the case shall immediately be scheduled for raffle among the other branches of that court for proper disposition . No special pronouncement on costs. SO ORDERED.

Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ ., concur. Narvasa, C .J ., took no part: related to one of counsel.

[G.R. No. L-21325. October 29, 1971.]

51

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLEO DRAMAYO, PATERNO ECUBIN, PRIOLO BILLONA, FRANCISCO BILLONA, MODESTO RONQUILLA, CRESCENCIO SAVANDAL and SEVERENO SAVANDAL, defendants; PABLEO DRAMAYO and PATERNO ECUBIN, defendantsappellants.

Solicitor General Felix V. Makasiar, Assistant Solicitor General Arturo G. Ibarra and Solicitor Conrado T. Limcaoco for plaintiff-appellee. Arturo E. Balbastro for defendants-appellants.
SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHTS OF THE ACCUSED; PRESUMPTION OF INNOCENCE; ACCUSATION NOT SYNONYMOUS WITH GUILT. Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act that it amounted to a crime. What is required then is moral certainty. 2.ID.; ID.; ID.; REASONABLE DOUBT DEFINED. By reasonable doubt is not meant that which of possibility may arise, but it is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense. We feel that it is better to acquit a man upon the ground of reasonable doubt, even though he may in reality be guilty, than to confine in the penitentiary for the rest of his natural life a person who may be innocent. 3.ID.; EVIDENCE; FINDINGS OF FACT OF TRIAL JUDGE; GENERALLY RESPECTED ON APPEAL. With the testimony of record pointing to no other conclusion except the perpetration of the killing by appellants, the effort of their counsel, while to be expected from an advocate zealous in defense of his clients' rights, certainly should not be attended with success. It suffices to reiterate the well-settled principle that this Court has invariably respected the findings of facts of a trial judge who was in a position to weigh and appraise the testimony before him except when, as was not shown in this case, circumstances of weight or influence were ignored or disregarded by him.

DECISION

FERNANDO, J :
p

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There is an element of ingenuity as well as of novelty in the plea made by counsel de oficio in this appeal of the accused Pableo Dramayo and Paterno Ecubin, who were sentenced to life imprisonment for the murder of Estelito Nogaliza. The claim is vigorously pressed that because the information alleged conspiracy on the part of seven defendants, with only the two appellants being convicted, two having been utilized as state witnesses and the other three having been acquitted on the ground of insufficiency of evidence as to their culpability, the judgment of conviction against the appellants cannot stand, there being a reasonable doubt as to their guilt. To bolster such a contention, certain alleged deficiencies in the proof offered by the prosecution were noted. A careful study of the evidence of record would leave no other rational conclusion but that the deceased met his death at the hands of the appellants in the manner as found by the lower court. Hence the appeal cannot prosper. We affirm. The gory incident which was attended by a fatality started on the morning of January 9, 1964. The two accused, now appellants, Pableo Dramayo and Paterno Ecubin, in the company of the deceased Estelito Nogaliza, all of Barrio Magsaysay, of the Municipality of Sapao, Surigao del Norte, saw its chief of police. Their purpose was to shed light on a robbery committed in the house of the deceased five days before by being available as witnesses. The response was decidedly in the negative as they themselves were prime suspects, having been implicated by at least two individuals who had confessed. At about 7:00 o'clock of the same day, while they were in the house of their co-accused Priolo Billona, the accused Dramayo invited all those present including the other accused Francisco Billona, Modesto Ronquilla, Crescencio and Savero Savandal, for a drinking session at a place at the back of the school house. It was on that occasion that Dramayo brought up the idea of killing Estelito Nogaliza so that he could not satisfy in the robbery case. The idea was for Dramayo and Ecubin to ambush Estelito, who was returning from Sapao. The others were to station themselves nearby. Soon the unfortunate victim was sighted. He was accosted by Dramayo with a request for a cigarette. It was then that Ecubin hit him with a piece of wood on the side of the head near the right ear. Dramayo's participation consisted of repeated stabs with a short pointed bolo as he lay prostrate from the blow of Ecubin. It was the former also, who warned the rest of the group to keep their mouths sealed as to what had just happened. His equanimity appeared undisturbed for early the next morning, he went to the house of the deceased and informed the latter's widow Corazon that he had just seen the cadaver of Estelito. The barrio lieutenant and the chief of police were duly notified. The latter, upon noticing blood stains on the trousers of Dramayo, asked him to explain. The answer was that a skin ailment of his daughter was the cause thereof. 2 The death was due to the wounds inflicted, two in the epigastric region, one in the right lumbar region, and another in the left breast. It was on the basis of the above testimony offered by the prosecution that the lower court reached its decision. Its dispositive portion found the accused, now appellants. Pableo Dramayo and Paterno Ecubin, guilty "beyond reasonable doubt, of the crime of [murder], defined and penalized under Art. 248 of the Revised Penal Code, qualified by the circumstance of evident premeditation as aggravated by night time, and imposes upon each of the said accused, Pableo Dramayo and Paterno Ecubin, the penalty of [reclusion perpetua]." 3 Reference was likewise made in such decision as to why the other co-accused were not convicted, two of them, Crescencio Savandal and Severo Savandal being utilized as state witnesses, and the other three, Priolo Billona, Francisco Billona and Modesto Ronquilla acquitted. Why they should not be found guilty was explained in the appealed decision thus: "From the beginning the accused Modesto Ronquilla maintained that he was not with the group but that he was fishing in the sea during the night in question. These facts that is, that none of the prosecution witnesses has testified that any of these three accused actually helped in the killing of the deceased, Estelito Nogaliza; that these three accused were included in the case only much later after the filing of this case against Pableo Dramayo and Paterno Ecubin; the consistent Contention of the accused Modesto Ronquilla that he was out in the sea fishing during the night in question; and the testimonies of the accused Priolo Billona [and] Francisco [and their witnesses,] Juan Billona, Esperanza Oposa-Billona, Guillerma Ponce, and Anselmo Lisondra, given in a straight-forward manner,
53

without hesitation, revealing a clear conscience, and the fact that the testimonies of these witnesses have not been refuted by the PC soldiers [whom they accused of maltreatment] when they were available to the prosecution, cause the Court to entertain a very serious doubt as to the guilt of the said accused." 4 The lower court was hardly impressed with the defense of alibi interposed by now appellants Dramayo and Ecubin, and it must have been their lack of persuasive character that must have led to the able brief of counsel de oficio, Atty. Arturo E. Balbastro, stressing the absence of evidence sufficient to convict, there still being a reasonable doubt to be implied from the fact that while conspiracy was alleged," only two of the seven accused were held culpable. To repeat, a meticulous appraisal of the evidence justifies a finding of the guilt of the appellants for the offense charged, thus calling for the affirmance of the decision. 1.It is to be admitted that the starting point is the presumption of innocence. So it must be, according to the Constitution. 5 That is a right safeguarded both appellants. Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.

So it has been held from the 1903 decision of United States v. Reyes. 6 United States v. Lasada, 7 decided in 1910, yields this excerpt: "By reasonable doubt is not meant that which of possibility may arise, but it is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense." 8 To the same effect is an excerpt form the opinion of the late Justice Tuason in People v. Esquivel. 9 Thus; "In this connection it may not be out of place to bring to the attention of prosecuting attorneys the absolute necessity of laying before the court the pertinent facts as their disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in their evidence, to the end that the court's mind may not be tortured by doubts, that the innocent may not suffer and the guilty not escape unpunished. Obvious to all, this is the prosecution's prime duty to the court, to the accused, and to the state." 10 It is understandable why the stress should be on the absence of sufficient evidence to establish the guilt of appellants beyond reasonable doubt, the defense of alibi interposed hardly meriting any further discussion. It cannot be denied though that the credible and competent evidence of record resulted in moral certainty being entertained not only by the trial judge but by us as to the culpability of appellants. The force of the controlling doctrines, on the other hand, required that the other three accused be acquitted precisely because, unlike in the case of appellants, the requisite quantum of proof to show guilt beyond reasonable doubt was not present. There is no question as to the other two who testified for the state being like-vise no longer subject to any criminal liability. The reference then to an opinion of the late Justice Laurel, stressing the need for adhering to the fundamental postulate that a finding of guilt is allowable only when no reasonable doubt could be entertained, is unavailing. This is evident from the very citation in the brief of appellants of the opinion of Justice Laurel in People v. Manoji. 11 Thus: "Upon the other hand, there are certain facts which if taken
54

together are sufficient to raise in the mind of the court a grave doubt as to the guilt of the defendant-appellant, 'that doubt engendered by an investigation of the whole proof and an inability after such investigation, to let the mind rest easy upon the certainty of guilt.' (U.S. v. Lasada [1910], 18 Phil. 90, 96.) The finding of the two gold teeth of the deceased in the suitcase of Maradani, and the testimony of Erajio Ello that he gave that hat . . . to Maradani not only engender serious doubt in our minds as be the guilt of the appellant, but also seems to sustain the theory of the defense and strengthen the suspicion of the trial court, that Maradani and Salupudin are not foreign to, or entirely ignorant of, the killing of Seijin Ige. In the light of the facts and circumstances of record, we feel that it is better to acquit a man upon the ground of reasonable doubt, even though he may in reality be guilty, than to confine in the penitentiary for the rest of his natural life a person who may be innocent. . . . " 12 The facts of the present case certainly do not fit within the above mold. Reliance on the part of appellants on the above decision is therefore futile. The judgment of conviction should not have occasioned any surprise on the part of the two appellants, as from the evidence deserving of the fullest credence, their guilt had been more than amply demonstrated. The presumption of innocence could not come to their rescue as it was more than sufficiently overcome by the proof that was offered by the prosecution. What would have been a blot on the law is that if, on the facts as established, no reasonable doubt being entertained, the two appellants would have been acquitted likewise just because the other five defendants, for the reasons above stated, were not similarly sentenced. The principal contention raised is thus clearly untenable. It must be stated likewise that while squarely advanced for the first time, there had been cases where this Court, notwithstanding a majority of the defendants being acquitted, the element of conspiracy likewise being allegedly present, did hold the party or parties responsible for the offense guilty of the crime charged, a moral certainly having arisen as to their culpability. 13 2.The brief for appellants did seek to fortify the allegation as to their guilty not having been sufficiently de monstrated with the contention that the lower court over looked or did not properly consider material and significant facts of record that ought to have substantially affected or altered the judgment. Even the most careful reading of such brief, however, with due recognition of the vigor in which this particular point is pressed, would not destroy the credibility of the facts as testified to concerning the manner in which the deceased was killed and the motive that prompted appellants to put an end to his life. That such a version could not have been concocted is shown by the undeniable fact that the two appellants were duly convicted of robbery, with the deceased as the offended party. It was understandable then why they would want to do away with the principal witness against them. There was thus a strong inducement for the appellants to have committed this crime of murder. With the testimony of record pointing to no other conclusion except the perpetration of the killing by them, the effort of their counsel, while to be expected from an advocate zealous in defense of his clients' rights, certainly should not be attended with success. It suffices to reiterate the wellsettled principle that this Court has invariably respected the findings of facts of a trial judge who was in a position to weigh and appraise the testimony before him except when, as was not shown in this case, circumstances of weight or influence were ignored or disregarded by him. 14 WHEREFORE, the judgment of September 8, 1965 is affirmed with the modification that the indemnification to the heirs of Estelito Nogaliza should be in the sum of P12,000.00. With costs. Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ., concur. Barredo, J., did not take part.

[G.R. No. L-52245. January 22, 1980.] PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent.
55

Raul M . Gonzales for petitioners. Office of the Solicitor General for respondent.

DECISION

MELENCIO-HERRERA, J :
p

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Blg. 51, 52, and 53 for being unconstitutional. The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.
cdasia

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides:
"Sec. 4.Special Disqualification. In addition to violation of section 10 of Art. XII-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof.

Any retired elective provincial, city of municipal official who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired ." (Paragraphing and emphasis supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation." For their part, petitioners Igot and Salapantan, Jr. assail the validity of the following statutory provisions:
"Sec. 7.Term of office. Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years. which shall commence on the first Monday of March 1980." . . ." Batas Pambansa Blg. 51 "Sec. 4.. . . "Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein:

provided, that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and.
56

the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact .
". . . (Batas Pambansa Blg. 52) (Paragraphing and emphasis supplied). "Section 1.Election of certain Local Officials. . . . The election shall be held on January 30, 1980." (Batas Pambansa, Blg. 52). "Section 6.Election and Campaign Period. The election period shall be fixed by the Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980." (ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1), Art. XII(C) of the Constitution, which provides that a "bona fide candidate for any public office shall be free from any form of harassment and discrimination." The question of accreditation will not be taken up in this case but in that of Bacalso, et als., vs. COMELEC et als. (G.R. No. L-52232) where the issue has been squarely raised.
cdasia

Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution. I.The procedural aspect. At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan. Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. They, respectively, contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead time constraints as the reason of their joint Petition, it would have required only a modicum more of effort for petitioner Dumlao, on one hand, and petitioners Igot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure. For another, there are standards that have to be followed in the exercise of the function of judicial review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case (People vs. Vera, 65 Phil. 56 [1937]). It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings. This Petition, however, has fallen far short of the other three criteria. A.Actual case and controversy. It is basic that the power of judicial review is limited to the determination of actual cases and controversies. Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected
57

by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be "rendered without the benefit of a detailed factual record." Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads:
"Section 2.The Commission on Elections shall have the following power and functions. 1). . . 2)Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials." (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:
"Section 11.Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof."

B.Proper party. The long-standing rule has been that "the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra). In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them has been alleged to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional. Theirs is a generalized grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress.
LibLex

It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus:
". . . it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying, at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that 'the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds,' which may be enjoined at the request of a taxpayer."

In the same vein, it has been held:

"In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys." (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als. 15 SCRA 479 [1965]).

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However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. C.Unavoidability of constitutional question. Again upon the authority of People vs. Vera, "it is a well-settled ruled that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised an presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the verylis mota presented." We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that his suit be dismissed. II.The substantive viewpoint. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzales cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence. Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination.
LexLib

The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law should be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials.

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Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65-year old retiree could be a good local official just like one, aged 65, who is not a retiree.

But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for thesame office from which he had retired, as provided for in
the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired an unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for the very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection, neither does it permit such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are similarly treated. In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification is germane to the purpose of the law and applies to all those belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong, etc., et al. vs. Hernandez, 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even if at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies: (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547). There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair, 4 Dall. 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the competence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case. In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenged, may be divided in two parts. The first provides:
"ajudgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact . ..."

The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attached to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this in one such clear case.

Cdphil

Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running from public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for
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public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet, there is "clear and present danger" that because the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of finding between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Blg. 52 which can stand by itself. WHEREFORE, 1) the first paragraph of section 4 of Batas Pambansa Bilang 52 is hereby declared valid. Said paragraph reads:
"SEC. 4.Special disqualification. In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualifications for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired."

2)That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that ". . . the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused. SO ORDERED.

Makasiar, Antonio, Concepcion Jr., Fernandez and Guerrero, JJ ., concur. De Castro, J ., abstain as far as petitioner Dumlao is concerned.
[G.R. No. 112889. April 18, 1995.] BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.

Estelito P. Mendoza and Villareal Law Offices for petitioner. Balgos and Perez for private respondent.
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SYLLABUS POLITICAL LAW; THE LOCAL GOVERNMENT CODE OF 1991; DISQUALIFICATION TO RUN FOR ANY ELECTIVE LOCAL POSITION; FUGITIVE FROM JUSTICE, DEFINED. The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided: "Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position: "(a) . . . "(b) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment. " Private respondent reminds us that the construction placed upon a law by the officials in charge of its enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed during the Courts en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment," is an inordinate and undue circumscription of the law. DAVIDE, JR., J., separate opinion: 1.POLITICAL LAW; SEC. 40; R.A. 7160 (LOCAL GOVERNMENT CODE OF 1991); ART. 73, RULES AND REGULATIONS; UNREASONABLY EXPANDS THE SCOPE OF DISQUALIFICATION. Section 40 of R.A. No. 7160, otherwise known as the Local Government Code of 1991 enumerates those who are disqualified from running for any elective local position, among whom is a: (e) Fugitive from justice in criminal or non-political cases here or abroad. The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment but also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, as inordinate and an undue circumscription of the law. Justice Davide agrees and further submits that it also unreasonably expands the scope of the disqualification in the 1991 Local Government Code because it disqualifies all those who have been convicted by final judgment, regardless of the extent of the penalty imposed and of whether they have served or are serving their sentences or have evaded service of sentence by jumping bail or leaving for another country. The definition thus disregards the true and accepted meaning of the word fugitive. This new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the clear language of the law leaves no room for a reexamination of the meaning of the term. 2.ID.; ID.; DISQUALIFICATIONS, JUSTIFIED. There are certain fundamental considerations which do not support the application of the presumption of innocence under the Bill of Rights which support disqualification. Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who are disqualified from exercising the right of suffrage. Since the minimum requirement of a candidate for a public office is that he must be a qualified voter, it logically follows that Congress has the plenary power to determine who are disqualified to seek election for a public office. Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly so provides. A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public office may thus be required by law. Thirdly, the disqualification in question does not, in reality, involve the issue of presumption of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the filing of an information or criminal complaint against him. He is disqualified because he is a "fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The
62

disqualification then is based on his flight from justice. In the face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it is not the challenged disqualifying provision which overcomes the presumption of innocence but rather the disqualified person himself who has proven his guilt. Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to case doubt on the validity of the challenged disqualification. Dumlao struck out as violative of the constitutional presumption of innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact." It is clear that the law challenged therein did in fact establish a presumption of guilt from the mere filing of the information or criminal complaint, in violation of the constitutional right to presumption of innocence.

DECISION

VITUG, J :
p

The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the meaning of the term "fugitive from justice" as that phrase is so used under the provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That law states:
"Sec. 40.Disqualifications. The following persons are disqualified from running for any elective local position: "xxx xxx xxx "(e)Fugitive from justice in criminal or non-political cases here or abroad(.)"

Bienvenido Marquez, a defeated candidate for the elective position of Governor in the Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition for quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for being allegedly a fugitive from justice.
prLL

It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge against him for ten (10) counts of insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed, has yet to be served on private respondent on account of his alleged "flight" from that country. Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's certificate of candidacy, on the ground of the candidate's disqualification under Section 40(e) of the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the COMELEC dismissed the petition. Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution of COMELEC was dismissed without prejudice, however, to the filing in due time of a possible post-election quo warranto proceeding against private respondent. The Court, in its resolution of 02 June 1992, held:
"Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the private respondent had already been proclaimed as the duly elected Governor of the Province of Quezon, the petitioner below for disqualification has ceased to be a pre-proclamation controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R. Nos.
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84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a pre-proclamation controversy is no longer viable at this point of time and should be dismissed. The proper remedy of the petitioner is to pursue the disqualification suit in a separate proceeding.
llcd

"ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of the appropriate proceedings in the proper forum, if so desired, within ten (10) days from notice." 1

Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28) against private respondent before the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the resolution. Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether private respondent who, at the time of the filing of his certificate of candidacy (and to date), is said to be facing a criminal charge before a foreign court and evading a warrant for his arrest comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local Government Code and, therefore, disqualified from being a candidate for, and thereby ineligible from holding on to, an elective local office. Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he submits, and it disqualifies "fugitives from justice in criminal or non-political cases here or abroad" from seeking any elective local office. The Solicitor General, taking the side of petitioner, expresses a like opinion and concludes that the phrase "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. In turn, private respondent would have the Court respect the conclusions of the Oversight Committee which, conformably with Section 5332 of RA. 7160, was convened by the President to "formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of the Code to ensure compliance with the principles of Local Autonomy."
cdll

Here are some excerpts from the committee's deliberations:

"'CHAIRMAN MERCADO. Session is resumed. 'So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39. 'CHAIRMAN DE PEDRO. Kay Benny Marquez. 'REP. CUENCO. What does he want? 'CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin ang constitutionality nito before the Supreme Court later on. 'REP. CUENCO. Anong nakalagay diyan? 'CHAIRMAN DE PEDRO. Iyong disqualification to run for public office. 'Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad." 'Mabigat 'yung abroad.' One who is facing criminal charges with the warrant of arrest pending, unserved. . .
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'HONORABLE SAGUISAG. I think that is even a good point, and what is a fugitive? It is not defined. We have loose understanding. . . 'CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong 'fugitive.' 'Si Benny umalis na, with the understanding na okay na sa atin ito.' "THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from justice. Mrs. Marcos can run at this point and I have held that for a long time ago. So can. . . "MS. DOCTOR. Mr. Chairman. . . "THE CHAIRMAN. Yes. "MS. DOCTOR. Let's move to. . . "THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very important. Manny, can you come up? "MR. REYES. Let's use the word conviction by final judgment. "THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay, Fugitive means a person convicted by final judgment. Insert that on Line 43 after the semi-colon. Is that approved? No objection, approved (TSN, Oversight Committee, 07 May 1991). "xxx xxx xxx "THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang gumawa nito? Okay, on page 2, lines 43 and 44, 'fugitive from justice.' What 'fugitive?' Sino ba ang gumawa nito, ha? "MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the word what is meant by the word 'fugitive.' "THE CHAIRMAN. 'Fugitive from justice means a person' ba ito, ha? "MR. SANCHEZ. Means a person. . . "THE CHAIRMAN. Ha? "HON. REYES. A person who has been convicted. "THE CHAIRMAN. Yes, fugitive from justice, oo. Fugitive from justice shall mean or means one who has been convicted by final judgment. It means one who has been convicted by final judgment. "HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan. "THE CHAIRMAN. Ano? Sige, tingnan natin. "HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya? "THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final judgment, meaning that if he is simply in jail and because he put up, post bail, but the case is still being reviewed, that is not yet conviction by final judgment." 3

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The Oversight Committee evidently entertained serious apprehensions on the possible constitutional infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification therein meant were to be so taken as to embrace those who merely were facing criminal charges. A similar concern was expressed by Senator R.A.V. Saguisag who during the bicameral conference committee of the Senate and the House of Representatives, made this reservation:
". . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered ako doon, a." 4

The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided:
"Art. 73.Disqualifications. The following persons shall be disqualified from running for any elective local position: "(a). . . "(b)Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment." 5 (Italics supplied)

Private respondent reminds us that the construction placed upon a law by the officials in charge of its enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed during the Court's en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment," is an inordinate and undue circumscription of the law. Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case to the COMELEC for a determination of this unresolved factual matter.
prLL

WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and SET ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to proceed and resolve the case with dispatch conformably with the foregoing opinion. No special pronouncement on costs. SO ORDERED.

Feliciano, Padilla, Regalado, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur. Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., join J. Davide in his separate opinion. Davide, Jr., J., see separate opinion.

[G.R. No. 122770. January 16, 1998.]

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PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO AGBAYANI y MENDOZA, accused-appellant.

The Solicitor General for plaintiff-appellee. Froilan V. Siobal for accused-appellant.

SYNOPSIS Eduardo Agbayani was sentenced to death by the Regional Trial Court, Branch 106 of Quezon City for raping her 14-year old daughter, Eden. The conviction was based on the testimonies of prosecution witnesses, Dr. Florante Baltazar, the victim and SPO1 Salvador Buenviaje. The defense, on the other hand, interpose the defense of denial and alibi, and one of the evidence presented was the affidavit of desistance of the victim. However, it was retracted by the victim during the presentation of the rebuttal evidence claiming that she was only pressured by her mother and sister to sign it. Hence, in this appeal the appellant questioned the credibility of the testimony of the victim in view of her execution of the affidavit of desistance. The Court ruled that affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court, and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses.
cIHCST

The decision of the trial court is affirmed. SYLLABUS 1.REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; PRESUMPTION OF REGULAR PERFORMANCE OFFICIAL DUTY; TRIAL COURT PRESUMED TO HAVE COMPLIED WITH ITS DUTY TO INFORM ACCUSED OF HIS RIGHT TO COUNSEL. The trial court's order of 22 December 1994 states that said de oficio counsel were "duly appointed by the Court with the consent of the accused." Since appellant miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand. In other words, the trial court is presumed to have complied with its four-fold duties under Section 6 of Rule 116 of the Rules of Court; namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him. 2.ID.; ID.; ID.; ID.; ID.; FAILURE OF THE RECORD TO DISCLOSE AFFIRMATIVELY THAT TRIAL JUDGE ADVISED ACCUSED OF HIS RIGHT TO COUNSEL, NOT SUFFICIENT TO REVERSE CONVICTION. It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless
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the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right. 3.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; RIGHT TO QUESTION FAILURE OF TRIAL COURT TO INFORM ACCUSED OF RIGHT TO COUNSEL DEEMED WAIVED BY HIS CONSENT TO BE ASSISTED BY TWO (2) COUNSEL DE OFICIO. In the instant case, the trial court appointed two de oficiocounsel who assisted the appellant at his arraignment, one of whom extensively cross-examined the first witness for the prosecution, Dr. Florante Baltazar. Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsel's extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged failure of the trial court to inform him of his right to counsel. 4.REMEDIAL LAW; COURTS; TRIAL COURTS' COMPLIANCE WITH THEIR PRE-ARRAIGNMENT DUTIES MUST APPEAR ON RECORD. We take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, a de oficio counsel will be appointed for him, must appear on record. 5.ID.; CRIMINAL PROCEDURE; TWO (2) DAYS TIME TO PREPARE FOR TRIAL MUST BE EXPRESSLY DEMANDED, OTHERWISE, IT IS DEEMED WAIVED. Turning to the alleged violation of appellant's right to the 2-day period to prepare for trial Section 9 of Rule 116 of the Rules of Court reads: SEC. 9. Time to prepare for trial After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time. It must be pointed out that the right must be expressly demanded. Only when so demanded does denial thereof constitute reversible error and a ground for new trial. Further, such right may be waived, expressly or impliedly. In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. 6.ID.; EVIDENCE; CREDIBILITY; THIS COURT WILL NOT GENERALLY INTERFERE WITH THE JUDGMENT OF THE TRIAL COURT IN PASSING UPON CREDIBILITY OF OPPOSING WITNESSES. The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revereddicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility of opposing witnesses, unless there appears in the record some facts or circumstances of weight and influence which have been overlooked and, if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying. He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked, she often hides in nooks and crannies visible only to the mind's eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt 7.ID.; ID.; ID.; MOTIVE OF 14-YEAR OLD DAUGHTER IN CHARGING HER OWN FATHER OF RAPE. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. 8.CRIMINAL LAW; RAPE; MAY BE COMMITTED WHERE PEOPLE CONGREGATE. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small
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room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape anywhere even in places where people congregate such as in parks, along the roadside, within school premises, and inside a house where there are other occupants. In People v. Opena, rape was committed in a room occupied also by other persons. In the instant case, EDEN's other companions in the room when she was molested by appellant were young girls who were all asleep.
DHSaCA

9.ID.; ID.; FORCE OR INTIMIDATION; SUBSTITUTED BY MORAL ASCENDANCY OR INFLUENCE BY THE FATHER OVER HIS DAUGHTER. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether or not he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough to render her incapable of resisting or asking for help. In any event, in a rape committed, by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with equanimity of disposition and with nerves of steel or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout, some may faint, and some may be shocked into insensibility; while others may openly welcome the intrusion. 10.ID.; ID.; INTIMIDATION; SUFFICIENT IF IT PRODUCED FEAR FOR VICTIM'S LIFE; RESISTANCE, UNNECESSARY. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim' s submission to the sexual act voluntary.

11.REMEDIAL LAW; EVIDENCE; AFFIDAVIT OF; DESISTANCE; CONSIDERED INFERIOR TO THE TESTIMONY GIVEN IN OPEN COURT. Nor is there merit in the insistent claim that EDEN's affidavit of desistance "must have necessarily contradicted her previous testimony." We have earlier quoted in full this affidavit of desistance. Plainly, nowhere therein did she retract her previous testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court; and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. 12.CIVIL LAW; DAMAGES; P50,000.00 INDEMNITY FOR RAPE. To take appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of "P75,000.00 as damages," which is hereby reduced to P50,000.00 in accordance with current case law.

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DECISION

PER CURIAM :
p

Nine years and four months ago this Court declared:

Rape is a nauseating crime that deserves the condemnation of all decent persons who recognize that a woman's cherished chastity is hers alone to surrender of her own free will. Whoever violates that will descends to the level of the odious beast. The act becomes doubly repulsive where the outrage is perpetrated on one's own flesh and blood for the culprit is reduced to lower than the lowly animal. The latter yields only to biological impulses and is unfettered by social inhibitions when it mates with its own kin, but the man who rapes his own daughter violates not only her purity and her trust but also the mores of his society which he has scornfully defied. By inflicting his animal greed on her in a disgusting coercion of incestuous lust, he forfeits all respect as a human being and is justly spurned by all, not least of all by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery. 1

At the end of the day, after resolving this case of 14-year-old Eden Agbayani who charged her own father with rape committed in the sanctity of their rented room on 19 July 1994, this Court finds itself repeating this declaration. 2 Before this Court on automatic review is the decision 3 of the Regional Trial Court of Quezon City, Branch 106, in view of the death penalty imposed by it for the crime of rape, defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659. 4 On 12 September 1994, the Station Investigation and Intelligence Division of the National Capital Regional Command, Philippine National Police (PNP), endorsed to the Office of the City Prosecutor of Quezon City the complaint of Eden Agbayani (hereafter EDEN) for rape against her father, herein accused-appellant Eduardo Agbayani y Mendoza. 5 After appropriate preliminary investigation, a complaint 6 for rape signed by EDEN, assisted by her sister Fedelina Agbayani, and subscribed and sworn to before Asst. City Prosecutor Charito B. Gonzales, was filed against appellant with the Regional Trial Court of Quezon City on 27 October 1994. The case was docketed as Criminal Case No. Q-94-59149, then set for arraignment, pre-trial and trial on 22 December 1994. 7 At his arraignment on 22 December 1994, appellant, assisted by Attys. Samuel Baldado and Edwin de la Cruz as counsel de oficio, entered a plea of not guilty. 8 Upon agreement of the parties, trial on the merits immediately followed, with the prosecution presenting the first witness, Dr. Florante Baltazar, a Medico-Legal Officer of the PNP Crime Laboratory, 9 who was cross-examined by Atty. Baldado. 10 On the succeeding dates of trial, the prosecution presented EDEN 11 and SPO1 Salvador Buenviaje. 12 During these hearings, however, appellant was represented by Atty. Arturo Temanil of the Public Attorney's Office. 13 On its part, the defense presented appellant, Adoracion M. Cruz, Fedelina Agbayani, as well as EDEN who identified her and Fedelina's affidavit of desistance, 14which was subscribed and sworn to before notary public Eranio Cedillo on 6 February 1995. Said affidavit reads as follows:
We, Eden Agbayani, 14 years old, complainant and Fedelina Agbayani, 19 years old, sister of Eden Agbayani, and presently residing at No., Phase 1, United Glorieta, Kaniogan, Pasig, Metro Manila, after having been duly sworn to in accordance with law do hereby depose and states [sic]:
dctai

That we are the complainant [sic] against our father, Eduardo Agbayani pending before this honorable Court docketed as Criminal Case No. 59149;
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That after evaluating the circumstance that lead [ sic] to the filing of the instant case I formally realize that the incident between us and my father is purely family problem that arise from the disciplinarian attitude of our father; That this resulted to family misunderstanding, hence we decided to formally forego this case and withdraw the same: That I am executing this affidavit for purposes of finally withdrawing the instant case and therefrom requesting this Honorable Court to dismiss the case against our father. That this affidavit was executed freely and voluntarily.

As EDEN declared in open court that what she said in her previous testimony and sworn statement were not true, the trial court held her in direct contempt of court, reasoning that her "intentional falsehood" was "offensive to its dignity and a blatant disrespect to the Court, and actually degrading [to] the administration of justice." Accordingly, the trial court ordered her "committed to incarceration and imprisonment within the period provided by law," 15 which penalty, however, was modified to a fine of P200.00 upon EDEN's motion for reconsideration. 1 6 On rebuttal, the prosecution had EDEN back on the witness stand. She retracted her affidavit of desistance and claimed that she had signed it under coercion by her mother and elder sister. The trial court's summary of the evidence for the prosecution, with the references to the pages of the stenographic notes and exhibits deleted, is as follows:
The evidence adduced on record shows that sometime in September of 1993 in Malolos, Bulacan, the accused was charged by his two daughters, FEDELINA and DODIMA AGBAYANI, [with] the crime of rape which case was raffled to the sala of Judge Danilo Manalastas of Branch 7, Regional Trial Court, Bulacan. The case was, however, provisionally dismissed by said Judge after the complainants desisted from pursuing the same in May 1994. Eduardo Agbayani was thus consequently released from jail on July 13, 1994. Three (3) days thereafter, he began living with four (4) of his six (6) daughters, Fedelina, Eden, Diana and Edima, in a rented room at 30-A Makabayan St., Bgy. Obrero, Quezon City. The evidence of the prosecution, in part consisting of the testimonies of Complainant Eden Agbayani, Medico Legal Officer, Dr. Florante Baltazar and SPO1 Salvador Buenviaje, shows that at the abovementioned address, the complainant, Eden Agbayani, on the evening of July 19, 1994, was sleeping on the floor of the room with her father, the accused Eduardo Agbayani and her youngest sister, Edima, while her sisters, Fedelina and Diana slept on a bed. At the time, complainant's mother was outside the country, working in Saudi Arabia. At about 9:00 p.m. of July 19, Complainant Eden Agbayani was awakened from her sleep by hands caressing her breasts and vagina. She turned to discover that it was her father who was then molesting her. Frightened, she asked, "Tay bakit niyo po ginagawa sa akin ito, gayong kalalabas mo lang sa kulungan?" and threatened to kill her [ sic]. The accused then proceeded to undress her. Thereafter he undressed himself and succeeded in having carnal knowledge with the complainant who could only cry helplessly. The complainant thereafter felt blood dripping from her vagina and felt pain. The next day, or on July 20, 1994, the complainant informed her elder sister, Fedelina, of what had been done to her by her father. She was told not to worry as they would go to Bulacan to report the incident to Fiscal Caraeg of Bulacan, who had, the year before, handled the rape case filed by Fedelina and Dodima. Several attempts were made by her sisters, Fedelina and Eden to reach the said fiscal but it was only on September 9, 1994, that they were able to meet with him. Fiscal Caraeg of Bulacan reported the complaint to Judge Danilo Manalastas who reopened tile previously provisionally dismissed case and issued a warrant of arrest against the herein accused.

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With the assistance of police officers from Station 10 of the SIID in Quezon City, the accused was arrested on the same day at his residence at 30-A Makabayan St., Bgy. Obrero, Quezon City and was later brought to Malolos, Bulacan where he is currently detained. After the accused's arrest, Eden and Fedelina returned to Station 10 where they made individual statements before SPO1 Salvador Buenviaje narrating the events leading to and occurring after the incident of July 19, 1994. The next morning, Eden was examined by Medico-Legal Officer and Chief of the PNP Crime Laboratory, Dr. Florante Baltazar, a colonel, who, accordingly, prepared the corresponding Medico-Legal Report. 17

Appellant put up the defense of denial and alibi. According to him, he could not have raped his daughter EDEN, because on 19 July 1994, he was in Barangay Victoria in Sual, Pangasinan, visiting his eldest daughter. 18 He declared that EDEN charged him with rape because he had hit her with a belt after he caught her lying about her whereabouts one night. Then on 24 July 1994, she left their rented apartment and did not return anymore. 19 Adoracion Cruz corroborated appellant's alibi. She declared that on 17 July 1994, appellant requested her to take care of his children because he was going to Pangasinan to visit his sick father, returning home only on 21 July 1994. 20 The trial court gave full credence to the testimony of EDEN, who "appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive;" further, it commended her "for her courage and her unwavering strength in the midst of the emotional and psychological strain and humiliation, not to mention the pressure and lack of moral support of her family, brought on by the filing of this case." It also ruled that EDEN did not voluntarily execute the affidavit of desistance as it was procured "at the behest of her mother and sister for whom the sanctity of the family and the family's good name were more important than demanding punishment for whatever injury the complainant might have suffered in the hands of the accused." Besides, even assuming arguendo that no such pressure was exerted by her mother and sister, the trial court declared that it understood EDEN's moral predicament, viz., for a child like EDEN, it was difficult to charge her own father with rape; insist on his punishment; and thereby inflict emotional stress and financial strain upon the members of her family, particularly her mother. The trial court likewise gave full faith to the sworn statement (Exhibit "E") of Fedelina Agbayani. Turning to the defense of appellant, the trial court found his alibi wholly self-serving, and characterized the testimony of Adoracion Cruz unworthy of belief. As to appellant's claim that EDEN filed the complaint because of a grudge against him, the trial court found this "incredible, if not totally absurd," for:
The complainant is an innocent girl of tender years who is unlikely to possess such vindictiveness and dearth of conscience as to concoct such a malicious and damaging story. The complainant appeared, during her entire testimonies on January 20 and May 4, 1995, coherent, candid and responsive. Her retraction on March 16 was sufficiently explained to this Court (tsn, 5-4 95, testimony of Eden Agbayani, pp. 2-3). She has shown to this Court the seriousness of the injury upon her person and dignity inflicted upon by the accused . . . Even assuming argumenti gratia that the complainant would indeed lodge a complaint against her father solely on account of an altercation with him, it is highly unlikely that the complainant would concoct a charge which would damage her and wreck havoc on her family's reputation, destroy the household peace and subject her father, the accused, to a grave punishment which by dent of express of law, can obliterate him from the face of this earth. Indeed, to uphold the defense's proposition would be stretching the imagination too far, if not to the extreme.

The trial court finally found that appellant employed on EDEN force or intimidation by virtue of his moral ascendancy over her and his threat that he would kill her if she reported the incident to anyone.
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Accordingly, the trial court, applying Section 11 of R.A. No. 7659 which imposes the penalty of death when the victim is under eighteen years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or common-law spouse of the parent of the victim, rendered judgment against appellant, to wit:
WHEREFORE, considering all the foregoing, judgment is hereby rendered finding the accused, EDUARDO AGBAYANI, GUILTY beyond reasonable doubt of the crime of RAPE committed against complainant, Eden Agbayani, his minor daughter. This Court, as a consequence thereof, hereby imposes upon him the supreme penalty of DEATH, conformably with the provisions of the death penalty law, R.A. 7659. Further, Accused is hereby ordered to pay the complainant, Eden Agbayani, the sum of P75,000.00 as damages, with all the necessary penalties provided for by law without subsidiary imprisonment, however, in the event of insolvency and to pay the costs. Let the entire records of this case be forwarded to the Supreme Court on automatic review. SO ORDERED.

On 26 May 1995, appellant, through his new counsel de parte Attorneys Froilan V. Siobal and Domingo Floresta, filed a Motion for New Trial 21 on the ground that serious irregularities prejudicial to his substantial rights were committed during the trial, viz., the failure of the counsel de oficio to: (a) present at trial the Barangay Captain of Barangay Obrero, Quezon City, who would have testified, on the basis of his certification attached to the motion, that there was a house bearing No. 30, Makabayan St., in his barangay, but that there was no such place as 30-A Makabayan St. of said barangay, which was the address given by EDEN; (b) consider the futility of Adoracion Cruz's testimony; (c) present private complainant's mother and sister Fedelina on sur-rebuttal to testify as to the circumstances which brought about he execution of the affidavit of desistance; and (d) cross-examine complainant and the police investigator exhaustively. He further alleged that his counsel de oficio was never prepared during all the scheduled hearings, worse, even waived the presence of appellant after the third witness for the prosecution was presented. He also averred that the trial court used its inherent power of contempt to intimidate private complainant. In their Comments/Opposition to the Motion for New Trial, 22 the public and private prosecutors alleged that there were no such irregularities; neither was there new and material evidence to be presented that appellant could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted at trial would probably change the judgment of the court. In its Order 23 of 31 July 1995, the trial court denied the motion for new trial for being devoid of merit and for not being within the purview of Sections 1 and 2, Rule 121 of the Rules of Court. In his Appellant's Brief filed before this Court, appellant contends that the trial court erred in: (a) denying his motion for new trial; and (b) holding that the prosecution proved beyond reasonable doubt that he committed the crime charged. In support of the first assigned error, appellant reiterates the grounds in his motion for new trial, and adds two others, namely, (1) the lower court failed to apprise him of his right to have counsel of his own choice; and (2) the lower court did not give him the opportunity to prepare for trial, despite the mandated period of two days prescribed in Section 9 of Rule 116 of the Rules of Court. In his second assigned error, appellant contends that EDEN's testimony is not sufficient to convict, since it is unclear and not free from serious contradictions. Considering their proximity to EDEN, it was impossible for her sisters or any one of them not to have been awakened when EDEN was allegedly being abused by him. Strangely, EDEN simply kept quiet and allowed him to abuse her; neither did she shout for help or put up a fight that would have awakened her sisters. Notably, EDEN and her sisters allowed him to live and sleep with them again in their rented room even after the alleged rape.
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Finally, appellant asserts that EDEN's testimony is unreliable because her affidavit of desistance must have necessarily been contradictory thereto. Her "subsequent turn-around . . . that she was pressured and influenced to execute and sign the affidavit of desistance further confirmed her being untruthful and, in effect, demolished whatsoever faith left on her charge against the accused." The Office of the Solicitor General (OSG) considers the first assigned error as devoid of merit. When appellant appeared without counsel at the arraignment, the trial court informed him that it would appoint de oficio counsel for him if he so desired, to which appellant agreed. Moreover, the 2-day period to prepare for trial provided in Section 9 of Rule 116 is merely directory and does not prohibit the court from proceeding with trial after arraignment, especially if the defense, as here, consented thereto. It would have been entirely different if the defense did not agree, in which case the court would have no other alternative but to grant him the period. As to appellant's other grievances, the OSG points out that throughout all the hearings, appellant never questioned the way his defense was being handled by his counsel de oficio. The latter's request for a continuance because he had not yet conferred with appellant was not evidence of counsel's lack of sincerity. On the contrary, it showed counsel's awareness of his duty to confer with appellant to ferret out the relevant facts as regards the second witness for the prosecution. Likewise, the waiver of appellant's presence during the hearing of 18 March 1995 did not prejudice him, because on that date, the defense presented EDEN to testify as to her affidavit of desistance, and Fedelina to corroborate the statements of EDEN which testimonies were in appellant's favor. As to the manner appellant's counsel de oficio cross-examined the prosecution witnesses, the OSG stresses that the record shows that said counsel tried his best. The OSG then characterizes the second assigned error as "barren of merit." EDEN's positive identification of appellant as the author of the crime rendered appellant's defense of alibi unavailing; moreover, she demonstrated clearly and vividly what transpired that fateful evening of 19 July 1994. Thus in view of EDEN's candid and categorical manner of testifying the OSG concluded that she was a credible witness. 24

As to the commission of rape in a small room and in the presence of other persons, the OSG maintains that such was not at all improbable. 25 There was, as well, nothing unusual in EDEN's silence; as she could only attempt to shout because appellant had succeeded in covering her mouth with his hands and exercised a high level of moral ascendancy over EDEN, his daughter. 26 Hence the OSG invokes the principle that in a rape committed by a father against his own daughter, the former's moral ascendancy and influence over the latter substitutes for violence or intimidation. 27 As regards EDEN's affidavit of desistance, the OSG maintains that courts look with disfavor on retraction of testimonies previously given in court, for such can easily be secured from poor and ignorant witnesses usually for a monetary consideration, 28 as well as the probability that it may later be repudiated. In his Reply Brief, appellant countered that his consent to the appointment of counsel de oficio at his arraignment did not relieve the court of its duty under Section 6 of Rule 116 of the Rules of Court to inform him of his right to counsel and that it would be grievous error to deny an accused such right. Appellant then elaborated on this point as follows:
This is not without judicial precedent. In People vs. Cachero, 73 Phil. 426 and People vs. Domenden, 73 Phil. 349, cited in R.J. Francisco's Criminal Procedure, Third Ed., 1966, p. 323 it was held, that: "The courts should comply with Rule 116, Sec. 3. It would be a grievous error to proceed by sentencing the accused without due process of law and this is not complete, when the accused is denied the right recognized by said rule. The records must show compliance therewith or that the accused renounced his right to be assisted by counsel. This is demanded by the interest of
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justice and remove all doubts that if the accused had waived said right, he was fully informed before giving his plea of its consequences. Omission by courts whether voluntary should not truly be censured but also condemned."

Discussing further the right to the 2-day period to prepare for trial, the appellant contends that said right:
[H]as been held to be mandatory and denial of this right is a reversible error and a ground for new trial. (R.J. Francisco's Criminal Procedure, Third Ed., 1986, p. 404, citing People vs. Mijares, et al., 47 OG 4606; Dumasig v. Morave, 23 SCRA 659). This must be so ". . . to prevent that any accused be caught unaware and deprived of the means of properly facing the charges presented against him."
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The first assigned error does not persuade this Court. It is true that the transcript of the stenographic notes of the proceedings of 22 December 1994 and the order issued by the trial court after the conclusion of said proceedings only state that the court appointed de oficio counsel with the consent of the said accused. They do not categorically disclose that the trial informed appellant of his right to counsel of his own choice. However, this does not mean that the trial court failed to inform appellant of such right. The precise time the two counsel de oficio were appointed is not disclosed in the record either. At the recorded portion of the arraignment aspect of the proceedings on 22 December 1994, the two formally entered their appearance, thus:
COURT: Call the case. (Interpreter calls the case). FISCAL ROSARIO BARIAS: For the prosecution, Your Honor. ATTY. MARIETA AGUJA: Respectfully appearing for the prosecution, Your Honor under the control and direct supervision of the Trial Prosecutor, Your Honor, we are ready to present our first witness. ATTY. BALDADO:

For the accused Your Honor, appointed as counsel de oficio.

ATTY. DE LA CRUZ:

For the accused, Your Honor appointed by the court as counsel de oficio. 29

This obviously means that the appointment had taken place earlier. The trial court's order 30 of 22 December 1994 states that said de oficio counsel were "duly appointed by the Court with the consent of the accused." Since appellant has miserably failed to show that he was not informed of his right to counsel, the presumptions that the law has been obeyed and official duty has been regularly performed by the trial court stand. 31 In other words, the trial court is presumed to have complied with its four-fold duties under Section 6 32 of Rule 116 of the Rules of Court, namely, (1) to inform the accused that he has the right to have his own counsel before being arraigned; (2) after giving such information, to ask accused whether he desires the aid of counsel; (3) if he so desires to procure the services of counsel, the court must grant him reasonable time to do so; and (4) if he so desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him. 33

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It is settled that the failure of the record to disclose affirmatively that the trial judge advised the accused of his right to counsel is not sufficient ground to reverse conviction. The reason being that the trial court must be presumed to have complied with the procedure prescribed by law for the hearing and trial of cases, and that such a presumption can only be overcome by an affirmative showing to the contrary. Thus it has been held that unless the contrary appears in the record, or that it is positively proved that the trial court failed to inform the accused of his right to counsel, it will be presumed that the accused was informed by the court of such right.34 In U .S. v. Labial,
35 this

Court held:

Adhering to the doctrine laid down in that case, the only question to be determined in this case is whether the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to have counsel is sufficient ground to reverse the judgment of conviction and to send the case back for a new trial. Upon this point we are all agreed that in the absence of an affirmative showing that the court below did in fact fail to advise the accused of their rights under the provisions of sections 17 of General Orders No. 58, as amended by section 1 of Act No. 440, the mere omission from the record brought here upon appeal of an entry affirmatively disclosing that he did so, is not reversible error. In the absence of an affirmative showing to the contrary, the court below must be presumed in matters of this kind to have complied with the provisions of law prescribing the procedure to be followed in the trial had before him.

While in People v. Miranda

36 this

Court explicitly stated:

However, said counsel calls attention to the fact that the record is silent as to whether or not, at the time appellant was arraigned, the trial court informed him of his right to be assisted by an attorney, under section 3 of Rule 112 of the Rules of Court. This precise issue was determined in United States vs. Labial (27 Phil. 87, 88), in the sense that unless the contrary appears in the records, it will be presumedthat the defendant was informed by the court of his right to counsel. ". . . If we should insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws, we should destroy public justice, and give unbridled license to crime. Much must be left to intendment and presumption, for it is often less difficult to do things correctly than to describe them correctly." (United States vs. Labial, supra.) The same doctrine was reiterated in People vs. Abuyen (52 Phil. 722) and in United States vs. Custan (28 Phil. 19). We see no reason to modify it now.

In the instant case, the trial court appointed two de oficio counsel who assisted the appellant at his arraignment, one of whom extensively cross-examined the first witness for the prosecution, Dr. Florante Baltazar. 37 Besides, it is only in this appeal that appellant raised the issue of the failure of the trial court to inform him of the right to counsel. At no time did he previously raise it in the trial court despite ample opportunity to do so. His consent to be assisted by counsel de oficio, coupled with said counsel's extensive cross-examination of Dr. Baltazar, may even be considered a waiver of his right to question the alleged failure of the trial court to inform him of his right to counsel. 38 The cases of People v. Domenden 39 and People v. Cachero 40 cited by appellant are inapplicable. In both cases the trial courts there clearly failed to inform the accused of their right to counsel nor appoint de oficio counsel during the arraignment. Nevertheless, we take this opportunity to admonish trial courts to ensure that their compliance with their pre-arraignment duties to inform the accused of his right to counsel, to ask him if he desires to have one, and to inform him that, unless he is allowed to defend himself in person or he has counsel of his choice, a de oficio counsel will be appointed for him, must appear on record. Turning to the alleged violation of appellant's right to the 2-day period to prepare for trial, Section 9 of Rule 116 of the Rules of Court reads:
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SEC. 9.Time to prepare for trial. After a plea of not guilty, the accused is entitled to two (2) days to prepare for trial unless the court for good cause grants him further time.

It must be pointed out that the right must be expressly demanded. 41 Only when so demanded does denial thereof constitute reversible error and a ground for new trial. 42 Further, such right may be waived, expressly or impliedly. 43 In the instant case, appellant did not ask for time to prepare for trial, hence, he effectively waived such right. During the succeeding hearings, appellant was represented by Atty. Temanil of the Public Attorney's Office in Quezon City, who entered his appearance as de parte, and not as de oficio, counsel. It is to be presumed that Atty. Temanil's services were obtained pursuant to the law creating the Public Attorney's Office (PAO), formerly the Citizen's Legal Assistance Office (CLAO). 44 There is at all no showing that Atty. Temanil lacked the competence and skill to defend appellant. The latter's contention that his counsel was not ready at all times because at the hearing on 20 January 1995 he asked for a continuation as he has "not yet interviewed [his] client," 45 is misleading. Atty. Temanil made that statement after he cross-examined EDEN and after the judge realized that it was almost 1:00 o'clock in the afternoon and both of them were already hungry, thus:

ATTY. TEMANIL: I just want to make it on record, Your Honor that from the start of trial the witness appears to be fluent and suffers no difficulty in answering the questions, even the questions propounded by the Private Prosecutor, Your Honor. COURT: Put that on record. That is true, Atty. Temanil, it is almost 1:00 o'clock in the afternoon and we are both hungry now. ATTY. TEMANIL. I will just asked [sic] for continuance considering that I have not yet interviewed my client, Your Honor. 46

Neither is there merit in appellant's claim that his counsel committed irregularities: (1) in not considering the futility of the testimony of Adoracion Cruz; (2) in not presenting the barangay captain in the evidence in chief for the defense, and EDEN's mother and sister Fedelina in sur-rebuttal; and (3) in not cross-examining exhaustively EDEN. Adoracion Cruz was presented to corroborate appellant's alibi that he was in the province and not in their rented room from 17 to 21 July 1994. On the other hand, the testimony of the barangay captain could not alter the fact that rape was committed in a rented room in a house along Makabayan Street in his barangay. Appellant neither testified that he did not occupy a house numbered 30-A nor denied that he was living with EDEN and her sisters in that room. Besides, he and his children were not renting the entire house, but merely a room, which could probably be the unit numbered "30-A" referred to by EDEN. As to the presentation of EDEN's mother and sister Fedelina as sur-rebuttal witnesses to disprove the claim of EDEN that they coerced her into signing the affidavit of desistance, suffice it to state that there was nothing to show that they were in fact willing to refute EDEN's claim.

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Finally, contrary to appellant's allegation, a meticulous examination of the transcripts of the stenographic notes convinces this Court that Atty. Temanil sufficiently cross-examined EDEN. If he decided to terminate his crossexamination, it could have been due to the futility of any further cross-examination which might only prove favorable to the prosecution, as it might have opened another window of opportunity for EDEN to strengthen her testimony. The second assigned error is equally unpersuasive. It raises the issue of the credibility of EDEN as a witness. One of the highly revered dicta Philippine jurisprudence has established is that this Court will not interfere with the judgment of the trial court in passing upon the credibility or opposing witnesses, unless there appears in the record some facts or circumstances of weight and influence which have been overlooked and if considered, would affect the result. This is founded on practical and empirical considerations, i.e., the trial judge is in a better position to decide the question of credibility, since he personally heard the witnesses and observed their deportment and manner of testifying. 47 He had before him the essential aids to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth naked; she often hides in nooks and crannies visible only to the mind's eye of the judge who tried the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. 48 On the other hand, an appellate court has only the cold record, which generally does not reveal the thin line between fact and prevarication that is crucial in determining innocence or guilt. 49 At any rate, in view of the gravity of the offense charged and the extreme penalty of death imposed, this Court took painstaking effort and meticulous care in reviewing the transcripts of the stenographic notes of the testimonies of the witnesses. This Court is fully satisfied that EDEN told the truth that she was raped by her father, herein appellant, on 19 July 1994, in their rented room in Barangay Obrero, Quezon City. Her story was made even more credible by the simplicity and candidness of her answers, as well as by the fact that it came from an innocent girl writhing in emotional and moral shock and anguish. She must have been torn between the desire to seek justice and the fear that a revelation of her ordeal might mean the imposition of capital punishment on her father. By testifying in court, she made public a painful and humiliating secret, which others may have simply kept to themselves for the rest of their lives. She thereby jeopardized her chances of marriage, as even a compassionate man may be reluctant to marry her because her traumatic experience may be a psychological and emotional impediment to a blissful union. Moreover, such a revelation divided her family and brought it shame and humiliation. If EDEN did testify regardless of these consequences and even allowed the examination of her private parts, she did so inspired by no other motive than to obtain justice and release from the psychological and emotional burdens the painful experience had foisted upon her. It was then improbable that EDEN fabricated a story of defloration and falsely charged her own father with a heinous crime. What appellant claims to be improbabilities in the testimony of EDEN are more apparent than real. The presence of her sisters in the small room did not at all make impossible the commission of rape. The evil in man has no conscience. The beast in him bears no respect for time and place; it drives him to commit rape anywhere even in places where people congregate such as in parks, along the roadside, within school premises, and inside a house where there are other occupants. 50 InPeople v. Opena, 51 rape was committed in a room occupied also by other persons. In the instant case, EDEN's other companions in the room when she was molested by appellant were young girls who were all asleep. That EDEN was unable to resist or shout for help can easily be explained by the fact that appellant threatened to kill her. Whether or not he was armed was of no moment. That threat alone coming from her father, a person who wielded such moral ascendancy, was enough to render her incapable of resisting or asking for help.

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Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim's and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary. 52 In any event, in a rape committed by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. 53 Likewise, it must not be forgotten that at her tender age of 14 years, EDEN could not be expected to act with the equanimity of disposition and with nerves of steel, or to act like a mature and experienced woman who would know what to do under the circumstances, or to have courage and intelligence to disregard the threat. 54 Even in cases of rape of mature women, this Court recognized their different and unpredictable reactions. Some may shout; some may faint; and some may be shocked into insensibility; while others may openly welcome the intrusion. 55 Neither does the fact that EDEN continued to live with appellant in the same rented room disprove the rape. While she was hurt physically, psychologically and emotionally, yet the thought must have been irresistible and compelling that her assailant was her own father, who was both a father and mother to her since her mother was in Saudi Arabia and who provided her with the daily wherewithal to keep her alive. Besides, a less harsh life outside was uncertain. Instances are not few when daughters raped by their fathers stayed with the latter and kept in the deepest recesses of their hearts the evil deed even if the memory thereof haunted them forever.
LibLex

Nor is there merit in the insistent claim that EDEN's affidavit of desistance "must have necessarily contradicted her previous testimony." We have earlier quoted in full this affidavit of desistance. Plainly, nowhere therein did she retract her previous testimony or claim that she was raped by her father. In any case, EDEN withdrew her affidavit of desistance and solemnly declared that she was pressured by her mother and sister to sign it. Moreover, affidavits, being taken ex parte, are generally considered inferior to the testimony given in open court; 56 and affidavits of recantation have been invariably regarded as exceedingly unreliable, since they can easily be secured from poor and ignorant witnesses. It would be a dangerous rule to reject the testimony taken before a court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous witnesses. 57 This Court has no doubt that appellant is guilty as charged. The penalty therefor is death under the first circumstance mentioned in Article 335(7) of the Revised Penal Code, as amended by R.A. No. 7659, which provides, in part, as follows:
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1.When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

This law may be difficult to accept for those who believe that the verdict of death for a sin or crime is God's exclusive prerogative. But the fundamental law of the land allows Congress, for compelling reasons, to impose capital punishment in cases of heinous crimes, 58 hence the passage of R.A. No. 7659. Hoc quidem per quam
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durum est sed ita lex scripta est. The law may be exceedingly hard but so the law is written and the Court is
duty-bound to apply it in this case. To the appellant who inflicted his animal greed on his daughter in a disgusting coercion of incestuous lust, thereby forsaking that which is highest and noblest in his human nature and reducing himself to lower than the lowliest animal, the full force of the law must be weighed against him, for he deserves no place in society. All that we concede to him is a modification of the award of "P75,000.00 as damages," which is hereby reduced to P50,000.00 in accordance with current case law. WHEREFORE, judgment is hereby rendered AFFIRMING the decision of the Regional Trial Court of Quezon City, Branch 106, in Criminal Case No. Q-94-59149 finding accused-appellant EDUARDO AGBAYANI y MENDOZA guilty beyond reasonable doubt as principal of the crime of rape defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and imposing upon him the penalty of DEATH, subject to the above modification as to the amount of indemnity. Two Justices voted to impose upon the accused-appellant the penalty of reclusion perpetua. Upon finality of this Decision, let certified true copies thereof, as well as the records of this case, be forwarded without delay to the Office of the President for possible exercise of executive clemency pursuant to Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. No. 7659. With costs de oficio. SO ORDERED.

Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Panganiban and Martinez, JJ ., concur.

[A.M. No. RTJ-97-1371. January 22, 1999.] BALTAZAR D. AMION, complainant, vs. JUDGE ROBERTO S. CHIONGSON, Branch 50, Regional Trial Court, Bacolod City, respondent. SYNOPSIS A verified complaint was filed by Baltazar D. Amion charging Judge Roberto S. Chiongson with ignorance of the law and oppression. The complaint was relative to a murder case pending before his court, in which the complainant is the accused. The allegations against respondent judge are premised on his appointment of a counsel de oficio for accused-complainant despite the latter's objection thereto on the ground that he had his own retained counsel. In his comment, respondent judge alleged that his appointment of a counsel de oficio to represent the accused-complainant is justified because of the vexatious and oppressive delay on the latter's part who has been represented by a counsel de parte who refuses or fails to appear during hearings. He averred that the records of the case will show that the accused-complainant and his lawyers have employed every means fair, but mostly foul, to delay the resolution of the criminal case. The Court found that the accused-complainant has been the oppressor while respondent judge appears to be the oppressed. Through the course of the proceedings in the subject criminal case, accused-complainant had filed several Motions for Inhibition, a Petition for Certiorari and Mandamus, and this administrative complaint with the view of delaying the eventual disposition of the case. The actuation of respondent judge in the murder
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case does not warrant reproach and reprimand, but in fact, merits the acknowledgment and approval of the Supreme Court. Such manifestation of zeal clearly shows respondent judge's ardent determination to expedite the case and render justice. The Court resolved to dismiss the administrative complaint against the respondent judge, imposed a fine of P5,000.00 on accused-complainant, and admonished said accused-complainant for filing a malicious and unmeritorious complaint against the respondent judge. SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; PREFERENCE IN THE CHOICE OF COUNSEL, CANNOT PARTAKE OF A DISCRETION SO ABSOLUTE AND ARBITRARY AS WOULD MAKE SUCH REFER EXCLUSIVELY TO THE PREDILECTION OF THE ACCUSED; RATIONALE. An examination of related provisions in the Constitution concerning the right to counsel, will show that the "preference in the choice of counsel" pertains more aptly and specifically to a person under investigation rather than one who is the accused in a criminal prosecution. Even if we were to extend the application of the concept of "preference in the choice of counsel" to an accused in a criminal prosecution, such preferential discretion cannot partake of a discretion so absolute and arbitrary as would make the choice of counsel refer exclusively to the predilection of the accused. As held by this Court in the case of People vs. Barasina, (229 SCRA 450), withal, the word "preferably" under Section 12(1), Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation, will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer, who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter." Applying this principle enunciated by the Court, we may likewise say that the accused's discretion in a criminal prosecution with respect to his choice of counsel is not so much as to grant him a plenary prerogative which would preclude other equally competent and independent counsels from representing him. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused to the detriment of the eventual resolution of the case. 2.ID.; ID.; RIGHT TO DUE PROCESS; A PARTY CANNOT FEIGN DENIAL THEREOF WHEN HE HAD THE OPPORTUNITY TO PRESENT HIS SIDE; CASE AT BAR. Accused-complainant was not, in any way, deprived of his substantive and constitutional right to due process as he was duly accorded all the opportunities to be heard and to present evidence to substantiate his defense but he forfeited this right, for not appearing in court together with his counsel at the scheduled hearings. Accused-complainant had more than sufficient time and every available opportunity to present his side which would have led to the expeditious termination of the case. A party cannot feign denial of due process when he had the opportunity to present his side. Moreover, there is no denial of the right to counsel where a counselde oficio was appointed during the absence of the accused's counsel de parte pursuant to the court's desire to finish the case as early as practicable under the continuous trial system. Thus, it has been held by this Court in the case of Lacambra vs. Ramos: (232 SCRA 435) "the Court cannot help but note the series of legal maneuvers resorted to and repeated importunings of the accused or his counsel, which resulted in the protracted trial of the case, thus making a mockery of the judicial process, not to mention the injustice caused by the delay to the victim's family." Undoubtedly, it was accusedcomplainant's own strategic machinations which brought upon the need for the appointment of a counsel de oficio in as much as the criminal case had been dragging on its lethargic course.
aETADI

3.LEGAL AND JUDICIAL ETHICS; CODE OF JUDICIAL CONDUCT; JUDGES; SHOULD ADMINISTER JUSTICE IMPARTIALLY AND WITHOUT DELAY; CASE AT BAR. The actuation of respondent judge in this murder case does not warrant reproach and reprimand, but in fact, merits the acknowledgment and approval of this Court. Such manifestation of zeal clearly show respondent judge's ardent determination to expedite the case and render justice. The Code of Judicial Conduct mandates that a judge should administer justice impartially and without delay. A judge should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly administer justice.
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DECISION

MARTINEZ, J :
p

A verified complaint dated August 29, 1996 1 was filed by Baltazar D. Amion with this Court on October 7, 1996 charging Judge Roberto S. Chiongson, Regional Trial Court (RTC), Branch 50, Bacolod City with Ignorance of the Law and Oppression relative to Criminal Case No. 94-159772 pending in said trial court and in which complainant is the accused.
LLphil

The allegations against respondent judge are premised on his appointment of a counsel de oficio for accusedcomplainant despite the latter's objection thereto on the ground that he had his own retained counsel in the person of Atty. Reynaldo C. Depasucat. Accused-complainant explains that respondent judge appointed another lawyer in the person of Atty. Manuel Lao Ong of the Free Legal Aid to act as counsel de oficiofor the scheduled hearing of the aforecited criminal case on March 28 and 29 1996. He further avers that his retained counsel was ready for hearing on said dates but on March 27, 1996, the day before the scheduled hearing, he was informed that Atty. Depasucat was ill. It was for this reason that accused-complainant was not represented by his defense lawyer in the scheduled hearing which prompted respondent judge to appoint Free Legal Aid lawyer Atty. Manuel Lao Ong. Notwithstanding complainant-accused's vehement opposition, respondent judge proceeded with the trial on March 28, 1996 with Atty. Ong representing the complainant-accused as counsel de oficio. He also claims that Atty. Ong did not have sufficient knowledge of the case and that no prior conference was held between said counsel de oficio and himself. Complainant-accused asserts that the aforesaid incidents constitute a clear violation of his right to due process and a deprivation of his constitutional and statutory right to be defended by counsel of his own choice. Consequently, complainant-accused filed a Manifestation and Urgent Motion 2 stating therein that he is not accepting the legal services of counsel de oficio Atty. Ong since he can afford to hire a counsel de parte of his own choice. He further states that respondent judge is not fair and just and does not have the cold neutrality of an impartial judge. He likewise asseverates that respondent judge is ignorant of the basic law which makes him unfit to be a judge in any judicial tribunal. Complainant-accused also alludes oppression to respondent judge when the latter was still a Municipal Trial Judge of MTCC, Branch 3, Bacolod City. Complainant was then the offended party in a criminal case for Slander and it took a year before respondent judge decided to dismiss the same. He complains that now that he is the accused in Criminal Case No. 94-15772, respondent judge appears to be "very active" and wants the case to be terminated immediately. In addition, accused-complainant charges respondent judge with gross ignorance of the law when the latter, as then municipal trial judge of Bacolod City, heard Criminal Case No. 55099 for violation of B.P. 22 against accused-complainant in the absence of his counsel. In a resolution dated March 12, 1997, 3 this Court required respondent judge to file his Comment on the aforementioned charges. Judge Roberto S. Chiongson, in his Comment dated April 21, 1997, 4 explained that accused-complainant would not have filed the administrative case had he acceded to the latter's plea for his inhibition which he denied, there being no ground therefor. He claimed that accused-complainant is a police officer charged in Criminal Case No. 94-15772 for having allegedly killed a fellow policeman on January 24, 1994. From the time he
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assumed office as Presiding Judge of said court on November 27, 1995, other than the arraignment of accusedcomplainant on September 25, 1995 before Judge Emma Labayen (former judge of said court) in which accused-complainant pleaded not guilty, the case has not moved.

When respondent judge set the case for hearing on January 9, 1996, trial was not held because accusedcomplainant's counsel, Atty. Depasucat, was not feeling well. The hearing was reset to January 19, 1996 with a warning that no further postponement would be entertained. On said date of hearing, Atty. Depasucat again failed to appear in court. In order to avoid further delay, the court appointed Atty. Apollo Jacildo of the Public Attorney's Office (PAO) as counsel de oficio. Atty. Jacildo, however, filed a Manifestation explaining that it is the policy of their office not to represent a party who has retained the services of a counsel of his own choice. At the next scheduled hearing of February 21, 1996, 5 accused-complainant's counsel de parte still did not show up in court, thus, prompting private complainant Mrs. Antonietta Vaflor (the victim's wife) to speak in open court and pour out all her frustration about the long delay in the resolution of the case. In view of the fact that Mrs. Vaflor and another government witness, PO3 Richard Dejores, both reside at Escalante, about 70 to 80 kilometers from Bacolod City, and that the appearance of Atty. Depasucat remained uncertain, Judge Chiongson appointed Atty. Manuel Lao-Ong from the Free Legal Aid Office to represent accused-complainant. The court, however, made it of record that the appointment of Atty. Ong was without prejudice to the appearance of counsel de parte. 6 Due to the continued absence of Atty. Depasucat, the counsel de parte, Atty. Ong, represented the accused-complainant at the March 28, 1996 hearing which was opposed by the accused in a Manifestation and Motion filed on March 29, seeking the nullification of the March 28, 1998 hearing and the inhibition of Judge Chiongson. The hearings were then rescheduled on May 13 and 17, 1996. On May 8, 1996, accused-complainant's counsel, Atty. Depasucat, filed a motion for postponement alleging that the motion for inhibition should be resolved and that he would not be available on the rescheduled dates for hearings as he would be out of the country during those times. An order denying the accused-complainant's Motion for Inhibition and Motion to Set Aside the proceedings of March 28, 1996 was issued by the court on July 18, 1996 on the ground that the claim of bias and prejudice was without legal basis. 7 At the scheduled hearing on August 1, 1996, Atty. Depasucat asked the court that he be allowed to withdraw as counsel de parte of the accused-complainant causing further delay. The trial of the case was again reset to September 2, 5 and 6, 1996 with a warning that the court will not grant any further postponement and that if the accused-complainant was still without counsel, a counsel de oficio will be appointed. Thereafter, the accused-complainant engaged the services of different counsels who continued to adopt the dilatory tactics utilized by the previous counsel de parte. Atty. Rosslyn Morana, who entered his appearance as counsel on September 2, 1996, filed on October 14, 1996 a Motion for Voluntary Inhibition of respondent judge on account of a pending administrative case against the latter. On October 24, 1996, Atty. Morana submitted an Explanation to the court stating that he could not represent the accused-complainant as the latter failed to give him the records of the case. On November 14, 1996, the prosecution filed a motion to cite the accused in contempt for filing a series of motions for inhibition and for filing an administrative case against the presiding judge which are plain acts of harassment.
prll

83

Atty. Salvador Sabio entered his appearance as counsel for the accused-complainant on December 2, 1996 and asked for the cancellation of the scheduled hearings on December 5 and 6, 1996 as he had to study the case. The court granted the request for postponement of Atty. Sabio and reset the case on January 24, 1997 with a strong warning that it will not allow any further dilatory postponement. In the afternoon of January 23, 1997, the court received another motion for postponement filed by Atty. Sabio requesting for the cancellation of the January 24 hearing. The court, considering the same as another delaying tactic, immediately issued an order denying the motion. In spite of the denial of the motion for postponement, Atty. Sabio failed to appear. On February 4, 1997, accused-complainant again asked for the voluntary inhibition of the presiding judge which the court again denied for being merely a dilatory scheme. On March 24, 1997, when the case was called for hearing, Atty. Sabio informed the court that he received a written note from the accused-complainant discharging him as counsel, to which the court responded by ruling that Atty. Sabio would only be allowed to withdraw as accused-complainant's lawyer upon the entry of appearance of a new defense counsel. In a Resolution of the Court of Appeals promulgated on April 29, 1997, Judge Chiongson was required to submit a COMMENT 8 on a Petition for Certiorari andMandamus filed by accused-complainant. Said document has also been submitted to the Court as Supplemental Comment to this administrative case. 9 Respondent judge reiterated his belief that his appointment of a counsel de oficio to represent the accusedcomplainant is justified because of the vexatious and oppressive delay on the latter's part who has been represented by a counsel de parte who refuses or fails to appear during hearings. He averred that the records of the case will show that the accused-complainant and his lawyers have employed every means fair, but mostly foul, to delay the resolution of Criminal Case No. 94-15772. He added that the Petition for Certiorari and the Administrative Case were filed for the purpose of not only delaying the resolution of the case but also to pressure him into inhibiting himself. As to the allegation of oppression in connection with a criminal case for slander where accused-complainant was the alleged offended party while respondent judge was then the Municipal Trial Judge of MTC, Branch 3, Bacolod City to which the case was being tried, Judge Chiongson belies the same. He explains that the prosecution in the said case had rested while the defense filed a demurrer which was granted. He narrates that the case for slander was filed by herein accused-complainant against Mrs. Esparcia, a school teacher and sister of a victim alleged to have been killed by the accused-complainant, when said Mrs. Esparcia told the accused-complainant "Murderer, why are you not in jail" or words to that effect. This was made when accused-complainant was seen roaming around the vicinity of the police station when he was supposed to be a detention prisoner. Accordingly, respondent judge granted the Demurrer on the finding of the court that the utterance of Mrs. Esparcia was not slanderous but was merely an expression of exasperation and disgust. On the charge of Gross Ignorance of the Law, for having tried Criminal Case No. 55099 for violation of B.P. 22 against accused-complainant in the absence of counsel, respondent judge asserts that accused-complainant has nothing to do with said criminal case as can be gleaned from the Order relied upon as basis for the aforementioned charge. Respondent judge concludes that the sequence of events hereinabove discussed, exposes clearly the false and dissembled charges filed against him as well as the determined efforts of the accused-complainant and his counsel to frustrate the ends of justice. We find this administrative complaint devoid of merit.

84

Verily, the facts and circumstances of this case point to the pervasive and prevaricated procrastination of the proceedings undertaken by the accused-complainant and his counsel. Contrary to what accused-complainant would want to impress upon this Court, it seems that he has been the oppressor while respondent judge Roberto Chiongson appears to be the oppressed. Through the course of the proceedings in the subject criminal case, accused-complainant had filed several Motions for Inhibition, a Petition for Certiorari and Mandamus and this administrative complaint with the view of delaying the eventual disposition of the case. A Memorandum of the Office of the Court Administrator (OCA) dated January 14, 1998 10 noted that "Criminal Case No. 94-15772 has been pending for almost four (4) years already and the prosecution has yet to rest its case. Complainant has thrown every legal strategy in the book to delay the trial. . . ." The claim of accused-complainant that respondent judge's appointment of a counsel de oficio constitutes a clear violation of his right to due process and a deprivation of his constitutional right to be defended by counsel of his own choice cannot be countenanced by this Court. An examination of related provisions in the Constitution concerning the right to counsel, will show that the "preference in the choice of counsel" pertains more aptly and specifically to a person under investigation 11 rather than one who is the accused in a criminal prosecution. 12 Even if we were to extend the application of the concept of "preference in the choice of counsel" to an accused in a criminal prosecution, such preferential discretion cannot partake of a discretion so absolute and arbitrary as would make the choice of counsel refer exclusively to the predilection of the accused. As held by this Court in the case of People vs. Barasina:
13

"Withal, the word "preferably" under Section 12(1), Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation, will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer, who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter"

Applying this principle enunciated by the Court, we may likewise say that the accused's discretion in a criminal prosecution with respect to his choice of counsel is not so much as to grant him a plenary prerogative which would preclude other equally competent and independent counsels from representing him. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused to the detriment of the eventual resolution of the case. Accused-complainant was not, in any way, deprived of his substantive and constitutional right to due process as he was duly accorded all the opportunities to be heard and to present evidence to substantiate his defense but he forfeited this right, for not appearing in court together with his counsel at the scheduled hearings. 14 Accused-complainant had more than sufficient time and every available opportunity to present his side which would have led to the expeditious termination of the case. A party cannot feign denial of due process when he had the opportunity to present his side. 15 Moreover, there is no denial of the right to counsel where a counsel de oficio was appointed during the absence of the accused's counsel de parte pursuant to the court's desire to finish the case as early as practicable under the continuous trial system. 16
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Thus, it has been held by this Court in the case of Lacambra v. Ramos: 17
"The Court cannot help but note the series of legal maneuvers resorted to and repeated importunings of the accused or his counsel, which resulted in the protracted trial of the case, thus making a mockery of the judicial process, not to mention the injustice caused by the delay to the victim's family."

Undoubtedly, it was accused-complainant's own strategic machinations which brought upon the need for the appointment of a counsel de oficio in as much as the criminal case had been dragging on its lethargic course. As to the charges of oppression and gross ignorance of the law against respondent judge relative to cases under him while he was still in the Municipal Trial Court, the same have been sufficiently answered in the Comments submitted in this case. The explanation by the respondent judge indicate that the aforesaid allegations have neither legal nor factual basis and that the conclusions made therein are merely conjectural. The actuation of respondent judge in this murder case does not warrant reproach and reprimand, but in fact, merits the acknowledgment and approval of this Court. Such manifestation of zeal clearly show respondent judge's ardent determination to expedite the case and render justice. The Code of Judicial Conduct mandates that a judge should administer justice impartially and without delay. 18 A judge should always be imbued with a high sense of duty and responsibility in the discharge of his obligation to promptly administer justice. 19 WHEREFORE, in view of the foregoing, the Court RESOLVED to: 1.DISMISS the administrative complaint against Judge Roberto S. Chiongson of RTC, Branch 50, Bacolod City for lack of merit. 2.IMPOSE a FINE of FIVE THOUSAND PESOS (P5,000.00) and ADMONISH accused-complainant Baltazar D. Amion for filing a malicious and unmeritorious complaint against Judge Roberto S. Chiongson to delay and prolong the prosecution of the case. 3.DIRECT Judge Roberto S. Chiongson to continue hearing the case and finally dispose of the same with utmost dispatch.
LLphil

SO ORDERED.

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

[G.R. No. 154464. September 11, 2008.] FERDINAND A. CRUZ, 332 Edang St., Pasay City, petitioner, vs. JUDGE PRISCILLA MIJARES, Presiding Judge, Regional Trial Court, Branch 108, Pasay City, Metro Manila, public respondent. BENJAMIN MINA, JR., 332 Edang St., Pasay City, private respondent.

DECISION
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NACHURA, J :
p

This is a Petition for Certiorari, Prohibition and Mandamus, with prayer for the issuance of a writ of preliminary injunction under Rule 65 of the Rules of Court. It was directly filed with this Court assailing the Resolutions dated May 10, 2002 1 and July 31, 2002 2 of the Regional Trial Court (RTC), Branch 108, Pasay City, which denied the appearance of the plaintiff Ferdinand A. Cruz, herein petitioner, as party litigant, and the refusal of the public respondent, Judge Priscilla Mijares, to voluntarily inhibit herself from trying the case. No writ of preliminary injunction was issued by this Court. The antecedents: On March 5, 2002, Ferdinand A. Cruz (petitioner) sought permission to enter his appearance for and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-0410, for Abatement of Nuisance. Petitioner, a fourth year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court 3that a non-lawyer may appear before any court and conduct his litigation personally. During the pre-trial, Judge Priscilla Mijares required the petitioner to secure a written permission from the Court Administrator before he could be allowed to appear as counsel for himself, a party-litigant. Atty. Stanley Cabrera, counsel for Benjamin Mina, Jr., filed a Motion to Dismiss instead of a pre-trial brief to which petitioner Cruz vehemently objected alleging that a Motion to Dismiss is not allowed after the Answer had been filed. Judge Mijares then remarked, "Hay naku, masama 'yung marunong pa sa Huwes. Ok?" and proceeded to hear the pending Motion to Dismiss and calendared the next hearing on May 2, 2002.
DTIcSH

On March 6, 2002, petitioner Cruz filed a Manifestation and Motion to Inhibit, 4 praying for the voluntary inhibition of Judge Mijares. The Motion alleged that expected partiality on the part of the respondent judge in the conduct of the trial could be inferred from the contumacious remarks of Judge Mijares during the pre-trial. It asserts that the judge, in uttering an uncalled for remark, reflects a negative frame of mind, which engenders the belief that justice will not be served. 5 In an Order 6 dated April 19, 2002, Judge Mijares denied the motion for inhibition stating that throwing tenuous allegations of partiality based on the said remark is not enough to warrant her voluntary inhibition, considering that it was said even prior to the start of pre-trial. Petitioner filed a motion for reconsideration 7 of the said order.
aSCHcA

On May 10, 2002, Judge Mijares denied the motion with finality. 8 In the same Order, the trial court held that for the failure of petitioner Cruz to submit the promised document and jurisprudence, and for his failure to satisfy the requirements or conditions under Rule 138-A of the Rules of Court, his appearance was denied. In a motion for reconsideration, 9 petitioner reiterated that the basis of his appearance was not Rule 138-A, but Section 34 of Rule 138. He contended that the two Rules were distinct and are applicable to different circumstances, but the respondent judge denied the same, still invoking Rule 138-A, in an Order 10 dated July 31, 2002. On August 16, 2002, the petitioner directly filed with this Court, the instant petition and assigns the following errors:
I. THE RESPONDENT REGIONAL TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED THE APPEARANCE OF THE PETITIONER, FOR AND IN THE LATTER'S BEHALF, IN CIVIL CASE NO. 01-0401 [sic] CONTRARY TO RULE 138, SECTION 34 OF THE RULES OF COURT, PROVIDING FOR THE APPEARANCE OF NON-LAWYERS AS A PARTY LITIGANT;
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II. THE RESPONDENT COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT DID NOT VOLUNTARILY INHIBIT DESPITE THE ADVENT OF JURISPRUDENCE [sic] THAT SUCH AN INHIBITION IS PROPER TO PRESERVE THE PEOPLE'S FAITH AND CONFIDENCE TO THE COURTS.
HcACST

The core issues raised before the Court are: (1) whether the extraordinary writs of certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules of Court may issue; and (2) whether the respondent court acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the appearance of the petitioner as party litigant and when the judge refused to inhibit herself from trying the case. This Court's jurisdiction to issue writs of certiorari, prohibition, mandamus and injunction is not exclusive; it has concurrent jurisdiction with the RTCs and the Court of Appeals. This concurrence of jurisdiction is not, however, to be taken as an absolute, unrestrained freedom to choose the court where the application therefor will be directed. 11 A becoming regard of the judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against the RTCs should be filed with the Court of Appeals. 12 The hierarchy of courts is determinative of the appropriate forum for petitions for the extraordinary writs; and only in exceptional cases and for compelling reasons, or if warranted by the nature of the issues reviewed, may this Court take cognizance of petitions filed directly before it. 13
aAHTDS

Considering, however, that this case involves the interpretation of Section 34, Rule 138 and Rule 138-A of the Rules of Court, the Court takes cognizance of herein petition. Nonetheless, the petitioner is cautioned not to continue his practice of filing directly before this Court petitions under Rule 65 when the issue raised can be resolved with dispatch by the Court of Appeals. We will not tolerate litigants who make a mockery of the judicial hierarchy as it necessarily delays more important concerns before us. In resolving the second issue, a comparative reading of Rule 138, Section 34 and Rule 138-A is necessary. Rule 138-A, or the Law Student Practice Rule, provides:
RULE 138-A LAW STUDENT PRACTICE RULE Section 1.Conditions for Student Practice. A law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school.
aDcEIH

Sec. 2.Appearance. The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.

The respondent court held that the petitioner could not appear for himself and on his behalf because of his failure to comply with Rule 138-A. In denying petitioner's appearance, the court a quo tersely finds refuge in the fact that, on December 18, 1986, this Court issued Circular No. 19, which eventually became Rule 138-A, and the failure of Cruz to prove on record that he is enrolled in a recognized school's clinical legal education program and is under supervision of an attorney duly accredited by the law school.
SaITHC

However, the petitioner insisted that the basis of his appearance was Section 34 of Rule 138, which provides:

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Sec. 34.By whom litigation is conducted. In the court of a justice of the peace, a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.

and is a rule distinct from Rule 138-A. From the clear language of this provision of the Rules, it will have to be conceded that the contention of the petitioner has merit. It recognizes the right of an individual to represent himself in any case to which he is a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. 14 Considering that a party personally conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice law, 15 petitioner, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own ignorance. Therefore, Cruz as plaintiff, at his own instance, can personally conduct the litigation of Civil Case No. 01-0410. He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent himself.
cSTHAC

The trial court must have been misled by the fact that the petitioner is a law student and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of the petitioner's claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while the latter rule allows the appearance of a non-lawyer as a party representing himself. The conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of Circular No. 19 is misplaced. The Court never intended to repeal Rule 138 when it released the guidelines for limited law student practice. In fact, it was intended as an addendum to the instances when a non-lawyer may appear in courts and was incorporated to the Rules of Court through Rule 138-A.
aCHcIE

It may be relevant to recall that, in respect to the constitutional right of an accused to be heard by himself and counsel, 16 this Court has held that during the trial, the right to counsel cannot be waived. 17 The rationale for this ruling was articulated in People v. Holgado, 18 where we declared that "even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence". The case at bar involves a civil case, with the petitioner as plaintiff therein. The solicitous concern that the Constitution accords the accused in a criminal prosecution obviously does not obtain in a civil case. Thus, a party litigant in a civil case, who insists that he can, without a lawyer's assistance, effectively undertake the successful pursuit of his claim, may be given the chance to do so. In this case, petitioner alleges that he is a law student and impliedly asserts that he has the competence to litigate the case himself. Evidently, he is aware of the perils incident to this decision.
EHTADa

In addition, it was subsequently clarified in Bar Matter 730, that by virtue of Section 34, Rule 138, a law student may appear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior courts. Here, we have a law student who, as party litigant, wishes to represent himself in court. We should grant his wish. Additionally, however, petitioner contends that the respondent judge committed manifest bias and partiality by ruling that there is no valid ground for her voluntary inhibition despite her alleged negative demeanor during the pre-trial when she said: "Hay naku, masama 'yung marunong pa sa Huwes. Ok?" Petitioner avers that by

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denying his motion, the respondent judge already manifested conduct indicative of arbitrariness and prejudice, causing petitioner's and his co-plaintiff's loss of faith and confidence in the respondent's impartiality.
DACIHc

We do not agree. It must be noted that because of this incident, the petitioner filed an administrative case 19 against the respondent for violation of the Canons of Judicial Ethics, which we dismissed for lack of merit on September 15, 2002. We now adopt the Court's findings of fact in the administrative case and rule that there was no grave abuse of discretion on the part of Judge Mijares when she did not inhibit herself from the trial of the case. In a Motion for Inhibition, the movant must prove the ground for bias and prejudice by clear and convincing evidence to disqualify a judge from participating in a particular trial, 20 as voluntary inhibition is primarily a matter of conscience and addressed to the sound discretion of the judge. The decision on whether she should inhibit herself must be based on her rational and logical assessment of the circumstances prevailing in the case before her. 21 Absent clear and convincing proof of grave abuse of discretion on the part of the judge, this Court will rule in favor of the presumption that official duty has been regularly performed.
AEDCHc

WHEREFORE, the Petition is PARTIALLY GRANTED. The assailed Resolution and Order of the Regional Trial Court, Branch 108, Pasay City are MODIFIED. Regional Trial Court, Branch 108, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Civil Case No. 01-0410 as a party litigant. No pronouncement as to costs. SO ORDERED.

Tinga, * Chico-Nazario, Velasco, Jr. * and Reyes, JJ., concur.

[G.R. No. L-65952. July 31, 1984.] LAURO G. SORIANO, JR., petitioners, vs. THE HONORABLE SANDIGANBAYAN AND THE PEOPLE OF THE PHILIPPINES, respondents.

Dakila F. Castro for petitioner. The Solicitor General for respondents.

DECISION

ABAD SANTOS, J :
p

The principal issue in this petition to review a decision of the Sandiganbayan is whether or not the preliminary investigation of a criminal complaint conducted by a Fiscal is a "contract or transaction" so as to bring it within the ambit of Section 3 (b) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The factual background is as follows:
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Thomas N. Tan was accused of qualified theft in a complaint lodged with the City Fiscal of Quezon City. The case was docketed as I.S. No. 82-2964 and assigned for investigation to the petitioner who was then an Assistant City Fiscal. In the course of the investigation the petitioner demanded P4,000.00 from Tan as the price for dismissing the case. Tan reported the demand to the National Bureau of Investigation which set up an entrapment. Because Tan was hard put to raise the required amount only P2,000.00 in bills were marked by the NBI which had to supply one-half thereof. The entrapment succeeded and an information was filed with the Sandiganbayan in Criminal Case No. 7393 which reads as follows:
"The undersigned Tanodbayan Special Prosecutor accuses LAURO G. SORIANO, for Violation of Section 3, paragraph (b) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 21st day of March 1983, at Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then and still is an Assistant City Fiscal of the Quezon City Fiscal's Office, detailed as the Investigating Fiscal in the case of MARIANNE Z. LACAMBRA versus THOMAS N. TAN, docketed as I.S. No. 822964, for Qualified Theft, taking advantage of his official position and with grave abuse of authority, did then and there willfully, unlawfully and feloniously demand and request from Thomas N. Tan the amount of FOUR THOUSAND PESOS (P4,000.00) Philippine Currency, and actually received from said Thomas N. Tan the amount of TWO THOUSAND PESOS (P2,000.00) Philippine Currency, in consideration for a favorable resolution by dismissing the abovementioned case, wherein said accused has to intervene in his official capacity as such Investigating Fiscal. CONTRARY TO LAW. Manila, Philippines, March 22, 1983. (SGD.) EDGARDO C. LABELLA Special Prosecutor"

After trial the Sandiganbayan rendered a decision with the following dispositive portion:
"WHEREFORE, the Court finds accused Lauro G. Soriano, Jr., GUILTY beyond reasonable doubt, as Principal, in the Information, for Violation of Section 3, paragraph (b), of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby sentences him to suffer the indeterminate penalty of imprisonment ranging from SIX (6) YEARS and ONE (1) MONTH, as minimum, to NINE (9) YEARS and ONE (1) DAY, as maximum; to suffer perpetual disqualification from public office; to suffer loss of all retirement or gratuity benefits under any law; and, to pay costs. "Of the sum of Two Thousand Pesos (P2,000.00) used in the entrapment operations, and which was fully recovered from the accused, One Thousand Pesos (P1,000.00) shall be returned to private complainant Thomas N. Tan, and the other half, to the National Bureau of Investigation, National Capital Region."

A motion to reconsider the decision was denied by the Sandiganbayan; hence the instant petition. The petitioner has raised several legal questions plus one factual question. The latter is to the effect that the Sandiganbayan convicted him on the weakness of his defense and not on the strength of the prosecution's evidence, This claim is not meritorious not only because it is not for Us to review the factual findings of the courta quo but also because a reading of its decision shows that it explicitly stated the facts establishing the guilt of the petitioner and the competence of the witnesses who testified against him.

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As stated above, the principal issue is whether or not the investigation conducted by the petitioner can be regarded as a "contract or transaction" within the purview of Sec. 3 (b) of R.A. No. 3019. On this issue the petition is highly impressed with merit. The afore-mentioned provision reads as follows:
"SEC. 3.Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
prcd

(a) . . . (b)Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law."

The petitioner states:

"Assuming in gratia argumenti, petitioner's guilt, the facts make out a case of Direct Bribery defined and penalized under the provision of Article 210 of the Revised Penal Code and not a violation of Section 3, subparagraph (b) of Rep. Act 3019, as amended. "The evidence for the prosecution clearly and undoubtedly support, if at all, the offense of Direct Bribery, which is not the offense charged and is not likewise included in or is necessarily included in the offense charged, which is for violation of Section 3, subparagraph (b) of Rep. Act 3019, as amended. The prosecution showed that: the accused is a public officer; in consideration of P4,000.00 which was allegedly solicited, P2,000.00 of which was allegedly received, the petitioner undertook or promised to dismiss a criminal complaint pending preliminary investigation before him, which may or may not constitute a crime; that the act of dismissing the criminal complaint pending before petitioner was related to the exercise of the function of his office. Therefore, it is with pristine clarity that the offense proved, if at all, is Direct Bribery." (Petition, p. 5.)

Upon the other hand, the respondents claim:

"A reading of the above-quoted provision would show that the term 'transaction' as used thereof is not limited in its scope or meaning to a commercial or business transaction but includes all kinds of transaction, whether commercial, civil or administrative in nature, pending with the government. This must be so, otherwise, the Act would have so stated in the 'Definition of Terms', Section 2 thereof. But it did not, perforce leaving no other interpretation than that the expressed purpose and object is to embrace all kinds of transaction between the government and other party wherein the public officer would intervene under the law." (Comment, p. 8.)

It is obvious that the investigation conducted by the petitioner was not a contract. Neither was it a transaction because this term must be construed as analogous to the term which precedes it. A transaction, like a contract, is one which involves some consideration as in credit transactions and this element (consideration) is absent in the investigation conducted by the petitioner. In the light of the foregoing, We agree with the petitioner that it was error for the Sandiganbayan to have convicted him of violating Sec. 3 (b) of R.A. No. 3019. The petitioner also claims that he cannot be convicted of bribery under the Revised Penal Code because to do so would be violative of his constitutional right to be informed of the nature and cause of the accusation against him. Wrong. A reading of the information which has been reproduced herein clearly makes out a case of bribery so that the petitioner cannot claim deprivation of the right to be informed.
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IN THE LIGHT OF THE FOREGOING, the judgment of the Sandiganbayan is modified in that the petitioner is deemed guilty of bribery as defined and penalized by Article 210 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate penalty of six (6) months of arresto mayor, as minimum, to two (2) years ofprision correccional, as maximum, and to pay a fine of Two Thousand (P2,000.00) Pesos. The rest of the judgment is hereby affirmed. Costs against the petitioner.
Cdpr

SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

[G.R. No. L-45667. June 20, 1977.] MANUEL BORJA, petitioner, vs. HON. RAFAEL T. MENDOZA, Judge of the Court of First Instance of Cebu (Branch VI) and HON. ROMULO R. SENINING, Judge of the City Court of Cebu (Branch I), respondents.

Hermis I. Montecillo for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor Jose F. Racela, Jr. and Solicitor Carlos N. Ortega for respondents.

DECISION

FERNANDO, J :
p

The jurisdictional infirmity imputed to respondent Judge Romulo R. Senining of the City Court of Cebu which was not remedied by respondent Judge Rafael T. Mendoza of the Court of First Instance of Cebu in this certiorari proceeding was the absence of an arraignment of petitioner Manuel Borja, who was accused of slight physical injuries. This notwithstanding, respondent Judge Senining proceeded with the trial in absentia and thereafter, in a decision promulgated on August 18, 1976, found him guilty of such offense and sentenced him to suffer imprisonment for a period of twenty days of arresto menor. 1 Thereafter, an appeal was duly elevated to the Court of First Instance of Cebu presided by respondent Judge Mendoza. 2 It was then alleged that without any notice to petitioner and without requiring him to submit his memorandum, a decision on the appealed case was rendered on November 16, 1976 affirming the judgment of the City Court. It is the contention of petitioner that the failure to arraign him is violative of his constitutional right to procedural due process, 3 more specifically of his right to be informed of the nature and cause of the accusation against him and of his right to be heard by himself and counsel. 4 There was thus, at the very least, a grave abuse of discretion. The Solicitor General, 5 when asked to comment, agreed that the procedural defect was of such gravity as to render void the decision of the City Court affirmed by the Court of First Instance. The comment was considered as answer, with the case being submitted for decision. Respect for the constitutional rights of an accused as authoritatively construed by this Court, duly taken note of in the comment of the Solicitor General, thus calls for the grant of the writ of certiorari prayed for.

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1.The plea of petitioner to nullify the proceedings had in the criminal case against him finds support in the procedural due process mandate of the Constitution. It requires that the accused be arraigned so that he may be informed as to why he was indicted and what penal offense he has to face, to be convicted only on a showing that his guilt is shown beyond reasonable doubt with full opportunity to disprove the evidence against him. Moreover, the sentence to be imposed in such a case is to be in accordance with a valid law. 6 This Court, in People v. Castillo, 7 speaking through Justice De Joya and following the language of the American Supreme Court, identified due process with the accused having "been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded with the authority of a constitutional law, . . . ." 8 An arraignment thus becomes indispensable as the means "for bringing the accused into court and notifying him of the cause he is required to meet . . ." 9 Its importance was stressed by Justice Moreland as early as 1916 in the leading case of United States v. Binayoh. 10 He pointed out that upon the accused being arraigned, "there is a duty laid by the Code [now the Rules of Court] upon the court to inform [him] of certain rights and to extend to him, on his demand, certain others. This duty is an affirmative one which the court, on its own motion, must perform, unless waived." 11 To emphasize its importance, he added: "No such duty, however, is laid on the court with regard to the rights of the accused which he may be entitled to exercise during the trial. Those are rights which he must assert himself and the benefits of which he himself must demand. In other words, in the arraignment the court must act of its own volition, . . . ." 12 In the terse and apt language of the Solicitor General: "Arraignment is an indispensable requirement in any criminal prosecution." 13 Procedural due process demands no less. 2.Nor is it only the due process guarantee that calls for the accused being duly arraigned. As noted, it is at that stage where in the mode and manner required by the Rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him. It is imperative that he is thus made fully aware of possible loss of freedom, even of his life, depending on the nature of the crime imputed to him. At the very least then, he must be fully informed of why the prosecuting arm of the state is mobilized against him. An arraignment serves that purpose. Thereafter, he is no longer in the dark. It is true, the complaint or information may not be worded with sufficient clarity. He would be in a much worse position though if he does not even have such an opportunity to plead to the charge. With his counsel by his side, he is thus in a position to enter his plea with full knowledge of the consequences. He is not even required to do so immediately. He may move to quash. What is thus evident is that an arraignment assures that he be fully acquainted with the nature of the crime imputed to him and the circumstances under which it is allegedly committed. It is thus a vital aspect of the constitutional rights guaranteed him. It is not useless formality, much less an idle ceremony. 3.An equally fatal defect in the proceeding had before respondent Judge Senining was that notwithstanding its being conducted in the absence of petitioner, he was convicted. It was shown that after one postponement due to his failure to appear, the case was reset for hearing. When that date came, December 14, 1973, without petitioner being present, although his bondsmen were notified, respondent Judge, as set forth in the comment of the Solicitor General, "allowed the prosecution to present its evidence invoking Letter of Instruction No. 40. Only one witness testified, the offended party herself, and three documents were offered in evidence after which the prosecution rested its case. Thereupon, respondent City Court set the promulgation of the decision on December 28, 1973." 14 It could then conclude: "Verily, the records clearly show that petitioner was not arraigned at all and was not represented by counsel throughout the whole proceedings in the respondent City Court." 15 It is indisputable then that there was a denial of petitioner's constitutional right to be heard by himself and counsel. As categorically affirmed by Justice Ozaeta for this Court in the leading case of Abriol v. Homeres: 16 "It is the constitutional right of the accused to be heard in his defense before sentence is pronounced on him." 17 He added further that such "constitutional right is inviolate." 18 There is no doubt that it could be waived, but here there was no such waiver, whether express or implied. It suffices to refer to another leading case, People v. Holgado, 19 where the then Chief Justice Moran emphatically took note of the importance of the right to counsel: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty
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but because he does not know how to establish his innocence." 20 With the violation of the constitutional right to be heard by himself and counsel being thus manifest, it is easily understandable why the Solicitor General agreed with petitioner that the sentence imposed on him should be set aside for being null. 4.The provision in the present Constitution allowing trial to be held in absentia is unavailing. It cannot justify the actuation of respondent Judge Senining. Its language is clear and explicit. What is more, it is mandatory. Thus: "However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified." 21 As pointed out then by the Solicitor General, the indispensable requisite for trial in absentia is that it should come "after arraignment." The express mention in the present Constitution of the need for such a step emphasizes its importance in the procedural scheme to accord an accused due process. Without the accused having been arraigned, it becomes academic to discuss the applicability of this exception to the basic constitutional right that the accused should be heard by himself and counsel. 5.Nor did the appeal to the Court of First Instance presided by respondent Judge Mendoza possess any curative aspect. To quote anew from the comment of the Solicitor General: "Respondent Court of First Instance . . . considered the appeal taken by the petitioner as waiver of the defects in the proceedings in the respondent City Court. Precisely, the appeal itself is tantamount to questioning those defects. In fact, the Memorandum in support of the appeal unmistakably raised as error the absence of petitioner at the arraignment and cited jurisprudence, commentaries and the rules to bolster his position. Specifically, the absence of an arraignment can be invoked at anytime in view of the requirements of due process to ensure a fair and impartial trial." 22 WHEREFORE, the petition for certiorari is granted. The decision of respondent Judge Romulo R. Senining dated December 28, 1973, finding the accused guilty of the crime of slight physical injuries, is nullified and set aside. Likewise, the decision of respondent Judge Rafael T. Mendoza dated November 16, 1976, affirming the aforesaid decision of Judge Senining, is nullified and set aside. The case is remanded to the City Court of Cebu for the prosecution of the offense of slight physical injuries, with due respect and observance of the provisions of the Rules of Court, starting with the arraignment of petitioner.

Barredo, Antonio, Aquino and Fernandez, JJ., concur. Concepcion Jr., J., is on leave.

[G.R. No. 179061. July 13, 2009.] SHEALA P. MATRIDO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CARPIO MORALES, J :
p

Sheala Matrido (petitioner) assails the May 31, 2007 Decision and August 1, 2007 Resolution of the Court of Appeals, 1 which affirmed the trial court's Decision of December 13, 2004 convicting her of qualified theft.

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As a credit and collection assistant of private complainant Empire East Land Holdings, Inc., petitioner was tasked to collect payments from buyers of real estate properties such as Laguna Bel-Air developed by private complainant, issue receipts therefor, and remit the payments to private complainant in Makati City. On June 10, 1999, petitioner received amortization payment from one Amante dela Torre in the amount of P22,470.66 as evidenced by the owner's copy 2 of Official Receipt No. 36547, but petitioner remitted only P4,470.66 to private complainant as reflected in the treasury department's copy 3 of Official Receipt No. 36547 submitted to private complainant, both copies of which bear the signature of petitioner and reflect a difference of P18,000. On private complainant's investigation, petitioner was found to have failed to remit payments received from its clients, prompting it to file various complaints, one of which is a Complaint-Affidavit of September 21, 2000 4 for estafa, docketed as I.S. No. 2000-I-32381 in the Makati Prosecutor's Office. In the meantime or in October 2000, petitioner paid private complainant the total amount of P162,000, 5 drawing private complainant to desist from pursuing some related complaints. A few other cases including I.S. No. 2000-I-32381 pushed through, however, since the amount did not sufficiently cover petitioner's admitted liability of P400,000. 6 By Resolution of November 15, 2000, 7 the City Prosecution Office of Makati dismissed the Complaint for estafa for insufficiency of evidence but found probable cause to indict petitioner for qualified theft under an Information which reads:
That on or about the 10th day of June 1999, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then a Credit and Collection Assistant employed by complainant, EMPIRE EAST LAND HOLDINGS, INC., herein represented by Leilani N. Cabuloy, and as such had access to the payments made by complainant's clients, with grave abuse of confidence, intent of gain and without the knowledge and consent of the said complainant company, did then and there willfully, unlawfully and feloniously take, steal and carry away the amount of P18,000.00 received from Amante Dela Torre, a buyer of a house and lot being marketed by complainant company, to the damage and prejudice of the said complainant in the aforementioned amount of P18,000.00.
AHCETa

CONTRARY TO LAW.

On arraignment, petitioner entered a plea of "not guilty". 9 After trial, Branch 56 of the Regional Trial Court (RTC) of Makati, by Decision of December 13, 2004 which was promulgated on April 28, 2005, convicted petitioner of qualified theft, disposing as follows:
WHEREFORE, accused SHEALA P. MATRIDO is hereby sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day to twelve (12) years[,] five (5) months and ten (10) days. Accused is further ordered to pay complainant EMPIRE EAST LAND HOLDINGS, INC., the amount of P18,000.00. SO ORDERED.
10

By the challenged Decision of May 31, 2007, 11 the Court of Appeals affirmed the trial court's decision, hence, the present petition which raises the sole issue of whether the appellate court "gravely erred in affirming the decision of the trial [court] convicting the petitioner of the crime of qualified theft despite the fact that the prosecution tried to prove during the trial the crime of estafa thus denying the petitioner the right to be informed of the nature and cause of accusation against her".12

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Petitioner posits that despite her indictment for qualified theft, the prosecution was trying to prove estafa during trial, thus violating her right to be informed of the nature and cause of the accusation against her. The petition fails. In Andaya v. People, 13 the Court expounded on the constitutional right to be informed of the nature and cause of the accusation against the accused.
. . . As early as the 1904 case of U.S. v. Karelsen, the rationale of this fundamental right of the accused was already explained in this wise: The object of this written accusation was First. To furnish the accused with such a description of the charge against him as will enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. In order that this requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstances necessary to constitute the crime charged.
IECcaA

It is fundamental that every element constituting the offense must be alleged in the information. The main purpose of requiring the various elements of a crime to be set out in the information is to enable the accused to suitably prepare his defense because he is presumed to have no independent knowledge of the facts that constitute the offense. The allegations of facts constituting the offense charged are substantial matters and an accused's right to question his conviction based on facts not alleged in the information cannot be waived. No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. 14 (Citations omitted; underscoring supplied)

It is settled that it is the allegations in the Information that determine the nature of the offense, not the technical name given by the public prosecutor in the preamble of the Information. From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform

the acts alleged in the body of the information in the manner therein set forth.

15

Gauging such standard against the wording of the Information in this case, the Court finds no violation of petitioner's rights. The recital of facts and circumstances in the Information sufficiently constitutes the crime of qualified theft. As alleged in the Information, petitioner took, intending to gain therefrom and without the use of force upon things or violence against or intimidation of persons, a personal property consisting of money in the amount P18,000 belonging to private complainant, without its knowledge and consent, thereby gravely abusing the confidence reposed on her as credit and collection assistant who had access to payments from private complainant's clients, specifically from one Amante Dela Torre.

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As defined, theft is committed by any person who, with intent to gain, but without violence against, or intimidation of persons nor force upon things, shall take the personal property of another without the latter's consent. 16 If committed with grave abuse of confidence, the crime of theft becomes qualified. 17 In prcis, the elements of qualified theft punishable under Article 310 in relation to Articles 308 and 309 of the Revised Penal Code (RPC) are as follows: 1.There was a taking of personal property. 2.The said property belongs to another. 3.The taking was done without the consent of the owner. 4.The taking was done with intent to gain. 5.The taking was accomplished without violence or intimidation against person, or force upon things. 6.The taking was done under any of the circumstances enumerated in Article 310 of the RPC, i.e., with grave abuse of confidence. 18 In the present case, both the trial court and the appellate court noted petitioner's testimonial admission of unlawfully taking the fund belonging to private complainant and of paying a certain sum to exculpate herself from liability. That the money, taken by petitioner without authority and consent, belongs to private complainant, and that the taking was accomplished without the use of violence or intimidation against persons, nor force upon things, there is no issue. Intent to gain or animus lucrandi is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation. Actual gain is irrelevant as the important consideration is the intent to gain. 19 The taking was also clearly done with grave abuse of confidence. As a credit and collection assistant of private complainant, petitioner made use of her position to obtain the amount due to private complainant. As gathered from the nature of her functions, her position entailed a high degree of confidence reposed by private complainant as she had been granted access to funds collectible from clients. Such relation of trust and confidence was amply established to have been gravely abused when she failed to remit the entrusted amount of collection to private complainant.
EHIcaT

The Court finds no rhyme or reason in petitioner's contention that what the prosecution tried to prove during trial was estafa through misappropriation under Article 315 (1) (b) of the RPC.
. . . The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa. 20 (Underscoring supplied)

The appellate court correctly explained that conversion of personal property in the case of an employee having material possession of the said property constitutes theft, whereas in the case of an agent to whom both material and juridical possession have been transferred, misappropriation of the same property constitutes
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estafa. 21 Notably, petitioner's belated argument that she was not an employee but an agent of private complainant 22 grants her no respite in view of her stipulation23 during pre-trial and her admission 24 at the witness stand of the fact of employment. Petitioner's reliance on estafa cases involving factual antecedents of agency transactions is thus misplaced.
aASEcH

That petitioner did not have juridical possession over the amount or, in other words, she did not have a right over the thing which she may set up even against private complainant is clear. 25 In fact, petitioner never asserted any such right, hence, juridical possession was lodged with private complainant and, therefore, estafa was not committed. Petitioner's view that there could be no element of taking since private complainant had no actual possession of the money fails. The argument proceeds from the flawed premise that there could be no theft if the accused has possession of the property. The taking away of the thing physically from the offended party is not elemental, 26 as qualified theft may be committed when the personal property is in the lawful possession of the accused prior to the commission of the alleged felony.27 A sum of money received by an employee in behalf of an employer is considered to be only in the material possession of the employee. 28 The material possession of an employee is adjunct, by reason of his employment, to a recognition of the juridical possession of the employer. So long as the juridical possession of the thing appropriated did not pass to the employee-perpetrator, the offense committed remains to be theft, qualified or otherwise. 29
. . . When the money, goods, or any other personal property is received by the offender from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received. Juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner. In this case, petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a bank teller, both being mere bank employees. 30 (Italics in the original omitted; underscoring and emphasis supplied)

That the transaction occurred outside the company premises of private complainant is of no moment, given that not all business deals are transacted by employees within the confines of an office, and that field operations do not define an agency. What is of consequence is the nature of possession by petitioner over the property subject of the unlawful taking. On the penalty imposed by the trial court, which was affirmed by the appellate court indeterminate penalty of 10 years and 1 day to 12 years, 5 months and 10 days: The penalty for qualified theft is two degrees higher than the applicable penalty for simple theft. The amount stolen in this case was P18,000.00. In cases of theft, if the value of the personal property stolen is more than P12,000.00 but does not exceed P22,000.00, the penalty shall be prision mayor in its minimum and medium periods. Two degrees higher than this penalty is reclusion temporal in its medium and maximum periods or 14 years, 8 months and 1 day to 20 years. Applying the Indeterminate Sentence Law, the minimum shall be prision mayor in its maximum period to reclusion temporal in its minimum period or within the range of 10 years and 1 day to 14 years and 8 months. 31 The mitigating circumstance of voluntary surrender being present, the maximum penalty shall be the minimum period of reclusion temporal in its medium and maximum periods or within the range of 14 years, 8 months and 1 day to 16 years, 5 months and 20 days.
AECacT

The Court thus affirms the minimum penalty, but modifies the maximum penalty imposed.

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WHEREFORE, the Decision of May 31, 2007 and Resolution of August 1, 2007 of the Court of Appeals in CAG.R. CR No. 29593 is AFFIRMED with MODIFICATION as to the imposed penalty, such that petitioner, Sheala P. Matrido, is sentenced to suffer the indeterminate penalty of 10 years and 1 day of prision mayor, as minimum, to 14 years, 8 months and 1 day of reclusion temporal, as maximum. SO ORDERED.

Quisumbing, Chico-Nazario, * Leonardo-de Castro ** and Brion, JJ., concur.

[G.R. Nos. 140546-47. January 20, 2003.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO TEE a.k.a. ESTOY TEE, accused-appellant.

The Solicitor General for plaintiff-appellee. Jose Mencio Molintas for accused-appellant.
SYNOPSIS Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid conducted by the operatives of the NBI and the PNP NARCOM at the premises allegedly leased by appellant and at his residence yielded huge quantities of marijuana. The City Prosecutor of Baguio City charged appellant with illegal possession of marijuana, which later on resulted to the filing of two separate informations which were docketed to Criminal Cases Nos. 15800-R and 15822-R. In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of marijuana from appellant's rented premises was the result of an illegal search and hence, inadmissible in evidence against appellant. Appellant was accordingly acquitted of the charge. However, the trial court found that the evidence for the prosecution was more than ample to prove appellant's guilt in Criminal Case No. 15800-R and duly convicted him of illegal possession of marijuana and sentenced him to death. Hence, this automatic review. According to the Court, there was no grave abuse of discretion committed by the trial court when it ordered the so-called reopening of the case to complete the testimony of the prosecution witness. Appellant was never deprived of his day in court. Appellant was given every opportunity to support his case or to refute the prosecution's evidence after the prosecution rested its case. The physical evidence in this case corroborated what the prosecution's witness testified to. Hence, the Supreme Court affirmed the trial court's finding that appellant was guilty of the crime charged. The penalty, however; was reduced to reclusion perpetua as neither mitigating nor aggravating circumstance was present in the instant case. SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCHES AND SEIZURES; WARRANT ISSUED SHOULD DESCRIBE WITH PARTICULARITY THE THINGS TO BE SEIZED; RATIONALE. The constitutional requirement of reasonable particularity of description of the things to be seized is primarily meant to enable the law enforcers serving the warrant to: (1) readily identify the properties to be seized and thus prevent them from seizing the wrong items; and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures. What the Constitution seeks to avoid are search
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warrants of broad or general characterization or sweeping descriptions, which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense. 2.ID.; ID.; ID.; ID.; WHEN TECHNICAL DESCRIPTION IS NOT NECESSARY; APPLICATION IN CASE AT BAR. However, it is not required that technical precision of description be required, particularly, where by the nature of the goods to be seized, their description must be rather general, since the requirement of a technical description would mean that no warrant could issue. Thus, it has been held that the term "narcotics paraphernalia" is not so wanting in particularity as to create a general warrant. Nor is the description "any and all narcotics" and "all implements, paraphernalia, articles, papers and records pertaining to" the use, possession, or sale of narcotics or dangerous drugs so broad as to be unconstitutional. A search warrant commanding peace officers to seize "a quantity of loose heroin" has been held sufficiently particular. Tested against the foregoing precedents, the description "an undetermined amount of marijuana" must be held to satisfy the requirement for particularity in a search warrant: Noteworthy, what is to be seized in the instant case is property of a specified character, i.e., marijuana, an illicit drug. By reason of its character and the circumstances under which it would be found, said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to such character, the place, and the circumstances. Thus, this Court has held that the description "illegally in possession of undetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of paraphernalia" particularizes the things to be seized. 3.ID.; ID.; ID.; SEARCH WARRANT; REQUIRES THAT THE JUDGE MUST PERSONALLY EXAMINE THE COMPLAINANT AND HIS WITNESSES UNDER OATH OR AFFIRMATION BEFORE THE ISSUANCE THEREOF. Before a valid search warrant is issued, both the Constitution and the 2000 Revised Rules of Criminal Procedure require that the judge must personally examine the complainant and his witnesses under oath or affirmation. The personal examination must not be merely routinary or pro forma, but must be probing and exhaustive. . . . It is presumed that a judicial function has been regularly performed, absent a showing to the contrary. A magistrate's determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched.
IAEcaH

4.REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; GROUNDS AND OBJECTIONS NOT RAISED THEREIN PRESUMED WAIVED. But it is settled that when a motion to quash a warrant is filed, all grounds and objections then available; existent or known, should be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they are deemed waived. 5.ID.; ID.; RIGHT TO SPEEDY TRIAL; DEFINED AND CONSTRUED. A speedy trial means a trial conducted according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious, and oppressive delays. In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that "where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance, for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, byhabeas corpus to obtain his freedom." The concept of speedy trial is necessarily relative. A determination as to whether the right has been violated involves the weighing of several factors such as the length of the delay, the reason for the delay, the conduct of the prosecution and the accused, and the efforts exerted by the defendant to assert his right, as well as the prejudice and damage caused to the accused. 6.ID.; ID.; ID.; WHEN DEEMED VIOLATED. The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred eighty (180) days. However, in determining the right of an accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. The right to a speedy trial is deemed violated only when:
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(1) the proceedings are attended by vexatious, capricious, and oppressive delays; or (2) when unjustified postponements are asked for and secured; or (3) when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. 7.ID.; ID.; REOPENING OF CASES; RESTS UPON THE DISCRETION OF THE TRIAL COURT; RESTRICTIONS THEREOF, NOT PRESENT IN CASE AT BAR. As a rule, the matter of reopening of a case for reception of further evidence after either prosecution or defense has rested its case is within the discretion of the trial court. However, a concession to a reopening must not prejudice the accused or deny him the opportunity to introduce counter evidence. Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to reopen may properly be presented only after either or both parties have formally offered and closed their evidence, but before judgment. 8.ID.; EVIDENCE; TESTIMONY OF WITNESS; CANNOT BE DISREGARDED ENTIRELY EVEN WHEN ONLY PART THEREOF WERE FOUND TRUE; APPLICATION IN CASE AT BAR. It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent person is made to suffer the unusually severe penalties meted out for drug offenses. Though we scrutinized minutely the testimony of Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear aware of treading the thin line between innocence and feeling guilty, with certain portions of his story tending to be self-exculpatory. However, his whole testimony could not be discredited. The established rule is that testimony of a witness may be believed in part and disbelieved in other parts, depending on the corroborative evidence and the probabilities and improbabilities of the case. But it is accepted, as a matter of common sense, that if certain parts of a witness' testimony are found true, his testimony cannot be disregarded entirely. 9.CRIMINAL LAW; ILLEGAL POSSESSION OF DANGEROUS DRUGS; ELEMENTS; CONSTRUED. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug. . . . In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to all persons and proscribes the sale of dangerous drugs by any person, and no person is authorized to sell such drugs. Said doctrine is equally applicable with respect to possession of prohibited drugs. Republic Act No. 6425, which penalizes the possession of prohibited drugs, applies equally to all persons in this jurisdiction and no person is authorized to possess said articles, without authority of law. Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be with knowledge of the accused or that animus possidendi existed together with the possession or control of said articles. Nonetheless, this dictum must be read in consonance with our ruling that possession of a prohibited drug per se constitutesprima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession. In effect, the onus probandi is shifted to the accused to explain the absence of knowledge or animus possidendi in this situation.

10.ID.; ID.; PENALTY. The legislature never intended that where the quantity involved exceeds those stated in Section 20 of Republic Act No. 6425 the maximum penalty of death shall automatically be imposed. The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, the penalty to be imposed must conform with Article 63 of the Revised Penal Code. As already held, the death penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code. The rules in Article 63 apply although the prohibited drugs involved are in excess of the quantities provided for in Section 20 of Republic Act No. 6425. Thus, finding neither mitigating nor aggravating circumstances in the present case, appellant's possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R, does not merit capital punishment but only the lesser penalty of reclusion perpetua.

DECISION
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QUISUMBING, J :
p

For automatic review is the consolidated judgment 1 of the Regional Trial Court (RTC) of Baguio City, Branch 6, dated September 17, 1999, in Criminal Cases Nos. 15800-R and 15822-R, involving violations of Section 8, Article II, of the Dangerous Drugs Law. 2 Since appellant was acquitted in the second case, we focus on the first case, where appellant has been found guilty and sentenced to death and fined one million pesos. The decretal portion of the trial court's decision reads:
WHEREFORE, judgment is hereby rendered, as follows: 1.In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee guilty beyond reasonable doubt of the offense of illegal possession of marijuana of about 591.81 kilos in violation of Section 8, Article II of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information, seized by virtue of a search warrant and sentences him to the supreme penalty of death and to pay a fine of 1 million pesos without subsidiary imprisonment in case of insolvency. The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U-1 to U-27) are ordered forfeited in favor of the State to be destroyed immediately in accordance with law. 2.In Crim. Case No. 15822-R, the Court finds that the prosecution failed to prove the guilt of accused Modesto Tee beyond reasonable doubt and hereby acquits him of the charge of illegal possession of marijuana in violation of Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information since the marijuana confiscated have to be excluded in evidence as a product of unreasonable search and seizure. The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B to S and their component parts) although excluded in evidence as the product(s) of unreasonable search and seizure, are nevertheless ordered forfeited in favor of the State to be destroyed immediately in accordance with law considering that they are prohibited articles. The City Jail Warden is, therefore, directed to release the accused Modesto Tee in connection with Crim. Case No. 15822-R unless held on other charges. COST(S) DE OFICIO. SO ORDERED.
3

Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid conducted by operatives of the National Bureau of Investigation (NBI) and Philippine National Police Narcotics Command (PNP NARCOM) at premises allegedly leased by appellant and at his residence yielded huge quantities of marijuana. On July 20, 1998, appellant moved to quash the search warrant on the ground that it was too general and that the NBI had not complied with the requirements for the issuance of a valid search warrant. The pendency of said motion, however, did not stop the filing of the appropriate charges against appellant. In an information dated July 24, 1998, docketed as Criminal Case No. 15800-R, the City Prosecutor of Baguio City charged Modesto Tee, alias "Estoy Tee," with illegal possession of marijuana, allegedly committed as follows:
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit: 1.Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and
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2.One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; and 3.Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (boxes) and a yellow sack, weighing 591.81 kilograms, all having a grand total weight of 928.74 kilograms, a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.
4

On August 7, 1998, the prosecution moved to "amend" the foregoing charge sheet "considering that subject marijuana were seized in two (2) different places." 5 As a result, the information in Criminal Case No. 15800-R was amended to read as follows:
That on or about the 1st day of July, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit: -Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (26) boxes and a yellow sack, weighing 591.81 kilograms a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.
6

A separate amended information docketed as Criminal Case No. 15822-R was likewise filed, the accusatory portion of which reads:
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit: 1.Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and 2.hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law. CONTRARY TO LAW.
7

On September 4, 1998, the trial court denied the motion to quash the search warrant and ordered appellant's arraignment. When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to enter a plea. The trial court entered a plea of not guilty for him. 8 Trial on the merits then ensued. The facts of this case, as gleaned from the records, are as follows:

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Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the appellant Modesto Tee are well acquainted with each other, since Abratique's wife is the sister of Tee's sister-in-law. 9 Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggled cigarettes. 10 Abratique brought appellant to his friend, Albert Ballesteros, who had a house for rent in Bakakeng, Baguio City. After negotiating the terms and conditions, Ballesteros agreed to rent out his place to appellant. Appellant then brought several boxes of purported "blue seal" cigarettes to the leased premises. Shortly thereafter, however, Ballesteros learned that the boxes stored in his place were not "blue seal" cigarettes but marijuana. Fearful of being involved, Ballesteros informed Abratique. Both later prevailed upon appellant to remove them from the premises. 11 Appellant then hired Abratique's taxi and transported the boxes of cannabis from the Ballesteros place to appellant's residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. 12 On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet on the pretext of buying and transporting strawberries. Upon reaching La Trinidad, however, appellant directed Abratique to proceed to Sablan, Benguet, where appellant proceeded to load several sacks of marijuana in Abratique's taxi. He then asked Abratique to find him a place where he could store the contraband. 13 Abratique brought appellant to his grandmother's house at No. 27 Dr. Cario St., QM Subdivision, Baguio City, which was being managed by Abratique's aunt, Nazarea Abreau. Nazarea agreed to rent a room to appellant. Abratique and appellant unloaded and stored there the sacks of marijuana brought from Sablan. 14 Abratique was aware that they were transporting marijuana as some of the articles in the sacks became exposed in the process of loading. 15 Eventually, Abratique and Nazarea were bothered by the nature of the goods stored in the rented room. She confided to her daughter, Alice Abreau Fianza, about their predicament. As Alice Fianza's brother-in-law, Edwin Fianza, was an NBI agent, Alice and Abratique phoned him and disclosed what had transpired. 16 On the morning of July 1, 1998, alerted by information that appellant would retrieve the sacks of prohibited drugs that day, Edwin Fianza and other NBI operatives conducted a stake out at No. 27, Dr. Cario St. While the NBI agents were conducting their surveillance, they noticed that several PNP NARCOM personnel were also watching the place. 17 The NBI then learned that the PNP NARCOM had received a tip from one of their informers regarding the presence of a huge amount of drugs in that place. The NBI and PNP NARCOM agreed to have a joint operation. As the day wore on and appellant did not show up, the NBI agents became apprehensive that the whole operation could be jeopardized. They sought the permission of Nazarea Abreau to enter the room rented by appellant. She acceded and allowed them entry. The NBI team then searched the rented premises and found four (4) boxes and thirteen (13) sacks of marijuana, totaling 336.93 kilograms. 18

Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness, applied for a search warrant from RTC Judge Antonio Reyes at his residence. 19Judge Reyes ordered the NBI agents to fetch the Branch Clerk of Court, Atty. Delilah Muoz, so the proceedings could be properly recorded. After Atty. Muoz arrived, Judge Reyes questioned Lising and Abratique. Thereafter, the judge issued a warrant directing the NBI to search appellant's residence at Km. 6, Dontogan, Green Valley, Baguio City, for marijuana. 20 The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellant's residence where they served the warrant upon appellant himself. 21 The search was witnessed by appellant, members of his
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family, barangay officials, and members of the media. 22 Photographs were taken during the actual search. 23The law enforcers found 26 boxes and a sack of dried marijuana 24 in the water tank, garage, and storeroom of appellant's residence. 25 The total weight of the haul was 591.81 kilograms. 26 Appellant was arrested for illegal possession of marijuana. The seized items were then submitted to the NBI laboratory for testing. NBI Forensic Chemist Maria Carina Madrigal conducted the tests. Detailed microscopic and chromatographic examinations of the items taken from appellant's rented room at No. 27, Dr. Cario St., as well as those from his residence at Green Valley, showed these to be marijuana. 27 In his defense, appellant contended that the physical evidence of the prosecution was illegally obtained, being the products of an unlawful search, hence inadmissible. Appellant insisted that the search warrant was too general and the process by which said warrant was acquired did not satisfy the constitutional requirements for the issuance of a valid search warrant. Moreover, Abratique's testimony, which was heavily relied upon by the judge who issued the warrant, was hearsay. In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of the 336.93 kilograms of marijuana was the result of an illegal search and hence, inadmissible in evidence against appellant. Appellant was accordingly acquitted of the charge. However, the trial court found that the prosecution's evidence was more than ample to prove appellant's guilt in Criminal Case No. 15800-R and as earlier stated, duly convicted him of illegal possession of marijuana and sentenced him to death. Hence, this automatic review. Before us, appellant submits that the trial court erred in:
1. . . . UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE LACK OF COMPLIANCE OF (sic) SEVERAL REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND IT BEING A GENERAL WARRANT; 2. . . . GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND ALLOWING ABRATIQUE TO TESTIFY AGAINST APPELLANT; 3. . . . GIVING CREDENCE TO THE TESTIMONY OF ABRATIQUE; 4. . . .NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING HIM TO DEATH DESPITE THE ILLEGALLY OBTAINED EVIDENCE AS FOUND IN THE FIRST CASE. 28

We find that the pertinent issues for resolution concern the following: (1) the validity of the search conducted at the appellant's residence; (2) the alleged prejudice caused by the reopening of the case and absences of the prosecution witness, on appellant's right to speedy trial; (3) the sufficiency of the prosecution's evidence to sustain a finding of guilt with moral certainty; and (4) the propriety of the penalty imposed.

1.On the Validity of the Search Warrant; Its Obtention and Execution
Appellant initially contends that the warrant, which directed the peace officers to search for and seize "an undetermined amount of marijuana," was too general and hence, void for vagueness. He insists that Abratique could already estimate the amount of marijuana supposed to be found at appellant's residence since Abratique helped to transport the same. For the appellee, the Office of the Solicitor General (OSG) counters that a search warrant is issued if a judge finds probable cause that the place to be searched contains prohibited drugs, and not that he believes the place
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contains a specific amount of it. The OSG points out that, as the trial court observed, it is impossible beforehand to determine the exact amount of prohibited drugs that a person has on himself. Appellant avers that the phrase "an undetermined amount of marijuana" as used in the search warrant fails to satisfy the requirement of Article III, Section 2 29 of the Constitution that the things to be seized must be particularly described. Appellant's contention, in our view, has no leg to stand on. The constitutional requirement of reasonable particularity of description of the things to be seized is primarily meant to enable the law enforcers serving the warrant to: (1) readily identify the properties to be seized and thus prevent them from seizing the wrong items; 30 and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures. 31 What the Constitution seeks to avoid are search warrants of broad or general characterization or sweeping descriptions, which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense. 32 However, it is not required that technical precision of description be required, 33 particularly, where by the nature of the goods to be seized, their description must be rather general, since the requirement of a technical description would mean that no warrant could issue. 34 Thus, it has been held that term "narcotics paraphernalia" is not so wanting in particularity as to create a general warrant. 35 Nor is the description "any and all narcotics" and "all implements, paraphernalia, articles, papers and records pertaining to" the use, possession, or sale of narcotics or dangerous drugs so broad as to be unconstitutional. 36 A search warrant commanding peace officers to seize "a quantity of loose heroin" has been held sufficiently particular. 37 Tested against the foregoing precedents, the description "an undetermined amount of marijuana" must be held to satisfy the requirement for particularity in a search warrant. Noteworthy, what is to be seized in the instant case is property of a specified character, i.e., marijuana, an illicit drug. By reason of its character and the circumstances under which it would be found, said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to such character, the place, and the circumstances. 38 Thus, this Court has held that the description "illegally in possession of undetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of paraphernalia" particularizes the things to be seized. 39 The search warrant in the present case, given its nearly similar wording, "undetermined amount of marijuana or Indian hemp," in our view, has satisfied the Constitution's requirements on particularity of description. The description therein is: (1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of fact not of law by which the peace officers may be guided in making the search and seizure; and (3) limits the things to be seized to those which bear direct relation to the offense for which the warrant is being issued. 40 Said warrant imposes a meaningful restriction upon the objects to be seized by the officers serving the warrant. Thus, it prevents exploratory searches, which might be violative of the Bill of Rights. Appellant next assails the warrant for merely stating that he should be searched, as he could be guilty of violation of Republic Act No. 6425. Appellant claims that this is a sweeping statement as said statute lists a number of offenses with respect to illegal drugs. Hence, he contends, said warrant is a general warrant and is thus unconstitutional. For the appellee, the OSG points out that the warrant clearly states that appellant has in his possession and control marijuana or Indian hemp, in violation of Section 8 of Republic Act No. 6425. We have carefully scrutinized Search Warrant No. 415 (7-98), 41 and we find that it is captioned "For Violation of R.A. 6425, as amended." 42 It is clearly stated in the body of the warrant that "there is probable cause to believe that a case for violation of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as further amended by R.A. 7659 has been and is being committed by one MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by having in his possession and control an
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UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation of the aforementioned law."43 In an earlier case, we held that though the specific section of the Dangerous Drugs Law is not pinpointed, "there is no question at all of the specific offense alleged to have been committed as a basis for the finding of probable cause." 44 Appellant's averment is, therefore, baseless. Search Warrant No. 415 (7-98) appears clearly issued for one offense, namely, illegal possession of marijuana. Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his failure to exhaustively examine the applicant and his witness. Appellant points out that said magistrate should not have swallowed all of Abratique's statements hook, line, and sinker. He points out that since Abratique consented to assist in the transport of the marijuana, the examining judge should have elicited from Abratique his participation in the crime and his motive for squealing on appellant. Appellant further points out that the evidence of the NBI operative who applied for the warrant is merely hearsay and should not have been given credit at all by Judge Reyes.

Again, the lack of factual basis for appellant's contention is apparent. The OSG points out that Abratique personally assisted appellant in loading and transporting the marijuana to the latter's house and to appellant's rented room at No. 27 Dr. Cario St., Baguio City. Definitely, this indicates personal knowledge on Abratique's part. Law enforcers cannot themselves be eyewitnesses to every crime; they are allowed to present witnesses before an examining judge. In this case, witness Abratique personally saw and handled the marijuana. Hence, the NBI did not rely on hearsay information in applying for a search warrant but on personal knowledge of the witness, Abratique. Before a valid search warrant is issued, both the Constitution 45 and the 2000 Revised Rules of Criminal Procedure 46 require that the judge must personally examine the complainant and his witnesses under oath or affirmation. The personal examination must not be merely routinary or pro forma, but must be probing and exhaustive. 47 In the instant case, it is not disputed that Judge Antonio Reyes personally examined NBI Special Investigator III Darwin A. Lising, the applicant for the search warrant as well as his witness, Danilo G. Abratique. Notes of the proceedings were taken by Atty. Delilah Muoz, Clerk of Court, RTC of Baguio City, Branch 61, whom Judge Reyes had ordered to be summoned. In the letter of transmittal of the Clerk of Court of the RTC of Baguio City, Branch 61 to Branch 6 of said court, mention is made of "notes" at "pages 7 11." 48 We have thoroughly perused the records of Search Warrant No. 415 (7-98) and nowhere find said "notes." The depositions of Lising and Abratique were not attached to Search Warrant No. 415 (7-98) as required by the Rules of Court. We must stress, however, that the purpose of the Rules in requiring depositions to be taken is to satisfy the examining magistrate as to the existence of probable cause. 49 The Bill of Rights does not make it an imperative necessity that depositions be attached to the records of an application for a search warrant. Hence, said omission is not necessarily fatal, for as long as there is evidence on the record showing what testimony was presented. 50 In the testimony of witness Abratique, Judge Reyes required Abratique to confirm the contents of his affidavit; 51 there were instances when Judge Reyes questioned him extensively. 52 It is presumed that a judicial function has been regularly performed, 53 absent a showing to the contrary. A magistrate's determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, 54 as long as there was substantial basis for that determination. 55 Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched. On record, appellant never raised the want of adequate depositions to support Warrant No. 415 (7-98) in his motion to quash before the trial court. Instead, his motion contained vague generalities that Judge Reyes failed to ask searching questions of the applicant and his witness. Belatedly, however, he now claims that Judge Reyes perfunctorily examined said witness. 56 But it is settled that when a motion to quash a warrant is filed, all

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grounds and objections then available, existent or known, should be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they are deemed waived. 57 In this case, NBI Special Investigator Lising's knowledge of the illicit drugs stored in appellant's house was indeed hearsay. But he had a witness, Danilo Abratique, who had personal knowledge about said drugs and their particular location. Abratique's statements to the NBI and to Judge Reyes contained credible and reliable details. As the NBI's witness, Abratique was a person on whose statements Judge Reyes could rely. His detailed description of appellant's activities with respect to the seized drugs was substantial. In relying on witness Abratique, Judge Reyes was not depending on casual rumor circulating in the underworld, but on personal knowledge Abratique possessed. In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held that:
The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused. 58

Appellant argues that the address indicated in the search warrant did not clearly indicate the place to be searched. The OSG points out that the address stated in the warrant is as specific as can be. The NBI even submitted a detailed sketch of the premises prepared by Abratique, thus ensuring that there would be no mistake. A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended 59 and distinguish it from other places in the community. 60 A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness. Appellant finally harps on the use of unnecessary force during the execution of the search warrant. Appellant fails, however, to point to any evidentiary matter in the record to support his contention. Defense witness Cipriana Tee, appellant's mother, testified on the search conducted but she said nothing that indicated the use of force on the part of the NBI operatives who conducted the search and seizure. 61 What the record discloses is that the warrant was served on appellant, 62 who was given time to read it, 63 and the search was witnessed by the barangay officials, police operatives, members of the media, and appellant's kith and kin. 64 No breakage or other damage to the place searched is shown. No injuries sustained by appellant, or any witness, appears on record. The execution of the warrant, in our view, has been orderly and peaceably performed.
EHIcaT

2.On The Alleged Violation of Appellant's Substantive Rights

Appellant insists that the prosecution's unjustified and willful delay in presenting witness Abratique unduly delayed the resolution of his case. He points out that a total of eight (8) scheduled hearings had to be reset due to the failure or willful refusal of Abratique to testify against him. Appellant insists that said lapse on the prosecution's part violated Supreme Court Circular No. 38-98. 65 Appellant now alleges that the prosecution deliberately resorted to delaying the case to cause him untold miseries. For the appellee, the OSG points out that the two-month delay in the trial is not such a great length of time as to amount to a violation of appellant's right to a speedy trial. A trial is always subject to reasonable delays or postponements, but absent any showing that these delays are capricious and oppressive, the State should not be deprived of a reasonable opportunity to prosecute the criminal action. On record, the trial court found that prosecution witness Danilo G. Abratique failed to appear in no less than eighteen (18) hearings, namely those set for February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and 19, all in 1999. 66 No less than four (4) warrants of arrest were issued against him to
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compel him to testify. 67 The NBI agent who supposedly had him in custody was found guilty of contempt of court for failing to produce Abratique at said hearings and sanctioned. 68 The prosecution had to write the NBI Regional Director in Baguio City and NBI Director in Manila regarding the failure of the Bureau's agents to bring Abratique to court. 69 Nothing on record discloses the reason for Abratique's aforecited absences. On the scheduled hearing of June 7, 1999, he was again absent thus causing the trial court to again order his arrest for the fifth time. 70 He also failed to show up at the hearing of June 8, 1999. 71 Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates violated appellant's constitutional 72 and statutory right to a speedy trial. A speedy trial means a trial conducted according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious, and oppressive delays. 73 In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that "where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance, for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom." The concept of speedy trial is necessarily relative. A determination as to whether the right has been violated involves the weighing of several factors such as the length of the delay, the reason for the delay, the conduct of the prosecution and the accused, and the efforts exerted by the defendant to assert his right, as well as the prejudice and damage caused to the accused. 74 The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred eighty (180) days. 75 However, in determining the right of an accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. 76 The right to a speedy trial is deemed violated only when: (1) the proceedings are attended by vexatious, capricious, and oppressive delays; 77 or (2) when unjustified postponements are asked for and secured; 78 or (3) when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. 79

In the present case, although the absences of prosecution witness Abratique totaled twenty (20) hearing days, there is no showing whatsoever that prosecution capriciously caused Abratique's absences so as to vex or oppress appellant and deny him his rights. On record, after Abratique repeatedly failed to show up for the taking of his testimony, the prosecution went to the extent of praying that the trial court order the arrest of Abratique to compel his attendance at trial. The prosecution likewise tried to get the NBI to produce Abratique as the latter was in the Bureau's custody, but to no avail. Eventually, the trial court ordered the prosecution to waive its right to present Abratique and rest its case on the evidence already offered. 80 Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of time. Delay of less than two months has been found, in fact, to be not an unreasonably lengthy period of time. 81 Moreover, nothing on record shows that appellant Modesto Tee objected to the inability of the prosecution to produce its witness. Under the Rules, appellant could have moved the trial court to require that witness Abratique post bail to ensure that the latter would testify when required. 82 Appellant could have moved to have Abratique found in contempt and duly sanctioned. Appellant did neither. It is a bit too late in the day for appellant to invoke now his right to speedy trial. No persuasive reason supports appellant's claim that his constitutional right to speedy trial was violated. One must take into account that a trial is always subject to postponements and other causes of delay. But in the

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absence of a showing that delays were unreasonable and capricious, the State should not be deprived of a reasonable opportunity of prosecuting an accused. 83 Appellant next contends that the trial court gravely abused its discretion, and exhibited partiality, when it allowed the reopening of the case after the prosecution had failed to present Abratique on several occasions and had been directed to rest its case. Appellant stresses that the lower court's order to reopen the case to receive Abratique's further testimony is an indication that the trial court favored the prosecution and unduly prejudiced appellant. On appellee's behalf, the Solicitor General points out that the trial court's order was in the interest of substantial justice and hence, cannot be termed as an abuse of discretion. The OSG points out that the prosecution had not formally rested its case and had yet to present its formal offer of evidence, hence, the submission of additional testimony by the same witness cannot be prejudicial to the accused, it being but the mere continuation of an uncompleted testimony. Furthermore, appellant did not properly oppose the prosecution's motion to reopen the case. At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985 Rules of Criminal Procedure were in effect. There was no specific provision at that time governing motions to reopen. 84 Nonetheless, long and established usage has led to the recognition and acceptance of a motion to reopen. In view of the absence of a specific procedural rule, the only controlling guideline governing a motion to reopen was the paramount interests of justice. As a rule, the matter of reopening of a case for reception of further evidence after either prosecution or defense has rested its case is within the discretion of the trial court. 85 However, a concession to a reopening must not prejudice the accused or deny him the opportunity to introduce counter evidence. 86 Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to reopen may properly be presented only after either or both parties have formally offered and closed their evidence, but before judgment. 87 In the instant case, the records show that on April 19, 1999, the prosecution was directed to close its evidence and given 15 days to make its formal offer of evidence. 88 This order apparently arose from the manifestation of the prosecution on April 16, 1999 that should they fail to produce witness Abratique on the next scheduled hearing the prosecution would rest its case. 89 On April 19, 1999, which was the next scheduled hearing after April 16, 1999, Abratique was absent notwithstanding notices, orders, and warrants of arrest. However, on April 27, 1999, or before the prosecution had formally offered its evidence, Abratique was brought to the trial court by the NBI. In its order of said date, the trial court pointed out that the prosecution could move to "reopen" the case for the taking of Abratique's testimony. 90 On May 7, 1999, the prosecution so moved, stressing that it had not yet formally offered its evidence and that the substantial rights of the accused would not be prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed no opposition to the motion. The trial court granted the motion six days later. Plainly, there was nothing to reopen, as the prosecution had not formally rested its case. Moreover, the taking of Abratique's testimony was not for the purpose of presenting additional evidence, but more properly for the completion of his unfinished testimony. In U.S. vs. Base, 91 we held that a trial court is not in error, if it opts to reopen the proceedings of a case, even after both sides had rested and the case submitted for decision, by the calling of additional witnesses or recalling of witnesses so as to satisfy the judge's mind with reference to particular facts involved in the case. A judge cannot be faulted should he require a material witness to complete his testimony, which is what happened in this case. It is but proper that the judge's mind be satisfied on any and all questions presented during the trial, in order to serve the cause of justice. Appellant's claim that the trial court's concession to "reopen" the case unduly prejudiced him is not well taken. We note that appellant had every opportunity to present his evidence to support his case or to refute the prosecution's evidence point-by-point, after the prosecution had rested its case. In short, appellant was never deprived of his day in court. A day in court is the touchstone of the right to due process in criminal justice. 92 Thus, we are unable to hold that a grave abuse of discretion was committed by the trial court when it ordered the so-called "reopening" in order to complete the testimony of a prosecution witness.
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3.On the Sufficiency of the Prosecution's Evidence

In bidding for acquittal, appellant assails the credibility of Abratique as a witness. Appellant insists that Abratique's testimony is profuse with lies, contrary to human nature, hence incredible. According to appellant, Abratique was evasive from the outset with respect to certain questions of the trial court. He adds that it appeared the court entertained in particular the suspicion that witness Abratique had conspired with appellant in committing the crime charged. Appellant questions Abratique's motive in informing the NBI about his activities related to the marijuana taking, transfer, and warehousing. The OSG contends that Abratique's testimony, taken as a whole, is credible. It points out that Abratique testified in a straightforward manner as to his knowledge of the huge cache of prohibited drugs stashed by appellant in two different places. His testimony, said the OSG, when fused with the physical evidence consisting of 591.81 kilograms of marijuana found by law enforcers at appellant's residence, inexorably leads to the inculpation of appellant. It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent person is made to suffer the unusually severe penalties meted out for drug offenses. 93 Though we scrutinized minutely the testimony of Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear aware treading the thin line between innocence and feeling guilty, with certain portions of his story tending to be self-exculpatory. However, his whole testimony could not be discredited. The established rule is that testimony of a witness may be believed in part and disbelieved in other parts, depending on the corroborative evidence and the probabilities and improbabilities of the case. But it is accepted, as a matter of common sense, that if certain parts of a witness' testimony are found true, his testimony cannot be disregarded entirely. 94 Abratique testified in open court that appellant rented the taxicab he was driving, and he helped appellant transport huge amounts of marijuana to appellant's rented room at No. 27 Dr. Cario St., Baguio City and to appellant's residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the witness stand that out of fear of being involved, he decided to divulge his knowledge of appellant's possession of large caches of marijuana to the NBI. When the places referred to by Abratique were searched by the authorities, marijuana in staggering quantities was found and seized by the law enforcers. Stated plainly, the physical evidence in this case corroborated Abratique's testimony on material points. Appellant imputes questionable motives to Abratique in an effort to discredit him. He demands that Abratique should likewise be prosecuted. However, by no means is the possible guilt of Abratique a tenable defense for appellant. Nor would Abratique's prosecution mean appellant's absolution. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.95

We find the foregoing elements proven in Criminal Case No. 15800-R beyond reasonable doubt. In said case, the testimony of Abratique and the recovery of 591.81 kilograms of marijuana from appellant's residence served to prove appellant's possession of a prohibited drug. Tests conducted by the NBI forensic chemist proved the seized articles to be marijuana. These articles were seized pursuant to a valid search warrant and hence, fully admissible in evidence.

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In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to all persons and proscribes the sale of dangerous drugs by any person, and no person is authorized to sell such drugs. Said doctrine is equally applicable with respect to possession of prohibited drugs. Republic Act No. 6425, which penalizes the possession of prohibited drugs, applies equally to all persons in this jurisdiction and no person is authorized to possess said articles, without authority of law. Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be with knowledge of the accused or that animus possidendiexisted together with the possession or control of said articles. 96 Nonetheless, this dictum must be read in consonance with our ruling that possession of a prohibited drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession.97 In effect, the onus probandi is shifted to accused to explain the absence of knowledge or animus possidendi 98 in this situation. Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his mother as his lone witness, who testified on matters totally irrelevant to his case. We can only conclude that, failing to discharge the burden of the evidence on the possession of prohibited drug, appellant's guilt in Criminal Case No. 15800-R was established beyond reasonable doubt.

4.On The Proper Penalty

Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00) 99 shall be imposed if the quantity of marijuana involved in a conviction for possession of marijuana or Indian hemp shall be 750 grams or more. 100 In the present case, the quantity of marijuana involved has been shown by the prosecution to be far in excess of 750 grams, as stressed by the trial court:
The volume is rather staggering. It is almost one whole house or one whole room. In fact, when they were first brought to the court, it took hours to load them on the truck and hours also to unload them prompting the court to direct that the boxes and sack of marijuana be instead kept at the NBI office in Baguio. And the identification of said marijuana during the trial was made in the NBI premises itself by the witnesses since it was physically cumbersome and inconvenient to keep bringing them to the court during every trial. 101

In sentencing appellant to death, the trial court noted not only the huge quantity of marijuana bales involved, but also "the acts of accused of hiding them in different places . . . and transferring them from place to place and making them appear as boxes of cigarettes to avoid and evade apprehension and detection." They showed his being a big supplier, said the trial court, [whose] criminal perversity and craft that "deserve the supreme penalty of death." 102 We are unable to agree, however, with the penalty imposed by the trial court. The legislature never intended that where the quantity involved exceeds those stated inSection 20 of Republic Act No. 6425 the maximum penalty of death shall automatically be imposed. 103 The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, the penalty to be imposed must conform with Article 63 104 of the Revised Penal Code. As already held, the death penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code. 105 The rules in Article 63 apply although the prohibited drugs involved are in excess of the quantities provided for in Section 20 of Republic Act No. 6425. 106 Thus, finding neither mitigating nor aggravating circumstances in the present case, appellant's possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R, does not merit capital punishment but only the lesser penalty of reclusion perpetua. The trial court imposed a fine on appellant in the sum of One Million Pesos (P1,000,000.00), without subsidiary imprisonment in case of insolvency. The imposition of a fine is mandatory in cases of conviction of possession
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of illegal drugs. This being within the limits allowed by the law, the amount of the fine must be sustained. All these sanctions might not remedy all the havoc wrought by prohibited drugs on the moral fiber of our society, especially the youth. 107 But these penalties should warn peddlers of prohibited drugs that they cannot ply their trade in our streets with impunity. WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 15800-R, convicting appellant MODESTO TEE alias "ESTOY" TEE of violation of Section 8 of Republic Act No. 6425, as amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty ofreclusion perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on him is sustained. Appellant is likewise directed to pay the costs of suit.
IEHTaA

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. andAzcuna, JJ ., concur.

[G.R. No. L-25769. December 10, 1974.] FRANCISCO FLORES and FRANCISCO ANGEL, petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent.

Arturo Zialcita for petitioner Francisco Flores. Zosimo Rivas for petitioner Francisco Angel. Solicitor General Antonio P. Barredo and Solicitor Vicente A. Torres for respondent.

DECISION

FERNANDO, J :
p

A plea based on the constitutional right to a speedy trial 1 led this Court to act affirmatively on a certiorari proceeding for the dismissal of a case then pending in the Court of Appeals. Considering the length of time that had elapsed, it is readily discernible why an inquiry into the matter is well-nigh unavoidable. The accusation for robbery against petitioners Francisco Flores and Francisco Angel was filed as far back as December 31, 1951. The decision rendered on November 29, 1955 found them guilty of the crime charged. The notice of appeal was filed on December 8, 1955. 2 For a period of three years, until February 10, 1958, no action was taken by the Court of Appeals. On that day, there was a resolution remanding the records of the case to the lower court for a rehearing of the testimony of a certain witness deemed material for the disposition of the case. 3 Such a resolution was amended by a second resolution dated August 5, 1959, which granted the motion for counsel of appellants, now petitioners, to set aside the decision so that evidence for the defense on certain new facts or matters may be received and that a new decision in lieu of the old one may be rendered in accordance with the facts as found. 4 Accordingly, the case was returned to the lower court with the former decision set aside so that the trial could be had, but nothing was done for about a year because the offended party failed to appear notwithstanding the six or seven dates set for such hearing. 5 It was further alleged that when thereafter he did take the witness stand, his testimony was far from satisfactory, characterized as a mere "fiasco" as he could no
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longer remember the details of the alleged crime, there was even a failure to identify the two accused. 6 Instead of rendering a new decision, the former one having been set aside as required by the Court of Appeals, the lower court merely sent back the records to the appellate tribunal. 7 At that stage, five more years having elapsed without anything being done, petitioners sought the dismissal of the cases against them due to such inordinate delay in their disposition, which covered the period of December 8, 1955 to May 10, 1965, a period of almost a decade; thus did they invoke their constitutional right to a speedy trial. 8 Respondent Court of Appeals was unresponsive, notwithstanding the vigorous plea on the part of counsel for petitioners, its last order being a denial of a second motion for reconsideration dated January 28, 1966. In the answer on behalf of the People of the Philippines, the facts as above set forth were substantially admitted. However, a special and affirmative defense raised was that the case was not properly captioned, as the People of the Philippines, against whom it is filed, is not a tribunal or an office exercising Judicial functions and that without the Court of Appeals being made a party to the petition, it cannot be said that it stated facts sufficient to constitute a cause of action. Moreover, on the merits, the view was expressed that under the circumstances, it was not adequately shown that the right to a speedy trial had been violated, as the Court of Appeals had taken all the steps necessary to complete the transcript of stenographic notes of the original trial. On the above undisputed facts, there is more than sufficient warrant for the conclusion that the right to a speedy trial, so zealously guarded in both the 1935 and the present Constitutions, had not been accorded due respect. There is thus merit in the petition. 1.The constitutional right to a speedy trial, as was noted in a recent decision, Acebedo v. Sarmiento, 9 "means one free from vexatious, capricious and oppressive delays, . . ." 10 Thus, if the person accused were innocent, he may within the shortest time possible be spared from anxiety and apprehension arising from a prosecution, and if culpable, he will not be kept long in suspense as to the fate in store for him, within a period of course compatible with his opportunity to present any valid defense. As was also pointed out in Sarmiento: "The remedy in the event of a non-observance of this right is by habeas corpus if the accused were restrained of his liberty, or by certiorari, prohibition, or mandamus for the final dismissal of the case." 11 The above ruling is a reiteration of the doctrine announced, even before the 1935 Constitution, in Conde v. Rivera, 12 a 1924 decision. In that case, Justice Malcolm announced categorically that the trial, to comply with the requirement of the then organic law, the Philippine Autonomy Act, must be "free from vexatious, capricious, and oppressive delays." 13 Further: "We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom." 14 In the first Supreme Court decision after the 1935 Constitution took effect, People v. Castaeda, 15 where it was shown that the criminal case had been dragging on for almost five years and that when the trial did finally take place, it was tainted by irregularities, this Court set aside the appealed decision of conviction and acquitted the accused. As was pointed out by the ponente, Justice Laurel: "The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused come to an end and that they be immediately discharged from the custody of the law." 16 It was on the basis of the above judgment that the dismissal of a second information for frustrated homicide was ordered by this Court, where the evidence disclosed that the first information had been dismissed after a lapse of one year and seven months from the time the original complaint was filed during which time on the three occasions the case was set for trial, the private prosecutor twice asked for postponements and once the trial court itself cancelled the entire calendar for the month it was supposed to have been heard. 17 The same result followed in Esguerra v. De la Costa, 18where the first complaint was filed on August 29, 1936, the accused having been criminally prosecuted for an alleged abuse of chastity in a justice of the peace court but after over a year and three months, with the lower court twice dismissing the case, he still had to face trial for the same offense on a new information, thus compelling him to resort to a mandamus suit to compel the lower court to terminate the case was his right to a speedy trial was violated, a remedy deemed appropriate by this Court.
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There was another occasion where Justice Laurel spoke for this Court on this specific issue. That was in Mercado v. Santos. 19 Here, for a period of about twenty months, the accused was arrested four times on the charge of falsifying his deceased wife's will. Twice, the complaints were subsequently withdrawn. The third time he was prosecuted on the same charge, he was able to obtain a dismissal. Then came on the part of the provincial fiscal, a motion for reinvestigation. The lower court was in a receptive mood. It ordered that the case be heard on the merits. The accused moved to dismiss, but he did not succeed. He tried the Court of Appeals, but he failed again. He elevated the matter to this Court; he prevailed. It was stressed in Justice Laurel's opinion: "An accused person is entitled to a trial at the earliest opportunity. . . . He cannot be oppressed by delaying the commencement of trial for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is necessarily delayed." 20 The opinion likewise considered as not decisive the fact that the provincial fiscal did not intervene until an information was filed charging the accused with the crime of falsification the third time. Thus: "The Constitution does not say that the right to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to be commenced." 21 The latest decision in point, Acebedo v. Sarmiento, 22 presented an even clearer case. The information for damage to property was filed on August 3, 1959. There the matter rested until May 19, 1965, when the accused moved to dismiss. The lower court denied the motion in his order of July 10, 1965. Two more years elapsed, the period now covering almost eight years, when the trial was commenced. When one of the witnesses for the prosecution failed to appear, the provincial fiscal sought the postponement, but the accused countered with a motion for dismissal. The lower court acceded, and this Court sustained him, even if thereafter it changed its mind and reinstated the case. Petitioners can thus invoke the constitutional guarantee that the trial should be speedy. In the absence of any valid decision, the stage of trial has not been completed. In this case then, as of May 10, 1965, when they moved to dismiss in the Court of Appeals, petitioners could validly contend that they had not been accorded their right to be tried as promptly as circumstances permit. It was not the pendency in the Court of Appeals of their cases that should be deemed material. It is at times unavoidable that appellate tribunals cannot, even with due diligence, put an end to suits elevated to them. What is decisive is that with the setting aside of the previous decision in the resolution of August 5, 1959, petitioners could validly premise their plea for dismissal on this constitutional safeguard. That is the sole basis for the conclusion reached by us considering the controlling doctrine announced with such emphasis by this Court time and time again.

2.That is about all that needs be said. The crucial issue has been met. The decisive question has been answered. There is an affirmation of the worth of the constitutional right to a speedy trial. Not too much significance should be attached to the procedural defect pointed out in the answer of the People of the Philippines that the Court of Appeals should have been made the party respondent. What cannot be sanctioned was its failure to accord respect to this particular constitutional right. It did amount at the very least to a grave abuse of discretion. Whatever deficiency in the pleading may then be singled out, it cannot obscure the obvious disregard of one of the most important safeguards granted an accused. To deny petitioners the remedy sought would be to exalt form over substance. At any rate, the petition could be considered, and rightly so, as being directed at the Court of Appeals. Moreover, the defenses that could have interposed to justify the action taken were invoked by the People of the Philippines. They certainly did not avail. Our decisions on the right to a speedy Trial speak too categorically to be misread. This is one of those situations then where, in the apt language of the then Justice, now Chief Justice, Makalintal, "technicalities should give way to the realities of the situation." 23 WHEREFORE, the petition for certiorari is granted, and the order of the Court of Appeals in CA-GR No. 16641-R entitled, People v. Francisco Flores, et al., of September 28, 1965 denying the motion to dismiss as well as its order of January 8, 1966 denying the motion for reconsideration, and the order of January 28, 1966 denying
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the second motion for reconsideration are hereby set aside, nullified, and considered of no force and effect. The criminal case against petitioners in the aforesaid CA-GR No. 16641-R are ordered dismissed. Costs de oficio.

Makalintal, C.J., Fernandez and Aquino, JJ., concur. Barredo, J., did not take part.

[G.R. No. 21741. January 25, 1924.] AURELIA CONDE, petitioner, vs. PABLO RIVERA, acting provincial fiscal of Tayabas, and FEDERICO M. UNSON, justice of the peace of Lucena, Tayabas, respondents.

Godofredo Reyes for petitioner. Attorney-General Villa-Real for respondents

SYLLABUS 1.CONSTITUTIONAL LAW; CRIMINAL PROCEDURE; SPEEDY TRIAL. Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. 2.ID.; ID. The Government of the Philippine Islands should be the last to set an example of delay and oppression in the administration of justice. 3.ID.; ID.; ID.; MANDAMUS; HABEAS CORPUS. WHERE A Prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom.

DECISION

MALCOLM, J :
p

Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced to respond to no less the five information for various crimes and misdemeanors, has appeared with her witnesses and counsel at hearings no less than on eight different occasions only to see the cause postponed, has twice been required to come to the Supreme Court for protection, and now, after the passage of more than one year from the time when the first information was filed, seems as far away from a definite resolution of her troubles as she was when originally charged. Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and compelled to dance attendance on courts while investigations
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and trials are arbitrarily postponed without her consent, is pal palpably and openly unjust to her and a detriment to the public. By the use of upon the appropriate information, could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays. Once before, as intimated, the petitioner had to come to us for redress of her grievances. We thought then we had pointed out the way for the parties. We hope propose to do all in our power to assist this poor woman to obtain justice. On the one hand has been the petitioner, of humble station, without resources, but fortunately assisted by a persistent lawyer, while on the other hand has been the Government of the Philippine Island s which should be the last to set an example of delay and oppression in the administration of justice. The Court is thus under a moral and legal obligation to see that these proceedings come to an end and that the accused is discharged from the custody of the law. We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911], 160 Cal., 334; U.S. vs. Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs. Judge of First Instance, Fourteenth Judicial District, and the Provincial Fiscal of Tayabas, No. 21236. 1 The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain from further attempts to prosecute the accused pursuant to informations growing out of the facts set forth in previous in formations, and the charges now pending before the justice of the of Lucena, Tayabas, are ordered dismissed, with costs against the respondent fiscal. We append to our order the observation that, without doubt, the Attorney-General, being fully cognizant of the facts of record, will take such administrative action as to him seems proper to the end that incidents of this character may not recur. So ordered.

Araullo, C. J., Johnson, Street, Avancea, Ostrand, Johns, and Romualdez, JJ., concur.

[G.R. No. L-66469. July 29, 1986.] PEOPLE OF THE PHILIPPINES and ALFREDO QUIJANO, petitioners, vs. HON. BERNARDO SALAS (In his capacity as Presiding Judge of RTC, Cebu, Branch VIII), MARIO ABONG, ALFREDO DE LEON, ERIWADWIN MONTEBON, ROMEO DE GUZMAN, & EDUARDO MABUHAY, respondents.

Basilio E. Duaban for accused.

DECISION

CRUZ, J :
p

Mario Abong was originally charged with homicide in the Court of First Instance of Cebu but before he could be arraigned the case was reinvestigated on motion of the prosecution. 1 As a result of the reinvestigation, an amended information was filed, with no bail recommended, to which he pleaded not guilty. 2 Trial commenced, but while it was in progress, the prisoner, taking advantage of the first information for homicide, succeeded in deceiving the city court of Cebu into granting him bail and ordering his release; and so he escaped. 3 The respondent judge, learning later of the trickery, cancelled the illegal bail bond and ordered Abong's rearrest. 4 But he was gone. Nonetheless, the prosecution moved that the hearing continue in accordance with
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the constitutional provision authorizing trialin absentia under certain circumstances. 5 The respondent judge denied the motion, however, and suspended all proceedings until the return of the accused. 6 The order of the trial court is now before us on certiorari and mandamus. 7 The judge erred. He did not see the woods for the trees. He mistakenly allowed himself to be tethered by the literal reading of the rule when he should have viewed it from the broader perspective of its intendment. The rule is found in the last sentence of Article IV, Section 19, of the 1973 Constitution, reading in full as follows:
"Section 19.In all criminal prosecution, the accused shall be presumed innocent until the contrary is proved and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified."

The purpose of this rule is to speed up the disposition of criminal cases, trial of which could in the past be indefinitely deferred, and many times completely abandoned, because of the defendant's escape. The old case of People v. Avancea 8 required his presence at certain stages of the trial which as a result, had to be discontinued as long as the defendant had not reappeared or remained at large. As his right to be present at these stages was then held not waivable even by his escape, such escape thus operated to the fugitive's advantage, and in mockery of the authorities, insofar as the trial could not proceed as long as he had not been recaptured. The doctrine laid down in that case has been modified by Section 19, which now allows trial in absentia, Now, the prisoner cannot by simply escaping thwart his continued prosecution and possibly eventual conviction provided only that: a) he has been arraigned; b) he has been duly notified of the trial; and c) his failure to appear is unjustified. The respondent judge was probably still thinking of the old doctrine when he ruled that trial in absentia of the escapee could not be held because he could not be duly notified under Section 19. He forgets that the fugitive is now deemed to have waived such notice precisely because he has escaped, and it is also this escape that makes his failure to appear at his trial unjustified. Escape can never be a legal justification. In the past, his escape "rewarded" him by postponing all further proceedings against him and in effect ultimately absolving him of the charge he was facing. Under the present rule, his escape will, legally speaking, operate to his disadvantage by preventing him from attending his trial, which will continue even in his absence and most likely result in his conviction. The right to be present at one's trial may now be waived except only at that stage where the prosecution intends to present witnesses who will identify the accused.9 Under Section 19, the defendant's escape will be considered a waiver of this right and the inability of the court to notify him of the subsequent hearings will not prevent it from continuing with his trial. He will be deemed to have received due notice. The same fact of his escape will make his failure to appear unjustified because he has, by escaping, placed himself beyond the pale, and protection, of the law. Trial in absentia was not allowed in Borja v. Mendoza 10 because it was held notwithstanding that the accused had not been previously arraigned. His subsequent conviction was properly set aside. But in the instant case, since all the requisites are present, there is absolutely no reason why the respondent judge should refuse to try the accused, who had already been arraigned at the time he was released on the illegal bail bond. Abong should be prepared to bear the consequences of his escape, including forfeiture of the right to be notified of the subsequent proceedings and of the right to adduce evidence on his behalf and refute the evidence of the prosecution, not to mention a possible or even probable conviction.
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We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in "the letter that killeth but in the spirit that vivifieth," which is not really that evanescent or elusive. As judges, we must look beyond and not be bound by the language of the law, seeking to discover, by our own lights, the reason and the rhyme for its enactment. That we may properly apply it according to its ends, we need and must use not only learning but also vision. The trial judge is directed to investigate the lawyer who assisted Mario Abong in securing bail from the city court of Cebu on the basis of the withdrawn information for homicide and to report to us the result of his investigation within sixty days. WHEREFORE, the order of the trial court dated December 22, 1983, denying the motion for the trial in absentia of the accused is set aside. The respondent judge is directed to continue hearing the case against the respondent Mario Abong in absentia as long as he has not reappeared, until it is terminated. No costs. SO ORDERED. Yap (Chairman), Narvasa, Melencio-Herrera and Paras, JJ., concur.

[G.R. No. 77542. March 19, 1990.] ELIAS CARREDO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, VICTORIA CATOSTOS, and HON. GENEROSO A. JUABAN (Judge of the Regional Trial Court of Cebu, Branch VII), respondents.

Amado G. Olis for petitioner. Pedro L. Albino for private respondent.

SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; WAIVER OF RIGHT TO BE PRESENT AT ALL STAGES OF THE PROCEEDING; EXCEPTION; AQUINO VS. MILITARY COMMISSION NO. 2 (63 SCRA 546) AND PEOPLE VS. PRESIDING JUDGE (125 SCRA 269), CITED. In Aquino, Jr. vs. Military Commission No. 2 where a similar issue was presented, six justices were of the view that petitioner may waive his right to be present at all stages of the proceedings, while five justices were in agreement that he may so waive such right, except when he is to be identified. The result was that the order of the respondent military commission requiring his presence at all times during the proceedings before it should be modified in the sense that petitioner's presence shall be required only in the instance just indicated. In People vs. Presiding Judge, 185 SCRA 269 (1983) this court sustained the position of the accused on the strength of the ruling of this Court in Aquino. However, this Court made the following disquisition: "In the case of People vs. Prieto, Sr., 84 SCRA 198, it was held that [r]espondent Judge unfortunately assumed that thereby a defendant was thus conferred a fundamental right to ignore the terms of the bond posted by him in accordance with his constitutional right to bail. The present Constitution certainly has not made a dent on the traditional and correct concept of a bail as given to allow the release of a person in the custody of the law on condition that he would appear before any court whenever so required. Upon failure to do so, the warrant of arrest previously issued can be a sufficient justification for his confinement.' Further, in Aquino, Jr. vs. Military Commission No. 2, et al., 63 SCRA 546, the late Chief Justice Fred Ruiz Castro, in his concurring and dissenting opinion, clearly stated that "the accused may waive his presence in the criminal proceedings except at the stages where identification of his person by the prosecution
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witnesses is necessary. I might agree to the proposition of 'total' waiver in any case where the accused agrees explicitly and unequivocally in writing signed by him or personally manifests clearly and indubitably in open court and such manifestation is recorded, that whenever a prosecution witness mentions a name by which the accused is known, the witness is referring to him and to no one else." Stated differently, the 1973 Constitution now unqualifiedly permits trial in absentiaeven of capital offenses, provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. The reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceedings without giving the People's witnesses the opportunity to identify him in court, he may in his defense say that he was never identified as the person charged in the information and, therefore, is entitled to an acquittal.Furthermore, it is possible that a witness may not know the name of the culprit but can identify him if he sees him again, in which case the latter's presence in court is necessary." 2.ID.; ID.; ID.; ID.; ACCUSED MUST UNQUALIFIEDLY ADMITS IN OPEN COURT THAT HE IS THE PERSON NAMED AS DEFENDANT. Petitioner, argues that he should not be ordered arrested for non-appearance since he filed a written waiver stating that "he admits that he could be identified by witnesses who have testified at the time that said accused was not present" following the ruling of this Court in People vs. Presiding Judge. The aforestated statement in the waiver of appearance of petitioner that he admits he could be identified by the witnesses for the prosecution even in his absence is not such unqualified admission contemplated inPresiding Judge. What is stated in Presiding Judge as an exception is when the accused "unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial," no more no less. In the present case petitioner only admits that he can be identified by the prosecution witnesses in his absence. He did not admit that he is the very person named as defendant in the case on trial. His admission is vague and far from unqualified. He cannot therefore seek the benefit of the exception recognized in Presiding Judge. 3.ID.; ID.; ID.; TRIAL IN ABSENTIA; EXPLAINED. It is important to state that the provision of the Constitution authorizing the trial in absentia of the accused in case of his non-appearance after arraignment despite due notice simply means that he thereby waives his right to meet the witnesses face to face among others. An express waiver of appearance after arraignment, as in this case, is of the same effect. However, such waiver of appearance and trial in absentia does not mean that the prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by its witnesses which is vital for the conviction of the accused. Such waiver of a right of the accused does not mean a release of the accused from his obligation under the bond to appear in court whenever so required. The accused may waive his right but not his duty or obligation to the court.

DECISION

GANCAYCO, J :
p

The issue in this case is whether or not an accused who, after arraignment, waives his further appearance during the trial can be ordered arrested by the court for non-appearance upon summons to appear for purposes of identification. On February 3, 1983, petitioner was charged with malicious mischief before the Municipal Trial Court of Malabuyoc, Cebu City. He deposited a cash bond for his provisional liberty. Upon arraignment, he entered a plea of not guilty and thereafter he filed a written waiver of appearance dated May 14, 1984 which reads as follows:
LLpr

"IN COMPLIANCE with the Letter of Instruction No. 40, dated November 10, 1972, the undersigned accused hereby waives his appearance during the trial or any stage thereof and he agrees that in case
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he fails to appear for trial despite due notice, his absence will be deemed as express waiver of his right to be present, and the Honorable Court may proceed with the trial of his case as if he were present. In this connection, he admits that he could be identified by witnesses who are testifying at the time that said accused was not present. (Emphasis supplied) SO ORDERED."

At the hearing on August 14, 1985 the prosecution moved for the recall of its principal witness for the purpose of identifying the accused-petitioner who was not then present. Hence, the hearing was re-scheduled on October 9,1985 and a subpoena was issued to petitioner who failed to appear on said date. The defense counsel justified petitioner's absence in that the latter's presence can no longer be required as he already filed a written waiver of appearance. Nevertheless, the municipal judge issued an order dated May 27, 1986 ordering the arrest of petitioner, the confiscation of the cash bond, and at the same time ordering the bondsman, who is the petitioner himself, to show cause why no judgment should be rendered against the bondsman.
LLphil

A motion for reconsideration thereof having been denied, petitioner elevated the matter to the Regional Trial Court of Cebu City through a petition for certiorari and prohibition. In an order dated January 28, 1987, the said trial court denied the same. Hence, the herein petition for review on certiorari questioning the dismissal of the petition by the trial court and submitting for determination the issue of whether or not petitioner can be compelled, on pain of being arrested and his cash bond getting confiscated, to be present during the trial for purposes of his identification by the prosecution witnesses in a complaint for malicious mischief despite his written waiver of appearance. The issue is not new. Section 19, Article 4 of the 1973 Constitution which was then in force provides as follows:
"SEC. 19.In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified." 1

It is the proper interpretation and application of this constitutional provision on which the resolution of this petition depends. In Aquino, Jr. vs. Military Commission No. 2 2 where a similar issue was presented, six justices were of the view that petitioner may waive his right to be present at all stages of the proceedings, while five justices were in agreement that he may so waive such right, except when he is to be identified. The result was that the order of the respondent military commission requiring his presence at all times during the proceedings before it should be modified in the sense that petitioner's presence shall be required only in the instance just indicated. 3 In People vs. Presiding Judge, 4 the accused was charged with murder before the Regional Trial Court of Pangasinan. Upon his arraignment he manifested orally in open court that he is waiving his right to be present during the trial. The prosecuting fiscal moved that the accused be compelled to appear and be present at the trial so that he can be identified by the prosecution witnesses. This court sustained the position of the accused on the strength of the ruling of this Court in Aquino. However, this Court made the following disquisition:
LLpr

"In the case of People vs. Prieto, Sr., 84 SCRA 198, it was held that [r]espondent Judge unfortunately assumed that thereby a defendant was thus conferred a fundamental right to ignore the terms of the bond posted by him in accordance with his constitutional right to bail. The present Constitution certainly has not made a dent on the traditional and correct concept of a bail as given to allow the release of a
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person in the custody of the law on condition that he would appear before any court whenever so required. Upon failure to do so, the warrant of arrest previously issued can be a sufficient justification for his confinement.' Further, in Aquino, Jr. vs. Military Commission No. 2, et al., 63 SCRA 546, the late Chief Justice Fred Ruiz Castro, in his concurring and dissenting opinion, clearly stated that "the accused may waive his presence in the criminal proceedings except at the stages where identification of his person by the prosecution witnesses is necessary. I might agree to the proposition of 'total' waiver in any case where the accused agrees explicitly and unequivocally in writing signed by him or personally manifests clearly and indubitably in open court and such manifestation is recorded, that whenever a prosecution witness mentions a name by which the accused is known, the witness is referring to him and to no one else." Stated differently, the 1973 Constitution now unqualifiedly permits trial in absentia even of capital offenses, provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. The reason for requiring the presence of the accused, despite his waiver, is, if allowed to be absent in all the stages of the proceedings without giving the People's witnesses the opportunity to identify him in court, he may in his defense say that he was never identified as the person charged in the information and, therefore, is entitled to an acquittal.
prcd

Furthermore, it is possible that a witness may not know the name of the culprit but can identify him if he sees him again, in which case the latter's presence in court is necessary." 5 Thus, in People vs. Presiding Judge, 6 this Court reiterated the rule in Aquino that the accused may waive his presence at the trial of the case his presence may be compelled when he is to be identified. Petitioner, however, argues that he should not be ordered arrested for non-appearance since he filed a written waiver stating that "he admits that he could be identified by witnesses who have testified at the time that said accused was not present" following the ruling of this Court in People vs. Presiding Judge. The aforestated statement in the waiver of appearance of petitioner that he admits he could be identified by the witnesses for the prosecution even in his absence is not such unqualified admission contemplated in Presiding Judge. What is stated in Presiding Judge as an exception is when the accused "unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial," no more no less. In the present case petitioner only admits that he can be identified by the prosecution witnesses in his absence. He did not admit that he is the very person named as defendant in the case on trial. His admission is vague and far from unqualified. He cannot therefore seek the benefit of the exception recognized in Presiding Judge. It is important to state that the provision of the Constitution authorizing the trial in absentia of the accused in case of his non-appearance after arraignment despite due notice simply means that he thereby waives his right to meet the witnesses face to face among others. An express waiver of appearance after arraignment, as in this case, is of the same effect. However, such waiver of appearance and trial in absentia does not mean that the prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by its witnesses which is vital for the conviction of the accused. Such waiver of a right of the accused does not mean a release of the accused from his obligation under the bond to appear in court whenever so required. 7 The accused may waive his right but not his duty or obligation to the court.
LLpr

WHEREFORE, the petition is DENIED without pronouncement as to costs. SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

[G.R. Nos. 103604-05. September 23, 1993.]

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PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ENGRACIO VALERIANO Y TUMAHIG, MACARIO E. ACABAL @ "MOMONG," JUANITO RISMUNDO, ABUNDIO NAHID and JOHN DOES, accused. MACARIO E. ACABAL, JUANITO RISMUNDO and ABUNDIO NAHID, accused-appellants.

The Solicitor General for plaintiff-appellee. Marcelo G. Flores for accused-appellants.

SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; JUDGMENT OF CONVICTION; RULE FOR VALIDITY THEREOF; SUBSTANTIALLY COMPLIED WITH IN CASE AT BAR. We find that the decision substantially complies with the Rules of Court on judgments as it did sentence the accused-appellants to reclusion perpetua. A judgment of conviction shall state (a) the legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission, if there are any; (b) the participation of the accused in the commission of the offense, whether as principal, accomplice or accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved or waived. As we earlier observed, the challenged decision does not contain the usual dispositive portion. The last two paragraphs of the decision merely embody its conclusions that: (1) the appellants are guilty of murder, and (2) taking into account the "attendant qualifying aggravating circumstances of nighttime, use of fire by burning the house of the victim, . . . the abuse of superior strength," "the penalty imposable . . . will be in its maximum degree, that is reclusion perpetua" considering that "the penalty now for murder is reclusion temporal to reclusion perpetua." While the decision leaves much to be desired, it nevertheless contains the court's findings of facts, the law applicable to the set of facts and what it believes to be the imposable penalty under the law, that is, reclusion perpetua which is actually the penalty imposed on the accused-appellants. It is obvious that they clearly understood that they were found guilty beyond reasonable doubt of the crime of murder and were sentenced to suffer the penalty ofreclusion perpetua in Criminal Case No. 4585. Were it otherwise, they would not have declared in open court their intention to appeal immediately after the promulgation of the decision and would not have subsequently filed their written notice of appeal. 2.ID.; ID.; ID.; NOTICE OF APPEAL FILED BEFORE THE PROMULGATION THEREOF WILL NOT DIVEST THE COURT'S JURISDICTION OVER THE PERSON OF THE ACCUSED; CASE AT BAR. Accused-appellants contend that the trial court did not impose any sentence and so cannot cancel anymore their bail bonds and direct their arrest and immediate commitment because it already lost jurisdiction over their persons when they perfected their appeal. In connection with Section 3, Rule 114 of the Revised Rules of Court on bail, we ruled in People vs. Cortez that: ". . . an accused who is charged with a capital offense or an offense punishable byreclusion perpetua, and is thereafter convicted of the offense charged, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong." We have already said that the decision did impose the penalty ofreclusion perpetua. Since the order cancelling their bail bonds and directing their arrest is contained in the decision itself, it is apparent that their abovementioned contention is highly illogical. At the time the order in question was made, the trial court still had jurisdiction over the persons of the accused-appellants. For too obvious reasons, their notices of appeal which they claim have put an end to the trial court's jurisdiction over them could not have been filed before the promulgation of the decision. The order is therefore valid and enforceable. Also, it may be recalled that the accused-appellants had earlier raised this issue before us in a petition for habeas corpus dated 16 January 1992 and docketed as G.R. Nos. 103602-03. We dismissed that petition on 17 February 1992 for failure to comply with requirement no. (2) of Revised Circular No. 1-88 and Circular No. 28-91 on forum shopping. Their motion for reconsideration was denied on 27 May 1993.
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3.ID.; EVIDENCE; BURDEN OF PROOF IN CRIMINAL CASES; LIES WITH THE PROSECUTION. The testimony of the other witnesses for the prosecution likewise do not provide sufficient proof of the accused-appellant's guilt. Visitacion Silvano's testimony that she saw and identified the accused-appellants at the scene of the crime taxes the imagination. It was humanly impossible for her to see the accused-appellants even if she were aided by the light from the truck as she herself said that she was then in her house, three kilometers away from the house of her parents-in-law. Wilson Silvano did not testify at all that he saw the persons who hacked and killed his mother. In conclusion, because of reasonable doubt as to their guilt, the accused-appellants must be acquitted. Every accused is presumed innocent until the contrary is proved; that presumption is solemnly guaranteed by the Bill of Rights. The contrary requires proof beyond reasonable doubt, or that degree of proof which produces conviction in an unprejudiced mind. Short of this, it is not only the right of the accused to be freed; it is even the constitutional duty of the court to acquit him. Accordingly, unless the prosecution discharges its burden of proving the guilt of the accused-appellants beyond reasonable doubt, they need not even offer evidence in their behalf. The weakness of their defense of alibi thus becomes irrelevant. 4.CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; WHEN ALLEGED AS GENERIC AGGRAVATING CIRCUMSTANCES, COURT CANNOT ELEVATE THE SAME AS QUALIFYING CIRCUMSTANCES. The trial court, however, erred in considering nighttime, use of fire and abuse of superior strength as "attendant qualifying aggravating circumstances." The information in Criminal Case No. 4585 alleged only treachery and evident premeditation as qualifying aggravating circumstances. Nighttime, band, use of fire, craft, fraud or disguise and ignominy were alleged as generic aggravating circumstances only. The trial court cannot elevate the status of any of the generic aggravating circumstances and consider them as qualifying circumstances for the crime of murder. Moreover, nighttime is not a qualifying circumstance under Article 248 of the Revised Penal Code. 5.ID.; MURDER; IMPOSABLE PENALTY. It was an error for the trial court to state that "the penalty now for murder is reclusion temporal to reclusion perpetua." The penalty for murder remains to be reclusion temporal maximum to death. But in view of paragraph (1), Section 19, Article III of the Constitution prohibiting the imposition of the penalty of death, where death would have been the proper penalty instead of reclusion

perpetua.

6.CONSTITUTIONAL LAW; BILL OF RIGHTS; TRIAL IN ABSENTIA; WHEN AVAILABLE. The trial court further erred in holding that no penalty could be imposed on accused Engracio Valeriano in Criminal Case No. 4584 because he "is nowhere to be found, hence, not brought to the bar of justice, he being a fugitive or at large." The court ignored the fact that Engracio jumped bail after he had been arraigned, just before the retaking of evidence commenced. Paragraph (2), Section 14, Article III of the Constitution permits trial in absentia after the accused has been arraigned provided he has been duly notified of the trial and his failure to appear thereat is unjustified. One who jumps bail can never offer a justifiable reason for his non-appearance during the trial. Accordingly, after the trial in absentia, the court can render judgment in the case and promulgation may be made by simply recording the judgment in the criminal docket with a copy thereof served upon his counsel, provided that the notice requiring him to be present at the promulgation is served through his bondsmen or warden and counsel.

DECISION

DAVIDE, JR., J :
p

In two separate informations dated 28 February 1981 and filed with the then Court of First Instance, now Regional Trial Court, of Negros Oriental, Engracio Valeriano, Juanito Rismundo, Macario Acabal, Abundio Nahid and several John Does were charged with the crimes of Murder and Frustrated Murder. The accusatory portion in the information for murder, 1 docketed as Criminal Case No. 4585, reads as follows:
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"That sometime in the evening of the 28th of January, 1980, at Nagbinlod, Municipality of Sta. Catalina, Province of Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, including several 'John Does', conspiring and confederating with one another, with intent to kill, and with treachery and evident premeditation and being then armed with bolos and 'pinuti', did then and there willfully, unlawfully and feloniously attack, assault and use personal violence on the person of one Rizalina Apatan Silvano while the latter was about to leave her house and inflicting upon her injuries, to wit: 'right leg amputated below the knee; left leg hacked behind the knee; abdomen hacked with viscerae evacerated,' and did then and there set the house on fire while the aforementioned Rizalina Apatan Silvano was inside said house trying to escape therefrom, and allowing her to be burned inside said house which was burned to the ground, thereby causing upon said Rizalina Apatan Silvano her death and burning her beyond recognition. That the crime was committed with attendant aggravating circumstances of nighttime, by a band, by means of fire, craft [,] fraud or disguise employed; and that means have been employed which brought added ignominy to the natural effects of their acts.

Contrary to Article 248 in relation to Article 14 of the Revised Penal Code."

The information for frustrated murder, 2 docketed as Criminal Case No. 4584, alleged that in the evening of the 28th of January 1980 immediately after the commission of the murder charged in Criminal Case No. 4585 the accused hacked and struck Wilson Silvano, son of the victim in the murder case, with bladed weapons such as bolos and pinuti thereby inflicting upon him multiple hack wounds which would have produced the crime of murder were it not for the timely and able medical assistance given to him. It further alleged that the crime was committed with the qualifying circumstance of alevosia or treachery and the aggravating circumstances of nighttime, by a band, with the aid of armed men or persons who insure or afford impunity, and that craft, fraud or disguise were employed. At the arraignment, all the accused, except the John Does who remained unidentified and at large, pleaded not guilty in both cases. 3 Thereafter, upon agreement of the parties, joint trial was ordered by the trial court. 4 Trial on the merits was conducted by Branch 37 of the court a quo presided over by Judge Temistocles B. Diez. But on 16 May 1987, a fire gutted the building where Branch 37 was located and the records of these two cases were burned. The records were subsequently reconstituted upon petition of the prosecuting fiscal. 5 The testimonies of the witnesses were retaken, however, before it could commence, accused Engracio Valeriano jumped bail and the warrant for his arrest issued on 16 November 1987 was returned unserved because he could not be found. 6 An alias warrant for his arrest was issued on 26 June 1989, 7 but he remains at large up to the present. The evidence for the prosecution, as disclosed by the testimonies of its witnesses, is as follows: Antonio Silvano, then the barangay captain of Barangay Nagbinlud, Sta. Catalina, Negros Oriental, testified that at about 8:30 o'clock in the evening of 28 January 1980, or two nights before the 30 January 1980 local election, three men entered his yard. He recognized these men as Juanito Rismundo, his neighbor since 1964, Engracio Valeriano, also another neighbor, and Macario Acabal, his sub-barangay captain. 8 The three men called him, but he did not answer. Instead, his wife, Rizalina, did and she told them that he was attending a meeting "in the town." They did not believe her and replied that they just saw Antonio enter the house. Juanito asked her whether they (Antonio and Rizalina) were selling their votes because they will buy them but Rizalina answered in the negative. Juanito then said, "You choose, if you want something to happen to you or not [sic]." Another man, Abundio Nahid, asked Antonio to come down because they have something to tell him. As Antonio was about to kick the door open, he saw the men outside his house increasing in number and were armed with bladed weapons (pinuti). When he turned around, Antonio smelled gasoline and he saw Abundio Nahid set fire to his store located at the right side of his house. 9 He and his wife Rizalina escaped to the roof
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of the kitchen while the other members of their family who were in that house their son Elmer Silvano and eldest daughter Celsita Legaspina with her two children - escaped towards the sugarcane field which was about thirty meters away. When Rizalina fell from the roof to the floor, Macario Acabal, Juanito Rismundo and Engracio Valeriano hacked her. Each of them delivered a single blow with Abundio Nahid hitting her four times. 10 On cross-examination, Antonio Silvano admitted that, as barangay captain of Nagbinlud, Sta. Catalina, and as trusted man of Mrs. Clotilde Carballo in whose land his house is built, he supported the latter as the official candidate of the KBL for Mayor of Sta. Catalina, as well as the other candidates of her party for the local election of 30 January 1980, including Lorenzo Teves, the KBL's candidate for Governor of the Province of Negros Oriental. On the other hand, the accused supported and campaigned hard for Mrs. Carballo's opponent, a certain Jose Napigkit who was a candidate of the Pusyon Bisaya and who eventually won in the election. In his barrio, Mrs. Carballo lost heavily to Napigkit. 11 He further admitted that although he first reported the incident to the Philippine Constabulary (PC) which investigated him, he cannot remember if he was made to sign anything by the PC investigator. On 15 February 1980, he was again investigated but this time in the office of Governor Teves. There, he was made to subscribe and swear to an affidavit 12 that, as admitted by the prosecuting fiscal, was made the basis for the filing of the information. No statement by the PC was presented to the fiscal. 13 Visitacion Silvano, wife of Wilson who is the son of Antonio and Rizalina, testified that she heard the shouts for help of her mother-in-law 14 so she woke up Wilson. He then went down the house and turned on the headlights of the truck parked in front of their house facing his parents' house which was located three kilometers away. He ran towards the burning house of his parents but before he reached it, he was met by Engracio Valeriano and the latter hacked him. When he ran away, Engracio's companions, Juanito Rismundo, Macario Acabal and Abundio Nahid, chased him until he reached the sugarcane fields. 15 Visitacion stayed in her house and saw Engracio Valeriano hack her husband. She also saw the other accused-appellants in the vicinity of the house of her parents-in-law. 16 Dr. Avelino Torres, Chief of Hospital of Bayawan District Hospital, examined the body of Rizalina Silvano at 1:00 o'clock in the early morning of 29 January 1980 and was presented as a witness for the prosecution. According to him, the body was burned and charred beyond recognition but the parts thereof were still intact. It was still warm and smelt of freshly burned flesh. 17 He found the following "evidence of hacking:"
"(1)right leg amputated below the knee; (2)left leg hacked behind the knee; (3)abdomen hacked with viscerae eviscerated."
18

He concluded that the wounds were inflicted before the body was burned. 19 He also examined Wilson Silvano at about 1:30 o'clock that same morning and found seven hack wounds on Wilson. He testified at the trial that without medical attention, Wilson could have bled to death. 20 Atty. Castulo Caballes, then the Clerk of Court of the Court of First Instance of Negros Oriental, stated in court that on 7 February 1980, he was fetched from his house by someone from the office of Governor Lorenzo Teves and was asked to assist the Governor in taking the affidavit of Juanito Rismundo. 21 After the latter "admitted that was his affidavit," he "subscribed to him the oath and so [he] signed as a notary public." 22 In this affidavit, Rismundo implicated Jose Napigkit as having ordered the kidnapping and killing of KBL leaders and the burning of their houses. Also on 7 February 1980, according to Atty. Elson Bustamante, then Assistant Provincial Attorney, he was called by Governor Teves to assist in the taking of the statements also of Juanito Rismundo. The Governor himself
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propounded the questions to Juanito who was accompanied by the son of Mrs. Carballo and a PC soldier named Lodove. Bustamante heard Mrs. Carballo's son tell the Governor that Juanito went to their (Carballos') house and "confessed" to a certain incident which happened in Sta. Catalina on 28 January 1980, and since there were PC soldiers still assigned to the Carballos' residence at that time, they brought Juanito to Governor Teves, the Provincial Chairman of the KBL. 23 Another prosecution witness, Jufelinito Pareja, then Provincial Fiscal of Negros Oriental, told the court that on 18 February 1980, accused Macario Acabal was brought to his office. Acabal subscribed and swore to a statement before him. The latter first read it to Acabal and after ascertaining that Acabal voluntarily executed the statement, he administered the oath to said affiant. 24 This sworn statement also implicated Jose Napigkit. Accused-appellants put up the defense of alibi. They allege that they were in different places when the incident in question occurred. Macario Acabal was in sitio Canggabok, Nagbinlud, Sta. Catalina, attending the wake for deceased barangay captain Filomeno Cumahig. 25 On 29 January 1980, he was arrested by military men in the house of his aunt at the breakwater of Poblacion Sta. Catalina. One of them struck him three times on his left and right chest with an armalite rifle. Thereafter, he was loaded into a pick-up truck owned by Mrs. Clotilde Carballo and taken to her house. On 7 February 1980, he was brought to Bayawan and was again manhandled, causing injuries to him which required treatment at the Bayawan District Hospital, as certified by Dr. Torres. From the hospital, he was brought to the municipal jail of Bayawan and then to the Provincial Jail in Dumaguete City. Later, he was taken to the office of the Governor and was forced to sign an affidavit (Exhibit "F"). Prior to 28 January 1989, he did not know the other accused in this case. 26 Juanito Rismundo was in Sitio Dinapo, Bgy. Alangilan, Sta. Catalina, graining corn in the house of Alfreda Ortega. 27 On 6 February 1980, he met a PC soldier named Boy Gudobe (Lodove), who was then stationed in Bgy. Kawitan, Sta. Catalina, accompanied by Diosdado Silvano, grandson of Antonio Silvano, at the Sta. Catalina market. Gudobe allegedly hit him and, together with Diosdado and a Boy Carballo, the son of Mrs. Clotilde Carballo, brought him to the Capitol Building in Dumaguete City. While there, he averred that he was forced by a lawyer to sign an affidavit (Exhibit "D") in the office of the Governor after he was struck with the handle of a revolver at the back of his head. 28

Abundio Nahid was in his house in Sugong Milagros, Sta. Catalina, Negros Oriental, about 20 kilometers from Nagbinlud. He charged that Wilson Silvano testified against him because the Silvanos supported Mrs. Carballo of the KBL while he led the supporters of Mrs. Carballo's opponent Jose Napigkit of the Pusyon Bisaya. 29 The prosecution presented on rebuttal Mrs. Clotilde Carballo and Fiscal Wilfredo Salmin. The former testified that on 7 February 1980 accused Juanito Rismundo voluntarily surrendered to her at her residence in Sta. Catalina and told her that he wanted to see the Governor. She then asked her son to bring Juanito to Dumaguete City. 30 Fiscal Wilfredo Salmin belied the claim of Acabal that he (Salmin) went to the Provincial Jail on 10 February 1980 and forced Acabal to sign a document. He alleged that on 16 February 1980, not on 10 February 1980 as claimed by Acabal, Acabal came to his office at the Provincial Attorney's Office and executed a sworn statement, but Acabal did not sign the same upon the advice of Atty. Geminiano Eleccion. 31 After the completion of the re-taking of the testimonies of the witnesses in Branch 37, Criminal Cases Nos. 4584 and 4585 were re-raffled to Branch 33 of the trial court, then presided over by Judge Pacifico S. Bulado. 32

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The decision 33 of the trial court, per Judge Pacifico S. Bulado, dated 31 October 1991 but promulgated on 20 December 1991, contained no specific dispositive portion. Its rulings are found in the last two paragraphs which read as follows:
"The elements of murder in this case, Criminal Case No. 4585 for the killing of Rizalina Apatan-Silvano having been proved by the prosecution beyond doubt, the accused JUANITO RISMUNDO, MACARIO ACABAL and ABUNDIO NAHID, considering the attendant qualifying aggravating circumstances of nighttime, use of fire by burning the house of victim Rizalina Apatan-Silvano in order to forcibly drive her out of her house and hack her to death, the abuse of superior strength, the penalty impossable [sic] here will be in its maximum degree, that is reclusion perpetua taking into account Article 248 of the Revised Penal Code, the penalty now for murder is Reclusion Temporal to Reclusion Perpetua, and for all the accused to indemnify the heirs of the victim the sum of Thirty Thousand (P30,000.00) Pesos since this case occurred [sic] in 1980. For the wounding of the victim Wilson A. Silvano, this Court believes that simple frustrated homicide only is committed by the accused Engracio Valeriano only. But since the person who actually inflicted the injuries of victim Wilson Silvano, accused Engracio Valeriano only is nowhere to be found, hence, not brought to the bar of justice, he being a fugitive or at large, no penalty could be imposed on him since he is beyond the jurisdiction of this court to reach. All the other two (2) accused, JUANITO RISMUNDO and ABUNDIO NAHID are hereby ordered and declared absolved from any criminal responsibility from frustrated homicide. The bail bond put up by the three accused, namely: Juanito Rismundo, Macario Acabal and Abundio Nahid are hereby ordered cancelled and let a warrant of arrest be issued for their immediate confinement." 34

The trial court rejected the defense of alibi because "[i]t was not shown by plausible and convincing evidence . . . that it was physically impossible for them to go to the scene of the crime and to return to the place of residence (People vs. Solis, 182 SCRA 182)." Upon the other hand, it ruled that "the prosecution witnesses . . . clearly, positively identified them as the culprits, they being neighbors for a long time and co-workers." 35 Immediately after the promulgation of the decision, counsel for the accused manifested in open court their intention to appeal the decision. On the same day, counsel for accused Abundio Nahid filed a notice of appeal with a motion for the immediate release of his client, which was opposed by the prosecution. The court a quodenied the motion also on the same day. 36 On 31 December 1991, all the convicted accused filed a motion for the reconsideration of the denial of the motion for immediate release. The later motion was denied on 3 January 1992. A day earlier or on 2 January 1992, accused Macario Acabal and Juanito Rismundo had filed their notice of appeal. 37 The records of both cases were transmitted to us and we accepted the appeal on 26 February 1992. The accused-appellants raise in their Brief
38

the following assignment of errors:

"I.THAT THE HONORABLE LOWER COURT ERRED IN CANCELLING THE BAIL BONDS OF ACCUSEDAPPELLANTS AND ORDERING THEIR IMMEDIATE ARRESTS WHEN THE ONLY PENALTY IMPOSED BY IT FOR ALL THE ACCUSED IS "TO INDEMNIFY THE HEIRS OF THE VICTIM THE SUM OF THIRTY THOUSAND (P30,000.00) PESOS. II.THE HONORABLE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AS DEFINED AND PUNISHED UNDER ARTICLE 248 OF THE REVISED PENAL CODE. III.THE HONORABLE COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION WITNESSES (ANTONIO SILVANO, WILSON SILVANO, AND VISITACION SILVANO), HUSBAND AND CHILDREN, RESPECTIVELY, OF THE DECEASED RIZALINA APATAN-SILVANO, HAVE POSITIVELY IDENTIFIED THE ACCUSED AS THE CULPRITS WHEN ONLY ANTONIO SILVANO TESTIFIED AS TO WHO ALLEGEDLY
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KILLED HIS WIFE, AND WHILE OTHER TWO (2) WITNESSES ONLY TESTIFIED AS TO THE WOUNDING OF WILSON SILVANO BY ENGRACIO VALERIANO AND ALL THESE WITNESSES WERE VERY VOCAL IN THEIR SILENCE AS TO THE IDENTITIES OF THE ACCUSED FOR A LONG TIME. IV.AND, THAT THE HONORABLE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING ALL THE ACCUSED FOR INSUFFICIENCY OF EVIDENCE AND/OR AT LEAST ON THE HYPOTHESIS OF REASONABLE DOUBT."

In support of the first assigned error, they claim that: (a) the trial court could not have ordered the cancellation of their bail bonds and their arrest and immediate confinement because the only penalty it imposed on them was "to indemnify the heirs of the victim the sum of thirty thousand (P30,000.00) pesos" without imposing any sentence; it merely suggested that ". . . the penalty impossable [sic] here will be in its maximum degree, that is reclusion perpetua . . ."; and (b) since they already perfected their appeal immediately after the promulgation of the sentence, the trial court lost jurisdiction over the case and could not validly cancel their bail bonds and order their arrest. 39 In its Brief, 40 the Appellee asserts that the judgment appealed from is valid and enforceable. Although the word "impossable" [sic] is "imprecise," it is clear that what the judge actually meant was that the penalty of reclusion perpetua was what the law allowed or mandated him to impose. As to the grant of bail, since they committed a capital offense and the court had already found that the evidence of their guilt is strong, the accused-appellants should not be entitled to bail. We find that the decision substantially complies with the Rules of Court on judgments as it did sentence the accused-appellants to reclusion perpetua. A judgment of conviction shall state (a) the legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission, if there are any; (b) the participation of the accused in the commission of the offense, whether as principal, accomplice or accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil liability or damages caused by the wrongful act to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved or waived. 41 As we earlier observed, the challenged decision does not contain the usual dispositive portion. The last two paragraphs of the decision merely embody its conclusions that: (1) the appellants are guilty of murder, and (2) taking into account the "attendant qualifying aggravating circumstances of nighttime, use of fire by burning the house of the victim, . . . the abuse of superior strength," "the penalty imposable . . . will be in its maximum degree, that is reclusion perpetua" considering that "the penalty now for murder is reclusion temporal to reclusion perpetua." While the decision leaves much to be desired, it nevertheless contains the court's findings of facts, the law applicable to the set of facts and what it believes to be the imposable penalty under the law, that is, reclusion perpetua which is actually the penalty imposed on the accused-appellants. It is obvious that they clearly understood that they were found guilty beyond reasonable doubt of the crime of murder and were sentenced to suffer the penalty ofreclusion perpetua in Criminal Case No. 4585. Were it otherwise, they would not have declared in open court their intention to appeal immediately after the promulgation of the decision and would not have subsequently filed their written notice of appeal. Accused-appellants contend that the trial court did not impose any sentence and so cannot cancel anymore their bail bonds and direct their arrest and immediate commitment because it already lost jurisdiction over their persons when they perfected their appeal. In connection with Section 3, Rule 114 of the Revised Rules of Court on bail, we ruled in People vs. Cortez 42 that:
". . . an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, and is thereafter convicted of the offense charged, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong."
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We have already said that the decision did impose the penalty of reclusion perpetua. Since the order cancelling their bail bonds and directing their arrest is contained in the decision itself, it is apparent that their abovementioned contention is highly illogical. At the time the order in question was made, the trial court still had jurisdiction over the persons of the accused-appellants. For too obvious reasons, their notices of appeal which they claim have put an end to the trial court's jurisdiction over them could not have been filed before the promulgation of the decision. The order is therefore valid and enforceable. Also, it may be recalled that the accused-appellants had earlier raised this issue before us in a petition for habeas corpus dated 16 January 1992 and docketed as G.R. Nos. 103602-03. We dismissed that petition on 17 February 1992 for failure to comply with requirement no. (2) of Revised Circular No. 1-88 and Circular No. 28-91 on forum shopping. 43 Their motion for reconsideration was denied on 27 May 1993.

The trial court, however, erred in considering nighttime, use of fire and abuse of superior strength as "attendant qualifying aggravating circumstances." The information in Criminal Case No. 4585 alleged only treachery and evident premeditation as qualifying aggravating circumstances. Nighttime, band, use of fire, craft, fraud or disguise and ignominy were alleged as generic aggravating circumstances only. The trial court cannot elevate the status of any of the generic aggravating circumstances and consider them as qualifying circumstances for the crime of murder. Moreover, nighttime is not a qualifying circumstance under Article 248 of the Revised Penal Code. It was likewise an error for the trial court to state that "the penalty now for murder is reclusion temporal to reclusion perpetua." The penalty for murder remains to bereclusion temporal maximum to death. But in view of paragraph (1), Section 19, Article III of the Constitution prohibiting the imposition of the penalty of death, where death would have been the proper penalty in a case, the court must instead impose the penalty of reclusion perpetua. 44 The trial court further erred in holding that no penalty could be imposed on accused Engracio Valeriano in Criminal Case No. 4584 because he "is nowhere to be found, hence, not brought to the bar of justice, he being a fugitive or at large." The court ignored the fact that Engracio jumped bail after he had been arraigned, just before the retaking of evidence commenced. Paragraph (2), Section 14, Article III of the Constitution permits trial in absentia after the accused has been arraigned provided he has been duly notified of the trial and his failure to appear thereat is unjustified. One who jumps bail can never offer a justifiable reason for his nonappearance during the trial. Accordingly, after the trial in absentia, the court can render judgment in the case 45 and promulgation may be made by simply recording the judgment in the criminal docket with a copy thereof served upon his counsel, provided that the notice requiring him to be present at the promulgation is served through his bondsmen or warden and counsel. 46 Having disposed of the first issue raised by the accused-appellants, we now come to the second, third and fourth assigned errors which shall be discussed jointly, considering that they are interrelated and deal with the question of whether or not the guilt of the accused-appellants was proven beyond reasonable doubt. The accused-appellants contend that the trial court erred in relying on the testimonies of prosecution witnesses Antonio Silvano, Wilson Silvano and Visitacion Silvano and in concluding that they clearly and positively identified the accused-appellants as the culprits. According to them, only Antonio Silvano testified that he saw the accused burn his house, kill his wife Rizalina and drag her into the fire. Neither Visitacion Silvano nor Wilson Silvano testified that they saw what occurred in the elder Silvanos' house. But even the testimony of Antonio Silvano is not reliable because it lacks truthfulness and validity. They singled out his testimony that while the fire was raging, his wife told him to save himself as she will also save herself, then the direction of the wind changed and he jumped from the roof of the house into the bushes. They concluded that he could not have seen who killed his wife. 47 Also, the ruling that conclusions and findings of the lower court are entitled to great weight is not applicable in this case because the judge who heard the testimonies of the witnesses in its entirety was not the same judge who penned the decision. They further stressed the delay incurred by Antonio
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in reporting the crime to the authorities. The crime was committed on 28 January 1980 but he reported it to the Office of the Governor of Negros Oriental in Dumaguete City only on 18 February 1980 or some 21 days after its commission. Finally, they maintain that they have sufficiently established their defense of alibi. On the other hand, the Appellee seeks the affirmance of the judgment convicting the accused. The Appellee reasons out that the accused-appellants were positively identified by prosecution witness Antonio Silvano; and that even while it is true that only Antonio Silvano saw the murderers, Visitacion and Wilson Silvano testified on the presence of the accused-appellants at the scene of the crime. As the Appellee admits, however, the most damning testimony against the accused-appellants in this case is only that of Antonio Silvano who claimed that he actually saw them hack and kill his wife. To us, whether such testimony could be relied upon is altogether a different matter. Although it is a settled rule that the findings of the trial court on the credibility of witnesses should be given the highest respect because it had the advantage of observing the demeanor of the witnesses and can discern if such witnesses are telling the truth or lying through their teeth, 48 we cannot rely on that rule in this appeal because the judge who heard the testimonies of the witnesses was not the same judge who penned the decision. Judge Temistocles Diez of Branch 37 received and heard the testimonies of the witnesses but it was Judge Pacifico S. Bulado who rendered the decision. The latter had no opportunity to observe the witnesses' deportment and manner of testifying, which are important considerations in assessing credibility. 49 We have carefully read the transcripts of the testimony of Antonio Silvano. We cannot give him full faith and credit for the following reasons: 1.Although he testified on cross-examination that he first reported the incident to and was investigated by the PC, it is clear to this Court that it was only on 15 February 1980, or on the eighteenth day after the incident that he was investigated at the office of the Governor. Being the barangay captain of Nagbinlud, the owner of a house that was intentionally set on fire, the father of the man who was hacked several times and almost died, and the husband of the murder victim whose body was charred beyond recognition, the compelling call of duty and the mournful cry for justice cannot tolerate any delay in reporting the incident to the proper authorities. The prosecution was hard put for an explanation for this delay; it did not even attempt to make any. If Antonio Silvano could offer no explanation therefor, it could only mean that he was either unable to identify the real perpetrators of the crime against his family or he was afraid to do so. For whichever reason, such failure only bolsters the claim of the defense that the crime was committed by the "Salvatore" group whose operations Antonio admitted he was very much aware of, thus:
"QAs such barangay captain you remember that in the month of January, 1980 there was such a group of armed men referred to or commonly called as Salvatore, is that correct that used to roam around in the interior part of Sta. Catalina? AYes, that is true. QAnd this group of men used to plunder or steal from houses, kill certain persons and burn also houses, is that correct? AYes, that is true. QAnd this group of men known as 'Salvatore' continued to exist even after January 1980? AThat was only up to 1980. QYes, but after January 1980 this 'Salvatore' group continued to exist for sometime up to or beyond the year 1980, is that correct?

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AThey were only about 2 weeks because they were arrested by the authorities. QThat is two weeks after January 28, 1980? AYes."
50

Furthermore, it is doubtful whether Antonio did report the incident to the PC as no PC personnel corroborated him thereon and according to him, he did not sign any statement during the said investigation, which is unusual. The fiscal himself admitted in open court that no statement taken by the PC was submitted to his office. 51If indeed Antonio was investigated by the PC, the investigator should have formally taken his statement in view of its importance. As no such statement was proved to exist, it is logical to presume that Antonio did not or could not disclose to the investigator the names of the perpetrators. 2.Antonio admitted on cross-examination that he had no quarrel and misunderstanding 52 or grudges 53 whatsoever with the accused-appellants. If that were so, it is odd that he could not explain why he, a barangay captain who was expected to attend to the requests and problems of his constituents, deliberately chose not to respond to the alleged call of the accused-appellants on the night of the incident and instead allowed his wife to lie to them by saying that he was attending a meeting. Again, the only plausible explanation for his behavior was that the men who came belonged to the "Salvatore" group and this terrified him, for he knew that the group had been roaming around, killing people and burning houses in his area. 3.Also, on cross-examination, Antonio affirmed as true the contents of his sworn statement 54 taken two weeks after the incident. In it, he failed to state the fact that he witnessed the killing of his wife and to identify her killers. 55 Since his sworn statement was precisely taken to obtain from him vital facts relative to the incident, more specifically on the killing of his wife, and considering that he had already stated therein that he saw the accused-appellants, it is contrary to human nature and inconsistent with experience for him to fail to identify them as the killers of his wife, if such is the fact. It has been said that where the omission in the affidavit refers to a very important detail such that the affiant would not have failed to mention it, the omission could affect the affiant's credibility. 56 Verily, it was obvious from his answer to Question No. 16 of the investigator that he had no opportunity to identify the killers:
"QQuestion No. 16, 'Q-What else did you do?', and you answered, 'A-My wife told me to just save myself because she will also save herself. Thereafter the wind changed it(s) course and (the) fire grew big and because of this, I had the occasion to jumped (sic) from our house and thereafter I ran towards the bushes.' . . .

AYes, sir, that is true. QHow far is that bush to which you ran from your house which was burning? AIt is about thirty (30) meters because it is a sugarcane field."
57

4.Antonio categorically declared that Engracio Valeriano, Juanito Rismundo and Macario Acabal each hacked her once hitting her on the forehead, right leg and left arm, respectively, while Abundio Nahid hacked her four times, hitting her at the forehead, left arm, right leg and stomach. 58 In other words, from his testimony, his wife sustained seven wounds. Yet, the medical evidence belies this. Per the findings of Dr. Avelino Torres, 59 there were only three "evidence" of hacking, viz.: at the right leg, left leg and abdomen. 5.Nowhere in his sworn statement did Antonio mention the name of accused-appellant Abundio Nahid. If in fact he saw the latter who he claimed in his direct testimony hacked his wife four times, Nahid's name would have occupied a prominent place in his sworn statement.
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The testimony of the other witnesses for the prosecution likewise do not provide sufficient proof of the accused-appellants' guilt. Visitacion Silvano's testimony that she saw and identified the accused-appellants at the scene of the crime taxes the imagination. It was humanly impossible for her to see the accused-appellants even if she were aided by the light from the truck as she herself said that she was then in her house, three kilometers away from the house of her parents-in-law. Wilson Silvano did not testify at all that he saw the persons who hacked and killed his mother. In conclusion, because of reasonable doubt as to their guilt, the accused-appellants must be acquitted. Every accused is presumed innocent until the contrary is proved; that presumption is solemnly guaranteed by the Bill of Rights. The contrary requires proof beyond reasonable doubt, or that degree of proof which produces conviction in an unprejudiced mind. Short of this, it is not only the right of the accused to be freed; it is even the constitutional duty of the court to acquit him. 60Accordingly, unless the prosecution discharges its burden of proving the guilt of the accused-appellants beyond reasonable doubt, they need not even offer evidence in their behalf. 61 The weakness of their defense of alibi thus becomes irrelevant. WHEREFORE, the challenged Decision of Branch 33 of the Regional Trial Court of Negros Oriental in Criminal Case No. 4585 is hereby REVERSED. Accused-appellants MACARIO ACABAL, JUANITO RISMUNDO and ABUNDIO NAHID are ACQUITTED on ground of reasonable doubt, and their immediate release from confinement is hereby ordered, unless other lawful and valid grounds exist for their further detention. The trial court is directed to render judgment against accused-appellant ENGRACIO VALERIANO in Criminal Case No. 4584. No costs. SO ORDERED.

Cruz, Bellosillo and Quiason, JJ ., concur. Grio-Aquino, J ., is on leave.

[G.R. No. L-12990. January 21, 1918.] THE UNITED STATES, plaintiff-appellee, vs. LAZARO JAVIER ET AL., defendantsappellants.

Modesto Castillo, Eusebio Lopez and G.N. Trinidad for appellants. Acting Attorney-General Paredes for appellee.
SYLLABUS 1.THEFT OF LARGE CATTLE; PROOF. A carabao, seen in the possession of the accused and later found tied in front of a house, was identified as the carabao, which had been taken from the corral of Doroteo Natividad. Held: That the accused having offered no satisfactory explanation for their possession of the carabao, they can properly be convicted of the crime of theft. 2.CONSTITUTIONAL LAW; CONFRONTATION OF WITNESSES. There are two principal reasons for the provision of the Philippine Bill of Rights which says: "That in all criminal prosecutions the accused shall
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enjoy the right . . . to meet the witnesses face to face." The first reason is the right of cross-examination, and the second is that the tribunal may have before it the department and appearance of the witness while testifying. 3.ID.; ID. Exhibit B of the prosecution is the sworn statement before the justice of the peace of the municipality of Santo Tomas, Province of Batangas, of the sergeant, now deceased, who was the leader of the patrol of the Constabulary which encountered the accused, and whose signature was identified. Held: That Exhibit B was improperly received in evidence in the lower court.

DECISION

MALCOLM, J :
p

We find the proven facts as brought out in the trial of this case to be as follows. Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao valued at P150 in his corral situated in the barrio of Trapiche, municipality of Tananuan, Province of Batangas. On the following morning when he went to look after the animal, he found the gate to the corral open and that the carabao had disappeared. He reported the matter to the Constabulary, and a patrol of the Constabulary under the leadership of sergeant Presa, now deceased, on the 20th of November following, encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de Chavez leading a carabao. When the ladrones saw the Constabulary, they scattered in all directions. On the following day, the Constabulary found this carabao tied in front of the house of one Pedro Monterola in the barrio of Santa Clara, municipality of San Pablo. The carabao was identified by Doroteo Natividad as the one which had been taken from his corral on the night of October 22, 1915, and by the Constabulary as the one seen in the possession of the accused. As corroborative of such evidence, we have the well-known legal principle, which as applied to cases of this character is that, although the persons who unlawfully took a certain carabao are not recognized at the time, and their identify remains entirely unknown, nevertheless, if the stolen animal is found in the possession of the accused shortly after the commission of the crime and they make no satisfactory explanation of such possession they may be properly convicted of the crime. (See U.S. vs. Divino [1911], 18 Phil. 425.) In the present instance, the attempt of the accused to insinuate that one of the Constabulary soldiers testified against them falsely because of enmity is hardly believable. The foregoing statement of the facts and the law disposes of all but one assignment of error, namely, that the lower court erred in admitting Exhibit B of the prosecution as evidence. Exhibit B is the sworn statement of sergeant Presca, now deceased, whose signature was identified, before the justice of the peace of the municipality of Santo Tomas, Province of Batangas. Appellant's argument is predicated on the provision of the Philippine Bill of Rights which says, "That in all criminal prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face," and the provision of the Code of Criminal Procedure, section 15 (5), which say that "In all criminal prosecutions the defendant shall be entitled: . . . to be confronted at the trial by and to cross-examine the witnesses against him." With reference to the clause of the Bill of Rights, which we have quoted, Justice Day said in a case of Philippine origin (Dowdell vs. U.S. [1911], 221 U.S. 325) that it "intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination. It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of crossexamination." In other words, confrontation is essential because cross-examination is essential. A second reason for the prohibition is that a tribunal may have before it the deportment and appearance of the witness while testifying. (U.S. vs. Anastasio [1906], 6 Phil., 413.) The Supreme Court of the Philippine Islands has applied this constitutional provision on behalf of accused persons in a number of cases. (See for
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example U.S. vs. Tanjuanco [1902], 1 Phil., 374; U.S. vs. Bello [1908, 12 Phil. 87.) It is for us now to determine whether the present facts entitle the accused to the protection of the Bill of Rights or whether the facts fall under some exception thereto. The sworn statement of Presa was not made by question and answer under circumstances which gave the defense an opportunity to cross-examine the witness. The proviso of the Code of Criminal Procedure as to confrontation is therefore inapplicable. Presa's statement again is not the testimony of a witness deceased, given in a former action between the same relating to the same matter. Consequently, the exception provided by section 298. No. 8, of the Code of Civil Procedure and relied upon by the prosecution in the lower court is also inapplicable. Nor is the statement of Presca a dying declaration or a deposition in a former trial or shown to be a part of the preliminary examination. Under these circumstances, not to burden the opinion with an extensive citation of authorities, we can rely on the old and historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div]) occurring in the year 1696. It Bristol under oath, but not in P's presence, was offered. It was objected that B, being dead, the defendant had lost all opportunity of cross-examining him. The King's Bench consulted with the Common Pleas, and "it was the opinion of both courts that these depositions should not be given in evidence, the defendant not being present when they were taken before the Mayor and so had lost the benefit of a cross-examination." Although we are faced with the alternative of being unable to utilize the statements of the witness now deceased, yet if there has been no opportunity for cross-examination and the case is not one coming within one of the exceptions, the mere necessity alone of accepting the statement will not suffice. In fine, Exhibit B was improperly received in evidence in the lower court. With such a resolution of this question, we could, as has been done in other cases, further find this to be versible error and remand the case for a new trial. We are convinced, however, that this would gain the accused nothing except delay for the testimony of the owner of the carabao and of the two Constabulary soldiers, rebutted by no reasonable evidence on behalf of the accused, is deemed sufficient to prove guilt beyond a reasonable doubt. The facts come under article 518, No. 3, connection with article 520, as amended, of the Penal Code. Accordingly the defendants and appellants are each sentenced to four years, two months, and one day of presidio correccional, with the accessory penalties provided by law, and to pay one-third part of the costs of both instances; the carabao shall be returned to Doroteo Natividad, if this has not already been done. So ordered.

Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avancea, JJ., concur.

[G.R. Nos. L-75511-14. March 16, 1987.] AGUSTIN V. TALINO, petitioner, vs. THE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

DECISION

CRUZ, J :
p

It is settled that if a separate trial is allowed to one of two or more defendants, his testimony therein imputing guilt to any of the co-accused is not admissible against the latter who was not able to cross-examine him. 1 The issue in this case is whether or not such testimony was considered by the respondent court against the petitioner, who claims that it was in fact the sole basis of his conviction.
prLL

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The petitioner, along with several others, were charged in four separate informations with estafa through falsification of public documents for having allegedly conspired to defraud the government in the total amount of P26,523.00, representing the cost of repairs claimed to have been undertaken, but actually not needed and never made, on four government vehicles, through falsification of the supporting papers to authorize the illegal payments 2 Docketed as CC Nos. 6681, 6682, 6683 and 6684, these cases were tried jointly for all the accused until after the prosecution had rested, when Genaro Basilio, Alejandro Macadangdang and petitioner Talino asked for separate trials, which were allowed. 3 They then presented their evidence at such trials, while the other accused continued defending themselves in the original proceedings, at which one of them, Pio Ulat, gave damaging testimony against the petitioner, relating in detail his participation in the questioned transactions. 4 In due time, the Sandiganbayan rendered its decision in all the four cases finding Talino, Basilio, Macadangdang, Ulat and Renato Valdez guilty beyond reasonable doubt of the crimes charged while absolving the other defendants for insufficient evidence. This decision is now challenged by the petitioner on the ground that it violates his right of confrontation as guaranteed by the Constitution. In its decision, the respondent court
**

makes the following remarks about the separate trial:

"The peculiarity of the trial of these cases is the fact that We allowed, upon their petition, separate trials for the accused Basilio and Talino and Macadangdang. This being the case, We can only consider, in deciding these cases as against them, the evidence for the prosecution as well as their own evidence. Evidence offered by the other accused can not be taken up. "It would really have been simpler had there been no separate trial because the accused Pio B. Ulat said so many incriminatory things against the other accused when he took the stand in his own defense. But because Basilio, Talino and Macadangdang were granted separate trials and they did not cross examine Ulat because, as a matter of fact, they were not even required to be present when the other accused were presenting their defenses, the latter's testimonies can not now be considered against said three accused. "We cannot understand why, after it had heard the long and sordid story related by Ulat on the stand, the prosecution did not endeavor to call Ulat and put him on the stand as part of its rebuttal evidence. Had this been done, there would have been no impediment to the consideration of Ulat's testimony against all the accused." 5

The grant of a separate trial rests in the sound discretion of the court and is not a matter of right to the accused, especially where, as in this case, it is sought after the presentation of the evidence of the prosecution. 6 While it is true that Rule 119, Section 8, of the Rules of Court does not specify when the motion for such a trial should be filed, we have held in several cases that this should be done before the prosecution commences presenting its evidence, although, as an exception, the motion may be granted later, even after the prosecution shall have rested, where there appears to be an antagonism in the respective defenses of the accused. 7 In such an event, the evidence in chief of the prosecution shall remain on record against all the accused, with right of rebuttal on the part of the fiscal in the separate trial of the other accused. 8 The rule in every case is that the trial court should exercise the utmost circumspection in granting a motion for separate trial, allowing the same only after a thorough study of the claimed justification therefor, if only to avoid the serious difficulties that may arise, such as the one encountered and regretted by the respondent court, in according the accused the right of confrontation. The right of confrontation is one of the fundamental rights guaranteed by the Constitution 9 to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross-examine them on their charges. No accusation is permitted to be made against his back or in his absence nor is any derogatory information accepted if it is made anonymously, as in poison pen letters sent by persons who cannot stand by their libels and must shroud their spite in secrecy. That is also the reason why ex parte affidavits are not permitted unless the affiant is presented in court 10 and hearsay is barred save only in the cases allowed by the Rules of Court, like the dying declaration. 11
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In United States v. Javier,

12

this Court emphasized:

". . . With reference to the clause of the Bill of Rights, which we have quoted, Justice Day said in a case of Philippine origin (Dowdell v. U.S. [1911], 221 U.S. 325) that it `intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial who give their testimony in his presence, and give to the accused an opportunity of cross-examination. It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination.' In other words, confrontation is essential because cross-examination is essential. A second reason for the prohibition is that a tribunal may have before it the deportment and appearance of the witness while testifying. (U.S. v. Anastacio [1906], 6 Phil. 413.) The Supreme Court of the Philippine Islands has applied this constitutional provision on behalf of accused persons in a number of cases. (See for example U.S. v. Tanjuanco [1902], 1 Phil., 374; U.S. v. Bello [1908], 11 Phil., 526; U.S. v. De la Cruz [1908], 12 Phil. 87.) . . . ."

We have carefully studied the decision under challenge and find that the respondent court did not consider the testimony given by Ulat in convicting the petitioner. The part of that decision finding Talino guilty made no mention of Ulat at all but confined itself to the petitioner's own acts in approving the questioned vouchers as proof of his complicity in the plot to swindle the government. Thus:
LexLib

"If, as claimed, by Macadangdang, he had no knowledge nor participation in the conspiracy to defraud, he would have questioned this obvious irregularity. He would have asked whoever was following up the vouchers why two biddings were conducted, why the awards to `D'Alfenor' were cancelled, when the latter were cancelled, and when the new bidding was made. "The very same case is true as regards the accused Agustin Talino. While his duty to initial or sign the vouchers as regards the adequacy of funds may have been ministerial, his failure to observe the obvious irregularity is clear evidence of his complicity in the conspiracy. "Talino declared that in the morning of May 23, 1980, four vouchers (including three made out in favor of `D'Alfenor Repair Shop') were brought to him for his certificate as regards the availability of funds. He had signed all the four vouchers. In the afternoon of the same day, three other vouchers were also presented to him for certification as to funds these three were in substitution of Exhibits `A', `B' and `C' which he had earlier signed but which, according to Talino, were disallowed and cancelled. Talino claims that he had examined the supporting documents of the last three vouchers the RIV, the bids signed by the repair shops and the abstract of bids. If what Talino says is true, at least the abstract of bids submitted in the morning, where `D'Alfenor Motor Shop' appears to be the lowest bidder, must have been different from the ones submitted together with vouchers in the afternoon. This would have raised his suspicions as to why these last three abstracts could be dated as they were (May 18, May 15 and May 11, respectively) when it was only that morning that the abstracts containing the name of `D'Alfenor Motor Shop' were submitted. The fact that he readily approved the substitute vouchers with the substitute winning bidders is a clear indication that he knew he was facilitating an irregular transaction. "It is our view that the evidence on record has established beyond doubt the participation of both Agustin Talino and Alejandro Macadangdang in all the four felonies charged in the informations." 13

The petitioner makes much of the statement in the Comment that the petitioner's guilt could be deduced "from the evidence for the prosecution and from the testimony of Pio Ulat," 14 but that was not the respondent court speaking. That was the Solicitor General's analysis. As far as the Sandiganbayan was concerned, the said testimony was inadmissible against the petitioner because he "did not cross examine Ulat," and was not even required to be present when the latter was testifying. In fact, the respondent court even expressed the wish that Ulat had been presented as rebuttal witness in the separate trial of the petitioner as there would then have been "no impediment to the use of his testimony against the other accused." As this was not done, the trial court could not and did not consider Ulat's testimony in determining the petitioner' s part in the offenses.
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The factual findings of the respondent court being supported by substantial evidence other than Ulat's testimony, we see no reason to disturb them. It is futile for the petitioner to invoke his constitutional presumption of innocence because his guilt has in the view of the trial court been established beyond reasonable doubt, and we agree. WHEREFORE, the judgment appealed from is AFFIRMED, with costs against the petitioner.
LLphil

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Melencio-Herrera and Feliciano, JJ., on official leave. Alampay, J., took no part, was on leave during deliberation.

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